Full Text:Volume 1.1F1

From Criminal Law Notebook

Mischief to Property

This page was last substantively updated or reviewed January 2020. (Rev. # 79506)


Mischief
s. 430 of the Crim. Code
Election / Plea
Crown Election varies
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 (other)
10 years incarceration (test., over $5k, data)
Life (endanger life)
Reference
Offence Elements
Sentence Digests

Overview

See also: Mischief to Data (Offence) and Mischief to Cultural Property (Offence)

Offences relating to mischief are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".

Mischief concerns the interference with another person's property. Most typically this involves property damage such as vandalism. Section 430 describes several forms of the offence of mischief.

The offences can be grouped into mischief involving the damaging of property, mischief involving the interference with the use of property, mischief involving the interference with electronic data, and mischief causing danger to life.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 430(3) [mischief of value exceeding $5,000] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)
s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000] Hybrid Offence(s)
(Absolute Jurisdiction)
(Absolute Jurisdiction)
s. 430(5.1) [act or omission causing risk to life] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)
s. 430(2) [mischief causing danger to life] Indictable Offence(s)

Offences under s. 430(3) [mischief of value exceeding $5,000] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 430(4) [mischief other than testamentary instruments or value 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.

Offences under s. 430(2) [mischief causing danger to life] 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. 430(3) [mischief of value exceeding $5,000]
s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000] or
s. 430(5.1) [act or omission causing risk to life]
s. 430(2) [mischief causing danger to life]

When charged under s. 430(3) [mischief of value exceeding $5,000] or (4) [mischief other than testamentary instruments or value 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.

When charged under s. 430(2) [mischief causing danger to life] , 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.

Fingerprints and Photos

A peace officer who charges a person under s. 430 [mischief] 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. 430(2) [mischief causing danger to life]
s. 430(3) [mischief of value exceeding $5,000] (by indictment only)
s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000]
s. 430(5.1) [act or omission causing risk to life]

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Generally

Mischief

430 (1) Every one commits mischief who wilfully

(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

[omitted (1.1), (2), (3), (4), (4.1), (4.101), (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(1)

Endangering Life (430(2))

430
[omitted (1) and (1.1)]

Punishment

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.

[omitted (3), (4), (4.1), (4.101), (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(2)

Testamentary Instruments $5,000 and Above (430(3))

430
[omitted (1), (1.1) and (2)]

Punishment

(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars

(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.

[omitted (4), (4.1), (4.101), (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(3)

Under $5,000 (430(4))

430
[omitted (1), (1.1), (2) and (3)]

Idem

(4) Every one who commits mischief in relation to property, other than property described in subsection (3) [mischief to testamentary instrument or property exceeding $5,000],

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.

[omitted (4.1), (4.101), (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(4)

Dangerous Act or Omission (430(5.1))

430
[omitted (1), (1.1), (2), (3), (4), (4.1), (4.101), (4.11), (4.2) and (5)]

Offence

(5.1) Every one who wilfully does an act or wilfully omits to do an act that it is his duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or data,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

[omitted (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(5.1)

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
430(2)[mischief causing danger to life] "..., contrary to section 430(2) of the Criminal Code.
430(2)[mischief of value exceeding $5,000] "..., contrary to section 430(3) of the Criminal Code.
430(2)[mischief other than testamentary instruments or value exceeding $5,000] "..., contrary to section 430(4) of the Criminal Code.
430(5.1)[act or omission causing risk to life] "..., contrary to section 430(5.1) of the Criminal Code.

Proof of the Offence

Proving mischief to property under s. 430(3) or (4) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit does any of the following:
    1. "destroys or damages" the property;
    2. "renders property dangerous, useless, inoperative or ineffective";
    3. "obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property"; or
    4. "obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property"
  5. Proof of ownership by someone other than accused [1]
  6. the damage was wilfully or recklessly
  7. the manner in which the damage occurred
  8. the state of the property before damage
  9. the state of the property after damage
  10. value of property damaged: (over $5,000 (s. 430(3)), equal or under $5,000 (s. 430(4)); and
  11. the culprit had no "colour of right".

Proving mischief to testamentary instruments under s. 430(3) should include:

  1. the underlying elements to mischief to property; and
  2. the subject matter is a "testamentary instrument".

Proving mischief causing actual danger to life under s. 430(2) should include:

  1. the underlying elements to mischief to property; and
  2. the prohibited conduct causes "causes actual danger to life";
  3. the culprit had an objective foresight that the prohibited consequence would result from his conduct.

