|Frauds on the Government|
|s. 121 of the Crim. Code|
|Election / Plea|
|Crown Election||Hybrid / Indictable|
Sup. Court w/ Jury (*)
|2 years less a day incarceration|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||5 years incarceration|
Offences relating to frauds on the government are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".
|Crown Election||Defence Election
|s. 121 [frauds on the government]||Hybrid Offence(s)||N/A||(under 14 years max)|
Offences under s. 121 [frauds on the government] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
When charged under s. 121 [frauds on the government], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 121 [frauds on the government]||(under 10 years max)|
Offences under s. 121 [frauds on the government] are designated offences eligible for wiretap under s. 183.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|121(1)(a)||"..., contrary to section 121(1) of the Criminal Code.|
|121(1)(f)||"..., contrary to section 121(1) of the Criminal Code.|
Proof of the Offence
Proving frauds on the government - Participating in Bribery of an Official under s. 121(1)(a) should include:
Proving frauds on the government - Conferring Benefits on Employee or Official Without Consent under s. 121(1)(b) should include:
Proving frauds on the government - Employee or Official Requesting Benefits Without Consent under s. 121(1)(c) should include:
Proving frauds on the government - influence peddling under s. 121(1)(d) should include:
Proving frauds on the government - Bribery of a Minister under s. 121(1)(e) should include:
Proving frauds on the government - Participating in Bribery Relating to Tenders under s. 121(1)(f) should include:
Proving Contractor subscribing to election fund under s. 121(2) should include:
Interpretation of the Offence
Participating in Bribery of an Official - s. 121(1)(a)
Conferring Benefits on Employee or Official Without Consent - s. 121(1)(b)
Employee or Official Requesting Benefits Without Consent - s. 121(1)(c)
- Completion of Offence Under s. 121(1)(c)
Fraud under s. 121(1)(c) is complete once the benefit is paid to a family member.
Influence Peddling - s. 121(1)(d)
The purpose of the offence under s. 121(1)(d) is to "preserve both government integrity and the appearance of government integrity."
- "in connection with a matter of business"
It is an essential element that the subject-matter of influence "actually" be connected to government.
The terms found in should not be interpreted strictly.
- "relating to the government"
A "matter of business" relates to government if its mandate is "facilitated by government." This includes any commercial transaction where the government "could impose or amend terms and conditions that would favour one vendor over others."
Where an accused subjectively believes the promised influence is connected to a matter of business that relates to the government, but the connection cannot be proven as a fact, then the accused is guilty of attempting to commit the offence.
The meaning of "government" does not "depend on some government action or can be facilitated by government under its existing operational structure."
Bribery of a Minister - s. 121(1)(e)
Participating in Bribery Relating to Tenders - s. 121(1)(f)
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
s. 606(4.1) [SPIO]
for Interest in Agreement
s. 606(4.2) [5+ years]
|Victim Notice |
of Impact Statement
|s. x [x]|
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 121 [frauds on the government] ), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
|s. 121 [frauds on the government]||N/A||5 years incarceration|
Offences under s. 121 [frauds on the government] are straight indictable. The maximum penalty is 5 years incarceration.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 121 [frauds on the government]||N/A|
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 121 [frauds on the government]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.|
Record Suspensions and Pardons
Convictions under s. 121 [frauds on the government] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
1985 to 2007