Full Text:Volume 1.1F
PROPERTY OFFENCES
Telecommunication Offences
This page was last substantively updated or reviewed January 2020. (Rev. # 79551) |
Telecommunication Offences | |
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s. 327(1) and 372 of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid (327(1), 372) summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | None |
Maximum | 2 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
- for offences relating the theft of telecommunications
Offences relating to telecommunications are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
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s. 327(1) [possession of device to obtain use of telecommunication facility or service] and s. 372 [sending illegal information] |
Hybrid Offence(s) | ![]() |
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Offences under s. 327(1) [possession of device to obtain use of telecommunication facility or service] and 372 [sending illegal information] 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.
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
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s. 327(1) [possession of device to obtain use of telecommunication facility or service] and s. 372 [sending illegal information] |
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When charged under s. 327 [possession of device to obtain use of telecommunication facility or service] and 372 [sending illegal information] , 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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s. 327(1) [possession of device to obtain use of telecommunication facility or service] and s. 372 [sending illegal information] |
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Possession of device to obtain use of telecommunication facility or service
327 (1) Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge, knowing that the device has been used or is intended to be used for that purpose, is
- (a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) guilty of an offence punishable on summary conviction.
- Forfeiture
(2) If a person is convicted of an offence under subsection (1) [possession of device to obtain use of telecommunication facility or service] or paragraph 326(1)(b) [theft by use telecom facility or service], in addition to any punishment that is imposed, any device in relation to which the offence was committed or the possession of which constituted the offence may be ordered forfeited to Her Majesty and may be disposed of as the Attorney General directs.
- Limitation
(3) No order for forfeiture is to be made in respect of telecommunication facilities or equipment by means of which an offence under subsection (1) [possession of device to obtain use of telecommunication facility or service] is committed if they are owned by a person engaged in providing a telecommunication service to the public or form part of such a person’s telecommunication service or system and that person is not a party to the offence.
- Definition of device
(4) In this section, "device" includes
- (a) a component of a device; and
- (b) a computer program within the meaning of subsection 342.1(2) [unauthorized use of computer – definitions].
R.S., 1985, c. C-46, s. 327; 2014, c. 31, s. 15; 2018, c. 29, s. 32.
[annotation(s) added]
- False information
372 (1) Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication.
- Indecent communications
(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.
- Harassing communications
(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.
- Punishment
(4) Everyone who commits an offence under this section is
- (a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 372; 2014, c. 31, s. 18.
[annotation(s) added]
Draft Form of Charges
Pre-ambles | ||
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"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 |
327 | instrument or device to obtain telecom service without payment. | "..., did without lawful excuse, manufacture, possess, sell or offer for sale or distribute any instrument or device or any component thereof, the design of which renders it primarily useful for obtaining the use of any telecommunication facility or service, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefor, to wit: [particulars], contrary to section 327 of the Criminal Code." |
372(1) | false information | "..., did with intent to injure or alarm a person, convey information that they knew was false, or caused such information to be conveyed by letter or any means of telecommunication, to wit: [particulars], contrary to section 372(1) of the Criminal Code." |
372(2) | indecent communication | "..., did with intent to alarm or annoy [name1], made an indecent communication to that person or to any other person by means of telecommunication, to wit: [particulars], contrary to section 372(2) of the Criminal Code." |
372(3) | harassing communications | "..., did without lawful excuse and with intent to harass [name1], repeatedly communicated, or caused repeated communications to be made, with them by means of telecommunication, to wit: [particulars], contrary to section 372(3) of the Criminal Code." |
Proof of the Offence
Proving Possession, etc., of device to obtain use of telecommunication facility or telecommunication service under s. 327 should include:
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Proving conveying false information under s. 372(1) should include:
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Proving indecent communication under s. 372(2) should include:
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Proving harassing communications under s. 372(3) should include:
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Interpretation
Misc Definitions
"Indecent" is also used in Indecent Act (Offence).
"Harass" is also used in Criminal Harassment (Offence).
- "Distributes and Makes Available"
For interpretation "distributes or makes available", see Definition of Terms Relating to Transactions and Transferences.
- "Telecommunications"
Section 35 of the Interpretation Act states that "telecommunications" "means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system".[1]
A "telecommunications facility" requires that there be some transmission or reception that is external to the facility.[2]
Further, s. 4(7) of the Code states:
4
[omitted (1), (2), (3), (4), (5), (6), (6.1) and (7)]
- Means of telecommunication
(8) For greater certainty, for the purposes of this Act, if the elements of an offence contain an explicit or implicit element of communication without specifying the means of communication, the communication may also be made by a means of telecommunication.
R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1; 2014, c. 31, s. 2.
- ↑
See Interpretation Act, RSC 1985, c I-21
- ↑ R v McLaughlin, 1980 CanLII 212 (SCC), [1980] 2 SCR 331, at p. 336("Telecommunications requires some form of ("What is involved here is a data processing facility rather than a telecommunication facility, although it incorporates electronic equipment. Taking the facility as a whole (the central processing unit and the terminals), there was no transmission or reception externally. Although there was transmission of intelligence from one part of the facility to another, there was no reception by other facilities nor emissions from this facility. In my opinion, the conduct of the accused is not so clearly caught by the statute as to warrant a conviction thereunder.")
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
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
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s. s. 327(1) [possession of device to obtain use of telecommunication facility or service] and s. 372 [sending illegal information] |
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 371 [message in false name]), 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
Offence(s) | Crown Election |
Maximum Penalty |
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327 [possession of device to obtain use of telecommunication facility or service], s. 372(1) [sending illegal information] |
summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] | indictable election | 2 years incarceration |
Offences under s. 327 [possession of device to obtain use of telecommunication facility or service], 372 [sending illegal information] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
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s. 327 [possession of device to obtain use of telecommunication facility or service], s. 372(1) [sending illegal information] |
summary election | ![]() |
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s. 327 [possession of device to obtain use of telecommunication facility or service], s. 372(1) [sending illegal information] |
indictable election | ![]() |
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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
- General Sentencing Orders
Order | Conviction | Description |
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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 | Conviction | Description |
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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. 326, 327 and 372 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".
History
- Possession of device to obtain telecommunication facility or service
327 (1) Every one who, without lawful excuse, the proof of which lies on him, manufactures, possesses, sells or offers for sale or distributes any instrument or device or any component thereof, the design of which renders it primarily useful for obtaining the use of any telecommunication facility or service, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefor, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
- Forfeiture
(2) Where a person is convicted of an offence under subsection (1) or paragraph 326(1)(b), any instrument or device in relation to which the offence was committed or the possession of which constituted the offence, on such conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty, whereupon it may be disposed of as the Attorney General directs.
- Limitation
(3) No order for forfeiture shall be made under subsection (2) in respect of telephone, telegraph or other communication facilities or equipment owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of such a person by means of which an offence under subsection (1) has been committed if such person was not a party to the offence.
1974-75-76, c. 93, s. 24.– CCC
- Telegram, etc., in false name
371. Every one who, with intent to defraud, causes or procures a telegram, cablegram or radio message to be sent or delivered as being sent by the authority of another person, knowing that it is not sent by his authority and with intent that the message should be acted on as being sent by his authority, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 329.
- False messages
372 (1) Every one who, with intent to injure or alarm any person, conveys or causes or procures to be conveyed by letter, telegram, telephone, cable, radio or otherwise information that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
- Indecent telephone calls
(2) Every one who, with intent to alarm or annoy any person, makes any indecent telephone call to that person is guilty of an offence punishable on summary conviction.
- Harassing telephone calls
(3) Every one who, without lawful excuse and with intent to harass any person, makes or causes to be made repeated telephone calls to that person is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 330.
See Also
Robbery
This page was last substantively updated or reviewed January 2020. (Rev. # 79551) |
Robbery | |
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s. 344 of the Crim. Code | |
Election / Plea | |
Crown Election | Indictment |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Indictable Dispositions | |
Avail. Disp. |
|
Minimum | 4, 5, or 7 years incarceration |
Maximum | Life |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to robbery are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
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s. 344(1)(b) [robbery without firearm or re crim org] s. 344(1)(a.1) [robbery with non restricted firearm] s. 344(1)(a)(i) and (ii) [robbery with restricted firearm or for benefit of criminal organization] |
Indictable Offence(s) | ![]() |
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Offences under s. 344 [robbery] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).
Before the statutory increased penalties can be applied for convictions under s. 344 [robbery], notice of increased penalty under s. 727 must be given.
Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
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s. 344(1)(b) [robbery without firearm or re crim org] s. 344(1)(a.1) [robbery with non restricted firearm] s. 344(1)(a)(i) and (ii) [robbery with restricted firearm or for benefit of criminal organization] |
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When charged under s. 344 [robbery], the accused can be given a judicial summons without arrest. 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.
Under s. 515(6)(a)(vii), offences charged under s. 344 have a reverse onus on bail where they were "committed with a firearm".
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 344 [robbery] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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s. 98.1 [robbery to steal firearm] | ![]() |
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s. 344 [robbery] | ![]() |
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Offences under s. 344 [robbery] are designated offences eligible for wiretap under s. 183.
Offences under s. 98.1 and 344 [robbery] are "designated" offences under s. 752 for dangerous offender applications.
Offences under s. 98.1 and 344 [robbery] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Robbery
343. Every one commits robbery who
- (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
- (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
- (c) assaults any person with intent to steal from him; or
- (d) steals from any person while armed with an offensive weapon or imitation thereof.
R.S., c. C-34, s. 302.
- Robbery
344 (1) Every person who commits robbery is guilty of an indictable offence and liable
- (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
- (i) in the case of a first offence, five years, and
- (ii) in the case of a second or subsequent offence, seven years;
- (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- (b) in any other case, to imprisonment for life.
[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 344; 1995, c. 39, s. 149; 2008, c. 6, s. 32; 2009, c. 22, s. 14.
- Robbery to steal firearm
98.1 Every person who commits a robbery within the meaning of section 343 [robbery] with intent to steal a firearm or in the course of which he or she steals a firearm commits an indictable offence and is liable to imprisonment for life.
2008, c. 6, s. 9.
Draft Form of Charges
Pre-ambles | ||
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"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 |
343(a) | robbery | "...did steal [description of stolen property] from [alleged victim] and [", for the purpose of extorting what was stolen," or ", to prevent or overcome resistance to the stealing,"] used ["threats of"] violence and thereby commit robbery contrary to section 343(a) of the Criminal Code." [2] |
343(b) | robbery | "...did steal [description of stolen property] from [alleged victim] and immediately before or immediately thereafter did wound, beat, strike or use personal violence on that person and did thereby commit robbery contrary to section 343(b) of the Criminal Code." [3] |
Proof of the Offence
There are four different ways that a Robbery can be committed.
Proving robbery (violence to extort or overcome resistance) under s. 343(a) should include:[1]
Proving robbery (personal violence at or near time of theft) under s. 343(b) should include:
|
Proving robbery (assault with intent to steal under s. 343(c) should include:
Proving robbery (theft while armed) under s. 343(d) should include:
|
- ↑ R v Rudolph, 2012 SKQB 167 (CanLII), SJ No 268, per Grabrielson J, at para 8
Enhanced Penalties
For enhanced minimum penalties under s. 344(1)(a) or (a.1) to apply it must also be proven either that:
- the offence was committed "using" a restricted or prohibited firearm;
- the offence was committed "using" any firearm and "for the benefit of, at the direction of, or in association with" a criminal organization; or
- the offence was committed "using" any firearm
Stealing
The term "steal" is defined in s. 2 as meaning "to commit theft". While "committing theft" is defined in s. 322:
- Theft
322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
- (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
- (b) to pledge it or deposit it as security;
- (c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
- (d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
- Time when theft completed
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
- Secrecy
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.
- Purpose of taking
(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.
[omitted (5)]
R.S., c. C-34, s. 283.
Violence or Threat of Violence: 343 (a)
The element of "violence" is made out by an unlawful assault. However, to make out robbery the assault must be for a specific intent.[1]
- Threats and Violence
An utterance that threatens force will be sufficient to make out the element of "violence." There is no need to measure the degree of violence.[2]
Conduct alleging to be implicit in its violence or threat of violence is determined by whether a reasonable person would have felt or apprehended that violence was conveyed or threatened in the circumstances.[3] This will take into account the location and conduct of the accused.[4]
A threat of violence need not be overt. A display of a knife while hooded and a demand for money is an implied threat of violence. [5]
Holding a person down to prevent resistance constitutes violence.[6]
What constitutes a "threat" is derived from the charge of uttering threats under s.264.1. If the utterance meets the criteria for s. 264.1, it is irrelevant whether the victim appreciated the threatening nature of the utterance.[7] To put it another way, the effect of the threat on the prospective victim is of no consequence.[8]
"Extort" is defined in the shorter Oxford English Dictionary in part as, "to wrest from a reluctant person by force, violence, torture, intimidation".