Proving mischief by dangerous act or omission under s. 430(5.1) should include:

  1. ...
  2. ...
  1. see R v Power, 1995 CanLII 4472 (NS SC), (1995), 141 NSR (2d) 161, 403 APR 161 (N.S.S.C.), per Scanlan J

Interpretation of the Offence

Mischief include any case where the usefulness or value of the property has been impaired, at least temporarily.[1] However, this has been found not necessarily to include things like posters on lamp posts.[2]

Where the subject-matter is under $5,000 in value, the offence is an absolute jurisdiction offence and must be tried in provincial court.[3]

The mens rea for mischief is either intention or recklessness.[4]

  1. R v Quickfall, 1993 CanLII 3509 (QC CA), 78 CCC (3d) 563, at p. 566 (Q.C.A.), per McCarthy JA and Proulx JA
  2. R v Jeffers, 2012 ONCA 1 (CanLII), 280 CCC (3d) 54, per Laskin JA, at paras 18 to 23
  3. see s. 553(a)
  4. R v Schmidtke, 1985 CanLII 3621 (ON CA), [1985] OJ No 84 (CA), per Robins JA, at p. 4

"Enjoyment"

"Enjoyment under s. 430(1)(d) is viewed from a subjective stand-point referring to the pleasure taken from the use of the property."[1]

There is some division on whether "enjoyment" has a narrow meaning as it relates to "conduct in relation to property rights" or a more expansive view that includes "action of obtaining from property the satisfaction that the property can provide."[2] British Columbia has sided on the more expansive definition.[3]

It is not an essential requirement that the Crown prove the monetary value of the thing damaged as the offence will apply equally where the property is simply rendered dangerous.[4]

  1. R v Nicol, 2002 MBCA 151 (CanLII), 170 CCC (3d) 59, per Huband JA
  2. R v Anderson, 2009 ABPC 249 (CanLII), 10 Alta LR (5th) 377, per Wenden J
  3. See R v TW [1993] BCJ 2031(*no CanLII links)
    R v Wheldon, 2014 BCPC 119 (CanLII), per Gouge J, at para 8
  4. R v Barahona Villeda et al, 2014 BCPC 61 (CanLII), per Rideout J, at para 28

Danger to Life (430(2))

Under section 430(2), a "danger to life...must be the physical outcome of the damage to the property and not merely incidental to the means."[1] The danger must be the direct result of the act.

The accused must subjectively intend to endanger life of another person. Recklessness is insufficient for a conviction on s. 420(2) but is sufficient for a conviction under s. 430(5.1).[2]

  1. R v Nairn, 1955 CanLII 502 (NL SC), 112 CCC 272, (1955) NJ No 4 (NFLD C.A.), per Dunfield J, at p. 273
  2. R v Lee, 2011 BCPC 367 (CanLII), per Challenger J
    see also R v SDD, 2002 NFCA 18 (CanLII), 164 CCC (3d) 1, per Wells CJ

Ownership

The owner of the property is not a relevant factor unless the accused owned it. The identity of the owner is not an essential element.[1] Thus, the property can include trash or garbage.[2]However, there must be at least some evidence that the property does not belong to the accused.

  1. R v Forsythe, 1986 ABCA 79 (CanLII), (1986), 70 AR 294 (CA), per Kerans JA
  2. Williams v Phillips (1957), 41 Cr. App. R. 5 (CA)
    R v Pace, 1964 CanLII 597 (NSCA), [1965] 3 CCC 55 (NSCA), per Ilsley CJ

Mischief to Data (430(1.1) and (5))

Mischief in relation to data can underlie a charge of unauthorized use of a computer.

Where charged in reference to the theft of data will not be valid as data cannot be stolen.[1]

The deletion of a person's text messages from their phone without consent may constitute mischief to data.[2]

The mens rea for mischief to data is not satisfied by mere recklessness.[3]

  1. R v Maurer, 2014 SKPC 118 (CanLII), 447 Sask R 76, per Metivier J
  2. R v Charlton, 2014 QCCQ 4789 (CanLII), per Poulin J
  3. R v Livingston, 2018 ONCJ 25 (CanLII), per Lipson J, at para 84 ("Attempted mischief to data requires actual intent and purpose and not just recklessness. Although s. 429(1) provides that the completed offence can be made out with recklessness, recklessness does not suffice for liability grounded in attempt. That is because s. 24 of the Criminal Code, the provision creating the offence of attempt, requires an intent to commit the offence and a purpose of carrying out that intention:...")

Defences

430
[omitted (1), (1.1), (2), (3), (4), (4.1), (4.101), (4.11), (4.2), (5) and (5.1)]

Saving

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
Idem

(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

[omitted (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(6) and (7)

Wilfully causing event to occur

429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (ss. 428 to 447.1)], wilfully to have caused the occurrence of the event.

Colour of right

(2) No person shall be convicted of an offence under sections 430 to 446 [certain property offences from Part XI] where he proves that he acted with legal justification or excuse and with colour of right.

Interest

(3) Where it is an offence to destroy or to damage anything,

(a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and
(b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.

R.S., c. C-34, s. 386.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 429(1), (2) and (3)

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 430(3) [mischief of value exceeding $5,000]
s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000]
s. 430(5.1) [act or omission causing risk to life]
s. 430(2) [mischief causing danger to life]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 430), 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)

Sentencing Profile

Maximum Penalties

Offences under s. 430(3) [mischief of value exceeding $5,000], (4) [mischief other than testamentary instruments or value exceeding $5,000], or (5) [mischief to data] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration under s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000], 5 years incarceration under s. 430(5.1) [omission], or 10 years incarceration under s. 430(3) [mischief of value exceeding $5,000] or (5) [mischief to data]. 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) under s. 420(3) [mischief of value exceeding $5,000], 430(4) [mischief other than testamentary instruments or value exceeding $5,000], (5) [mischief to data] and s. 430(5.1) [act or omission causing risk to life].

