Full Text:Volume 1.1F

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See also: Full Text:Volume 1.1

PROPERTY OFFENCES

Telecommunication Offences


Telecommunication Offences
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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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

See also: Theft (Offence) 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
s. 327(1) [possession of device to obtain use of telecommunication facility or service] and
s. 372 [sending illegal information]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

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
s. 327(1) [possession of device to obtain use of telecommunication facility or service] and
s. 372 [sending illegal information]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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. 327(1) [possession of device to obtain use of telecommunication facility or service] and
s. 372 [sending illegal information]
OK Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png

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]

CCC


Note up: 327(1), (2), (3), and (4)

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]

CCC


Note up: 372(1), (2), (3), and (4)

Draft Form of Charges

See also: 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 Possession, etc., of device to obtain use of telecommunication facility or telecommunication service under s. 327 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available" a thing;
  5. the thing is a "device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge";
  6. the circumstances "give rise to a reasonable inference that the device has been used or is or was intended to be used for that purpose";
  7. the culprit has no "lawful excuse"

Proving conveying false information under s. 372(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "conveys information" or "causes such information to be conveyed";
  5. the manner of conveyance is by "letter or any means of telecommunication";
  6. the information conveyed was false;
  7. the culprit knew the information was false;
  8. the culprit intended to "injure or alarm a person".

Proving indecent communication under s. 372(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit makes a communication to another person;
  5. the communication is by "means of telecommunication";
  6. the communication is "indecent"; and
  7. the culprit committed the prohibited act intending to "alarm or annoy" that person or any other person.

Proving harassing communications under s. 372(3) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit communicates repeatedly or "causes repeated communications to be made";
  5. the communication is by "means of telecommunication";
  6. the culprit did the prohibited conduct intending to harass a person; and;
  7. the culprit had no "lawful excuse" for the prohibited conduct.

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.
...

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.

CCC


Note up: 4(8)

  1. See Interpretation Act, RSC 1985, c I-21
  2. R v McLaughlin, [1980] 2 SCR 331, 1980 CanLII 212 (SCC), 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

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
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
s. 327 [possession of device to obtain use of telecommunication facility or service],
s. 372(1) [sending illegal information]
summary election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 327 [possession of device to obtain use of telecommunication facility or service],
s. 372(1) [sending illegal information]
indictable election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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
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 Her Majesty the Queen on application of the Crown.
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.

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.

CCC


Note up: 371

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.

CCC


Note up: 372(1), (2) and (3)

See Also

Robbery


Robbery
s. 344 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
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
s. 344 [robbery] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)

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
s. 344 [robbery] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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
s. 98.1 [robbery to steal firearm] X Mark Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png
s. 344 [robbery] OK Symbol.png OK Symbol.png OK Symbol.png (*req type of violence) X Mark Symbol.png OK Symbol.png

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.

CCC


Note up: 343

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.

...[(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.

CCC


Note up: 344(1)

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.

CCC


Note up: 98.1

Draft Form of Charges

See also: 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
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." [1]
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(a) of the Criminal Code." [2]

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]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "steals" something from victim
  5. the culprit "use[d] violence" or "threats of violence"
  6. the violence was to "a person" or "property"
  7. the violence was for the purpose of "extorting" the item stolen or to "prevent or overcome" resistance to the theft
  8. the character of the item(s) taken including it value

Proving robbery (personal violence at or near time of theft) under s. 343(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "steals" something from the victim;
  5. the culprit "wounds, beats, strikes or uses any personal violence" upon the victim;
  6. the violence occurred "at the time", "immediately before" or immediately after the theft;

Proving robbery (assault with intent to steal under s. 343(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaults victim; and
  5. the culprit intended to steal from victim at the time of the assault.

Proving robbery (theft while armed) under s. 343(d) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit steals something from the victim;
  5. the culprit is "armed" with an "offensive weapon" or "imitation" offensive weapon.
  1. R v Rudolph, 2012 SKQB 167 (CanLII), 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:

  1. the offence was committed "using" a restricted or prohibited firearm;
  2. the offence was committed "using" any firearm and "for the benefit of, at the direction of, or in association with" a criminal organization; or
  3. the offence was committed "using" any firearm

Stealing

See also: Theft (Offence)

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.
...
R.S., c. C-34, s. 283.

CCC


Note up: 322(1), (2), (3), and (4)

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 threatening 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]

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. [4]

Holding a person down to prevent resistance constitutes violence.[5]

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.[6] To put it another way, the effect of the threat on the prospective victim is of no consequence.[7]

Passing a note requesting money to a bank teller can be sufficient to make out a threat of violence.[8]

"Extort" is defined in the shorter Oxford English Dictionary in part as, "to wrest from a reluctant person by force, violence, torture, intimidation".

Merely walking into a bank and giving a teller a note causing no fear for safety is not threat of violence or a robbery.[9]

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.[10]

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).[11]

The violence can be used against a target other than the victim being robbed.[12]

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.[13] There must be more than a temporal link between the threats and the violence.[14]

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).[15]

Purse-snatching will not make out a robbery where the item was taken before the victim had a chance to resist.[16]

  1. See also: Common Assault (Offence)
  2. R v Lecky, 2001 CanLII 6026 (ON CA), (2001), 157 CCC (3d) 351, per curiam
    R v Steele, [2014] 3 SCR 138, 2014 SCC 61 (CanLII), per Wagner J
  3. R v MacCormack (2009), 241 CCC (3d) 516, 2009 ONCA 72 (CanLII), per Watt JA
    R v Sayers, (1983) 8 CCC (3d) 572 (ONCA), 1983 CanLII 3496 (ON CA), per LaCourciere JA
    R v Pelletier, 1992 CanLII 3819 (QC CA), (1992) 71 CCC (3d) 438, per Proulx JA
    see also Reasonable Person Test
  4. R v Griffin, 2011 NSCA 103 (CanLII), per Bryson JA
    R v Douglas, 2012 MBQB 197 (CanLII), per Bryk J
  5. R v Trudel (1984), 12 CCC (3d) 342, 1984 CanLII 3469 (QC CA), per LaRoche J
  6. R v Carons, 1978 ALTASCAD 206 (CanLII), (1978), 42 CCC (2d) 19 (Alta. C.A.), per Prowse JA
  7. R v Nabis, [1975] 2 SCR 485, 1974 CanLII 179 (SCC), per Beetz J
  8. R v Katrensky (1975), 24 CCC (2d) 350, 1975 CanLII 1413 (BC PC), per Ostler J
  9. R v Ortega, 2014 ONSC 6414 (CanLII), per Trottier J
  10. R v Newell, 2007 NLCA 9 (CanLII), per Cameron JA, at para 32
    R v Jean, 2012 BCCA 448 (CanLII), per Finch CJ
  11. R v Downer (1978), 40 CCC (2d) 532, 1978 CanLII 2340 (ON CA), 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), per Lane JA - violence used to escape following surreptitious theft is not robbery under s. 343(a)
  12. Newell, supra
  13. R v Jean, 2012 BCCA 448 (CanLII), per Finch JA
  14. e.g. R v Kulscar, 2009 BCCA 515 (CanLII), per Ryan JA, at para 12
  15. R v McKay, 2014 SKCA 19 (CanLII), per Lane JA
  16. R v Picard, 1976 CanLII 1058 (QC CQ), (1976) 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]

  1. R v Jean, 2012 BCCA 448 (CanLII), 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")
  2. R v Lew (1978), 30 CCC (2d) 140 (ONCA), 1978 CanLII 2262 (ON CA), per Brooke JA
  3. R v Bourassa (2004), 189 CCC (3d) 438, 2004 NSCA 127 (CanLII), per Saunders JA
  4. 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]

  1. R v Lew (1978), 30 CCC (2d) 140 (ONCA), 1978 CanLII 2262 (ON CA), per Brooke JA
  2. R v Allison (1983), 33 C.R. (3d) 333 (ONCA), 1983 CanLII 3567 (ON CA), per Martin JA