Passing a note requesting money to a bank teller without any words being spoken can be sufficient to make out a threat of violence.[9] But in certain circumstances, merely walking into a bank and giving a teller a note causing no fear for safety may not be a threat of violence or a robbery.[10]
- Purpose of Threats or Violence
The violence or threats of violence must be for the purpose of taking whatever is stolen and so it requires that the violence or threats be before or contemporaneous to the theft.[11]
If, however, the property was "stolen clandestinely" or "surreptitious[ly]", then the presence of violence or threats of violence to enable escape will not make out a robbery under s. 344(a).[12]
The violence can be used against a target other than the victim being robbed.[13]
- Link Between Threats and Violence
Robbery under .s 343(a) requires "contemporaneous use of violence or threats of violence in the course of, and for the purpose of, taking" other person's property.[14] There must be more than a temporal link between the threats and the violence.[15]
An assault or threat occurring after the completion of a theft, at least enough time has passed to make it a separate event, there can be no conviction for robbery under s. 343(a).[16]
Purse-snatching will not make out a robbery where the item was taken before the victim had a chance to resist.[17]
- ↑ See also: Common Assault (Offence)
- ↑
R v Lecky, 2001 CanLII 6026 (ON CA), 157 CCC (3d) 351, per curiam
R v Steele, 2014 SCC 61 (CanLII), [2014] 3 SCR 138, per Wagner J
- ↑
R v MacCormack, 2009 ONCA 72 (CanLII), 241 CCC (3d) 516, per Watt JA
R v Sayers, 1983 CanLII 3496 (ON CA), 8 CCC (3d) 572, per LaCourciere JA
R v Pelletier, 1992 CanLII 3819 (QC CA), 71 CCC (3d) 438, per Proulx JA
see also Reasonable Person Test - ↑ R v Arsenault, 2006 CanLII 34406 (ON CA), 216 O.A.C. 198, 71 W.C.B. (2d) 80, per curiam
- ↑
R v Griffin, 2011 NSCA 103 (CanLII), 279 CCC (3d) 464, per Bryson JA
R v Douglas, 2012 MBQB 197 (CanLII), 282 Man R (2d) 270, per Bryk J - ↑ R v Trudel, 1984 CanLII 3469 (QC CA), 12 CCC (3d) 342, per LaRoche J
- ↑ R v Carons, 1978 ALTASCAD 206 (CanLII), 42 CCC (2d) 19, per Prowse JA
- ↑ R v Nabis, 1974 CanLII 179 (SCC), [1975] 2 SCR 485, per Beetz J
- ↑ R v Katrensky, 1975 CanLII 1413 (BC PC), 24 CCC (2d) 350, per Ostler J
- ↑ R v Ortega, 2014 ONSC 6414 (CanLII), per Trottier J
- ↑
R v Newell, 2007 NLCA 9 (CanLII), 217 CCC (3d) 483, per Cameron JA, at para 32
R v Jean, 2012 BCCA 448 (CanLII), 293 CCC (3d) 66, per Finch CJ
- ↑
R v Downer, 1978 CanLII 2340 (ON CA), 40 CCC (2d) 532, per Martin JA, at para 14 ("If property was stolen clandestinely, violence or threats of violence to enable the thief to escape, or to prevent the re-taking by the owner of what had been stolen, did not have the effect of escalating larceny into robbery") see also para 25
R v McKay, 2014 SKCA 19 (CanLII), 305 CCC (3d) 409, per Lane JA - violence used to escape following surreptitious theft is not robbery under s. 343(a)
- ↑ Newell, supra
- ↑ Jean, supra
- ↑ e.g. R v Kulscar, 2009 BCCA 515 (CanLII), 279 BCAC 26, per Ryan JA, at para 12
- ↑ R v McKay, 2014 SKCA 19 (CanLII), 305 CCC (3d) 409, per Lane JA
- ↑ R v Picard, 1976 CanLII 1058 (QC CQ), 39 CCC (2d) 57, per Bérubé J
Stealing with Personal Violence: 343 (b)
Any "violence" that occurs after the theft is complete may support a charge of robbery under s. 343(b) but not 343(a).[1]
"Violence" in this section means more than a technical assault.[2] It is determined using a subjective/objective test.[3]
A theft is not a continuing act that includes the escape.[4]
- ↑
R v Jean, 2012 BCCA 448 (CanLII), 293 CCC (3d) 66, per Finch CJ, at para 34 ("Violence occurring after the theft is complete may however amount to robbery where the charge is laid under s. 343(b) and the elements of the offence in that subsection are proven")
- ↑ R v Lew, 1978 CanLII 2262 (ON CA), 30 CCC (2d) 140 (ONCA), per Brooke JA
- ↑ R v Bourassa, 2004 NSCA 127 (CanLII), 189 CCC (3d) 438, per Saunders JA
- ↑
Jean, supra, at para 36
Assault with Intent to Steal: 343 (c)
Assault has the same meaning as s. 266. This includes technical assaults.[1]
There is no need to prove that a theft actually occurred.[2]
- ↑ R v Lew, 1978 CanLII 2262 (ON CA), 30 CCC (2d) 140 (ONCA), per Brooke JA
- ↑ R v Allison, 1983 CanLII 3567 (ON CA), (1983), 33 CR (3d) 333, per Martin JA
Stealing while Armed: 343 (d)
- Weapon
Under s. 343(d) the "weapon" must be either (1) an actual firearm; (2) an imitation firearm; or (3) an offensive weapon. Simply using one's hand to imitate a firearm is not sufficient.[1]
- Armed
"Armed" must be the actual possession of a weapon. This does not include simulating possession of a weapon.[2]
The "use" of an offence weapon is not an essential element.[3]
- ↑ R v Delage, 2001 CanLII 2656 (QCCA), (2001) 154 CCC (3d) 85, per curiam
- ↑
R v Sloan, 1974 CanLII 1501 (BCCA), 19 CCC (2d) 190 (BCCA), per McIntyre JA
R v Gouchie, 1976 CanLII 1400 (QC CQ), 33 CCC (2d) 120, per Brunet J
- ↑
R v Robinson, 2014 ONSC 3125 (CanLII), per Gray J, at para 105
see R v Moore, 2012 ONCA 770 (CanLII), OJ No 5249, per curiam
As Opposed to Theft
Given that robbery is a form of theft, there can be cases where the proximity and connection between theft and violence is limited. A theft where there is violence after the completion of the theft can be treated as distinct from robbery.[1]
This distinction is most seen in robbery under s. 343(a) which requires violence or threats to "overcome resistance to stealing". Where the threats are made after the completion of the theft, such as after a shoplifter leaves a store and is followed by staff, threats or violence may be found as only for the purpose of escape and not the purpose of preventing stealing which is already complete by this point.[2]
- ↑ R v Newell, 2007 NLCA 9 (CanLII), 217 CCC (3d) 483, per Cameron JA
- ↑
see R v Daughma, [1989] OJ No 1765(*no CanLII links)
- in this case, threats occurred outside of store after accused steals a bottle of wine.
cf. R v Morgan, 2013 ABCA 26 (CanLII), per O'Brien JA - offender pointed a gun at guard in the parking lot while offender was getting into his car. Judge found it was a robbery
Dangerous Offenders and Long-Term Offenders
Robbery is classified as a "serious personal injury offence" (s. 752) where there is violence or threats of violence involved.[1]
- ↑
R v Lebar, 2010 ONCA 220 (CanLII), 252 CCC (3d) 411, per Epstein JA
R v Griffin, 2011 NSCA 103 (CanLII), 279 CCC (3d) 464, per Bryson JA - court found threat of violence and SPIO where offender wore a disguise and tapped a knife on the counter while asking for money
R v Steele, 2014 SCC 61 (CanLII), [2014] 3 SCR 138, per Wagner J
Included Offences
The following have been found to be included offences:
- ↑ R v Luckett, 1980 CanLII 185 (SCC), [1980] 1 SCR 1140, per Chouinard J
- ↑ R v Horsefall, 1990 CanLII 1039 (BC CA), 61 CCC (3d) 245, per Hinds JA
- ↑ R v Boisvert, 1991 CanLII 3039 (Que CA), (1991) 68 CCC (3d) 478, per Tourigny J
Defences
The statutory defence of duress is excluded by s. 17 from applying to offences of robbery.
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
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
---|---|---|---|---|
s. 344 [robbery] | ![]() |
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For serious personal injury offences or murder, s. 606(4.1) 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
- For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences
- Maximum Penalties
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 344 [robbery] | N/A | life incarceration |
Offences under s. 344 [robbery] are straight indictable. The maximum penalty is life.
- Minimum Penalties
Offence(s) | Crown Election |
Minimum Penalty First Offence |
Minimum Penalty Subsequent Offence |
---|---|---|---|
s. s.344(1)(a) [rest./prob. firearm use or firearm use with crim. org] From May 1, 2008 |
N/A | 5 year custody | 7 years |
s. s.344(1)(a.1) [firearm use] From May 1, 2008 |
N/A | 4 year custody | Same |
A conviction for robbery with a firearm carries with it a mandatory minimum of 5 years.
The 5 year minimum has been found to be constitutional and does not violate the right against cruel and unusual punishments under s. 12 of the Charter.[1]
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
---|---|---|---|---|---|---|---|---|
s. 344 [robbery] | N/A | ![]() |
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If convicted under s. 344 [robbery] a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life". Offences under s. 344 [robbery] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
- Constitutionality
At least one provincial superior court has found the 4-year mandatory minimum for robbery with a firearm to be cruel and unusual and therefore unconstitutional.[2]
- ↑ R v Stocker, 2017 BCSC 542 (CanLII), per Rogers J
- ↑ R v Zwozdesky, 2019 ABQB 323 (CanLII), 95 Alta LR (6th) 386, per Yungwirth J
Principles
The primary objective in sentencing for a home invasion robbery is deterrence which is necessary to protect the public.[1]
A home invasion robbery sentence should have a "higher starting point sentence than the armed robbery of a bank or commercial institution".[2]
- Factors
- General Factors
- Planning and Deliberation
- Major Role in the Offence
- Prior Criminal Record (esp. related offences)
- Prevalence of Offence in Community
- Public Abhorrence of Type of Crime
- Offender was in a Position of Trust
- Victim was Vulnerable (Due to Age, Position of Trust, etc. see 718.2)
- Significant Risk or Actual Harm to Victim
- Offence motivated on Hate towards certain groups (s. 718.2)
- Offence Committed as Part of Organized Crime or Terrorist Group
- Remorse
- Youthfulness
- Support Network (family and friends)
- Positive Employment History
- Presence of a Mental Disorder or Addiction (*)
- Risk of Deportation
- Key Factors
R v Brogan, 1999 BCCA 278 (CanLII), 125 BCAC 310, per Ryan JA, at para 10</ref>
- use of a weapon
- use of a mask
- awareness of elderly or otherwise vulnerable victims
- injuries to victim
- opportunity to reconsider plan
- measure of violence
- use restraints on victims
- ↑
R v Fraser, 1997 CanLII 9927 (NS CA), 466 APR 163, per Pugsley JA, at paras 20 to 33
- ↑
R v Matwiy, 1996 ABCA 63 (CanLII), 105 CCC (3d) 251, per curiam, at para 26
Ranges
In most provinces the case law has set the starting point for robbery in general start at 3 years.[1] The sentence is adjusted from that starting point either up or down based on the circumstances of the offence and the circumstances of the accused. The normal range is in excess of 2 years.[2]
In Manitoba, there is no starting point for robberies.[3]
In Alberta, The starting point for a mugging robbery is 12 to 18 months.[4]
Robberies involving stabbings are frequently in the four to five years range.[5]
In Alberta, the starting point for robbery of a bank by use of a note is 4 years incarceration.[6]
In Nova Scotia, financial institution robberies are in the range of 6 to 10 years.[7] While regular robberies start at 3 years.[8]
In the rare cases, robberies can include suspended sentences.[9]
- ↑ R v Johnas, 1982 ABCA 331 (CanLII), 32 CR (3d) l, per curiam
- ↑ R v Wozny, 2010 MBCA 115 (CanLII), 267 CCC (3d) 308, per MacInnes JA
- ↑ R v Sorensen, 2006 MBCA 38 (CanLII), 205 Man R (2d) 93, per Steel JA, at para 19
- ↑
R v Nerling, 2011 ABPC 371 (CanLII), per Wheatley J, at para 6 appealed to 2012 ABCA 114 (CanLII), per Slatter JA
R v Carter, 1992 ABCA 190 (CanLII), [1992] AJ No 561 (CA), per Mcdonald J (no record, no injuries, low value)
R v Nyland, [1991] AJ No 1136 (CA)(*no CanLII links) (no record, no injuries, low value)
R v Saeed, 2004 ABCA 384 (CanLII), 357 AR 238, per Marceau J (no record, no injuries, low value)
- ↑ R v Biln, 1999 BCCA 369 (CanLII), 43 WCB (2d) 37, per McEachern JA
- ↑
R v Brennan, 2003 ABCA 330 (CanLII), [2003] AJ No 1366, per Martin J
R v Jenkins, 2004 ABPC 48 (CanLII), 355 AR 74, per Lefever J
R v Earl, 1985 ABCA 241 (CanLII), [1985] AJ No 168, per Laycraft JA
R v Trudell, 1984 ABCA 257 (CanLII), [1984] AJ No 932, per Laycraft JA
cf. R v Hung, 1990 ABCA 347 (CanLII), 113 AR 205, [1990] AJ No 1074, per curiam at 214: "the starting‑point for any sentence involving robbery of a financial institution is five years in the penitentiary"
- ↑
R v Brewer, 1997 CanLII 14976 (NSCA), (1988), 81 NSR (2d) 86, per Freeman JA
R v Leet, 1989 CanLII 9546 (NS CA), 88 NSR (2d) 161, per Chipman JA - ↑
R v Johnson, 2007 NSCA 104 (CanLII), 287 DLR (4th) 731, per Bateman JA
- ↑
see R v Carver, [1980] MJ No 257 (CA)(*no CanLII links)
R v Ramsay, [1985] MJ No 417 (CA)(*no CanLII links)
R v Bartlett, 1961 CanLII 529 (MB CA), [1961] MJ No 2 (CA), per Schultz JA
With Firearm
Under s. 343(1)(a.1), a robbery with a firearm requires a minimum of 4 years.
It is not necessary that the pleading specify the use of a firearm to invoke the increased minimum penalty.[1]
- ↑ R v Watson, 2008 ONCA 614 (CanLII), 240 OAC 370, per Simmons JA
Subsequent Offences
344
[omitted (1)]
- Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a) [robbery – restricted or prohibited firearm or crim org], whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
- (a) an offence under this section;
- (b) an offence under subsection 85(1) [use of firearm in commission of an offence] or (2) [use of an imitation firearm in commission of an offence] or section 244 [discharging firearm] or 244.2 [discharging firearm – recklessness]; or
- (c) an offence under section 220 [criminal negligence causing death], 236 [manslaughter], 239 [attempted murder], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault], subsection 279(1) [kidnapping] or section 279.1 [hostage taking] or 346 [extortion] if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
- Sequence of convictions only
(3) For the purposes of subsection (2) [robbery – subsequent offences], the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 344; 1995, c. 39, s. 149; 2008, c. 6, s. 32; 2009, c. 22, s. 14.