Offences under s. 430(2) [mischief causing danger to life] are straight indictable. The maximum penalty is life incarceration.

Minimum Penalties

There are no mandatory minimums, except for convictions under s. 430(4.11) which require a minimum penalty is $1,000 fine (no prior convictions) or 14 days jail (second conviction), or 30 days jail (third or more convictions).

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. 430(3) [mischief of value exceeding $5,000],
430(4) [mischief other than testamentary instruments or value exceeding $5,000] or
430(5.1) [act or omission causing risk to life]
any
s. 430(2) [mischief causing danger to life] N/A

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Persons convicted of mischief under $5,000 who have no prior record will frequently receive a probationary period with either a suspended sentence or conditional discharge.

Ranges

see also: Mischief (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders 430(2) [mischief causing danger to life],
430(3) [mischief of value exceeding $5,000], or
430(5.1) [act or omission causing risk to life]
Delayed Parole Order s. 430(2) [mischief causing danger to life]
  • Periods of imprisonment of 2 years or more for convictions under s. 430(2) [mischief causing danger to life] 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.
Note: mischief to property not exceeding $5,000 is not eligible for DNA Order

Record Suspensions and Pardons

Convictions under s. 430 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)

See Also

References

Mischief to Cultural Property

This page was last substantively updated or reviewed January 2020. (Rev. # 79506)


Mischief
s. 430 of the Crim. Code
Election / Plea
Crown Election varies
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)
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Mischief to Property (Offence) and Mischief to Data (Offence)

Offences relating to mischief are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 430(4.1) [mischief to religious property],
s. 430(4.11) [mischief to war memorials], or
s. 430(4.2) [mischief to cultural property]
Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 430(4.1) [mischief to religious property], 430(4.11) [mischief to war memorials], or 430(4.2) [mischief to cultural property] 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. 430(4.1) [mischief to religious property],
s. 430(4.11) [mischief to war memorials], or
s. 430(4.2) [mischief to cultural property]

When charged under s. 430(4.1), (4.11), (4.2), 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. 430(4.1), (4.11), (4.2) 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. s. 430(4.1) [mischief to religious property],
s. 430(4.11) [mischief to war memorials], or
s. 430(4.2) [mischief to cultural property]
(by indictment)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Generally

Mischief

430 (1) Every one commits mischief who wilfully

(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

[omitted (1.1), (2), (3), (4), (4.1), (4.101), (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(1)

Religious Property (430(4.1))

430
[omitted (1), (1.1), (2), (3) and (4)]

Mischief relating to religious property

(4.1) Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin,

(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.

[omitted (4.101), (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(4.1)

War Memorials (430(4.11))

430
[omitted (1), (1.1), (2), (3), (4), (4.1) and (4.101)]

Mischief relating to war memorials

(4.11) Everyone who commits mischief in relation to property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 14 days, and
(iii) for each subsequent offence, to imprisonment for not less than 30 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term not exceeding 10 years; and

(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

[omitted (4.2), (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(4.11)

Cultural Property (430(4.2))

430
[omitted (1), (1.1), (2), (3), (4), (4.1), (4.101) and (4.11)]

Mischief in relation to cultural property

(4.2) Every one who commits mischief in relation to cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954, as set out in the schedule to the Cultural Property Export and Import Act,

(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.

[omitted (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(4.2)

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
430(4.1) [mischief to religious property] "..., contrary to section 430(4.1) of the Criminal Code.
430(4.1) [mischief to war memorials] "..., contrary to section 430(4.111) of the Criminal Code.
430(4.1) [mischief to cultural property] "..., contrary to section 430(4.2) of the Criminal Code.

Proof of the Offence

Proving mischief in relation to war memorials under s. 430(4.1) should include:

  1. the underlying elements to mischief to property; and
  2. the subject matter of the offence is a war memorial.

Proving mischief in relation to cultural property under s. 430(4.2) should include:

  1. the underlying elements to mischief to property; and
  2. the subject matter is "cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict".

Interpretation of the Offence

Mischief include any case where the usefulness or value of the property has been impaired, at least temporarily.[1] However, this has been found not necessarily to include things like posters on lamp posts.[2]

Where the subject-matter is under $5,000 in value, the offence is an absolute jurisdiction offence and must be tried in provincial court.[3]

The mens rea for mischief is either intention or recklessness.[4]

  1. R v Quickfall, 1993 CanLII 3509 (QC CA), 78 CCC (3d) 563, at p. 566 (Q.C.A.), per McCarthy JA and Proulx JA
  2. R v Jeffers, 2012 ONCA 1 (CanLII), 280 CCC (3d) 54, per Laskin JA, at paras 18 to 23
  3. see s. 553(a)
  4. R v Schmidtke, 1985 CanLII 3621 (ON CA), [1985] OJ No 84 (CA), per Robins JA, at p. 4

Enjoyment (430(1))

See also: Mischief to Property (Offence)

Ownership

The owner of the property is not a relevant factor unless the accused owned it. The identity of the owner is not an essential element.[1] Thus, the property can include trash or garbage.[2]However, there must be at least some evidence that the property does not belong to the accused.