Stealing while Armed: 343 (d)

See also: Definition of Weapons
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]

  1. R v Delage (2001) 154 CCC (3d) 85 (Que CA), 2001 CanLII 2656 (QCCA), per curiam
  2. R v Sloan (1974), 19 CCC (2d) 190 (BCCA), 1974 CanLII 1501 (BC CA), per McIntyre JA
    R v Gouchie (1976), 33 CCC (2d) 120, 1976 CanLII 1400 (QC CQ), per Brunet J
  3. R v Robinson, 2014 ONSC 3125 (CanLII), per Gray J, at para 105
    see R v Moore, 2012 ONCA 770 (CanLII), 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]

  1. R v Newell, 2007 NLCA 9 (CanLII), per Cameron JA
  2. 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]

  1. R v Lebar, 2010 ONCA 220 (CanLII), per Epstein JA
    R v Griffin, 2011 NSCA 103 (CanLII), 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), per Wagner J

Included Offences

The following have been found to be included offences:

  • Assault[1]
  • Assault causing bodily harm [2]
  • Theft[3]
  1. R v Luckett, [1980] 1 SCR 1140, 1980 CanLII 185 (SCC), per Chouinard J
  2. R v Horsefall, 1990 CanLII 1039 (BC C.A.), per Hinds JA
  3. R v Boisvert (1991) 68 CCC (3d) 478, 1991 CanLII 3039 (Que CA), per Tourigny J

Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of robbery.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 344 [robbery] OK Symbol.png OK Symbol.png OK Symbol.png

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
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 X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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]

  1. R v Stocker, 2017 BCSC 542 (CanLII) , per Rogers J
  2. R v Zwozdesky, 2019 ABQB 323 (CanLII), 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[3]

  • 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
  1. R v Fraser, 1997 CanLII 9927 (NS CA), per Pugsley JA, at paras 20 to 33
  2. R v Matwiy, 1996 ABCA 63 (CanLII), per curiam, at para 26
  3. R v Brogan, 1999 BCCA 278 (CanLII), per Ryan JA, at para 10

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]

  1. R v Johnas, 1982 ABCA 331 (CanLII), (1982), 32 C.R. (3d) l (Alta. C.A.), per curiam
  2. R v Wozny, 2010 MBCA 115 (CanLII), per MacInnes JA
  3. R v Sorensen, 2006 MBCA 38 (CanLII), per Steel JA, at para 19
  4. 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), per Marceau J (no record, no injuries, low value)
  5. R v Biln, 1999 BCCA 369 (CanLII), per McEachern JA
  6. R v Brennan, 2003 ABCA 330 (CanLII), [2003] AJ No 1366 (Alta. C.A.), per Martin J
    R v Jenkins, 2004 ABPC 48 (CanLII), 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), (1990), 113 A.R. 205, [1990] AJ No 1074 (QL) (Alta. C.A.), per curiam at 214: "the starting‑point for any sentence involving robbery of a financial institution is five years in the penitentiary"
  7. R v Brewer (1988), 81 NSR (2d) 86, 1997 CanLII 14976 (NS CA), per Freeman JA
    R v Leet (1989) 88 NSR (2d) 161(*no CanLII links) , per Chipman JA
  8. R v Johnson, 2007 NSCA 104 (CanLII), per Bateman JA
  9. see R v Carver, [1980] M.J. No. 257 (C.A.)(*no CanLII links)
    R v Ramsay, [1985] M.J. No. 417 (C.A.)(*no CanLII links)
    R v Bartlett, [1961] M.J. No. 2 (C.A.), 1961 CanLII 529 (MB 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]

  1. R v Watson, 2008 ONCA 614 (CanLII), per Simmons JA

Subsequent Offences

344.
...

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]

CCC


Note up: 344(2) and (3)


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]

  1. plan to commit robbery in a home where offender expects to be found in dwelling
  2. arms self with weapon
  3. enters dwelling that is reasonably known to be occupied
  4. confines occupants
  5. threaten occupants
  6. 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]

  1. R v AJC; R v Joseph, 2004 BCCA 268 (CanLII), per Finch JA (3:0) at 1
  2. R v Matwiy, 1996 ABCA 63 (CanLII),[1996] AJ No 134 (C.A.), per curiam
  3. R v daSilva and Metropolit, [2000] OJ No 739 (Ont. S.C.)(*no CanLII links) , 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 2002 CanLII 19782 (ON CA), per curiam
  4. R v Leet (1989) 88 NSR (2d) 161(*no CanLII links) , per Chipman JA
  5. R v DAW, 2002 BCCA 336 (CanLII), [2002] BCJ 1156 (CA), per Hall JA
  6. R v PJB, 1999 CanLII 18938 (NL CA), (1999), 182 Nfld. and P.E.I.R. 14 (NLCA), per Wells CJ

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 344 [robbery] or 98.1
Weapons Prohibition Orders s. 344 [robbery]
  • On conviction under s. 344 [robbery] where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • For offences under s. 344 [robbery] where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • Where there is a conviction under s. 344 [robbery] for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 98.1 or 344 [robbery]
  • Periods of imprisonment of 2 years or more for convictions under s. 98.1 or 344 [robbery] are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
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 Her Majesty the Queen on application of the Crown.
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.

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

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

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]

CCC


Note up: 344(1), (2) and (3)

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.

CCC


Note up: 344

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

Break and Enter


Break and Enter
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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 18 months incarceration or $5,000 fine (non-dwelling)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
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 OK Symbol.png OK Symbol.png (life max)
s. 348(1)(e) [break into non-dwelling house] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

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]
X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 348(1)(e) [break into non-dwelling house] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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
s. 90 [break in for firearm] X Mark Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png (life max)
s. 348(1)(d) [break into dwelling house] OK Symbol.png OK Symbol.png OK Symbol.png* X Mark Symbol.png OK Symbol.png (life max)
s. 348(1)(e) [break into non-dwelling house] OK Symbol.png OK Symbol.png OK Symbol.png* X Mark Symbol.png OK Symbol.png (10 years max)

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.

...
R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.

CCC


Note up: 348(1)

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.

CCC


Note up: 348.1

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.

...

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]

CCC


Note up: 98(1) and (4)

Draft Form of Charges

See also: 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 98 of the Criminal Code.
"..., contrary to section 348 of the Criminal Code.

Proof of Offences

Proving breaking with intent under s. 348(1)(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit entered into the premises
  5. the culprit had no justification for entering the premises or permission to enter
  6. the culprit intended to commit an indictable offence (presumed under s. 348(2)(a))
  7. location of place broken into (evidence of access method)
  8. whether the place was a dwelling-house
  9. ownership of the place
  10. condition of place just prior to the break-in
  11. condition of place after the break-in
  12. amount of damage done

Proving break and commit under s. 348(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit entered into the premises
  5. the culprit had no justification for entering the premises or permission to enter
  6. the culprit committed an indictable offence (theft, mischief, etc.)
  7. location of place broken into (evidence of access method)
  8. location of place of exit (optional)
  9. whether the place was a dwelling-house
  10. ownership of the place
  11. condition of place just prior to the break-in
  12. condition of place after the break-in
  13. amount of damage done
  14. ownership of goods taken
  15. continuity of goods

Proving break out under s. 348(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was on the premises
  5. the culprit had no justification for being the premises or permission to be there
  6. the culprit intended to commit an indictable offence OR accused committed an indictable offence (theft, mischief, etc.) (presumed under s. 348(2)(a))
  7. location of place broken out of (evidence of access method)
  8. whether the place was a dwelling-house
  9. ownership of the place
  10. condition of place just prior to the break-out
  11. condition of place after the break-out
  12. amount of damage done
  13. ownership of goods taken
  14. continuity of goods

Interpretation of the Offence

Breaking

Section 321 defines "break":

321 In this Part [Pt. IX – Offences Against Rights of Property (s. 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]

CCC


Note up: 321

"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] However, simply entering into a structure through an open door does not on its own amount to "breaking". [2] This includes staying in a store until after closing time.[3] Likewise, entering through an unlocked but closed door after knocking does not amount to breaking. [4]

  1. R v Johnson, [1977] 2 SCR 646 1977 CanLII 229 (SCC), 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")
  2. R v Jewell (1974), OJ No 931 (Ont. C.A.), 1974 CanLII 1657 (ON CA), per Martin JA
  3. R v Fairbridge, 1984 AJ. NO 828 (Alta. C.A.)(*no CanLII links)
  4. R v House, 2012 NLCA 41 (CanLII), 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]

CCC


Note up: 350

There is a statutory presumption under s.350(b)(ii) to require the accused to prove lawfulness of entry. However, this has been established as unconstitutional.[2]

The time of the break is relevant to determine whether such a "lawful justification or excuse" exists. [3]

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.