[annotation(s) added]
Home Invasion
The term “home invasion” can be applied to wide range of offences and so can be misleading to assume they are all similar cases.[1]
Alberta has required a home invasion is a robbery to include:[2]
- plan to commit robbery in a home where offender expects to be found in dwelling
- arms self with weapon
- enters dwelling that is reasonably known to be occupied
- confines occupants
- threaten occupants
- steals money or valuable property
There is some suggestion that a similar invasion of a victim's vehicle, such as in a car-jacking, holds equal gravity as the home.[3]
- Ranges
In Nova Scotia, private dwelling robberies are in the range of 6 to 10 years. [4]
In British Columbia, the range of sentence for home invasions involving serious violence is 8 to 12 years.[5]
In Newfoundland,the "low end" of the acceptable range is 18 months.[6]
- ↑ R v AJC; R v Joseph, 2004 BCCA 268 (CanLII), 186 CCC (3d) 227, per Finch JA (3:0) at 1
- ↑ R v Matwiy, 1996 ABCA 63 (CanLII), ,[1996] AJ No 134 (CA), per curiam
- ↑
R v daSilva and Metropolit, 2002 CanLII 19782 (ON CA), [2000] OJ No 739 (Ont. S.C.), per Locke J, at para 21 ("Protection and the securing of home and family must receive very high priority in our criminal justice system. If it were otherwise, the confidence of Canadians in that system would evaporate. I see little difference between a home invasion and a car-jacking invasion. In the reality of the present daily life in this country, our cars are extensions of our homes.") appeal dismissed at }}, per curiam
- ↑ R v Leet (1989) 88 NSR (2d) 161(*no CanLII links) , per Chipman JA
- ↑ R v DAW, 2002 BCCA 336 (CanLII), [2002] BCJ 1156 (CA), per Hall JA
- ↑ R v PJB, 1999 CanLII 18938 (NL CA), 182 Nfld. and PEIR 14 (NLCA), per Wells CJ
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 344 [robbery] or 98.1 |
|
Weapons Prohibition Orders | s. 344 [robbery] |
|
Delayed Parole Order | s. 98.1 or 344 [robbery] |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 344 [robbery] 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".
History
The current version of s. 344 was in force from October 2, 2009 after being amended by the An Act to amend the Criminal Code (organized crime and protection of justice system participants), 2009, c. 22.
2008 to 2009
On May 1, 2008 part of the Tackling Violent Crime Act, S.C. 2008, c. 6, entered into force amending s. 344 of the Code to read as follows.
- Robbery
344 (1) Every person who commits robbery is guilty of an indictable offence and liable
- (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
- (i) in the case of a first offence, five years, and
- (ii) in the case of a second or subsequent offence, seven years;
- (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- (b) in any other case, to imprisonment for life.
; Subsequent offences (2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
- (a) an offence under this section;
- (b) an offence under subsection 85(1) or (2) or section 244; or
- (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 346 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
- Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 344; 1995, c. 39, s. 149; 2008, c. 6, s. 32. [new sections underlined]
1995 to 2008
- Robbery
344. Every person who commits robbery is guilty of an indictable offence and liable
- (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- (b) in any other case, to imprisonment for life.
R.S., 1985, c. C-46, s. 344; 1995, c. 39, s. 149.
Criminal Code, 1892
- Robbery defined
397 Robbery is theft accompanied with violence or threats of violence to any person or property used to extort the property stolen, or to prevent or overcome resistance to its being stolen.
- Punishment of aggravated robbery
398 Every one is guilty of an indictable offence and liable to imprisonment for life and to be whipped who—
- (a) robs any person and at the time of, or immediately before or immediately after, such robbery wounds, beats, strikes, or uses any personal violence to, such person; or
- (b) being together with any other person or persons robs, or assaults with intent to rob, any person; or
- (c) being armed with an offensive weapon or instrument robs, or assaults with intent to rob, any person.
- Assault with intent to rob
400 Every one who assaults any person with intent to rob him is guilty of an indictable offence and liable to three years' imprisonment.
–
See also
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Break and Enter
This page was last substantively updated or reviewed May 2021. (Rev. # 79551) |
Break and Enter | |
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s. 98, 348 of the Crim. Code | |
Election / Plea | |
Crown Election | Indictment (dwelling and 98) Hybrid (non-dwelling) summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 18 months incarceration or $5,000 fine (non-dwelling) |
Indictable Dispositions | |
Avail. Disp. | Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 10 years incarceration (non-dwelling) Life (life) |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to break and enter are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
Break and enter encompasses situations where the accused was or attempted to trespass on private property with an intent to commit an indictable offence (i.e. a non-summary criminal offence). The most typical form of break and enter is a break into a commercial or private residence in order to steal property. The most serious form of break and enter is where the accused did the act knowing that there were people present and was prepared to use force against them in a robbery-like fashion. This is known as a "home invasion".
A less frequent form of break and enter is the entry into private property in order to confront a person found within intending to assault or threaten with violence. The parties normally know each other and arises from a dispute between them, sometimes domestic.
The evidence in most of these cases is circumstantial, and so identity is often a key point of litigation. In many cases the accused was found at some time later with stolen items in their possession for which the Crown can use to establish guilt by way of the doctrine of recent possession.
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
s. 348(1)(d) [break into dwelling house] and s. 98 [break in for firearm] |
Indictable Offence(s) | N/A | ![]() |
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s. 348(1)(e) [break into non-dwelling house] | Hybrid Offence(s) | Yes | ![]() |
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Offences under s. 348(1)(d) [break into dwelling house] and
98 [break in for firearm] are straight indictable. There is a Defence election of Court under s. 536(2).
Offences under s. 348(1)(e) [break into non-dwelling house] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).
Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
---|---|---|---|---|---|
s. 348(1)(d) [break into dwelling house] and s. 98 [break in for firearm] |
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s. 348(1)(e) [break into non-dwelling house] | ![]() |
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When charged under s. s. 348(1)(d) [break into dwelling house] and 98 [break in for firearm] , the accused can be given a judicial summons without arrest. 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.
When charged under s. 348(1)(e) [break into non-dwelling house] , 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 348(1)(d) or (e) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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s. 90 [break in for firearm] | ![]() |
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s. 348(1)(d) [break into dwelling house] | ![]() |
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s. 348(1)(e) [break into non-dwelling house] | ![]() |
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Offences under s. 348 are designated offences eligible for wiretap under s. 183.
Offences under s. 98 and 348 are "designated" offences under s. 752 for dangerous offender applications.
Offences under s. 98 and 348 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Breaking and entering with intent, committing offence or breaking out
348 (1) Every one who
- (a) breaks and enters a place with intent to commit an indictable offence therein,
- (b) breaks and enters a place and commits an indictable offence therein, or
- (c) breaks out of a place after
- (i) committing an indictable offence therein, or
- (ii) entering the place with intent to commit an indictable offence therein,
is guilty
- (d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
- (e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.
- Aggravating circumstance — home invasion
348.1 If a person is convicted of an offence under section 98 [breaking and entering to steal firearm] or 98.1 [robbery to steal firearm], subsection 279(2) [forcible confinement] or section 343 [robbery – forms of offence], 346 [extortion] or 348 [break and enter] in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,
- (a) knew that or was reckless as to whether the dwelling-house was occupied; and
- (b) used violence or threats of violence to a person or property.
2002, c. 13, s. 15; 2008, c. 6, s. 34.
- Breaking and entering to steal firearm
98 (1) Every person commits an offence who
- (a) breaks and enters a place with intent to steal a firearm located in it;
- (b) breaks and enters a place and steals a firearm located in it; or
- (c) breaks out of a place after
- (i) stealing a firearm located in it, or
- (ii) entering the place with intent to steal a firearm located in it.
[omitted (2) and (3)]
- Punishment
(4) Every person who commits an offence under subsection (1) [breaking and entering to steal firearm] is guilty of an indictable offence and liable to imprisonment for life.
R.S., 1985, c. C-46, s. 98; R.S., 1985, c. 27 (1st Supp.), s. 13; 1991, c. 40, s. 11; 1995, c. 39, s. 139; 2008, c. 6, s. 9.
[annotation(s) added]
Draft Form of Charges
Pre-ambles | ||
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"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 |
98(1)(a) | "..., did break and enter a place [specify type and address] with intent to steal a firearm located in it contrary to section 98(1)(a) of the Criminal Code. | |
98(1)(b) | "..., did break and enter a place [specify type and address] and stole a firearm located in it contrary to section 98(1)(b) of the Criminal Code. | |
98(1)(c) | "..., did break out of a place [specify type and address] after stealing a firearm located in it, or entering the place with intent to steal a firearm located in it contrary to section 98(1)(c) of the Criminal Code. | |
348 | "..., contrary to section 348 of the Criminal Code. |
Proof of Offences
Proving breaking with intent under s. 348(1)(a) should include:
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Proving break and commit under s. 348(1)(b) should include:
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Proving break out under s. 348(1)(c) should include:
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Interpretation of the Offence
Breaking
Section 321 defines "break":
321 In this Part [Pt. IX – Offences Against Rights of Property (ss. 321 to 378)],
- "break" means
- (a) to break any part, internal or external, or
- (b) to open any thing that is used or intended to be used to close or to cover an internal or external opening;
...
R.S., 1985, c. C-46, s. 321; R.S., 1985, c. 27 (1st Supp.), s. 42.
[annotation(s) added]
"Breaking" can include an actual break as defined in s. 321 or it can be "constructive" breaking. "Constructive" breaking can be established by the accused simply walking through a doorway.[1]
It is an error to find that it is necessary for the Crown prove actual breaking to convict the accused.[2] However, simply entering into a structure through an open door does not on its own amount to "breaking."[3] This includes staying in a store until after closing time.[4] Likewise, entering through an unlocked but closed door after knocking does not amount to breaking. [5]
- ↑
R v Johnson, 1977 CanLII 229 (SCC), [1977] 2 SCR 646, per Dickson J
R v Chanyi, 2019 ABCA 133 (CanLII), per curiam, at para 23 ("the concepts of both “actual breaking” and “constructive breaking” apply, the latter of which is defined as including entry by way of an accessible opening without lawful excuse or justification")
- ↑ R v Hussein, 2019 ABCA 480 (CanLII), per curiam, at para 9 (the trial judge "erroneously found that evidence of an actual ‘break’ was required to convict of the offences of break and enter, having otherwise determined that they were in the apartment ‘uninvited’ (i.e. without lawful justification or excuse as per s. 350(b)(ii))")
- ↑ R v Jewell, 1974 CanLII 1657 (ON CA), (1974), OJ No 931, per Martin JA
- ↑ R v Fairbridge, 1984 AJ. NO 828(*no CanLII links)
- ↑ R v House, 2012 NLCA 41 (CanLII), 1007 APR 278, per Welsh JA, at paras 13 to 17
Entering
An entrance is defined in s.350: [1]
- Entrance
350 For the purposes of sections 348 [break and enter] and 349 [unlawfully in a dwelling],
- (a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and
- (b) a person shall be deemed to have broken and entered if
- (i) he obtained entrance by a threat or an artifice or by collusion with a person within, or
- (ii) he entered without lawful justification or excuse by a permanent or temporary opening.
R.S., 1985, c. C-46, s. 350; 2018, c. 29, s. 36.
[annotation(s) added]
- Not An Essential Element
The absence of lawful justification or excuse for entry is not an essential element for break and enter.[2]
- Presumption Under s. 350(b)(ii)
The presumption under s.350(b)(ii) does not require the accused to prove lawfulness of entry.[3] An interpretation placing a burden of proof to disprove unlawful entry would not be constitutional.[4] Instead, s. 350(b)(ii) has been found to create that the presumption applies unless there is some evidence that has not been rejected and could reasonably be true that would negate the inference.[5] It is not necessary that the judge specifically reference the [6]
- Time of Entry
The time of the break is relevant to determine whether such a "lawful justification or excuse" exists. [7]
- Manner of Entry
It is not necessary for the trial judge to make a finding of fact as to how the accused entered into the residence. It is only necessary that they determine that entry was without lawful justification or excuse.[8]
- Opening a Door is Breaking
The opening a door which is partially ajar amounts to "breaking."[9] Entry will occur even where it has been opened "enough to get your hand in" will be a "enter."[10]
- ↑ found to constitutional in R v TBK, [1998] CRR 328 (Ont.CA) (*no CanLII links)
- ↑
R v Singh, 1987 ABCA 261 (CanLII), 61 CR (3d) 353, per Hetherington JA, at para 64 ("[t]he absence of lawful justification or excuse for entry is not an essential element of the offence of breaking and entering. It is, however, essential to the triggering of the presumption of breaking in s 308(b)(ii) [now s 350(b)(ii)], and breaking is an essential element of the offence.")
- ↑
R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525 ("it is wrong to say that there is an onus on the accused to rebut the presumption on a balance of probabilities. The presumption applies unless there is any evidence, not expressly disbelieved, that would negate it. All the accused has to do is point to evidence to the contrary that could reasonably be true")
R v Barnes, 2021 NLCA 15 (CanLII), per O'Brien JA, at para 38 - ↑
R v Singh, 1987 ABCA 261 (CanLII), 41 CCC (3d) 278, per Hetherington JA
contra. R v K, 1998 CanLII 925 (ON CA), 49 CRR (2d) 328, per curiam - ↑
R v Fontaine, 2020 ABCA 193 (CanLII), per curiam
Barnes, supra, at para 38 - ↑ Barnes, supra, at para 34 ("Nor is it fatal that there is no specific reference in the judgment to section 350(b)(ii).")
- ↑ R v Farbridge, 1984 ABCA 301 (CanLII), 15 CCC (3d) 521, per Laycraft JA -- Accused hid in store lawfully until closing in order to steal. This was not considered breaking
- ↑
R v Holland, 2013 NBCA 69 (CanLII), 1070 APR 384, per Richard JA
R v RMS, 2015 NWTCA 5 (CanLII), per curiam
Barnes, supra - ↑
Toney, 1976 CanLII 2486 (NS CA), 17 NSR (2d) 481, per MacDonald JA, at para 12 citing R v Jewell, 1974 CanLII 1657 (ON CA), 22 CCC (2d) 252, per Martin JA
R v Corkum (1969), 7 CRNS 61(*no CanLII links) - window propped open by bottle was opened further by accused - ↑ Toney, supra
Entrance Under Section 98
When concerning break and enter under s. 98, an "entrance" was defined as follows:
98
[omitted (1) and (2)]
- Entrance
(3) For the purposes of this section,
- (a) a person enters as soon as any part of his or her body or any part of an instrument that he or she uses is within any thing that is being entered; and
- (b) a person is deemed to have broken and entered if he or she
- (i) obtained entrance by a threat or an artifice or by collusion with a person within, or
- (ii) entered without lawful justification or excuse by a permanent or temporary opening.
[omitted (4)]
R.S., 1985, c. C-46, s. 98; R.S., 1985, c. 27 (1st Supp.), s. 13; 1991, c. 40, s. 11; 1995, c. 39, s. 139; 2008, c. 6, s. 9.
Place
Section 348(3) defines "place" as:
348
[omitted (1) and (2)]
- Definition of “place”
(3) For the purposes of this section and section 351 [possession of break-in instruments], "place" means
- (a) a dwelling-house;
- (b) a building or structure or any part thereof, other than a dwelling-house;
- (c) a railway vehicle, a vessel, an aircraft or a trailer; or
- (d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.