  1. R v Forsythe, 1986 ABCA 79 (CanLII), (1986), 70 AR 294 (CA), per Kerans JA
  2. Williams v Phillips (1957), 41 Cr. App. R. 5 (CA)
    R v Pace, 1964 CanLII 597 (NSCA), [1965] 3 CCC 55 (NSCA), per Ilsley CJ

"Property" under s. 430(3.1)

430
[omitted (1), (1.1), (2), (3), (4) and (4.1)]

Definition of property

(4.‍101) For the purposes of subsection (4.‍1) [mischief relating to religious property, educational institutions, etc.], property means

(a) a building or structure, or part of a building or structure, that is primarily used for religious worship — including a church, mosque, synagogue or temple —, an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery;
(b) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) [advocating genocide – definition] as an educational institution — including a school, daycare centre, college or university —, or an object associated with that institution located in or on the grounds of such a building or structure;
(c) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) [advocating genocide – definition] for administrative, social, cultural or sports activities or events — including a town hall, community centre, playground or arena —, or an object associated with such an activity or event located in or on the grounds of such a building or structure; or
(d) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) [advocating genocide – definition] as a residence for seniors or an object associated with that residence located in or on the grounds of such a building or structure.

[omitted (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(4.‍101)

Defences

430
[omitted (1), (1.1), (2), (3), (4) and (4.1), (4.‍101), (4.11), (4.2), (5) and (5.1)]

Saving

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
Idem

(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.
[omitted (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(6) and (7)

Wilfully causing event to occur

429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (ss. 428 to 447.1)], wilfully to have caused the occurrence of the event.

Colour of right

(2) No person shall be convicted of an offence under sections 430 to 446 [certain property offences from Part XI] where he proves that he acted with legal justification or excuse and with colour of right.

Interest

(3) Where it is an offence to destroy or to damage anything,

(a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and
(b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.

R.S., c. C-34, s. 386.

CCC (CanLII), (DOJ)


Note up: 429(1), (2) and (3)

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 430(4.1) [mischief to religious property],
s. 430(4.11) [mischief to war memorials], and
s. 430(4.2) [mischief to cultural property]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 430), 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)

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 430(4.1) [mischief to religious property] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 430(4.1) [mischief to religious property] indictable election 10 years incarceration
s. 430(4.11) [mischief to war memorials] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 430(4.11) [mischief to war memorials] indictable election 10 years incarceration
s. 430(4.2) [mischief to cultural property] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 430(4.2) [mischief to cultural property] indictable election 10 years incarceration

Offences under s. 430(4.1), (4.11), (4.2), or (5) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration under s. 430(4.1) [mischief to religious property], (4.2) [mischief to cultural property], or (4.11) [mischief to war memorials] . 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) under s. 420(4.2) [mischief to cultural property], 18 months incarceration under s. 430(4.1) [mischief to religious property] and (4.11) [mischief to war memorials].

Minimum Penalties

There are no mandatory minimums, except for convictions under s. 430(4.11) which require a minimum penalty is $1,000 fine (no prior convictions) or 14 days jail (second conviction), or 30 days jail (third or more convictions).

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. 430(4.1) [mischief to religious property],
s. 430(4.2) [mischief to cultural property]
any
s. 430(4.11) [mischief to war memorials] any

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

Persons convicted of mischief under $5,000 who have no prior record will frequently receive a probationary period with either a suspended sentence or conditional discharge.

Ranges

see also: Mischief (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 430(4.1) [mischief to religious property], (4.11) [mischief to war memorials] or (4.2) [mischief to cultural property]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 430 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)

See Also

References

Mischief to Data

This page was last substantively updated or reviewed January 2021. (Rev. # 79506)


Mischief to Data
s. 430(1.1), (5) of the Crim. Code
Election / Plea
Crown Election Hybrid
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 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Mischief to Property (Offence) and Mischief to Cultural Property (Offence)

Offences relating to mischief are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 430(1.1), (5) [mischief to data] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 430(1.1), (5) [mischief to data] 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. 430(1.1), (5) [mischief to data]

When charged under s. 430(1.1) [mischief to data], 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. 430 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. 430(1.1) [mischief to data] (10 years max)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

430.
[omitted (1)]

Mischief in relation to computer data

(1.1) Everyone commits mischief who wilfully

(a) destroys or alters computer data;
(b) renders computer data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of computer data; or
(d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.

[omitted (2), (3), (4), (4.1), (4.101), (4.11), (4.2)]

Mischief in relation to computer data

(5) Everyone who commits mischief in relation to computer data

(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.
Offence

(5.1) Everyone who wilfully does an act or wilfully omits to do an act that it is their duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Saving

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.