CCC


Note up: 98(3)

Opening a Door is Breaking

The opening a door which is partially ajar amounts to "breaking".[4] Entry will occur even where it has been opened "enough to get your hand in" will be a "enter".[5]

Not An Essential Element

The absence of lawful justification or excuse for entry is not an essential element for break and enter.[6]

  1. found to constitutional in R v TBK, [1998] CRR 328 (Ont.CA) (*no CanLII links)
  2. R v Singh (1987), 41 CCC (3d) 278 (Alta. C.A.), 1987 ABCA 261 (CanLII), per Hetherington JA
    see also R v K, 1998 CanLII 925 (ON C.A.), per curiam
  3. R v Farbridge, 1984 ABCA 301 (CanLII), (1984), 15 CCC (3d) 521, per Laycraft JA -- Accused hid in store lawfully until closing in order to steal. This was not considered breaking
  4. R v Toney (1976), 17 N.S.R. (2d) 481(*no CanLII links) , at para 12 citing R v Jewell (1975), 22 CCC (2d) 252, 1974 CanLII 1657 (ON CA), per Martin JA
    R v Corkum (1969), 7 C.R.N.S. 61(*no CanLII links) - window propped open by bottle was opened further by accused
  5. Toney, supra
  6. R v Singh, 1987 ABCA 261 (CanLII), 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.")

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]

CCC


Note up: 348(3)

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))

  1. R v RJF, 1994 CanLII 7611 (NS C.A.), per Roscoe JA
  2. R v Ausland, 2010 ABCA 17 (CanLII), per curiam
  3. 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.

CCC


Note up: 348(2)

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]

  1. R v Rodney, 2007 ONCA 314 (CanLII), per curiam, at para 5
    Regina v Wendel, [1967] 2 CCC 23 at 29 (BCCA), 1966 CanLII 533 (BC CA),, per Bird CJ
    R v Toney (1976), 17 N.S.R. (2d) 481, at para 16 (A.D.) (*no CanLII links)
    R v Austin, [1968] SCR 891, 1968 CanLII 94 (SCC), per Martland J, at p. 2
  2. R v Taylor, [1984] B.C.J. No. 176 (S.C.)(*no CanLII links)
  3. R v Schizgal, 2001 BCCA 238 (CanLII), per Braidwood JA
  4. R v Norbert, 2013 ABCA 11 (CanLII), 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")
  5. R v Holland, 2013 NBCA 69 (CanLII), 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")
  6. 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
  7. Fontaine, supra, at paras 5 to 6
    Chanyi, supra, at para 20
  8. Proudlock, supra at p. 549(complete citation pending)
    Fontaine, supra, at para 6
  9. R v WL, 2014 ONSC 1245(*no CanLII links) , at para 83
  10. WL, ibid., at para 83
    R v Atkinson, 2012 ONCA 380 (CanLII), [2012] OJ No 2520 (C.A.), per Watt JA, at paras 105, 106 and 108
  11. R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, per Estey J, at p. 2
  12. Rodney, supra, at para 6
  13. WL, supra, at para 83
  14. Fontaine, supra, at para 6

Doctrine of Recent Possession

See 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

An offence under s. 349(1) is a lesser included offence to an offence under s. 348(1)(b).[1]

662.
...

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]

CCC


Note up: 662(6)

  1. R v Liang, 2009 ABCA 2 (CanLII), per Costigan JA

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
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 X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 348(1)(e)
[break into non-dwelling house]
any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 348(1)(e)
[break into non-dwelling house]
any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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]

  1. R v Martyn, 2014 ABCA 151 (CanLII), per curiam, at para 19
  2. Martyn, ibid., at para 19
  3. R v Pike, 2014 CanLII 53038 (NL SCTD), per Handrigan J, at para 15
  4. 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]

  1. R v McAllister, 2008 NSCA 103 (CanLII), 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]

  1. R v Davenport [1977], 1 W.C.B. 176 (Ont.C.A.)(*no CanLII links)
  2. R v Fry, [1981] OJ No 140 (C.A.)(*no CanLII links) -- 9 months concurrent
  3. R v Mann, 2010 ONCA 342 (CanLII), per MacPherson JA, at para 22
    R v Wright, 2006 CanLII 40975 (ONCA), per Blair JA, at para 23
  4. R v Zong (1986), 72 N.S.R. (2d) 432 (C.A.)(*no CanLII links)
    R v Adams, 2010 NSCA 42 (CanLII), per Bateman JA
  5. Adams, ibid., at paras 38 to 42
  6. R v Walbourne, 2012 CanLII 26671 (NL PC), [2012] N.J. 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
  • For offences under s. 348 that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • On conviction under s. 348 where "violence against a person was used, threatened or attempted", and was prosecuted by indictment, punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a).
  • For offences under s. 348 where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
SOIRA Orders s. 348(1)(d), (e)
  • On conviction under s. 348(1)(d), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))).
      • There is an option for early termination under s. 490.015 after 20 years.

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

  • On conviction under s. 348(1)(e), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

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
  • Periods of imprisonment of 2 years or more for convictions under s. 98 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
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 Her Majesty the Queen on application of the Crown.
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.

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: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References
Related Offences

Unlawfully in a Dwelling


Unlawfully in a Dwelling
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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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
s. 349 [unlawfully in a dwelling] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

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
s. 349 [unlawfully in a dwelling] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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
s. 349 [unlawfully in a dwelling] X Mark Symbol.png X Mark Symbol.png OK Symbol.png (designated) X Mark Symbol.png OK Symbol.png (10 years max)

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.

CCC


Note up: 349(1) and (2)

Draft Form of Charges

See also: 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 unlawfully in a dwelling under s. 349 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "enters or is in" a premises;
  5. the premises is a "dwelling house";
  6. the culprit has no "lawful excuse" for entering the premises or permission to enter;
  7. the culprit did the prohibited act intending to commit an indictable offence (presumed under s. 349(2))
  1. R v Payne, 2007 CanLII 36002 (NL PC), [2007] N.J. 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]

  1. R v Beyo, 2000 CanLII 5683, 144 CCC (3d) 15 (ONCA), per Rosenberg JA
  2. R v Ellis, 2012 CanLII 62646 (NL PC), [2012] N.J. 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.”)
  3. see R v Nagy, (1988), 45 CCC (3d) 350 (Ont. C.A.), 1988 CanLII 7138 (ON CA), per Morden JA
    Beyo, supra
    R v E(S), 1993 CanLII 3410 (NWTCA), per Hetherington JA
  4. R v Austin, [1968] SCR 891, 1968 CanLII 94 (SCC), per Spence J
  5. Nagy, supra
  6. R v Atkinson, 2012 ONCA 380 (CanLII), [2012] O.J. No. 2520 (C.A.), 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.”)
  7. R v Johnson, 1977 CanLII 229 (SCC), [1977] 2 SCR 646, per Dickson J
    R v Wiens, 2013 ABPC 15 (CanLII), per Pharo J

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
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
s. 349 [unlawfully in a dwelling] summary election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 349 [unlawfully in a dwelling] indictable election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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

see also: Unlawfully in a Dwelling (Sentencing Cases)

In Newfoundland and Labrador, sentences range from a low end of 2 to 4 months to an upper end of 12 months.[1]

  1. R v Pardy, 2016 CanLII 24209 (NL SCTD), per Handrigan J, at para 9

Ancillary Sentencing Orders

See also: Ancillary 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 Her Majesty the Queen on application of the Crown.
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.