R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.
[annotation(s) added]
A place has been found, in certain circumstances, to include a fenced off area surrounding a structure.[1]
Under station 384 (3), "structure" does not extend to include "an unenclosed space", Such as a loss they can simply be entered by walking around the barrier. It must be something that can be "broken into and entered."[2]
The concierge area behind a locked gate as well as the desk and drawer within fall in the definition of a "place."[3]
When concerning a charge under s. 98, "place" refers to "any building or structure — or part of one — and any motor vehicle, vessel, aircraft, railway vehicle, container or trailer."(98(2))
- ↑ R v RJF, 1994 CanLII 7611 (NS CA), 376 APR 82, per Roscoe JA
- ↑ R v Ausland, 2010 ABCA 17 (CanLII), 469 AR 338, per curiam
- ↑ R v Charron, 2005 BCCA 607 (CanLII), per Low JA
Dwelling House
Intent to Commit
To make out the charge under 348(1)(a), there must be an "intent" to commit an indictable offence and the intent must be present at the time of the entering.[1] Breaking and entering into a place is not a criminal offence without a sign of an offence while inside. [2] A person being chased into a house and damages the door is not enough to form intent to commit an indictable offence.[3]
Section 348(2) provides that where there is certain evidence of the accused breaking in or out of a place, there is a rebuttable presumption of an intent to commit an indictable offence.
348
[omitted (1)]
- Presumptions
(2) For the purposes of proceedings under this section, evidence that an accused
- (a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or
- (b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
- (i) committing an indictable offence therein, or
- (ii) entering with intent to commit an indictable offence therein.
[omitted (3)]
R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.
- Presumption Under s. 348(2)(a)
This provision under s. 348(2)(a) "merely establishes a prima facie case" while keeping the ultimate burden on the Crown to establish on the entirety of the evidence that there is proof beyond a reasonable doubt.[4]
The presumption is intended to reflect the reasonable inference that where a person is in a home they have no right to be in, it must have been for an improper purpose.[5]
It is not a presumption that places a burden on the accused to rebut it on a standard balance of probabilities. The ultimate burden remains at all times on the Crown.[6] Rather, it directs the court to infer criminal intent once the totality of the evidence is considered. The accused may argue against the inference by subtly pointing to a reasonable doubt on the evidence.[7] Where the crown's evidence does not lend to a reasonable doubt, such as where there is a prima fantasy case. There is a tactical burden upon the accused to present evidence or face a finding of guilt.[8]
- "evidence to the contrary"
To rebut the presumption of unlawful intent, the evidence to the contrary must tend to show that the intruder had no intention of committing a crime in the premises.
Any evidence that "tends to negate the accused's intention to commit an indictable offence in a dwelling" is evidence to the contrary.[9] As is evidence that shows that the accused "had no intention of committing a crime in the premises."[10]
Evidence to the contrary needs only to give an explanation that is reasonably true.[11]
The fact that no offence was committed after entry is not "evidence to the contrary."[12]
Evidence to the contrary can come from either Crown or Defence witnesses.[13]
Where the accused has testified and has found not to be believed. That will not be evidence to the contrary.[14]
- Constitutionality
Section 348(2)(b) was found to violate s. 11(d) but is deemed valid under under s. 1 of the Criminal Code.[15]
- ↑
R v Rodney, 2007 ONCA 314 (CanLII), 223 OAC 227, per curiam, at para 5
Regina v Wendel, 1966 CanLII 533 (BC CA), [1967] 2 CCC 23 (BCCA), per Bird CJ at 29 (CCC)
R v Toney, 1976 CanLII 2486 (NS CA), 17 NSR (2d) 481, per MacDonald JA, at para 16
R v Austin, 1968 CanLII 94 (SCC), [1968] SCR 891, per Martland J, at p. 2
- ↑ R v Taylor, [1984] B.C.J. No 176 (S.C.)(*no CanLII links)
- ↑ R v Schizgal, 2001 BCCA 238 (CanLII), 153 CCC (3d) 245, per Braidwood JA
- ↑ R v Norbert, 2013 ABCA 11 (CanLII), AJ No 9, at para 3 ("The presumption merely establishes a prima facie case. The burden of proof throughout is borne by the Crown…. The entirety of the evidence may raise a reasonable doubt as to [the accused’s] intention which is an essential ingredient of the crime")
- ↑
R v Holland, 2013 NBCA 69 (CanLII), 1070 APR 384, per Richard JA, at para 11
R v Fontaine, 2020 ABCA 193 (CanLII), per curiam, at para 4 ("This presumption reflects the reasonable inference that, when an accused breaks and enters into a victim’s home, where the accused has no right to be, he or she must have done so for an improper purpose") - ↑
R v Chanyi, 2019 ABCA 133 (CanLII), at para 20, per curiam
Fontaine, supra, at para 5
R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, per Pigeon J
- ↑
Fontaine, supra, at paras 5 to 6
Chanyi, supra, at para 20
- ↑
Proudlock, supra at p. 549
Fontaine, supra, at para 6 - ↑
R v WL2014 ONSC 1245(*no CanLII links)
, at para 83
- ↑
WL, ibid., at para 83
R v Atkinson, 2012 ONCA 380 (CanLII), [2012] OJ No 2520 (CA), per Watt JA, at paras 105, 106 and 108
- ↑
R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, per Estey J, at p. 2
- ↑
Rodney, supra, at para 6
- ↑
WL, supra, at para 83
- ↑ Fontaine, supra, at para 6
- ↑ R v Slavens, 1991 CanLII 298 (BC CA), 64 CCC (3d) 29, per Gibbs JA
Doctrine of Recent Possession
Property
Proof of ownership and value of property can be proven using s. 657.1(1) and 491.2(1) without using the actual property as an exhibit.
Kienapple and Lesser Included
An offence under s. 349(1) is a lesser included offence to an offence under s. 348(1)(b).[1]
662
[omitted (1), (2), (3), (4) and (5)]
- Conviction for break and enter with intent
(6) Where a count charges an offence under paragraph 98(1)(b) [break and enter and steals a firearm] or 348(1)(b) [break and enter – committing offence therein] and the evidence does not prove that offence but does prove an offence under, respectively, paragraph 98(1)(a) [break and enter with intent to steal a firearm] or 348(1)(a) [break and enter – intending to commit offence therein], the accused may be convicted of an offence under that latter paragraph.
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.
[annotation(s) added]
- ↑ R v Liang, 2009 ABCA 2 (CanLII), 240 CCC (3d) 197, per Costigan JA
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
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
---|---|---|---|---|
s. 98 [break in for firearm] | ||||
s. 348 [break and enter] |
For serious personal injury offences or murder, s. 606(4.1) 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
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 348(1)(d) [break into dwelling house] or s. 98 [break in for firearm] |
N/A | life incarceration |
s. 348(1)(e) [break into non-dwelling house] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 348(1)(e) [break into non-dwelling house] | indictable election | 10 years incarceration |
Offences under s. 348(1)(d) [break into dwelling house] or s. 98 [break in for firearm] are straight indictable. The maximum penalty is life incarceration.
Offences under s. 348(e) [break into non-dwelling house] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
---|---|---|---|---|---|---|---|---|
s. 98 [break in for firearm] s. 348(1)(d) [break into dwelling house] |
N/A | ![]() |
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s. 348(1)(e) [break into non-dwelling house] |
any | ![]() |
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s. 348(1)(e) [break into non-dwelling house] |
any | ![]() |
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For offences under s. 348(1)(e) [break into non-dwelling house] , when prosecuted by summary conviction, 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).
Offences under s. 348(1)(e) [break into non-dwelling house] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).
If convicted under s. 98 or 348(1)(d) [break into dwelling house] a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life". Offences under s. 98 or 348(1)(d) [break into dwelling house] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
- Seriousness
Break and Enter is not properly considered merely a property crime that is typically recoverable by way of insurance.[1] The offence is an "attack on the serenity and security" vested in the home regardless of whether there was any risk of violence. Vulnerable victims can suffer greatly from the offence.[2]
The offence has been referred to as the "most serious property offence in the Criminal Code"[3]
Rural buildings have a "special security concern."[4]
- ↑ R v Martyn, 2014 ABCA 151 (CanLII), 572 AR 102, per curiam, at para 19
- ↑ Martyn, ibid., at para 19
- ↑
R v Pike, 2014 CanLII 53038 (NLSCTD), per Handrigan J, at para 15
- ↑ R v Manning, 1992 ABCA 76 (CanLII), per McClung JA, at para 5
Factors
Aggravating
- whether it was a private dwelling rather than a commercial building;
- extent of planning and sophistication
- the building was occupied at the time;
- the offender was aware or reckless to whether it was occupied;
- used violence or threats of violence to a person or property
- damage to property
The maximum penalty for Break and Enter on a dwelling house is life. The maximum penalty for Break and Enter on a premises other than a dwelling house is 10 year on indictable election and 6 months on a summary election.
Certain provinces have set a benchmark for residential B&E's at 3 years.[1]
- ↑ R v McAllister, 2008 NSCA 103 (CanLII), 865 APR 237, per Oland JA
Ranges
A first-time offender of good character who is charged with Break and Enter and where the offence is of a low-end nature (e.g. single incident, low value of property, property recovered), a suspended sentence may be appropriate.[1] If, however, there are multiple incidents, a custodial sentence is the usual punishment.[2]
In Ontario for home invasion offences, the low end of the range is 4 to 5 years while the high end of the range is 11 to 13 years.[3]
In Nova Scotia, a bench-mark of 3 years exists for break and enters.[4]The sentence may slide down to 2 years for those who do not otherwise have criminal records.[5]
- Home Invasion
In Newfoundland, courts have suggested that a range of break and enter into dwellings is between 12 and 36 months.[6]
- ↑ R v Davenport [1977], 1 WCB 176(*no CanLII links)
- ↑ R v Fry, [1981] OJ No 140 (CA)(*no CanLII links) -- 9 months concurrent
- ↑
R v Mann, 2010 ONCA 342 (CanLII), 261 OAC 379, per MacPherson JA, at para 22
R v Wright, 2006 CanLII 40975 (ON CA), 216 CCC (3d) 54, per Blair JA, at para 23
- ↑
R v Zong, 1986 CanLII 6903 (NS CA), 72 NSR (2d) 432 (CA), per Clarke CJ
R v Adams, 2010 NSCA 42 (CanLII), 255 CCC (3d) 150, per Bateman JA
- ↑
Adams, ibid., at paras 38 to 42
- ↑
R v Walbourne, 2012 CanLII 26671 (NL PC), [2012] NJ No 171 (P.C.), per Orr J
R v Roul, 2014 CanLII 2887 (NL PC), per Porter J, at para 24 ("absent exceptional circumstances, the range of sentence for break and entry into a dwelling house in this Province is from 12 to 36 months")
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 348(1)(d), (e) and 98 |
|
Weapons Prohibition Orders | s. 348 |
|
SOIRA Orders | s. 348(1)(d), (e) |
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act |
Delayed Parole Order | s. 98 |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 348 [break and enter] 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".
- Exception Where Intent to Commit Offences Against Children
Convictions under s. 348 (where the intended offence is listed in SCHEDULE 1 of the Criminal Records Act) are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.
History
See Also
- References
- Related Offences
|
Unlawfully in a Dwelling
This page was last substantively updated or reviewed January 2019. (Rev. # 79551) |
Unlawfully in a Dwelling | |
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s. 349 of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | None |
Maximum | 10 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to unlawfully in a dwelling are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
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s. 349 [unlawfully in a dwelling] | Hybrid Offence(s) | ![]() |
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Offences under s. 349 [unlawfully in a dwelling] 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.
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
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s. 349 [unlawfully in a dwelling] | ![]() |
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When charged under s. 349 [unlawfully in a dwelling], 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 349 [unlawfully in a dwelling] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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s. 349 [unlawfully in a dwelling] | ![]() |
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Offences under s. 349 [unlawfully in a dwelling] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Being unlawfully in dwelling-house
349 (1) Every person who, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or of an offence punishable on summary conviction.
- Presumption
(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.
R.S., 1985, c. C-46, s. 349; 1997, c. 18, s. 21; 2018, c. 29, s. 35.
Draft Form of Charges
Pre-ambles | ||
---|---|---|
"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 |
349(1) | being unlawfully in dwelling-house | "..., without lawful excuse, did enter or was in the dwelling-house of [name1] with intent to commit therein the indictable offence of [name offence],, to wit: [particulars], contrary to section 349(1) of the Criminal Code." |
Proof of the Offence
Proving unlawfully in a dwelling under s. 349 should include:[1]
|
- ↑ R v Payne, 2007 CanLII 36002 (NLPC), , [2007] NJ No. 303 (P.C.), per Gorman J
Interpretation of the Offence
The offence can be committed in two ways, either by "entering" or "being in" a dwelling-house without a lawful excuses with the intent to commit an indictable offence.[1]
The mens rea is made out where 1) there is a general intent to enter the dwelling-house without lawful excuse,[2] and 2) the specific intent to commit an indictable offence.[3]
The crown must prove an entry and intent to commit an indictable offence therein.[4]
The presumption under s.349(2) is a mandatory inference.[5] Once the actus reus is proven that the accused was in the dwelling the mens rea is presumed.[6]
Where the accused is found to have gained entry into a dwelling house through an open door, the offence overlaps with break and enter.[7]
- ↑ R v Beyo, 2000 CanLII 5683, , 144 CCC (3d) 15, per Rosenberg JA
- ↑
R v Ellis, 2012 CanLII 62646 (NLPC), , [2012] NJ No. 355 (P.C.), per Skanes J (“the first element of the offence [of unlawfully being in a dwelling-house] that must be proven by the Crown is that the defendant actually entered the [complainant’s] home.”)
- ↑
see R v Nagy, 1988 CanLII 7138 (ON CA), 45 CCC (3d) 350, per Morden JA
Beyo, supra
R v E(S), 1993 CanLII 3410 (NWTCA), 80 CCC (3d) 502, per Hetherington JA - ↑ R v Austin, 1968 CanLII 94 (SCC), [1968] SCR 891, per Spence J
- ↑ Nagy, supra
- ↑ R v Atkinson, 2012 ONCA 380 (CanLII), [2012] O.J. No. 2520 (CA), per Watt JA, at para 97, (“from evidence of the actus reus, the trier of fact presumes the mens rea, absent evidence to the contrary.”)