[omitted (7)]

Definition of computer data

(8) In this section, "computer data" has the same meaning as in subsection 342.1(2) [unauthorized use of computer – definitions].
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 430(1.1), (5), (5.1), (6), and (8)

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
430(5) mischief to data "... did commit mischief in relation to data by wilfully [describe act, including whether it include the destruction, alteration of computer data...] contrary to section 430(5) of the Criminal Code." [1] [2]

Proof of the Offence

Proving mischief in relation to data under s. 430(1.1) should include:

  1. the underlying elements to mischief to property; and
  2. the culprit does any of the following:
    1. destroys data;
    2. alters data;
    3. "render data meaningless, useless or ineffective";
    4. "obstructs, interrupts or interferes" with
      1. "the lawful use of data"; or
      2. "any person in the lawful use of data or denies access to data to any person who is entitled to access thereto."

Interpretation of the Offence

Mischief in relation to data can underlie a charge of unauthorized use of a computer.

Where charged in reference to the theft of data will not be valid as data cannot be stolen.[1]

The deletion of a person's text messages from their phone without consent may constitute mischief to data.[2]

The mens rea for mischief to data is not satisfied by mere recklessness.[3]

Mistake of Proper Policy

Mistaken understanding of the proper use policy may provide for a defence.[4]

"Colour of Right"
  1. R v Maurer, 2014 SKPC 118 (CanLII), 447 Sask R 76, per Metivier J
  2. R v Charlton, 2014 QCCQ 4789 (CanLII), per Poulin J
  3. R v Livingston, 2018 ONCJ 25 (CanLII), per Lipson J, at para 84 ("Attempted mischief to data requires actual intent and purpose and not just recklessness. Although s. 429(1) provides that the completed offence can be made out with recklessness, recklessness does not suffice for liability grounded in attempt. That is because s. 24 of the Criminal Code, the provision creating the offence of attempt, requires an intent to commit the offence and a purpose of carrying out that intention:...")
  4. R v Lauzon, 2013 QCCQ 5060 (CanLII), per Labrie J

Computer Data

342.1
[omitted (1)]

Definitions

(2) In this section,
"computer data" means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system;
...
"computer system" means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other computer data, and
(b) by means of computer programs,
(i) performs logic and control, and
(ii) may perform any other function;


...
R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18; 2014, c. 31, s. 16.

CCC (CanLII), (DOJ)


Note up: 342.1(2)

Defences

430.
[omitted (1), (2), (3), (4), (4.1), (4.101), (4.11), (4.2), (5) and (5.1)]

Saving

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
Idem

(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.
[omitted (8)]
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC (CanLII), (DOJ)


Note up: 430(6) and (7)

Wilfully causing event to occur

429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (ss. 428 to 447.1)], wilfully to have caused the occurrence of the event.

Colour of right

(2) No person shall be convicted of an offence under sections 430 to 446 [certain property offences from Part XI] where he proves that he acted with legal justification or excuse and with colour of right.

Interest

(3) Where it is an offence to destroy or to damage anything,

(a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and
(b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.

R.S., c. C-34, s. 386.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 429(1), (2) and (3)

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 430(1.1), (5) [mischief to data]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 430), 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)

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 430(1.1), (5) [mischief to data] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 430(1.1), (5) [mischief to data] indictable election 10 years incarceration

Offences under s. 430(1.1), (5) [mischief to 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. 430(1.1), (5) [mischief to data] any

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

Persons convicted of mischief under $5,000 who have no prior record will frequently receive a probationary period with either a suspended sentence or conditional discharge.

Ranges

see also: Mischief (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 430 (1.1), (5) [mischief to data]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 430 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)

See Also

References

History of Mischief Offences

History

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

History of Mischief (Offence)

2014 to Present

Mischief

430 (1) Every one commits mischief who wilfully

(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
Mischief in relation to computer data

(1.1) Everyone commits mischief who wilfully

(a) destroys or alters computer data;
(b) renders computer data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of computer data; or
(d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.
Punishment

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.

Punishment

(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars

(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.
Idem

(4) Every one who commits mischief in relation to property, other than property described in subsection (3),

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Mischief relating to religious property

(4.1) Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin,

(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 and liable to imprisonment for a term not exceeding eighteen months.

Mischief relating to war memorials

(4.11) Everyone who commits mischief in relation to property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 14 days, and
(iii) for each subsequent offence, to imprisonment for not less than 30 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term not exceeding 10 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term not exceeding 18 months.

Mischief in relation to cultural property

(4.2) Every one who commits mischief in relation to cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954, as set out in the schedule to the Cultural Property Export and Import Act,

(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.

Mischief in relation to computer data
(5) Everyone who commits mischief in relation to computer data

(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.
Offence

(5.1) Everyone who wilfully does an act or wilfully omits to do an act that it is their duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Saving

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
Idem

(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

Definition of computer data

(8) In this section, computer data has the same meaning as in subsection 342.1(2).
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1, c. 31, s. 19.

CCC

The changes from 2014 are underlined.

2005 to 2014

Mischief

430 (1) Every one commits mischief who wilfully

(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
Mischief in relation to data

(1.1) Every one commits mischief who wilfully

(a) destroys or alters data;
(b) renders data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of data; or
(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.
Punishment

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.