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: Table of Concordance (Criminal Code)

See Also

References

Possession of Break-in Instruments


Possession of Break-in Instruments
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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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 OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

{{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]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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.

CCC


Note up: 351(1) and (2)

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.

CCC


Note up: 352

Draft Form of Charges

See also: 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 "..., contrary to section 351 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:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "has in his possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe";
  5. the prohibited conduct was in "circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for such a purpose"; and
  6. the culprit had not "lawful excuse".

Proving disguising with intent under s. 351(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "has his face masked or coloured or is otherwise disguised"; and
  5. the culprit intended to commit an indictable offence.

Proving possession of instruments for breaking into a coin-operated or currency exchange devices under s. 352 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "has in his possession any instrument suitable for breaking into a coin-operated device or a currency exchange device";
  5. the prohibited conduct was in "circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for breaking into a coin-operated device or a currency exchange device" and
  6. the culprit had not "lawful excuse".

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]

  1. R v Charron, 2005 BCCA 607 (CanLII), per Low JA
  2. R v King, 2011 ONSC 1183 (CanLII), per Daley J, at para 83 citing R v Shay (1976), 32 CCC (3d) 13 (Ont. C.A.), 1976 CanLII 1379 (ON CA), per Jessup JA
    R v Oakley, 1997 CanLII 1929 (NS CA), per Flinn JA citing R v Shay

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
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 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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: Possession of Break-in Instruments (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary 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 Her Majesty the Queen on application of the Crown.
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.

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


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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

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] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max)

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]

CCC


Note up: 72(1), (1.1), (2), and (3)

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.

CCC


Note up: 73

Draft Form of Charges

See also: 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 forcible entry under s. 72(1) and 73 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit entered real property;
  5. real property must be in possession of another person;
  6. possession must be both actual and peaceable;
  7. entry of the property must be such that it is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.

Proving forcible detainer under s. 72(2) and 73 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was in "actual possession of real property"
  5. the possession was "without colour of right"
  6. the culprit detained 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."
  1. R v Stoyke, 2007 ABPC 259 (CanLII), per LeGrandeur J, at para 2
    R v D(J), 2002 CanLII 16805 (ON CA), per Doherty JA (3:0)
    see also R v Wilson, 2000 BCSC 1401 (CanLII), 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]

  1. R v D(J), 2002 CanLII 16805 (ON CA), per Doherty JA (3:0)
  2. R v Stoyke, 2007 ABPC 259 (CanLII), per LeGrandeur J
    cf. R v Wilson, 2000 BCSC 1401 (CanLII), per Bouck J, at para 21
  3. Wilson, ibid., at para 17
  4. R v Czegledi, 1931 CanLII 246 (SK CA), per Martin JA

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

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 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
Weapons Prohibition Orders s. 72 [forcible entry or forcible detainer]
  • discretionary as a s. 110 designated offence
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 Her Majesty the Queen on application of the Crown.
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.

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


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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
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) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

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
s. 333.1 [motor vehicle theft] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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
s. 333.1 [motor vehicle theft] OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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.

CCC


Note up: 333.1(1) and (2)

Draft Form of Charges

See also: 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 motor vehicle theft under s. 333.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit commits theft;
  5. the property is a motor vehicle;

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]

  1. see R v TAK, 2005 BCCA 293 (CanLII), per Low JA
    see also Possession#Other
  2. R v Barnhardt, 2001 BCCA 191 (CanLII), 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

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
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
s. 333.1 [motor vehicle theft] summary election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 333.1 [motor vehicle theft] indictable election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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

See also: Ancillary 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 Her Majesty the Queen on application of the Crown.
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.

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


Theft
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))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
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) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)
s. 334(b) [theft not exceeding $5,000] Hybrid Offence(s) OK Symbol.png X Mark Symbol.png (Absolute Jurisdiction) X Mark Symbol.png (Absolute Jurisdiction)

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
s. 334(a) [theft over $5,000] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 334(b) [theft not exceeding $5,000] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).

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
s. 334(a) [theft over $5,000] OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png
s. 334(b) [theft not exceeding $5,000] OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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.
...
R.S., c. C-34, s. 283.

CCC


Note up: 322(1), (2), (3), and (4)

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.

CCC


Note up: 334

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.

CCC


Note up: 657.2(1) and (2)

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.

CCC


Note up: 326(1)


Draft Form of Charges

See also: 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

Generally

Proving theft under s. 322 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "takes, or ... converts to his use or to the use of another person" anything;
  5. the culprit does the prohibited conduct with the intent:
    1. 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;
    2. to pledge it or deposit it as security;
    3. 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
    4. 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.
  6. property was owned by someone (use witness or documents under ss. 491.2 and 657.1)
  7. value of the property (either over $5,000 in value or equal or under $5,000)
  8. continuity of the property
  9. file photo of property or actual property as exhibits (s. 491.2)
  10. the culprit took or converted property
  11. the owner did not give permission for the accused to take or convert it
  12. the prohibited conduct was done "fraudulently and without colour of right".

Proving theft of testamentary instrument under s. 322 should include:

  1. the underlying elements of theft under s. 322; and
  2. the subject matter of the theft is a testamentary instrument.

Proving theft of telecommunications under s. 326 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. "abstracts, consumes or uses electricity or gas or causes it to be wasted or diverted"; or
    2. "uses any telecommunication facility or obtains any telecommunication service".
  5. the act is done so "fraudulently, maliciously, or without colour of right"

Shoplifting

In a case of shoplifting, Proving theft should include, in addition to the general elements of proof:

  1. that the accused did not pay for items or make attempt to pay
  2. that the accused did not have money to pay for the items
  3. whether the accused had property in possession at time of arrest[1]
  1. see R v Parkes, 2012 SKQB 164 (CanLII), per Acton J, at para 40

Draft Form of Charges

See also: 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 "... 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]

The theft of a "handful" of nuts from a grocery store was not sufficiently serious for a conviction.[5]

  1. see R v LaFrance, 1973 CanLII 35 (SCC), [1975] 2 SCR 201, per Martland J
  2. eg. R v Beales, 2012 CanLII 582 (NL PC), per Gorman J, at paras 20 to 22
  3. R v Link, 2013 SKQB 138 (CanLII), 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), (1989) 79 Sask. R. 141, [1989] S. J. No. 558 (Sask. Q.B.), per Halvorson J, at para 73
  4. R v Kosh, [1965] 1 CCC 230 (Sask. C.A.), 1964 CanLII 361 (SK CA), per Culliton CJS
  5. R v Fowler, 2009 SKPC 114 (CanLII), per Harradence J
    see also De Minimus Non Curat Lex

Steal and Theft

See also: Alternative Methods of Theft

s. 2
...
"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.

CCC


Note up: 2

It is possible to infer theft by way of proving a mysterious disappearance.[1]

  1. e.g. R v Paul, [1977] 1 SCR 181, 1975 CanLII 185 (SCC), per Ritchie J

Fraudulently

"Fraudulently" refers to the "knowledge that the thing taken is the property of another person."[1]

  1. R v Link, 2013 SKQB 138 (CanLII), 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]

  1. be property of some sort
  2. property capable of being
    1. taken or
    2. converted
  3. 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]

  1. R v Stewart, [1988] 1 SCR 963, 1988 CanLII 86, per Lamer J, at para 41
    cf. R v Cisar, 2014 ONCA 151 (CanLII), per Rosenberg JA (3:0)
  2. Stewart, ibid.
    R v Alexander, 2006 CanLII 26480 (ON SC), per T Ducharme J
  3. R v Maurer, 2014 SKPC 118 (CanLII), per Metivier J
Ownership of Wild Creatures
Theft

322 (1) ...