- ↑
R v Johnson, 1977 CanLII 229 (SCC), [1977] 2 SCR 646, per Dickson J
R v Wiens, 2013 ABPC 15 (CanLII), 551 AR 195, per Pharo J
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
For serious personal injury offences or murder, s. 606(4.1) 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
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 349 [unlawfully in a dwelling] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 349 [unlawfully in a dwelling] | indictable election | 10 years incarceration |
Offences under s. 349 [unlawfully in a dwelling] are hybrid. If prosecuted by indictment, the maximum penalty is '10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
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s. 349 [unlawfully in a dwelling] | summary election | ![]() |
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s. 349 [unlawfully in a dwelling] | indictable election | ![]() |
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If prosecuted by summary conviction, 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).
Offences under s. 349 [unlawfully in a dwelling] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
Ranges
In Newfoundland and Labrador, sentences range from a low end of 2 to 4 months to an upper end of 12 months.[1]
- ↑
R v Pardy, 2016 CanLII 24209 (NLSCTD), per Handrigan J, at para 9
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 349 [unlawfully in a dwelling] |
|
Weapons Prohibition Orders |
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 349 [unlawfully in a dwelling] 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".
History
See Also
- References
|
Possession of Break-in Instruments
Possession of Break-in Instruments | |
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s. 351 and 352 of the Crim. Code | |
Election / Plea | |
Crown Election | Indictment (351(2) and 352) Hybrid (351(1)) summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | None |
Maximum | 2, 10 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to possession of break-in instruments are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
s. 351(1) [possession of break-in instruments], s. 351(2) [disguise with intent] and s. 352 [coin-operated or currency devices] |
Hybrid Offence(s) | Yes | ![]() |
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{{PleadingsHybridElection-Under14|s. 351(1) }
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
---|---|---|---|---|---|
s. 351(1) [possession of break-in instruments], s. 351(2) [disguise with intent] and s. 352 [coin-operated or currency devices] |
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When charged under s. 351(1) [possession of break-in instruments], 351(2) [disguise with intent] and 352 [coin-operated or currency devices] , 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 351(1) [possession of break-in instruments], 351(2) [disguise with intent] and 352 [coin-operated or currency devices] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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.
- Designation
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Possession of break-in instrument
351 (1) Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe knowing that the instrument has been used or is intended to be used for that purpose,
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
- (b) is guilty of an offence punishable on summary conviction.
- Disguise with intent
(2) Every person who, with intent to commit an indictable offence, has their face masked or coloured or is otherwise disguised is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
- (b) an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 351; R.S., 1985, c. 27 (1st Supp.), s. 48; 2008, c. 18, s. 9; 2018, c. 29, s. 37; 2019, c. 25, s. 128.
- Possession of instruments for breaking into coin-operated or currency exchange devices
352 Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into a coin-operated device or a currency exchange device, knowing that the instrument has been used or is or was intended to be used for that purpose, is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 352; 2018, c. 29, s. 38; 2019, c. 25, s. 129.
Draft Form of Charges
Pre-ambles | ||
---|---|---|
"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 |
351(1) | "..., did without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe knowing that the instrument has been used or is intended to be used for that purpose, to wit: [conduct], contrary to section 351(1) of the Criminal Code. | |
351(2) | "..., contrary to section 351(2) of the Criminal Code. |
|- |352 | |"..., contrary to section 352 of the Criminal Code. |}
, ,
Proof of the Offence
Proving possession of break-in instruments under s. 351(1) should include:
Proving disguising with intent under s. 351(2) should include:
|
Proving possession of instruments for breaking into a coin-operated or currency exchange devices under s. 352 should include:
|
Interpretation of the Offences
A knife, even a broken one, can be found to be a break-in instrument as it can be used to force a gate or drawer lock.[1]
- Disguise
The Crown must prove beyond a reasonable doubt that the disguise was used for the intention of committing an indictable offence.[2]
- ↑ R v Charron, 2005 BCCA 607 (CanLII), per Low JA
- ↑
R v King, 2011 ONSC 1183 (CanLII), per Daley J, at para 83 citing R v Shay, 1976 CanLII 1379, , 32 CCC (3d) 13, per Jessup JA
R v Oakley, 1997 CanLII 1929 (NS CA), 485 APR 310, per Flinn JA citing R v Shay
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
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
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 351(1) [possession of break-in instruments] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 351(1) [possession of break-in instruments] | indictable election | 10 years incarceration |
s. 351(2) [disguise with intent] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 351(2) [disguise with intent] | indictable election | 10 years incarceration |
s. 352 [coin-operated or currency devices] | N/A | 2 years incarceration |
Offences under s. 351(1) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
Offences under s. 351(2) and 352 are straight indictable. The maximum penalty is 10 years incarceration under s. 351(2) and 2 years incarceration under s. 352.
- Minimum Penalties
Offences under s. 351 and 352 [coin-operated or currency devices] have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
---|---|---|---|---|---|---|---|---|
s. 351(1) [possession of break-in instruments], s. 351(2) [disguise with intent], s. 352 [coin-operated or currency devices] |
any | ![]() |
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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.
Principles
Ranges
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 351(1), (2) |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 351(1) and (2) 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".
See Also
- References
|
Forcible Entry
This page was last substantively updated or reviewed January 2020. (Rev. # 79551) |
Forciable Entry | |
---|---|
s. 72 of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | None |
Maximum | 2 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to forcible entry are found in Part II of the Criminal Code relating to "Offences Against Public Order".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
s. 72 [forcible entry or forcible detainer] | Hybrid Offence(s) | ![]() |
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Offences under s. 72 [forcible entry or forcible detainer] 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.
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
---|---|---|---|---|---|
s. 72 [forcible entry or forcible detainer] | ![]() |
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When charged under s. 72 [forcible entry or forcible detainer], 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
---|---|---|---|---|---|
s. 72 [forcible entry or forcible detainer] | ![]() |
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Forcible entry
72 (1) A person commits forcible entry when that person enters real property that is in the actual and peaceable possession of another in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.
- Matters not material
(1.1) For the purposes of subsection (1) [forcible entry – offence], it is immaterial whether or not a person is entitled to enter the real property or whether or not that person has any intention of taking possession of the real property.
- Forcible detainer
(2) A person commits forcible detainer when, being in actual possession of real property without colour of right, he detains it in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person who is entitled by law to possession of it.
- Questions of law
(3) The questions whether a person is in actual and peaceable possession or is in actual possession without colour of right are questions of law.
R.S., 1985, c. C-46, s. 72; R.S., 1985, c. 27 (1st Supp.), s. 10; 1992, c. 1, s. 60(F).
[annotation(s) added]
- Punishment
73 Every person who commits forcible entry or forcible detainer is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 73; R.S., 1985, c. 27 (1st Supp.), s. 11 1992, c. 1, s. 58; 2019, c. 25, s. 13.
Draft Form of Charges
Pre-ambles | ||
---|---|---|
"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 |
73 | forcible entry | "..., did commit forcible entry, to wit: [conduct], contrary to section 73 of the Criminal Code. |
73 | forcible detainer | "..., did commit forcible detainer, to wit: [conduct], contrary to section 73 of the Criminal Code. |
Proof of the Offence
Proving forcible entry under s. 72(1) and 73 should include:[1]
|
Proving forcible detainer under s. 72(2) and 73 should include:
|
- ↑
R v Stoyke, 2007 ABPC 259 (CanLII), AWLD 1851, per LeGrandeur J, at para 2
R v D(J), 2002 CanLII 16805 (ON CA), 171 CCC (3d) 188, per Doherty JA (3:0)
see also R v Wilson, 2000 BCSC 1401 (CanLII), BCTC 709, per Bouck J, at para 13
Interpretation of the Offence
The breach of the peace must "flow from the manner in which possession of the real property is taken and not from subsequent events."[1]
There is no need to prove that the accused intended to take possession of the real property.[2]
There is no need to prove that the entry was done in a violent manner.[3]
The offence requires "some violence, or threatened violence, upon someone in occupation" and it must be in "the presence of someone who might resist."[4]
- ↑ R v D(J), 2002 CanLII 16805 (ON CA), 171 CCC (3d) 188, per Doherty JA (3:0)
- ↑
R v Stoyke, 2007 ABPC 259 (CanLII), AWLD 1851, per LeGrandeur J
cf. R v Wilson, 2000 BCSC 1401 (CanLII), BCTC 709, per Bouck J, at para 21
- ↑
Wilson, ibid., at para 17
- ↑ R v Czegledi, 1931 CanLII 246 (SK CA), 55 CCC 114, per Martin JA
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
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
---|---|---|---|---|
s. 72 [forcible entry or forcible detainer] |
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
Sentencing Profile
- Maximum Penalties
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 72 [forcible entry or forcible detainer] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 72 [forcible entry or forcible detainer] | indictable election | 2 years incarceration |
Offences under s. 72 [forcible entry or forcible detainer] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
---|---|---|---|---|---|---|---|---|
s. 72 [forcible entry or forcible detainer] | any | ![]() |
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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.
Principles
Ranges
- see also: Forcible Entry (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
Weapons Prohibition Orders | s. 72 [forcible entry or forcible detainer] |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 72 [forceable entry] 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".
See Also
- Related Offences
- References
|
|
Motor Vehicle Theft
This page was last substantively updated or reviewed January 2020. (Rev. # 79551) |
Motor Vehicle Theft | |
---|---|
s. 333.1 of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. |
|
Minimum | 6 months incarceration (third or more) |
Maximum | 10 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to motor vehicle theft are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
s. 333.1 [motor vehicle theft] | Hybrid Offence(s) | ![]() |
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Offences under s. 333.1 [motor vehicle theft] 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.
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
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s. 333.1 [motor vehicle theft] | ![]() |
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When charged under s. 333.1 [motor vehicle theft], 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.
- Fingerprints and Photos
A peace officer who charges a person under s. 333.1 [motor vehicle theft] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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s. 333.1 [motor vehicle theft] | ![]() |
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Offences under s. 333.1 [motor vehicle theft] are designated offences eligible for wiretap under s. 183.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Motor vehicle theft
333.1 (1) Everyone who commits theft is, if the property stolen is a motor vehicle, guilty of an offence and liable
- (a) on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or
- (b) on summary conviction, to imprisonment for a term of not more than two years less a day.
- Subsequent offences
(2) For the purpose of determining whether a convicted person has committed a third or subsequent offence, an offence for which the person was previously convicted is considered to be an earlier offence whether it was prosecuted by indictment or by way of summary conviction proceedings.
2010, c. 14, s. 3; 2019, c. 25, s. 121.
Draft Form of Charges
Pre-ambles | ||
---|---|---|
"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 |
333.1 | motor vehicle theft | "..., did commit theft of a motor, to wit: [particulars], contrary to section 333.1 of the Criminal Code." |
Proof of the Offence
Proving motor vehicle theft under s. 333.1 should include:
|
Interpretation of the Offence
A passenger may be convicted for possession of stolen motor vehicle if there are enough factors to determine control and knowledge.[1]
A voluntary passengers in a stolen vehicle may be found to be an abettor as their presence may have the effect of encouraging the theft.[2]
- ↑
see R v TAK, 2005 BCCA 293 (CanLII), 213 BCAC 48, per Low JA
see also Possession#Other - ↑
R v Barnhardt, 2001 BCCA 191 (CanLII), 152 CCC (3d) 480, per Fitch JA (2:1), at to 84 paras 81 to 84{{{3}}}
R v DW and TB, 2017 NSPC 13 (CanLII), per Derrick J
see also Parties to an Offence
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
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 333.1), 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
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 333.1 [motor vehicle theft] | summary election | 18 months incarceration |
s. 333.1 [motor vehicle theft] | indictable election | 10 years incarceration |
Offences under s. 333.1 [motor vehicle theft] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.
- Minimum Penalties
If the offender has two prior convictions or more, and would prosecuted by indictment, the minimum penalty is 6 months jail.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
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s. 333.1 [motor vehicle theft] | summary election | ![]() |
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s. 333.1 [motor vehicle theft] | indictable election | ![]() |
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For offences under s. 333.1 [motor vehicle theft], when prosecuted by summary conviction, 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).
Offences under s. 333.1 [motor vehicle theft] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
Ranges
- see also: Motor Vehicle Theft (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 333.1 [motor vehicle theft] |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 333.1 [motor vehicle theft] 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".
See Also
- References
Related
|
Theft
This page was last substantively updated or reviewed January 2020. (Rev. # 79551) |
Theft | |
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s. 322 and 334(a), (b) of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid / Indictable summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Varies |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years incarceration (under) 10 years incarceration (over) |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to theft are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
s. 334(a) [theft over $5,000] | Indictable Offence(s) | ![]() |
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s. 334(b) [theft not exceeding $5,000] | Hybrid Offence(s) | ![]() |
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Offences under s. 334(a) [theft over $5,000] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.
Offences under s. 334(b) [theft not exceeding $5,000] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge. There is however a Crown election.
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
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s. 334(a) [theft over $5,000] | ![]() |
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s. 334(b) [theft not exceeding $5,000] | ![]() |
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When charged under s. 334(a) [theft over $5,000], the accused can be given a judicial summons without arrest. 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.
When charged under s. 334(b) [theft not exceeding $5,000] , 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
A peace officer who charges a person under s. 334(a) and (b) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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s. 334(a) [theft over $5,000] | ![]() |
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s. 334(b) [theft not exceeding $5,000] | ![]() |
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Offences under s. 334 are designated offences eligible for wiretap under s. 183.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Theft
322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
- (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
- (b) to pledge it or deposit it as security;
- (c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
- (d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
- Time when theft completed
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
- Secrecy
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.
- Purpose of taking
(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.
[omitted (5)]
R.S., c. C-34, s. 283.
- Punishment for theft
334 Except where otherwise provided by law, every one who commits theft
- (a) if the property stolen is a testamentary instrument or the value of what is stolen is more than $5,000, is guilty of
- (i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or
- (ii) an offence punishable on summary conviction; or
- (b) if the value of what is stolen is not more than $5,000, is guilty
- (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
- (ii) of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 334; R.S., 1985, c. 27 (1st Supp.), s. 43; 1994, c. 44, s. 20; 2019, c. 25, s. 122.
- Theft and possession
657.2 (1) Where an accused is charged with possession of any property obtained by the commission of an offence, evidence of the conviction or discharge of another person of theft of the property is admissible against the accused, and in the absence of evidence to the contrary is proof that the property was stolen.
- Accessory after the fact
(2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the conviction or discharge of another person of the offence is admissible against the accused, and in the absence of evidence to the contrary is proof that the offence was committed.