Punishment

(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars

(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.
Idem

(4) Every one who commits mischief in relation to property, other than property described in subsection (3),

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Mischief relating to religious property

(4.1) Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin,

(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 and liable to imprisonment for a term not exceeding eighteen months.

; Mischief in relation to cultural property (4.2) Every one who commits mischief in relation to cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954, as set out in the schedule to the Cultural Property Export and Import Act,

(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.

Idem

(5) Every one who commits mischief in relation to data

(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.
Offence

(5.1) Every one who wilfully does an act or wilfully omits to do an act that it is his duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or data,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Saving

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
Idem

(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

Definition of “data”

(8) In this section, “data” has the same meaning as in section 342.1.
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3.

CCC

The changes from 2005 are underlined.

2001 to 2005

Mischief

430 (1) Every one commits mischief who wilfully

(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
Mischief in relation to data

(1.1) Every one commits mischief who wilfully

(a) destroys or alters data;
(b) renders data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of data; or
(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.
Punishment

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.

Punishment

(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars

(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.
Idem

(4) Every one who commits mischief in relation to property, other than property described in subsection (3),

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Mischief relating to religious property

(4.1) Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin,

(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 and liable to imprisonment for a term not exceeding eighteen months.
Idem

(5) Every one who commits mischief in relation to data

(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.
Offence

(5.1) Every one who wilfully does an act or wilfully omits to do an act that it is his duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or data,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Saving

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
Idem

(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

Definition of “data”

(8) In this section, “data” has the same meaning as in section 342.1.
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12.

CCC

Criminal Code, 1985

Destroying documents of title

340 Every one who, for a fraudulent purpose, destroys, cancels, conceals or obliterates

(a) a document of title to goods or lands,
(b) a valuable security or testamentary instrument, or
(c) a judicial or official document,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Criminal Code, 1970

Section 286 was renumbered as 300.

Criminal Code, 1953-54

Destroying documents of title

286 Every one who, for a fraudulent purpose, destroys, cancels, conceals or obliterates

(a) a document of title to goods or lands,
(b) a valuable security or testamentary instrument, or
(c) a judicial or official document,

is guilty of an indictable offence and is liable to imprisonment for ten years.

1906 to 1953

In 1906 s. 353 was renumbered to s. 396.

Criminal Code, 1892

Destroying, etc., documents

353 Every one who destroys, cancels, conceals or obliterates any document of title to goods or lands, or any valuable security, testamentary instrument, or judicial, official or other document, for any fraudulent purpose, is guilty of an indictable offence and liable to the same punishment as if he had stolen such document, security or instrument.

Arson

This page was last substantively updated or reviewed January 2020. (Rev. # 79506)


Arson
s. 433, 434, and 436 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 None
Maximum 5 years incarceration (negl.), 14 years incarceration (prop.), Life (disreg.)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to arson are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 433 [arson, disregard for human life] Indictable Offence(s) (life max)
s. 434 [arson, damage to property]
s. 434.1 [arson, damage to own property]
Indictable Offence(s) (14 years max)
s. 435 [arson, fraud]
s. 436 [arson, negligence]
Hybrid Offence(s) (under 14 years max)

Offences under ss. 433 [arson, disregard for human life], 434 [arson, damage to property], and 434.1 [arson, damage to own property] are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under ss. 435 [arson, fraud], and 436 [arson, negligence] 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. 433 [arson, disregard for human life],
s. 434 [arson, damage to property], and
s. 434.1 [arson, damage to own property]
s. 435 [arson, fraud] and
s. 436 [arson, negligence]

When charged under ss. 433 [arson, disregard for human life], 434 [arson, damage to property], and 434.1 [arson, damage to own property] , 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 ss. 435 [arson, fraud], 436 [arson, negligence], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Fingerprints and Photos

A peace officer who charges a person under ss. 433, 434, 434.1, 435, or 436 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. 433 [arson, disregard for human life],
s. 434 [arson, damage to property],
s. 434.1 [arson, damage to own property] and
s. 435 [arson, fraud]
s. 436 [arson, negligence] (under 10 years max)

Offences under ss. 433, 434, 434.1, 435 and 436 are designated offences eligible for wiretap under s. 183.

Offences under ss. 433, 434, 434.1, 435 and 436 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

Arson — disregard for human life

433 Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence and liable to imprisonment for life where

(a) the person knows that or is reckless with respect to whether the property is inhabited or occupied; or
(b) the fire or explosion causes bodily harm to another person.

R.S., 1985, c. C-46, s. 433; 1990, c. 15, s. 1.

CCC (CanLII), (DOJ)


Note up: 433

Arson — damage to property

434 Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 434; 1990, c. 15, s. 1.

CCC (CanLII), (DOJ)


Note up: 434

Arson — own property

434.1 Every person who intentionally or recklessly causes damage by fire or explosion to property that is owned, in whole or in part, by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, where the fire or explosion seriously threatens the health, safety or property of another person.
1990, c. 15, s. 1.