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.

CCC


Note up: 322(5)

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]

  1. R v He, 2008 BCCA 418 (CanLII), per Bauman JA, at para 70
  2. He, ibid.
  3. R v Miller, 1984 ABCA 155 (CanLII), per McClung JA

Misc Issues of Proof

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

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
See also: Property and Fraud Offences (Sentencing)
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 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 334(a)
[theft over $5,000]
N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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]

  1. e.g. see R v Prowse, 1998 CanLII 18024 (NL CA), per Mahoney JA
    R v CC, 2012 CanLII 16721 (NL PC), [2012] N.J. No. 121 (P.C.), per Gorman J
    R v Reid, 2012 CanLII 25696 (NL PC), [2012] N.J. 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]

  1. R v Fulcher, 2007 ABCA 381 (CanLII), 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.")
  2. Fulcher, supra, at para 30
  3. R v Nguyen, 2011 ABCA 300 (CanLII), per Costigan JA
  4. Veno v R, 2012 NBCA 15 (CanLII), per Richard JA, at para 13
    R v Chaulk, 2005 NBCA 86 (CanLII), 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), per curiam -- bank manager stealing from accounts
    R v Reid, 2004 YKCA 4 (CanLII), per Hall JA -- cashier stealing from employer
    R v Pierce, 1997 CanLII 3020 (ON CA), [1997] O.J. No. 715 (C.A.), per Finlayson JA -- comptroller sealing from employer
    R v Dobis, 2002 CanLII 32815 (ON CA), [2002] O.J. No. 646 (C.A.), per MacPherson JA -- fraud by accounting manager
    R v Clarke, 2004 CanLII 7246 (ON CA), [2004] O.J. No. 3438 (C.A.), per curiam -- bank telephone agent stealing from accounts
    R v Bowes (J.M.), (1994), 155 N.B.R. (2d) 321 (C.A.)(*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]

  1. R v Rumsey, [2015] N.J. No. 46, 2015 CanLII 5798 (NL PC), per Skanes J, at para 19
    R v Lush, 2017 CanLII 21181 (NL PC), per Marshall J, at para 78
  2. R v Symes, [2017] N.J. No. 53 (NLPC), 2017 CanLII 29918 (NL PC), 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]

  1. R v Glasco, 2009 CanLII 2685 (NL PC), per Orr J, at para 30
    R v Pardy, 2016 CanLII 24209 (NL SCTD), per Handrigan J, at para 10
    R v Symes, [2017] N.J. No. 53 (NLPC), 2017 CanLII 29918 (NL PC), 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] N.J. No. 228, 2014 CanLII 37667 (NL PC), per Gorman PCJ, at para 19

Ancillary Sentencing Orders

See also: Ancillary 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 Her Majesty the Queen on application of the Crown.
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.

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


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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

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 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)).
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]
OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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.
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.

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.

...
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]

CCC


Note up: 342(1), (2) and (3)

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) [x]; 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]

CCC


Note up: 342.01(1), (2) and (3)

Draft Form of Charges

See also: 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:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. steals a credit card,
    2. forges or falsifies a credit card,
    3. "possesses, uses or traffics in a credit card or a forged or falsified credit card, knowing that it was obtained, made or altered" by "commission in Canada of an offence" or "by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence" or
    4. "uses a credit card knowing that it has been revoked or cancelled"

Proving unauthorized use of credit card data under s. 342(3) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "possesses, uses, traffics in or permits another person to use credit card data, including personal authentication information, whether or not the data is authentic" (including PIN numbers or passwords);
  5. the prohibited act enabled the culprit to "use a credit card or to obtain the services that are provided by the issuer of a credit card to credit card holders" and
  6. the culprit did the prohibited act "fraudulently and without colour of right".


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]

  1. R v Costello, 1982 CanLII 354 (BC CA), per MacFarlane JA

Misc Definitions

Section 321 defines "credit card":

321
...
...means any card, plate, coupon book or other device issued or otherwise distributed for the purpose of being used

(a) on presentation to obtain, on credit, money, goods, services or any other thing of value, or
(b) in an automated teller machine, a remote service unit or a similar automated banking device to obtain any of the services offered through the machine, unit or device;

...

CCC


Note up: 321

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.
...

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.

CCC


Note up: 342(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

See also: Theft (Offence)#Special Exceptions to Evidence
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]

CCC


Note up: 359(1) and (2)

See Theft (Offence) for more details.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
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
s. 342(1) [theft, forgery, etc., of credit card] and (3) [unauthorized use of credit card data] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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: Theft and Forgery of a Credit Card (Sentencing Cases)

Ancillary Sentencing Orders

Offence-related Orders
Order Conviction Description
DNA Orders s. 342
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 Her Majesty the Queen on application of the Crown.
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.
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

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)
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.

...
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
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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
355(b):
Prov. Court only
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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
s. 355(b) [possession of property obtained by crime - no greater than $5,000] Hybrid Offence(s)
(Absolute Jurisdiction)
X Mark Symbol.png X Mark Symbol.png
s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] Hybrid Offence(s) summary election X Mark Symbol.png X Mark Symbol.png (under 14 years max)
s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] Hybrid Offence(s) indictable election OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

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
s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 355(b) [possession of property obtained by crime - no greater than $5,000] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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
s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png
s. 355(b) [possession of property obtained by crime - no greater than $5,000] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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.

....

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]

CCC


Note up: 354(1), (2) and (4)

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]

CCC


Note up: 355

Draft Form of Charges

See also: 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
355 "..., contrary to section 355 of the Criminal Code.

Proof of the Offence

Proving possession of stolen property under s. 354(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was in possession of any property, thing, or proceeds of any property or thing;
  5. the culprit knew or should have known that the any part of the subject-matter wa obtained by "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";
  6. date of actual theft of the items
  7. property was owned by someone (use witness or documents under ss. 491.2 and 657.1)
  8. that the lawful owner did not give or lend the goods to anyone
  9. the owner did not give permission for the culprit to take or convert it
  10. the items were not given to the culprit in good faith (no colour of right)
  11. value of the property
  12. continuity of the property
  13. file photo of property or actual property as exhibits (s. 491.2)
  14. if shoplifting,
    1. that the culprit did not pay for items or make attempt to pay
    2. that the culprit did not have money to pay for the items
    3. whether the culprit had property in possession at time of arrest

Proving possession of a motor vehicle with an obliterated vehicle identification number under s. 354(2) should include:

  1. the underlying elements of possession under s. 354(2);
  2. the culprit has possession a "motor vehicle" or "part of a motor vehicle"; and
  3. the "vehicle identification number" associated with the vehicle or part has "been wholly or partially removed or obliterated".

Interpretation of the Offence

"property"

s. 2
...
"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.

CCC


Note up: 2

The definition of property under s. 2 does not include "interest in property".[1]

Definition of “property”

428. In this Part [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (s. 428 to 447.1)], “property” means real or personal corporeal property.
R.S., c. C-34, s. 385.
[annotation(s) added]

CCC


Note up: 428

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. ...

CCC


Note up: 4(1)

Presumed Value

Stolen property is prima facie presumed to be the retail value of the items.[2]

  1. R v Brunner, 1995 ABCA 120 (CanLII)
  2. R v Belanger, 1972 CanLII 1253 (BC CA)

"Vehicle Identification Number"

354.
...

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.
...
R.S., 1985, c. C-46, s. 354; 1997, c. 18, s. 23.
[annotation(s) added]

CCC


Note up: 354(3)

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.