1997, c. 18, s. 80.
Telecommunications
- Theft of telecommunication service
326 (1) Every one commits theft who fraudulently, maliciously, or without colour of right,
- (a) abstracts, consumes or uses electricity or gas or causes it to be wasted or diverted; or
- (b) uses any telecommunication facility or obtains any telecommunication service.
(2) [Repealed, 2014, c. 31, s. 14]
R.S., 1985, c. C-46, s. 326; 2014, c. 31, s. 14.
Proof of the Offence
Generally
Proving theft under s. 322 should include:
Proving theft of testamentary instrument under s. 322 should include:
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Proving theft of telecommunications under s. 326 should include:
|
Shoplifting
In a case of shoplifting, Proving theft should include, in addition to the general elements of proof:
|
- ↑ see R v Parkes, 2012 SKQB 164 (CanLII), 396 Sask R 201, per Acton J, at para 40
Draft Form of Charges
Pre-ambles | ||
---|---|---|
"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 |
334 | theft | "..., did commit theft, to wit: [particulars], contrary to section 334 of the Criminal Code." |
Interpretation of the Offence
In a theft case the crown must prove a specific intent of the accused to deprive its owner of the property.[1]
The offence of theft when in the context of shop-lifting is complete even before the accused leaves the store. By picking up the item with the requisite intent to steal is sufficient to make out the offence in its entirety.[2]
Theft can occur where the accused is given money for one known purpose and intentionally uses the money for another purpose.[3]
Returning the item stolen can still amount to a theft.[4]
A pickpocket has completed the act of attempted theft once they put their hand in the victim's pocket. It makes no difference if the pocket was empty.[5]
- De Minimus
The theft of a "handful" of nuts from a grocery store was not sufficiently serious for a conviction.[6]
- ↑ see R v LaFrance, 1973 CanLII 35 (SCC), [1975] 2 SCR 201, per Martland J
- ↑ eg. R v Beales, 2012 CanLII 582 (NL PC), per Gorman J, at paras 20 to 22
- ↑
R v Link, 2013 SKQB 138 (CanLII), 418 Sask R 242, per Ball J, at para 8
R v Skalbania, 1997 CanLII 337 (SCC), [1997] 3 SCR 995, per McLachlin J
R v Bast, 1989 CanLII 4796 (SK CA), 79 Sask R 141, [1989] S. J. No. 558 (Sask. Q.B.), per Halvorson J, at para 73
- ↑ R v Kosh, 1964 CanLII 361 (SK CA), [1965] 1 CCC 230 (Sask CA), per Culliton CJS
- ↑ R v Scott, 1963 CanLII 690 (AB CA), 2 CCC 257, per Macdonald JA
- ↑
R v Fowler, 2009 SKPC 114 (CanLII), 344 Sask R 56, per Harradence J
see also De Minimus Non Curat Lex
Steal and Theft
2 In this Act,
...
"steal" means to commit theft;
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.
It is possible to infer theft by way of proving a mysterious disappearance.[1]
- ↑ e.g. R v Paul, 1975 CanLII 185 (SCC), [1977] 1 SCR 181, per Ritchie J
Fraudulently
"Fraudulently" refers to the "knowledge that the thing taken is the property of another person."[1]
- ↑
R v Link, 2013 SKQB 138 (CanLII), 418 Sask R 242, per Ball J, at para 7
R v Lafrance, 1973 CanLII 35 (SCC), [1975] 2 SCR 201, per Martland J, at para 17
R v Skalbania, 1997 CanLII 337 (SCC), [1997] 3 SCR 995, per McLachlin J, at p. 997
"Colour of Right"
Subject Matter of Theft
The provision states that "anything" can be the subject of theft. This term was interpreted broadly as including both tangibles and intangibles. The subject of theft must be:[1]
- be property of some sort
- property capable of being
- taken or
- converted
- taken or converted in a way that the owner is deprived of the property in some way.
Confidential information cannot be the subject of theft as the owner is not deprived of the subject.[2] Nor can computer data.[3]
- ↑
R v Stewart, 1988 CanLII 86, [1988] 1 SCR 963, per Lamer J, at para 41
cf. R v Cisar, 2014 ONCA 151 (CanLII), 307 CCC (3d) 336, per Rosenberg JA (3:0) - ↑
Stewart, ibid.
R v Alexander, 2006 CanLII 26480 (ON SC), OTC Uned 715, per T Ducharme J
- ↑ R v Maurer, 2014 SKPC 118 (CanLII), 447 Sask R 76, per Metivier J
- Ownership of Wild Creatures
- Theft
322
[omitted (1), (2), (3) and (4)]
- Wild living creature
(5) For the purposes of this section, a person who has a wild living creature in captivity shall be deemed to have a special property or interest in it while it is in captivity and after it has escaped from captivity.
R.S., c. C-34, s. 283.
Theft of Telecommunications Services (s. 326)
The term "fraudulently" within the meaning of s. 326 connotes "an intentional and deliberate taking service that was not the accused's to obtain".[1]
- Examples
The operator of a grow op does not have sufficient mens rea for theft where they are merely aware of the existence of a "bypass" device.[2]
The use of a device that "prefect[s] reception" of pay-TV signal that was overwise accessible to non-paying members of the public, is not an offence.[3]
- ↑ R v He, 2008 BCCA 418 (CanLII), 237 CCC (3d) 1, per Bauman JA, at para 70
- ↑ He, ibid.
- ↑ R v Miller, 1984 ABCA 155 (CanLII), 12 CCC (3d) 466, per McClung JA
Misc Issues of Proof
- s. 491.2(1) -- photographic evidence
- s. 657.1(1) -- Proof of ownership and value of property
Defences
Typical defences will include claims such as:
- the accused paid for the property (colour of right)
- the accused was given the property (colour of right)
- the accused honestly but mistakenly believed the property was theirs (honest but mistaken belief)
- the accused forgot they were in possession of it (honest but mistaken belief)
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
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
---|---|---|---|---|
s. 334(a) [theft over $5,000] | ||||
s. 334(b) [theft not exceeding $5,000] |
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
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 334(a) [theft over $5,000] | N/A | 10 years incarceration |
s. 334(b) [theft not exceeding $5,000] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 334(b) [theft not exceeding $5,000] | indictable election | 5 years incarceration |
Offences under s. 334(a) [theft over $5,000] are straight indictable. The maximum penalty is 10 years incarceration.
Offences under s. 334(b) [theft not exceeding $5,000] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
---|---|---|---|---|---|---|---|---|
s. 334(b) [theft not exceeding $5,000] |
any | ![]() |
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s. 334(a) [theft over $5,000] |
N/A | ![]() |
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Offences under s. 334(a) [theft over $5,000] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
A common offence in most provincial courts. The range of sentences for low end offences range from discharges for first time offenders, fines ($100 to 400), suspended sentence with probation, or short and sharp periods of imprisonment where there is a prior related criminal record.[1]
- ↑
e.g. see R v Prowse, 1998 CanLII 18024 (NL CA), 517 APR 289, per Mahoney JA
R v CC, 2012 CanLII 16721 (NLPC), , [2012] NJ No. 121 (P.C.), per Gorman J
R v Reid, 2012 CanLII 25696 (NLPC), , [2012] NJ No. 164 (P.C.), per Gorman J
Employee Theft
The goals of denunciation and deterrence require that absent exceptional circumstances, the sentence should include imprisonment. [1]
Offences involving theft of large amounts from an employer by an employee will usually result in a sentence of incarceration.[2] Where exceptional circumstances exist, a conditional sentence may be appropriate.[3]
Theft of money by person who are entrusted with it in the course of his employment amounts to a abuse of trust within the meaning of s. 718.2(a)(iii).[4]
- ↑ R v Fulcher, 2007 ABCA 381 (CanLII), 228 CCC (3d) 105, per Cote JA, at para 30 ("[A]bsent truly exceptional circumstances, the sentencing goals of deterrence and denunciation demand a sentence of imprisonment rather than the imposition of a conditional sentence for crimes of embezzlement or theft by an employee.")
- ↑ Fulcher, supra, at para 30
- ↑ R v Nguyen, 2011 ABCA 300 (CanLII), 530 WAC 399, per Costigan JA
- ↑
Veno v R, 2012 NBCA 15 (CanLII), 995 APR 126, per Richard JA, at para 13
R v Chaulk, 2005 NBCA 86 (CanLII), 200 CCC (3d) 442, per curiam
R v McKinnon, 2005 ABCA 8 (CanLII), [2005] AJ No 12, per Cote JA -- embezzlement by a bookkeeper
R v Holmes, 1999 ABCA 228 (CanLII), 237 AR 146, per curiam -- bank manager stealing from accounts
R v Reid, 2004 YKCA 4 (CanLII), 194 BCAC 18, per Hall JA -- cashier stealing from employer
R v Pierce, 1997 CanLII 3020 (ON CA), , [1997] O.J. No. 715 (CA), per Finlayson JA -- comptroller sealing from employer
R v Dobis, 2002 CanLII 32815 (ON CA), , [2002] O.J. No. 646 (CA), per MacPherson JA -- fraud by accounting manager
R v Clarke, 2004 CanLII 7246 (ON CA), , [2004] O.J. No. 3438 (CA), per curiam -- bank telephone agent stealing from accounts
R v Bowes (J.M.)155 NBR (2d) 321 (CA)(*no CanLII links) -- lawyer stealing trust funds
Shoplifting
Shoplift offences have been called "low level crimes of opportunity".[1]
In most cases of shoplifting, without a prior record, the court will order discharges, suspended sentences or fines.[2]
- ↑
R v Rumsey, 2015 CanLII 5798 (NLPC), , [2015] NJ No. 46, per Skanes J, at para 19
R v Lush, 2017 CanLII 21181 (NL PC), per Marshall J, at para 78
- ↑
R v Symes, 2017 CanLII 29918 (NLPC), , [2017] NJ No. 53 (NLPC), per Porter PCJ, at para 17 ("Most shoplifting offences are dealt with by discharges, suspended sentences, or fines...")
Factors
Aggravating Factors
- criminal record for similar offences
- breach of trust
- lack of recovery of items
- inability to compensate owner
Other Factors
- history of alcohol or substance abuse
Ranges
- see also: Theft (Sentencing Cases)
In Newfoundland and Labrador, the range of sentence of retail thefts under $5,000 (ie. shoplifting) will vary between a discharge to "several months to a year" where there is a previous related record.[1]
- ↑
R v Glasco, 2009 CanLII 2685 (NL PC), per Orr J, at para 30
R v Pardy, 2016 CanLII 24209 (NLSCTD), per Handrigan J, at para 10
R v Symes, 2017 CanLII 29918 (NL PC), [2017] NJ No. 53, per Porter PCJ, at para 17 ("Most shoplifting offences are dealt with by discharges, suspended sentences, or fines. Recidivists are often sentenced to “short, sharp” periods of incarceration. ")
R v Sutherland, 2014 CanLII 37667 (NLPC), , [2014] NJ No. 228, per Gorman PCJ, at para 19
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 334(a) [theft over $5,000] |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 334 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".
See Also
- Offences
- References
Other Forms of Theft
Sections 323 to 333 provide for more specific instances and exclusions from theft:
- theft from oyster beds (s. 323)
- theft by bailee of things under seizure (s. 324)
- exception when agent is pledging goods (s. 325)
- theft of telecommunications service (s. 326)
- possession of device to obtain telecommunication facility or service (s. 327)
- theft by or from person having special property or interest (s. 328)
- theft by person required to account (s. 330)
- theft by person holding power of attorney (s. 331)
- misappropriation of money held under direction (s. 332)
- exception for ore taken for exploration or scientific research (s. 333)
|
Theft and Forgery of a Credit Card
This page was last substantively updated or reviewed January 2014. (Rev. # 79551) |
Theft and Forgery of a Credit Card | |
---|---|
s. 342 of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | same as summary |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | None |
Maximum | 10 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to theft and forgery of a credit card are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
s. 342(1) [theft, forgery, etc., of credit card] and s. 342(3) [unauthorized use of credit card data] |
Hybrid Offence(s) | ![]() |
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Offences under s. 342(1) [theft, forgery, etc., of credit card] and s. 342(3) [unauthorized use of credit card data] 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.
- Release
When charged under s. 342, 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
---|---|---|---|---|---|
s. s. 342(1) [theft, forgery, etc., of credit card] and s. 342(3) [unauthorized use of credit card data] |
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Theft, forgery, etc., of credit card
342 (1) Every person who
- (a) steals a credit card,
- (b) forges or falsifies a credit card,
- (c) possesses, uses or traffics in a credit card or a forged or falsified credit card, knowing that it was obtained, made or altered
- (i) by the commission in Canada of an offence, or
- (ii) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence,
or- (d) uses a credit card knowing that it has been revoked or cancelled,
is guilty of
- (e) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
- (f) an offence punishable on summary conviction.
[omitted (2)]
- Unauthorized use of credit card data
(3) Every person who, fraudulently and without colour of right, possesses, uses, traffics in or permits another person to use credit card data, including personal authentication information, whether or not the data is authentic, that would enable a person to use a credit card or to obtain the services that are provided by the issuer of a credit card to credit card holders is guilty of
- (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
- (b) an offence punishable on summary conviction.
[omitted (4)]
R.S., 1985, c. C-46, s. 342; R.S., 1985, c. 27 (1st Supp.), ss. 44, 185(F); 1997, c. 18, s. 16; 2009, c. 28, s. 4.
[annotation(s) added]
- Instruments for copying credit card data or forging or falsifying credit cards
342.01 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction, who, without lawful justification or excuse, makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses any instrument, device, apparatus, material or thing that they know has been used or know is adapted or intended for use
- (a) in the copying of credit card data for use in the commission of an offence under subsection 342(3) [unauthorized use of credit card data – offence]; or
- (b) in the forging or falsifying of credit cards.
- Forfeiture
(2) Where a person is convicted of an offence under subsection (1) [instruments for copying credit card data or forging or falsifying credit cards], any instrument, device, apparatus, material or thing in relation to which the offence was committed or the possession of which constituted the offence may, in addition to any other punishment that may be imposed, be ordered forfeited to Her Majesty, whereupon it may be disposed of as the Attorney General directs.
- Limitation
(3) No order of forfeiture may be made under subsection (2) [Instruments for copying credit card data or forging or falsifying credit cards – forfeiture] in respect of any thing that is the property of a person who was not a party to the offence under subsection (1) [Instruments for copying credit card data or forging or falsifying credit cards – forfeiture].