CCC (CanLII), (DOJ)


Note up: 434.1

Arson for fraudulent purpose

435 (1) Every person who, with intent to defraud any other person, causes damage by fire or explosion to property, whether or not that person owns, in whole or in part, the 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.
Holder or beneficiary of fire insurance policy

(2) Where a person is charged with an offence under subsection (1) [arson, fraud], the fact that the person was the holder of or was named as a beneficiary under a policy of fire insurance relating to the property in respect of which the offence is alleged to have been committed is a fact from which intent to defraud may be inferred by the court.

R.S., 1985, c. C-46, s. 435; 1990, c. 15, s. 1; 2019, c. 25, s. 163.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 435

Arson by negligence

436 (1) Every person who owns, in whole or in part, or controls property and who, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
Non-compliance with prevention laws

(2) Where a person is charged with an offence under subsection (1) [arson, negligence], the fact that the person has failed to comply with any law respecting the prevention or control of fires or explosions in the property is a fact from which a marked departure from the standard of care referred to in that subsection may be inferred by the court.

R.S., 1985, c. C-46, s. 436; 1990, c. 15, s. 1; 2019, c. 25, s. 164.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 436(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
433(a) Arson with disregard for human life "..., who intentionally or recklessly did cause damage by fire or explosion to property [describe the property, including address], knowing or being reckless of the fact that the property was inhabited or occupied, contrary to section 433(a) of the Criminal Code."
433(b) Arson causing bodily harm "..., who intentionally or recklessly did cause damage by fire or explosion to property [describe the property, including address] where the fire or explosion causes bodily harm to [name1], to wit: [conduct], contrary to section 433(b) of the Criminal Code."
434 Arson with damage to property "..., did intentionally or recklessly cause damage by fire or explosion to property not wholly owned by him, to wit: [conduct], contrary to section 434 of the Criminal Code."
434.1 Arson with damage to property "..., did intentionally or recklessly cause damage by fire or explosion to property [describe the property, including address], owned in whole or in part by him or her, not wholly owned by him thereby threatening the health, safety or property of [name1], to wit: [conduct], contrary to section 434.1 of the Criminal Code."
435(1) Arson for fraudulent purpose "..., did with intent or recklessly cause damage by fire or explosion to property not wholly owned by him, to wit: [conduct], contrary to section 435(1) of the Criminal Code."
436(1) Arson for fraudulent purpose "..., did intentionally or recklessly cause damage by fire or explosion to property not wholly owned by him, to wit: [conduct], contrary to section 436(1) of the Criminal Code."
436.1 Poss'n of incendiary material "..., did have in his or her possession incendiary material, incendiary device or an explosive substance for the purpose of committing an offence under s. 433, 434, 435, or 436 , to wit: [conduct], contrary to section 436.1 of the Criminal Code."

Proof of the Offence

Proving Arson — disregard for human life under s. 433 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit did anything;
  5. the prohibited conduct was done "intentionally or recklessly";
  6. the prohibited conduct caused "damage by fire or explosion to property"; and
  7. the culprit either:
    1. knew or was reckless with respect to whether the property was inhabited or occupied; or
    2. the fire or explosion causes bodily harm to another person.

Proving Arson — damage to property under s. 434 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit did anything;
  5. the prohibited conduct was done "intentionally or recklessly";
  6. the prohibited conduct caused "damage by fire or explosion to property"; and
  7. the property was "not wholly owned" by the culprit.

Proving Arson — own property under s. 434.1 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit did anything;
  5. the culprit causes a fire or explosion;
  6. the fire or explosion damages a thing;
  7. the thing is property owned in whole or part by the accused; and
  8. the fire or explosion threatened the health, safety or prorpety of another person.

Proving Arson — fraudulent purpose under s. 435 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit did anything;
  5. the prohibited conduct was done "with intent to defraud any other person"; and
  6. the prohibited conduct caused "causes damage by fire or explosion to property".

Proving Arson by negligence under s. 436 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit does anything;
  5. the culprit owns or controls a property;
  6. there was a "marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions";
  7. the prohibited act caused a fire or explosion in the property;
  8. the fire or explosion caused bodily harm to another or damage property.

Interpretation of the Offence

For any general intent arson offences where recklessness is the minimum standard, the Crown must prove that "accused actually knew that damage by fire to the property specified was the probable consequence of the actions the accused proposed to take, and the accused proceeded to take the actions in the face of the risk."[1]

  1. R v SDD, 2002 NFCA 18 (CanLII), 164 CCC (3d) 1, per Well CJ, at para 25

Arson, Damage to Property (434 and 434.1)

Actus Reus

Arson under s. 434 requires the proof of an act that damages property by fire.[1] Fire is "simply the mechanism by which the damage must be caused."[2]

"Damages" requires that there be physical harm or reduction in value to property.[3]

Section 434.1 requires causing damage to property by fire or explosion. It does not require that anyone be harmed or endangered.[4] All that is required is that the fire or explosion "seriously threatens the health, safety or property of another person". This will include police, firefighters and other first responders.[5]

For s. 434.1, the property must be owned in whole or in part by the accused.[6]

Mens Rea

Section 434 arson is a general intent offence.[7] It is made out if the accused intentionally or recklessly performs the illegal act that causes damage to the property.[8]

Intoxication short of automatism does not negate the mens rea.[9]