CCC


Note up: 657.2(1) and (2)

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]

CCC


Note up: 593(1) and (2)

Importation

Bringing into Canada property obtained by crime

357 Every person who brings into or has in Canada anything that they have obtained outside Canada by an act that, if it had been committed in Canada, would have been the offence of theft or an offence under section 342 [theft and forgery of credit card] or 354 [possession of stolen property] 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. 357 R.S., 1985, c. 27 (1st Supp.), s. 50; 2019, c. 25, s. 132.
[annotation(s) added]

CCC


Note up: 357

Evidence

See also: Proof of Ownership
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]

CCC


Note up: 358

Merely getting into a stolen vehicle that was known to be stolen is not enough to establish possession or control.[1]

  1. R v Terrence, 1980 CanLII 74 (ON CA), 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

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 355

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
See also: Property and Fraud Offences (Sentencing)
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
s. 355(a) [possession of property obtained by crime - greater than $5,000 or a testamentary instr.] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 355(b) [possession of property obtained by crime - no greater than $5,000] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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: Possession of Stolen Property (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary 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 Her Majesty the Queen on application of the Crown.
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.

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]

CCC

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]

CCC

  1. R v Hewitt, 1986 CanLII 4716 (MB CA), 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), 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


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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
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 OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
355.2, 355.4, or 355.5(a) [trafficking in property obtained by crime - greater than $5,000] Indictable Offence(s) N/A OK Symbol.png OK Symbol.png (14 years max)

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
s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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
s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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.

CCC


Note up: 355.2

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.

CCC


Note up: 355.4

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]

CCC


Note up: 355.5

Draft Form of Charges

See also: 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 Offences

Proving trafficking in property obtained by crime under s. 355.2 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit traffics anything or proceeds of anything;
  5. the culprit knew "that all or part" of the thing "was obtained by or derived directly or indirectly from":
    1. "the commission in Canada of an offence punishable by indictment"; or
    2. "an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment."
  6. The value of thing or proceed.

Proving possession of property obtained by crime — trafficking under s. 355.4 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possesses any thing or proceeds of a thing;
  5. the culprit possessed it "for the purpose of trafficking";
  6. the culprit knew "that all or part" of the thing or proceeds "was obtained by or derived directly or indirectly from"
    1. "the commission in Canada of an offence punishable by indictment;" or
    2. "an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment".
  7. The value of thing or proceed.

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]

CCC


Note up: 355.1

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.

CCC


Note up: 355.3

Joint Trial for Theft or Trafficking

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

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
s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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]

  1. Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160 (CanLII), per Rennie J, at para 86

Ranges

see also: Trafficking in Stolen Property (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary 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 Her Majesty the Queen on application of the Crown.
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.

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


Obtaining Property by False Pretences
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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. (over), Prov. Court only (under)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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
s. 362(2)(a) [false pretenses – value under $5,000] Indictable Offence(s) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)
s. 362(2)(b) [false pretenses – value under $5,000] Hybrid Offence(s) OK Symbol.png X Mark Symbol.png X Mark Symbol.png (under 14 years max)

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
s. 362(2)(b) [false pretenses – value under $5,000] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 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)).
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.]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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) [x].
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 – obatin credit], (c) [x] or (d) [x] 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]
...[(4)]...
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]

CCC


Note up: 362(1), (2), (3), and (4)

Draft Form of Charges

See also: 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 obtain property by false pretenses under s. 362(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "obtains anything" or "causes it to be delivered to another person";
  5. the prohibited conduct was "by false pretenses" or "through the medium of a contract obtained by a false pretence";
  6. the subject-matter is something "in respect of which the offence of theft may be committed";

Proving obtain credit by false pretense under s. 362(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "obtains credit"; and
  5. the prohibited conduct was "by false pretence" or "fraud".


Proving obtain property by false statement under s. 362(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes or causes to be made, directly or indirectly, a false statement in writing";
  5. the prohibited conduct was "with the intent that it should be relied on";
  6. the false statement is "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";
  7. the prohibited conduct was " for the purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or organization" any of the following:
    1. the delivery of personal property,
    2. the payment of money,
    3. the making of a loan,
    4. the grant or extension of credit,
    5. the discount of an account receivable, or
    6. the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note.


Proving false pretenses or false statement under s. 362(d) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "procures on the faith of that statement, whether for his or her benefit or for the benefit of that person or organization" a thing;
  5. the thing is either:
    1. the delivery of personal property,
    2. the payment of money,
    3. the making of a loan,
    4. the grant or extension of credit,
    5. the discount of an account receivable, or
    6. the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; and
  6. the culprit knew the "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"

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]

  1. R v Majeed, 2015 ONCJ 330 (CanLII), per Brownstone J, at para 16
  2. Majeed, ibid., at para 16
    R v Cohen, [1984] QJ No 316 (QCCA), 1984 CanLII 3598 (QC CA), per Tyndale JA
  3. R v Driscoll, 1987 ABCA 159 (CanLII), 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 (SK QB) , 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]

CCC


Note up: 361(1), (2) and (3)

Misc Definitions

362.
...

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.

CCC


Note up: 362(5)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 362(2) [mischief]

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
See also: Sentencing for Property Offences
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
s. 362(1)(a) [false pretenses – value of $5,000 or more or testamentary instr.] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 362(1)(b) [false pretenses – value under $5,000],
s. 362(1)(c),
s. 362(1)(d)
N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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: Obtaining Property by False Pretences (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary 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 Her Majesty the Queen on application of the Crown.
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.

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

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

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


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 (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
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))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 10 years incarceration, 14 years incarceration (368.1)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to forgery 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. 366/367 [forgery] and
s. 368 [use, trafficking or possession of forged document]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 368.1 [forgery instruments] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png

Offences under s. 367 [forgery] and 368 [use, trafficking or possession of forged document] are hybrid with a Crown election. If prosecuted by indictment, 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
s. 366/367 [forgery]
s. 368 [use, trafficking or possession of forged document] and
s. 368.1 [forgery instruments]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 366/367 [forgery] s. 368 [use, trafficking or possession of forged document] and s. 368.1 [forgery instruments], 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 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)).
Fingerprints and Photos

A peace officer who charges a person under s. 366/367 [forgery]
s. 368 [use, trafficking or possession of forged document] and
s. 368.1 {DescrSec 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 Ban

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. 366/367 [forgery]

s. 368 [use, trafficking or possession of forged document] and
s. 368.1 {DescrSec|368.1}} || OK Symbol.png || X Mark Symbol.png ||X Mark Symbol.png (*req type of violence) || X Mark Symbol.png

Offences under s. 366/367 [forgery], s. 368 [use, trafficking or possession of forged document] and s. 368.1 {DescrSec 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

Forgery

366 (1) Every one commits forgery who makes a false document, knowing it to be false, with intent

(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.
Making false document

(2) Making a false document includes

(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or
(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.
When forgery complete

(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1) [forgery – forms of making false documents], notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.

Forgery complete though document incomplete

(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.

Exception

(5) No person commits forgery by reason only that the person, in good faith, makes a false document at the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government.
R.S., 1985, c. C-46, s. 366; 2009, c. 28, s. 7.
[annotation(s) added]

CCC


Note up: 366(1), (2), (3), (4), and (5)

Punishment for forgery

367. Every one who commits forgery

(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.

R.S., 1985, c. C-46, s. 367; 1994, c. 44, s. 24; 1997, c. 18, s. 24.

CCC


Note up: 367

Use, trafficking or possession of forged document

368 (1) Everyone commits an offence who, knowing or believing that a document is forged,

(a) uses, deals with or acts on it as if it were genuine;
(b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine;
(c) transfers, sells or offers to sell it or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph (a) or (b); or
(d) possesses it with intent to commit an offence under any of paragraphs (a) to (c).
Punishment

(1.1) Everyone who commits an offence under subsection (1) [use, trafficking or possession of forged document]

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) is guilty of an offence punishable on summary conviction.
Wherever forged

(2) For the purposes of proceedings under this section, the place where a document was forged is not material.
R.S., 1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s. 25; 2009, c. 28, s. 8.
[annotation(s) added]

CCC


Note up: 368(1), (1.1) and (2)

Forgery instruments

368.1 Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, or is guilty of an offence punishable on summary conviction, who, without lawful authority 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 by any person to commit forgery.
2009, c. 28, s. 9.