1997, c. 18, s. 17; 2009, c. 28, s. 5.
[annotation(s) added]
Draft Form of Charges
Pre-ambles | ||
---|---|---|
"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 |
"..., contrary to section XXX of the Criminal Code. |
Proof of the Offence
Proving unauthorized use of a credit card under s. 342(1) should include:
|
Proving unauthorized use of credit card data under s. 342(3) should include:
|
Interpretation of the Offence
The offence is made out where a credit card is "first innocently obtained" and then forms "the intention to covert the credit card to his own".[1]
- ↑ R v Costello, 1982 CanLII 354 (BC CA), 1 CCC (3d) 403, per MacFarlane JA
Jurisdiction
342
[omitted (1)]
- Jurisdiction
(2) An accused who is charged with an offence under subsection (1) [Theft, forgery, etc., of credit card – offence] may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be commenced in that place without the consent of the Attorney General of that province.
[omitted (3) and (4)]
R.S., 1985, c. C-46, s. 342; R.S., 1985, c. 27 (1st Supp.), ss. 44, 185(F); 1997, c. 18, s. 16; 2009, c. 28, s. 4.
Misc Definitions
Section 321 defines "credit card".[1]
Section 2 defines "steal". Section 322 defines theft generally.
Under s. 359, where the accused was found in possession of the stolen property in the last 12 months, it may be used to prove knowledge.
342
[omitted (1), (2) and (3)]
- Definitions
(4) In this section,
"personal authentication information" means a personal identification number or any other password or information that a credit card holder creates or adopts to be used to authenticate his or her identity in relation to the credit card;
"traffic" means, in relation to a credit card or credit card data, to sell, export from or import into Canada, distribute or deal with in any other way.
R.S., 1985, c. C-46, s. 342; R.S., 1985, c. 27 (1st Supp.), ss. 44, 185(F); 1997, c. 18, s. 16; 2009, c. 28, s. 4.
Consent of Attorney General
Section 2 defines "attorney general". Under s. 583, an indictment is still valid regardless of whether it that the required consent was obtained.
Special Shortcut to Proof
- Evidence
359 (1) Where an accused is charged with an offence under section 342 [theft and forgery of credit card] or 354 [possession of stolen property] or paragraph 356(1)(b) [possession of stolen mail], evidence is admissible at any stage of the proceedings to show that property other than the property that is the subject-matter of the proceedings
- (a) was found in the possession of the accused, and
- (b) was stolen within twelve months before the proceedings were commenced,
and that evidence may be considered for the purpose of proving that the accused knew that the property that forms the subject-matter of the proceedings was stolen property.
- Notice to accused
(2) Subsection (1) does not apply unless
- (a) at least three days notice in writing is given to the accused that in the proceedings it is intended to prove that property other than the property that is the subject-matter of the proceedings was found in his possession; and
- (b) the notice sets out the nature or description of the property and describes the person from whom it is alleged to have been stolen.
R.S., 1985, c. C-46, s. 359; R.S., 1985, c. 27 (1st Supp.), s. 51.
[annotation(s) added]
See Theft (Offence) for more details.
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
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 342), 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
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 342(1) [theft, forgery, etc., of credit card] and s. 342(3) [unauthorized use of credit card data] |
Summary Election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 342(1) [theft, forgery, etc., of credit card] and s. 342(3) [unauthorized use of credit card data] |
indictable election | 10 years incarceration |
Offences under s. 342(1) [theft, forgery, etc., of credit card] and (3) [unauthorized use of credit card data] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
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s. 342(1) [theft, forgery, etc., of credit card] and (3) [unauthorized use of credit card data] | any | ![]() |
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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.
Principles
Ranges
Ancillary Sentencing Orders
- Offence-related Orders
Order | Conviction | Description |
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DNA Orders | s. 342 |
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- General Forfeiture Orders
Forfeiture | Conviction | Description |
---|---|---|
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. |
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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). |
Record Suspensions and Pardons
Convictions under s. 342 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".
History
- Theft, forgery, etc., of credit card
342 (1) Every person who
- (a) steals a credit card,
- (b) forges or falsifies a credit card,
- (c) possesses, uses or traffics in a credit card or a forged or falsified credit card, knowing that it was obtained, made or altered
- (i) by the commission in Canada of an offence, or
- (ii) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence, or
- (d) uses a credit card knowing that it has been revoked or cancelled,
is guilty of
- (e) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
- (f) an offence punishable on summary conviction.
- Jurisdiction
(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be commenced in that place without the consent of the Attorney General of that province.
- Unauthorized use of credit card data
(3) Every person who, fraudulently and without colour of right, possesses, uses, traffics in or permits another person to use credit card data, whether or not authentic, that would enable a person to use a credit card or to obtain the services that are provided by the issuer of a credit card to credit card holders is guilty of
- (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
- (b) an offence punishable on summary conviction.
[omitted (4)]
R.S., 1985, c. C-46, s. 342; R.S., 1985, c. 27 (1st Supp.), ss. 44, 185(F); 1997, c. 18, s. 16.– CCC
See Also
- References
|
Possession of Stolen Property
Possession of Stolen Property | |
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s. 355 of the Crim. Code | |
Election / Plea | |
Crown Election | Indictment (Over) Hybrid (Under) summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | 355(a): Prov. Court Sup. Court w/ Jury (*) 355(b): Prov. Court only |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | None |
Maximum | 2, 10 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to possession of stolen property are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
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s. 355(b) [possession of property obtained by crime - no greater than $5,000] | Hybrid Offence(s) (Absolute Jurisdiction) |
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s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] | Hybrid Offence(s) | summary election | ![]() |
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s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] | Hybrid Offence(s) | indictable election | ![]() |
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The offence of possession of stolen property of value of $5,000 or less is hybrid with a Crown election. Where the offence involves "unlawfully having in his possession any property or thing or any proceeds of any property or thing knowing that all or a part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from the commission in Canada of an offence punishable by indictment or an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment" where the value is of $5,000 or less it is an absolute jurisdiction offence under s. 553(a)(iii) and so does not have a defence election of court. It must be tried by a provincial court judge.
Offences under s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] are straight indictable. There is a Defence election of Court under s. 536(2).
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
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s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] | ![]() |
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s. 355(b) [possession of property obtained by crime - no greater than $5,000] | ![]() |
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When charged under s. 355(b) [possession of property obtained by crime - no greater than $5,000], 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.
When charged under s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] , the accused can be given a judicial summons without arrest. 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 355(a) or (b) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] | ![]() |
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s. 355(b) [possession of property obtained by crime - no greater than $5,000] | ![]() |
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Possession of property obtained by crime
354 (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
- (a) the commission in Canada of an offence punishable by indictment; or
- (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
- Obliterated vehicle identification number
(2) In proceedings in respect of an offence under subsection (1) [possession of stolen property], evidence that a person has in their possession a motor vehicle the vehicle identification number of which has been wholly or partially removed or obliterated or a part of a motor vehicle being a part bearing a vehicle identification number that has been wholly or partially removed or obliterated is, in the absence of any evidence to the contrary, proof that the motor vehicle or part, as the case may be, was obtained,
- (a) by the commission in Canada of an offence punishable by indictment; or
- (b) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
[omitted (3)]
- Exception
(4) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under this section by reason only that the peace officer or person possesses property or a thing or the proceeds of property or a thing mentioned in subsection (1) [possession of stolen property] for the purposes of an investigation or otherwise in the execution of the peace officer’s duties.
R.S., 1985, c. C-46, s. 354; 1997, c. 18, s. 23; 2018, c. 29, s. 39.
[annotation(s) added]
- Punishment
355 Every one who commits an offence under section 354 [possession of stolen property]
- (a) if the subject matter of the offence is a testamentary instrument or the value of the subject matter of the offence is more than $5,000, is guilty of
- (i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or
- (ii) an offence punishable on summary conviction; or
- (b) if the value of the subject matter of the offence is not more than $5,000, is guilty
- (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
- (ii) of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 355; R.S., 1985, c. 27 (1st Supp.), s. 49; 1994, c. 44, s. 21; 2019, c. 25, s. 131.
[annotation(s) added]
Draft Form of Charges
Pre-ambles | ||
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"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 |
355 | possession of property obtained by theft | "...did have in their possession [describe property] of a value [not] exceeding $5,000, knowing that the property, thing or proceeds [was/were] obtained by or derived from the commission of an offence punishable by indictment, to wit: [offence], contrary to section 354(1) of the Criminal Code. |
Proof of the Offence
Proving possession of stolen property under s. 354(1) should include:
Proving possession of a motor vehicle with an obliterated vehicle identification number under s. 354(2) should include:
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Interpretation of the Offence
"property"
2 In this Act,
...
"property" includes
- (a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods,
- (b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange, and
- (c) any postal card, postage stamp or other stamp issued or prepared for issue under the authority of Parliament or the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person;
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.
The definition of property under s. 2 does not include "interest in property".[1]
- Postcard a chattel, value
4 (1) For the purposes of this Act, a postal card or stamp referred to in paragraph (c) of the definition property in section 2 shall be deemed to be a chattel and to be equal in value to the amount of the postage, rate or duty expressed on its face.
[omitted (2), (3), (4), (5), (6), (6.1), (7) and (8)]
R.S., 1985, c. C-46, s. 4 R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1; 2014, c. 31, s. 2.
- Presumed Value
Stolen property is prima facie presumed to be the retail value of the items.[2]
- ↑ R v Brunner, 1995 ABCA 120 (CanLII), 97 CCC (3d) 31
- ↑ R v Belanger, 1972 CanLII 1253 (BC CA), 6 CCC (2d) 210
"Vehicle Identification Number"
354
[omitted (1) and (2)]
- Definition of “vehicle identification number”
(3) For the purposes of subsection (2) [obliterated vehicle identification number], “vehicle identification number” means any number or other mark placed on a motor vehicle for the purpose of distinguishing the motor vehicle from other similar motor vehicles.
[omitted (4)]
R.S., 1985, c. C-46, s. 354; 1997, c. 18, s. 23.
[annotation(s) added]
Evidence of Conviction of Third Parties
- Theft and possession
657.2 (1) Where an accused is charged with possession of any property obtained by the commission of an offence, evidence of the conviction or discharge of another person of theft of the property is admissible against the accused, and in the absence of evidence to the contrary is proof that the property was stolen.
- Accessory after the fact
(2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the conviction or discharge of another person of the offence is admissible against the accused, and in the absence of evidence to the contrary is proof that the offence was committed.
1997, c. 18, s. 80.
Joint Trial for Theft or Trafficking
- Trial of persons jointly
593 (1) Any number of persons may be charged in the same indictment with an offence under section 354 [possession of stolen property] or 355.4 [possession of property obtained by crime — trafficking] or paragraph 356(1)(b) [possession of stolen mail], even though
- (a) the property was had in possession at different times; or
- (b) the person by whom the property was obtained
- (i) is not indicted with them, or
- (ii) is not in custody or is not amenable to justice.
- Conviction of one or more
(2) Where, pursuant to subsection (1) [trial of persons jointly], two or more persons are charged in the same indictment with an offence referred to in that subsection, any one or more of those persons who separately committed the offence in respect of the property or any part of it may be convicted.
R.S., 1985, c. C-46, s. 593; 2010, c. 14, s. 11.
[annotation(s) added]
Evidence
- Having in possession when complete
358 For the purposes of sections 342 [theft and forgery of credit card] and 354 [theft and forgery of credit card] and paragraph 356(1)(b) [possession of stolen mail], the offence of having in possession is complete when a person has, alone or jointly with another person, possession of or control over anything mentioned in those sections or when he aids in concealing or disposing of it, as the case may be.
R.S., 1985, c. C-46, s. 358; R.S., 1985, c. 27 (1st Supp.), s. 50.
[annotation(s) added]
Merely getting into a stolen vehicle that was known to be stolen is not enough to establish possession or control.[1]
- ↑ R v Terrence, 1980 CanLII 74 (ON CA), 55 CCC (2d) 183, per MacKinnon CJ("With deference, in my view, the mere getting into a stolen vehicle knowing it to be stolen, without more, would not be sufficient to establish the measure of control which I conclude is necessary to satisfy the requirement of the subsection.")
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
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] ), 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
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] | N/A | 10 years incarceration |
s. 355(b) [possession of property obtained by crime - no greater than $5,000] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 355(b) [possession of property obtained by crime - no greater than $5,000] | indictable election | 2 years incarceration |
Offences under s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] are straight indictable. The maximum penalty is 10 years incarceration. Offences under s. 355(b) are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
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s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] | any | ![]() |
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s. 355(b) [possession of property obtained by crime - no greater than $5,000] | any | ![]() |
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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.
Principles
Ranges
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 355(a) |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 355 [possession of stolen property] 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".
History
Prior to December 13, 2018, setions 259 and 260 read as follows:
- Evidence
359 (1) Where an accused is charged with an offence under section 342 [theft and forgery of credit card] and 354 [possession of stolen property] and paragraph 356(1)(b) [possession of stolen mail], evidence is admissible at any stage of the proceedings to show that property other than the property that is the subject-matter of the proceedings
- (a) was found in the possession of the accused, and
- (b) was stolen within twelve months before the proceedings were commenced,
and that evidence may be considered for the purpose of proving that the accused knew that the property that forms the subject-matter of the proceedings was stolen property.
- Notice to accused
(2) Subsection (1) does not apply unless
- (a) at least three days notice in writing is given to the accused that in the proceedings it is intended to prove that property other than the property that is the subject-matter of the proceedings was found in his possession; and
- (b) the notice sets out the nature or description of the property and describes the person from whom it is alleged to have been stolen.
R.S., 1985, c. C-46, s. 359; R.S., 1985, c. 27 (1st Supp.), s. 51.
[annotation(s) added]
- Constitionality of s. 359
Insofar as s. 359 requires admission of irrelevant or purely character evidence, it violates s. 7 of the Charter and should be "read down" to exclude irrelevant evidence. [1]
- Evidence of previous conviction
360 (1) Where an accused is charged with an offence under section 354 [possession of stolen property] or paragraph 356(1)(b) [possession of stolen mail] and evidence is adduced that the subject-matter of the proceedings was found in his possession, evidence that the accused was, within five years before the proceedings were commenced, convicted of an offence involving theft or an offence under section 354 [possession of stolen property] is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the accused knew that the property that forms the subject-matter of the proceedings was unlawfully obtained.
- Notice to accused
(2) Subsection (1) does not apply unless at least three days notice in writing is given to the accused that in the proceedings it is intended to prove the previous conviction.