CCC


Note up: 368.1

Draft Form of Charges

See also: 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 forgery under s. 366, 367 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit made or altered a document;
  5. the document made or altered was a "false document";
  6. the culprit knew the document was false;
  7. the prohibited act was "with intent" that either:
    1. "it should in any way be used or acted on as genuine, to the prejudice of any one"; or
    2. "a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything" and
  8. the making was not in "good faith" at "the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government".

Proving using, trafficking or possessing forged documents under s. 368 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the document was of monetary value;
  5. the document was a "forged" document;
  6. the culprit knew the document of some monetary value was forged;
  7. the culprit either:
    1. uses, deals with or acts on a document as if it were genuine
    2. causes or attempts to cause any person to use, deal with or act on a document as if it were genuine;
    3. transfers, sells or offers to sell a document or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph 368(a) or (b); or
    4. possesses the document with intent to commit an offence under s. 368(a) to (c).

Proving forgery instruments under s. 368.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses" a thing;
  5. the thing is an "instrument, device, apparatus, material or thing that ... has been used or ... is adapted or intended for use ... to commit forgery."
  6. the culprit knew that the item had been used for, adapted or intended for use to commit forgery; and
  7. the culprit had no "lawful authority or excuse" to do the prohibited conduct.

Interpretation of the Offence

Actus Reus

Only the party named on a cheque may endorse it to another person. Anyone else who endorses a cheque payable to someone else is committing the act of forgery.[1]

Mens Rea

The mens res for forgery under s. 366(1) requires an "intent to deceive" which requires an intent that is more than mere "carelessness or negligence". The intent to deceive should generally "be coupled with an intent that the document be used to someone’s prejudice, or that a person be induced to act in a certain way." Prejudice need not result as long as there was an intent for the document to be treated as genuine.[2]

The Crown must show the "falsity of the endorsement the document has been shown to be a forged document and its use with knowledge is sufficient to show the commission of the offence."[3]

The accused must have known that "the document was false and intended for somebody to act upon it as if it was genuine.".[4]

It is not necessary that the accused "intended" to defraud anyone.[5]

Uttering vs Forgery

Uttering forged documents is distinct from making forged documents. The "forgery" is the making of the document, the "uttering" is the use of the document.[6]

  1. R v JJV, 1994 CanLII 6514 (NB CA)
  2. R v Benson (M.) et al., 2012 MBCA 94 (CanLII)
  3. R v Elkin (1978), 42 CCC (2d) 185 (B.C.C.A.), 1978 CanLII 2487 (BC CA), per McIntyre JA
  4. R v Sebo, [1988] AJ No 475 (C.A.), 1988 ABCA 200 (CanLII), per Kerans JA
  5. R v Atwal, [2015] OJ No 3748 (C.J.), 2015 ONSC 4425 (CanLII), per Hill J
    R v GT, 2016 CanLII 82183 (NL PC), per Gorman J, at para 59
  6. Benson, supra, at para 33
    R v Wightman, [2003] AJ No 1453 (P.C.), 2003 ABPC 202 (CanLII) ("Forgery deals with the making of the document; uttering deals with the use of the document.")

"False documents"

The Code defines "false document" under s. 321:

s. 321
...
"false document" means a document

(a) the whole or a material part of which purports to be made by or on behalf of a person
(i) who did not make it or authorize it to be made, or
(ii) who did not in fact exist,
(b) that is made by or on behalf of the person who purports to make it but is false in some material particular,
(c) that is made in the name of an existing person, by him or under his authority, with a fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who makes it or under whose authority it is made; (faux document)

...
R.S., 1985, c. C-46, s. 321; R.S., 1985, c. 27 (1st Supp.), s. 42.

CCC


Note up: 321

While "making" a false document is defined under s. 366 as:

s. 366
[omitted (1)]

Making false document

(2) Making a false document includes

(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or
(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.

[omitted (3), (4) and (5)]
R.S., 1985, c. C-46, s. 366; 2009, c. 28, s. 7.

CCC


Note up: 366(2)

The document cannot simply be "false" but it must be proven to be "false" in relation to the purpose for which it was created.[1]

"False document" and "forged document" are not interchangable terms.[2] A document that contains a lie is not necessarily a "false document". It must be false in "some material particular" in relation to the purpose for which it was created.[3]

A fake or false item that was made as a "novelty" item cannot be a "false document" and the creation of which does not carry the requisite mens rea for the offence.[4]

A "false document" will include documents purported to have been made by a person (real or fake) who did not, in fact, make it.[5]

A failure of the signatory to indicate on the document that they are acting as a proxy for the authorized party is not a forgery.[6]

Attesting in an affidavit to a witness's signature without having met the witness is a forgery under s. 366(2)(b).<ref> R v Paquette, [1979] 2 SCR 168, 1979 CanLII 212 (SCC), per Laskin CJ reversing 1977 CanLII 2089 (QC CA), per Montgomery JA

  1. R v Benson, 2012 MBCA 94 (CanLII), per Steel JA ("it must be false in relation to the purpose for which it was created")
  2. R v Hawrish, [1986] S.J. No. 846 (C.A.), 1986 CanLII 3208 (SK CA), per Hall JA
  3. R v Ogilvie, 1993 CanLII 3510 (QC CA), per Fish and Baudouin JJA
  4. R v Sommani, 2007 BCCA 199 (CanLII), per Lowry JA
  5. Sommani, ibid.
  6. R v Foley, 1994 CanLII 9760 (NL CA), per Marshall JA, at paras 29 to 33

Defence For Public Officers

Public officers acting in the course of their duties or employment

368.2 No public officer, as defined in subsection 25.1(1) [protection of law enforcement – definitions], is guilty of an offence under any of sections 366 to 368.1 [forgery-related offences] if the acts alleged to constitute the offence were committed by the public officer for the sole purpose of establishing or maintaining a covert identity for use in the course of the public officer’s duties or employment.
2009, c. 28, s. 9.
[annotation(s) added]

CCC


Note up: 368.2

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 367, 368, 368.1 -

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 367, 368, 368.1), 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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 367, 368 and 368.1 summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 367 and 368 indictable election 10 years incarceration
s. 368.1 indictable election 14 years incarceration

Offences under s. 367 [forgery] and 368 [use, trafficking or possession of forged document] 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. 368.1 [forgery instruments] are hybrid. If prosecuted by indictment, the maximum penalty is 14 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. 367, 368 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 368.1 Summary Election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 368.1 indictable election X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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: Forgery (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 366, 367, 368, 368.1
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 Her Majesty the Queen on application of the Crown.
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.

Record Suspensions and Pardons

Convictions under s. 366, 367, 368, 368.1 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: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

1997 to 2009

Forgery

366 (1) Every one commits forgery who makes a false document, knowing it to be false, with intent

(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.
Making false document

(2) Making a false document includes

(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or
(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.
When forgery complete

(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.

Forgery complete though document incomplete

(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.
R.S., c. C-34, s. 324.

CCC

Uttering forged document

368 (1) Every one who, knowing that a document is forged,

(a) uses, deals with or acts on it, or
(b) causes or attempts to cause any person to use, deal with or act on it,

as if the document were genuine,

(c) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(d) is guilty of an offence punishable on summary conviction.
Wherever forged

(2) For the purposes of proceedings under this section, the place where a document was forged is not material.
R.S., 1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s. 25.