R.S., c. C-34, s. 318.
[annotation(s) added]
- ↑
R v Hewitt, 1986 CanLII 4716 (MB CA), 32 CCC (3d) 54, per Huband JA ("The admission of irrelevant and prejudicial evidence by virtue of s. 317(1) is surely contrary to the principles of fundamental justice. ")
R v Guyett, 1989 CanLII 7202 (ON CA), 51 CCC (3d) 368, per Brooke JA("It is sufficient to say that I agree with the judgment of the majority in Hewitt that s. 317 goes much farther than the general rules of admissibility and that under it, evidence of bad character can be introduced even if it shows nothing more. To this extent, the section violates the principles of fundamental justice and the guarantee in s. 7 of the Charter. In my opinion, this section cannot be read down.")
See Also
|
Trafficking in Stolen Property
This page was last substantively updated or reviewed January 2020. (Rev. # 79551) |
Trafficking in Stolen Property | |
---|---|
s. 355.2 to 355.5 of the Crim. Code | |
Election / Plea | |
Crown Election | Indictment (355.5(a)) Hybrid (355.5(b)) summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 5 or 14 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to trafficking in stolen property are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
Sections 355.2 to 355.5 describe four offences relating to the trafficking of stolen property. There are offences for trafficking in stolen property of value exceeding $5,000 [355.2 and 355.5(a)] and trafficking in stolen property of value not exceeding $5,000 [355.2 and 355.5(b)]. There are also offences for the possession of stolen property for the purpose of trafficking of value exceeding $5,000 [355.4 and 355.5(a)] and possession of stolen property for the purpose of trafficking of value not exceeding $5,000 [355.4 and 355.5(b)].
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] | Hybrid Offence(s) | Yes | ![]() |
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355.2, 355.4, or 355.5(a) [trafficking in property obtained by crime - greater than $5,000] | Indictable Offence(s) | N/A | ![]() |
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Offences under s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] 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.
Offences under s. 355.2, 255.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
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s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] | ![]() |
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s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000] | ![]() |
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When charged under s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000], 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. When charged under s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000], the accused can be given a judicial summons without arrest. 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 355.2, 355.4, 355.5(a) or (b) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] | ![]() |
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s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000] | ![]() |
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Trafficking in property obtained by crime
355.2 Everyone commits an offence who traffics in any property or thing or any proceeds of any property or thing knowing that all or part of the property, thing or proceeds was obtained by or derived directly or indirectly from
- (a) the commission in Canada of an offence punishable by indictment; or
- (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
2010, c. 14, s. 6.
- Possession of property obtained by crime — trafficking
355.4 Everyone commits an offence who has in their possession, for the purpose of trafficking, any property or thing or any proceeds of any property or thing knowing that all or part of the property, thing or proceeds was obtained by or derived directly or indirectly from
- (a) the commission in Canada of an offence punishable by indictment; or
- (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
2010, c. 14, s. 6.
- Punishment
355.5 Everyone who commits an offence under section 355.2 [trafficking in property obtained by crime] or 355.4 [possession of property obtained by crime — trafficking]
- (a) is, if the value of the subject matter of the offence is more than $5,000, guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years; or
- (b) is, if the value of the subject matter of the offence is not more than $5,000,
- (i) guilty of an indictable offence and liable to imprisonment for a term of not more than five years, or
- (ii) guilty of an offence punishable on summary conviction.
2010, c. 14, s. 6.
[annotation(s) added]
Draft Form of Charges
Pre-ambles | ||
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"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 |
"..., contrary to section XXX of the Criminal Code. |
Proof of the Offences
Proving trafficking in property obtained by crime under s. 355.2 should include:
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Proving possession of property obtained by crime — trafficking under s. 355.4 should include:
|
Interpretation
"traffic"
- Definition of “traffic”
355.1 For the purposes of sections 355.2 [trafficking in property obtained by crime] and 355.4 [possession of property obtained by crime — trafficking], "traffic" means to sell, give, transfer, transport, export from Canada, import into Canada, send, deliver or deal with in any other way, or to offer to do any of those acts.
2010, c. 14, s. 6.
[annotation(s) added]
In Rem
- In rem prohibition
355.3 The importation into Canada or exportation from Canada of any property or thing or any proceeds of any property or thing is prohibited if all or part of the property, thing or proceeds was obtained by or derived directly or indirectly from
- (a) the commission in Canada of an offence punishable by indictment; or
- (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
2010, c. 14, s. 6.
Joint Trial for Theft or Trafficking
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
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
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s. 355.2 [trafficking in property obtained by crime] |
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 355.2), 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
Sentencing Profile
- Maximum Penalties
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 355.2, 355.4, and 355.5(a) [trafficking in property obtained by crime - greater than $5,000] | N/A | 14 years incarceration |
s. 355.2, 355.4, and 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 355.2, 355.4, and 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] | indictable election | 5 years incarceration |
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Sentences
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
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s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] | any | ![]() |
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s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000] | N/A | ![]() |
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Offences under s. 355.5(a) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.
If convicted under s. 355.2 and 355.4 [value greater than $5,000] a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
The purpose of the offence is to target the "downstream trade in property and profit obtained via crime". It also creates "economic conditions that are less conductive to committing the underlying criminal conduct".[1]
- ↑
Syncrude Canada Ltd. v Canada (Attorney General), 2016 FCA 160 (CanLII), 398 DLR (4th) 91, per Rennie J, at para 86
Ranges
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 355.5 |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. |
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Record Suspensions and Pardons
Convictions under s. 355.5 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".
Obtaining Property by False Pretences
This page was last substantively updated or reviewed January 2020. (Rev. # 79551) |
Obtaining Property by False Pretences | |
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s. 362(2)(a), (b) of the Crim. Code | |
Election / Plea | |
Crown Election | Indictment (over), Hybrid (under) summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | None |
Maximum | 2, 10 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to obtaining property by false pretences are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
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s. 362(2)(a) [false pretenses – value under $5,000] | Indictable Offence(s) | ![]() |
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s. 362(2)(b) [false pretenses – value under $5,000] | Hybrid Offence(s) | ![]() |
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Offences under s. 362(2)(b)[false pretenses – value under $5,000] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.
Offences under s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
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s. 362(2)(b) [false pretenses – value under $5,000] | ![]() |
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s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] | ![]() |
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When charged under s. 362(2)(b) [false pretenses – value under $5,000] , 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.
When charged under s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] , the accused can be given a judicial summons without arrest. 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.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 362(2) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
---|---|---|---|---|---|
s. 362(2)(b) [false pretenses – value under $5,000] s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] |
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- False pretence or false statement
362 (1) Every one commits an offence who
- (a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretence, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person;
- (b) obtains credit by a false pretence or by fraud;
- (c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or herself or any person or organization that he or she is interested in or that he or she acts for, for the purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or organization,
- (i) the delivery of personal property,
- (ii) the payment of money,
- (iii) the making of a loan,
- (iv) the grant or extension of credit,
- (v) the discount of an account receivable, or
- (vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or
- (d) knowing that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or herself or another person or organization that he or she is interested in or that he or she acts for, procures on the faith of that statement, whether for his or her benefit or for the benefit of that person or organization, anything mentioned in subparagraphs (c)(i) to (vi) [false pretenses – false statement – prohibited purposes].
- Punishment
(2) Every one who commits an offence under paragraph (1)(a) [false pretenses – obtain physical anything]
- (a) if the property obtained is a testamentary instrument or the value of what is obtained is more than $5,000, is guilty of
- (i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or
- (ii) an offence punishable on summary conviction; or
- (b) if the value of what is obtained is not more than $5,000, is guilty
- (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
- (ii) of an offence punishable on summary conviction.
- Idem
(3) Every person who commits an offence under paragraph (1)(b) [false pretenses – obtain credit], (c) [false pretenses – false statement] or (d) [false pretenses – false statement re means to pay] is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
- (b) an offence punishable on summary conviction.
Presumption from cheque issued without funds
(4) Where, in proceedings under paragraph (1)(a) [false pretenses – obtain physical anything], it is shown that anything was obtained by the accused by means of a cheque that, when presented for payment within a reasonable time, was dishonoured on the ground that no funds or insufficient funds were on deposit to the credit of the accused in the bank or other institution on which the cheque was drawn, it shall be presumed to have been obtained by a false pretence, unless the court is satisfied by evidence that when the accused issued the cheque he believed on reasonable grounds that it would be honoured if presented for payment within a reasonable time after it was issued.* [see "Constitutionality" below]
[omitted (5)]
R.S., 1985, c. C-46, s. 362; R.S., 1985, c. 27 (1st Supp.), s. 52; 1994, c. 44, s. 22; 2003, c. 21, s. 5; 2019, c. 25, s. 133.
[annotation(s) added]
Draft Form of Charges
Pre-ambles | ||
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"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 |
362(1)(a) | "..., by a false pretense did obtain or cause to be delivered to [name] in respect of which the offence of theft may be committed, to wit: [conduct], contrary to section 362(1)(a) of the Criminal Code." | |
362(1)(b) | obtain credit by false pretense or fraud | "..., did obtain credit by false pretense or fraud, to wit: [conduct], contrary to section 362(1)(b) of the Criminal Code." |
362(1)(c) | "..., contrary to section 362(1)(c) of the Criminal Code." |
Proof of the Offence
Proving obtain property by false pretenses under s. 362(a) should include:
Proving obtain credit by false pretense under s. 362(b) should include:
|
Interpretation of the Offence
"False credit" can include obtaining a form of mortage financing.[1]
The offence is still made out if the accused falsely obtains credit for someone else. He does not need to be the recipient.[2]
- Constitutionality
Section 362(4) violates s. 11(d) of the Charter and is invalid.[3]
- ↑
R v Majeed, 2015 ONCJ 330 (CanLII), per Brownstone J, at para 16
- ↑
Majeed, ibid., at para 16
R v Cohen, 1984 CanLII 3598 (QC CA), [1984] QJ No 316 (QCCA), per Tyndale JA
- ↑
R v Driscoll, 1987 ABCA 159 (CanLII), 38 CCC (3d) 28, per Laycraft JA
R v Ferguson, 1992 CanLII 12814 (PE SCTD), 70 CCC (3d) 330, per DesRoches J
contra R v Bunka, 1984 CanLII 2519 (SKQB), 12 CCC (3d) 437, per Walker J
"false pretences"
- False pretence
361 (1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.
- Exaggeration
(2) Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to such an extent that it amounts to a fraudulent misrepresentation of fact.
- Question of fact
(3) For the purposes of subsection (2) [allegation of value not necessary], it is a question of fact whether commendation or depreciation amounts to a fraudulent misrepresentation of fact.
R.S., c. C-34, s. 319.
[annotation(s) added]
Misc Definitions
362
[omitted (1), (2), (3) and (4)]
- Definition of “cheque”
(5) In this section, “cheque” includes, in addition to its ordinary meaning, a bill of exchange drawn on any institution that makes it a business practice to honour bills of exchange or any particular kind thereof drawn on it by depositors.
R.S., 1985, c. C-46, s. 362; R.S., 1985, c. 27 (1st Supp.), s. 52; 1994, c. 44, s. 22; 2003, c. 21, s. 5.
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
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
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s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] | ![]() |
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s. 362(2)(b) [false pretenses – value under $5,000] | ![]() |
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For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 362(2)), 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
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] | N/A | 10 years incarceration |
s. 362(2)(b) [false pretenses – value under $5,000] | N/A | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 362(2)(b) [false pretenses – value under $5,000] | N/A | 2 years incarceration |
Offences under s. 362(1)(a) [false pretenses – value of $5,000 or more or testamentary instr.] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
Offences under s. 362(1)(b) [false pretenses – value under $5,000], (c), and (d) are straight indictable. The maximum penalty is 10 years incarceration.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
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s. 362(1)(a) [false pretenses – value of $5,000 or more or testamentary instr.] | any | ![]() |
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s. 362(1)(b) [false pretenses – value under $5,000], s. 362(1)(c), s. 362(1)(d) |
N/A | ![]() |
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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.
Principles
Ranges
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 362(2)(a) or (3) |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
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 | Conviction | Description |
---|---|---|
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. 362(2) or (3) 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".
History
1994 to 2003
- False pretence or false statement
362 (1) Every one commits an offence who
- (a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretence, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person;
- (b) obtains credit by a false pretence or by fraud;
- (c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or any person, firm or corporation that he is interested in or that he acts for, for the purpose of procuring, in any form whatever, whether for his benefit or the benefit of that person, firm or corporation,
- (i) the delivery of personal property,
- (ii) the payment of money,
- (iii) the making of a loan,
- (iv) the grant or extension of credit,
- (v) the discount of an account receivable, or
- (vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or
- (d) knowing that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or another person, firm or corporation that he is interested in or that he acts for, procures on the faith of that statement, whether for his benefit or for the benefit of that person, firm or corporation, anything mentioned in subparagraphs (c)(i) to (vi).
- Punishment
(2) Every one who commits an offence under paragraph (1)(a)
- (a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding ten years, where the property obtained is a testamentary instrument or the value of what is obtained exceeds five thousand dollars; or
- (b) is guilty
- (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
- (ii) of an offence punishable on summary conviction,
where the value of what is obtained does not exceed five thousand dollars.
- Idem
(3) Every one who commits an offence under paragraph (1)(b), (c) or (d) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
- Presumption from cheque issued without funds
(4) Where, in proceedings under paragraph (1)(a), it is shown that anything was obtained by the accused by means of a cheque that, when presented for payment within a reasonable time, was dishonoured on the ground that no funds or insufficient funds were on deposit to the credit of the accused in the bank or other institution on which the cheque was drawn, it shall be presumed to have been obtained by a false pretence, unless the court is satisfied by evidence that when the accused issued the cheque he believed on reasonable grounds that it would be honoured if presented for payment within a reasonable time after it was issued.
- Definition of “cheque”
(5) In this section, “cheque” includes, in addition to its ordinary meaning, a bill of exchange drawn on any institution that makes it a business practice to honour bills of exchange or any particular kind thereof drawn on it by depositors.
R.S., 1985, c. C-46, s. 362; R.S., 1985, c. 27 (1st Supp.), s. 52; 1994, c. 44, s. 22.– CCC
See Also
- References
|
Forgery
This page was last substantively updated or reviewed January 2020. (Rev. # 79551) |
Forgery | |
---|---|
s. 367 and 368 of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 10 years incarceration, 14 years incarceration (368.1)< |