CCC

See Also

Counterfeiting


Counterfeiting
s. 449, 450, and 452 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to counterfeiting are found in Part XII of the Criminal Code relating to "Offences Relating to Currency".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 449 [make counterfeit money],
450 [possess counterfeit money], and
452 [utters, uses, sends counterfeit money]
Indictable Offence(s) N/A OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 449 [make counterfeit money],
450 [possess counterfeit money], and
452 [utters, uses, sends counterfeit money] 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
s. 449 [make counterfeit money] ,
s. 450 [possess counterfeit money], or
s. 452 [utters, uses, sends counterfeit money]
X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 449 [make counterfeit money], 450 [possess counterfeit money], or 452 [utters, uses, sends counterfeit money], 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 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)).
Fingerprints and Photos

A peace officer who charges a person under s. 449 [make counterfeit money], 450 [possess counterfeit money], or 452 [utters, uses, sends counterfeit money] 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. 449 [make counterfeit money], 450 [possess counterfeit money], and 452 [utters, uses, sends counterfeit money] OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png (14 years max)

Offences under s. 449 [make counterfeit money], 450 [possess counterfeit money], and 452 [utters, uses, sends counterfeit money] 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

Making

449 Every one who makes or begins to make counterfeit money is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 407.

CCC


Note up: 449

Possession, etc., of counterfeit money

450 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, without lawful justification or excuse,

(a) buys, receives or offers to buy or receive counterfeit money;
(b) has in their custody or possession counterfeit money; or
(c) introduces counterfeit money into Canada.

R.S., 1985, c. C-46, s. 450; 2018, c. 29, s. 55.

CCC


Note up: 450

Uttering, etc., counterfeit money

452 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, without lawful justification or excuse,

(a) utters or offers to utter counterfeit money or uses counterfeit money as if it were genuine, or
(b) exports, sends or takes counterfeit money out of Canada.

R.S., 1985, c. C-46, s. 452; 2018, c. 29, s. 57.

CCC


Note up: 452

Draft Form of Charges

See also: 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
452 "... contrary to section 452 of the Criminal Code."

Proof of the Offence

Proving making counterfeit money under s. 449 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit made or began to make counterfeit money
  5. the culprit knew the money was counterfeit

Proving possession counterfeit money under s. 450 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. Either:
    1. buys, receives or offers to buy or receive counterfeit
    2. possesses counterfeit or
    3. brings counterfeit money into the country
  5. the culprit knew the money was counterfeit

Proving uttering counterfeit money under s. 452 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. Either:
    1. uses counterfeit as real money
    2. export, send, or take counterfeit out of the country
  5. the culprit knew the money was counterfeit

Interpretation of the Offence

Intention to Spend

A lack of intention to spend the money is not a defence.[1]

An intention "not intend to use [coins] as currency" but rather to "hold" coins "for the purpose of selling them as numismatic curiosities" is not a valid defence.[2]

Nature of Currency

The Crown must prove that the accused knew of the counterfeit character of the currency.[3]

It is a defence to raise a doubt that the accused knew of the "counterfeit nature" of the money.[4]

"lawful justification" or "excuse"

It is not a defence to the offence to establish a lack of intent to use the money to purchase anything.[5] The intention to sell a counterfeit coin "as numismatic curiosities" is not an excuse for the offence.[6]

Constitutionality

The reverse onus found in s. 450, 451, 452, and 454 do not violate s. 11(d) of the Charter.[7]

  1. R v Duane, 1984 ABCA 115 (CanLII), per Kerans JA, at para 4 ("mere lack of intention not to use it as currency does not legitimate possession of counterfeit money.")
  2. R v Robinson, [1974] SCR 573, 1973 CanLII 22 (SCC), per Ritchie J
  3. R v Freng, 1993 CanLII 913 (BC CA), at para 21 (" We conclude the proper construction of ss. 450 and 452 requires the Crown to prove beyond a reasonable doubt all the essential elements of the charges in question and that knowledge of the character of the counterfeit money is an essential element.")
  4. R v Burge, 1986 CanLII 806 (BC CA), per Carrothers JA, at para 9
  5. Duane, supra
  6. Robinson v R, [1974] SCR 573, 1973 CanLII 22 (SCC)
  7. Burge, ibid.

Making

Definitions

448 In this Part [Pt. XII – Offences Relating to Currency (s. 448 to 462)],
...
"counterfeit money" includes

(a) a false coin or false paper money that resembles or is apparently intended to resemble or pass for a current coin or current paper money,
(b) a forged bank-note or forged blank bank-note, whether complete or incomplete,
(c) a genuine coin or genuine paper money that is prepared or altered to resemble or pass for a current coin or current paper money of a higher denomination,
(d) a current coin from which the milling is removed by filing or cutting the edges and on which new milling is made to restore its appearance,
(e) a coin cased with gold, silver or nickel, as the case may be, that is intended to resemble or pass for a current gold, silver or nickel coin, and
(f) a coin or a piece of metal or mixed metals that is washed or coloured by any means with a wash or material capable of producing the appearance of gold, silver or nickel and that is intended to resemble or pass for a current gold, silver or nickel coin;

...
R.S., c. C-34, s. 406.

CCC


Note up: 448

Possession

The Crown must prove that the accused had knowledge that the bill was counterfeit at the time it was in his possession.[1]

  1. R v Santeramo (1976), 32 CCC (2d) 35 (Ont. C.A.), 1976 CanLII 1456 (ON CA), per Brooke JA, at p. 44 (Crown appeal dismissed)
    R v Caccamo, 1973 CanLII 46 (ON CA), [1973] 2 O.R. 367 (C.A.), per Gale CJ, at pp. 369-370 aff’d (1975), 21 CCC (2d) 257 (SCC), [1976] 1 SCR 786, 1975 CanLII 11 (SCC), per De Grandpre J
    R v Frenge, 1993 CanLII 913 (BC CA), (1993), 86 CCC (3d) 91 (BCCA), per curiam, at pp. 95-6

Uttering and Use

The sale of counterfeit money as counterfeit money, without any deception, is not a defence against the criminalization of the use of counterfeit money.[1]

  1. R v Kelly, 1979 CanLII 2903 (ON CA), per Martin JA

Proof of Counterfeit Character

Special Provisions as to Proof
When counterfeit complete

461 (1) Every offence relating to counterfeit money or counterfeit tokens of value shall be deemed to be complete notwithstanding that the money or tokens of value in respect of which the proceedings are taken are not finished or perfected or do not copy exactly the money or tokens of value that they are apparently intended to resemble or for which they are apparently intended to pass.

Certificate of examiner of counterfeit

(2) In any proceedings under this Part [Pt. XII – Offences Relating to Currency (s. 448 to 462)], a certificate signed by a person designated as an examiner of counterfeit by the Minister of Public Safety and Emergency Preparedness, stating that any coin, paper money or bank-note described therein is counterfeit money or that any coin, paper money or bank-note described therein is genuine and is or is not, as the case may be, current in Canada or elsewhere, is evidence of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate.

Cross-examination and notice

(3) Subsections 258(6) [impaired driving and over 80 ndash; attendance and right to cross-examine] and (7) [impaired driving and over 80 ndash; notice of intention to produce certificate] apply, with such modifications as the circumstances require, in respect of a certificate described in subsection (2) [x].
R.S., 1985, c. C-46, s. 461; 1992, c. 1, s. 58; 2005, c. 10, s. 34.
[annotation(s) added]

CCC


Note up: 461(1), (2) and (3)

A place officer qualified as an expert under s. 461 may give evidence on whether the bill was counterfeit. The evidence may be by ceritifcate.[1] The offence may also testify as to what is "lawfully current" money in Canada.[2]

  1. R v Serratore, 1980 CanLII 2833 (ON CA), per MacKinnon ACJ
  2. R v MacIntosh, 1971 CanLII 465 (ON CA), per Schroeder JA

Misc Definitions

Section 448 defines "current" as "lawfully current in Canada or elsewhere by virtue of a law, proclamation or regulation in force in Canada or elsewhere as the case may be;"

Section 448 states that “utter” "includes sell, pay, tender and put off."

Section 2 defines "bank-note".

Digests

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. s. 449 [make counterfeit money],
s. 450 [possess counterfeit money] and
s.452 [utters, uses, sends counterfeit money]

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 449 [make counterfeit money],
s. 450 [possess counterfeit money] and
s.452 [utters, uses, sends counterfeit money]
N/A 14 years incarceration

Offences under s. 449 [make counterfeit money], 450 [possess counterfeit money] and 452 [utters, uses, sends counterfeit money] are straight indictable. The maximum penalty is 14 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
Fi