When considering mens rea, the court may consider all the circumstances, including the manner in which the fire started. This is an important but not essential consideration.[10]

The necessary mens rea under s. 434.1 is intentionally or recklessly causing damage.[11] It is not necessary that the accuseds knew that the fire threatened the health, safety or property of another person.[12]

The mens rea requirements does not include the need to prove a subjective foresight of the consequences of the act of starting the fire.[13] However, the crown does need to prove the "probable consequences" of starting the fire was known to the accused.[14] The minimal mens rea standard is one of recklessness.[15]

"fraudulent purpose"

For the purpose of an offence under s. 435, the requirement of fraud requires that there be "dishonesty in accord with community standards."[16]

  1. R v Tatton, 2015 SCC 33 (CanLII), [2015] 2 SCR 574, per Moldaver J
  2. Tatton, ibid.
  3. R v MV, 1998 CanLII 4374 (ON CA), 123 CCC (3d) 138, per Goudge JA
  4. R v Ludwig, 2018 ONCA 885 (CanLII), per Doherty JA, at para 35 ("Section 434 creates the offence of intentionally or recklessly causing damage to property by fire. The provision creates a pure property offence that contains no additional mens rea requirement. The section does not require proof that anyone was harmed or endangered by the fire. Section 434 does not, however, apply if the person causing the damage by fire wholly owns the damaged property. A person who intentionally or recklessly causes damage by fire to property that he wholly owns does not commit an offence under s. 434.")
  5. Ludwig, ibid.
  6. Ludwig, ibid.
  7. Tatton, supra
  8. Tatton, supra
  9. Tatton, supra
  10. Tatton, supra
  11. Ludwig, supra, at para 35 ("Section 434 creates the offence of intentionally or recklessly causing damage to property by fire. The provision creates a pure property offence that contains no additional mens rea requirement. The section does not require proof that anyone was harmed or endangered by the fire. Section 434 does not, however, apply if the person causing the damage by fire wholly owns the damaged property. A person who intentionally or recklessly causes damage by fire to property that he wholly owns does not commit an offence under s. 434.")
  12. R v Bastien, 2017 BCCA 210 (CanLII), per Lowry JA (3:0)
  13. R v Peters, 1991 CanLII 257 (BC CA), 69 CCC (3d) 461, per McEachern CJ
  14. R v SDD, 2002 NFCA 18 (CanLII), 164 CCC (3d) 1, per Well CJ
    cf. R v Buttar, 1986 CanLII 1163 (BC CA), 28 CCC (3d) 84, per Esson JA (2:1) (Lambert JA dissenting)
  15. R v Brain, 2003 BCCA 70 (CanLII), 172 CCC (3d) 203, per Finch CJ
    R v Venn, 1991 CanLII 914 (BC SC), per Bouck J
  16. R v D(RN), 1994 CanLII 403 (BC CA), 89 CCC (3d) 449, per Hollinrake JA, at para 35

Evidence

Most cases of arson are circumstantial. To support conviction, "the circumstances must be sufficient to exclude every reasonable hypothesis other than a wilful and intentional burning in order to rebut the presumption that the burning was of accidental or natural origin."[1]

It is not always necessary to establish an incendiary source of the fire. Circumstantial evidence such as motive, opportunity, financial difficulty, the possibility of gain, inculpatory utterances and other inculpatory circumstances, may be used to make the case.[2]

"property"

"Property" is defined under s. 428.

"explosive substance"

"Explosive substance" is defined by s. 2.

  1. R v Monteleone, 1987 CanLII 16 (SCC), [1987] 2 SCR 154, per McIntyre J
    See also R v Jonkman, 2012 SKQB 511 (CanLII), 410 Sask R 171, per Schwann J
  2. Monteleone, supra
    Jonkman, supra, at paras 90 to 94

Causation

It is often expected that Crown expert evidence will be required to establish the cause of the fire as being from the accused.[1]

Causal connection – arson by negligence

The Crown must prove there is a causal connection between (1) the breach of the standard of care, (2) the fire and its spread, and (3) the resulting harm or damage.[2]

It is not necessary that the Crown prove that the accused actions were the cause of the damage.[3]

  1. e.g. R v Eng, 1996 CanLII 1598 (BC SC), per Bouck J
  2. R v Harricharan, 1995 CanLII 445 (ON CA), 98 CCC (3d) 145, per Abella JA (3:0)
  3. Harricharan, ibid., per Morden ACJ and Catzman JA

Expert Evidence

When weighing the evidence of an arson expert, the Court should consider:[1]

  • whether the expert visited the scene of the fire
  • whether he was present in court for relevant eyewitness evidence
  • whether the defence expert had a flawed understanding of the Crown expert evidence
  • the plausibility of the alternative explanations of the fire
  1. R v Vieira, 2005 CanLII 41367 (ON CA), per Goudge JA
    E.g. See R v Jonkman, 2012 SKQB 511 (CanLII), 410 Sask R 171, per Schwann J

Defences

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

Wilful Intent and Colour of Right
Wilfully causing event to occur

429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (ss. 428 to 447.1)], wilfully to have caused the occurrence of the event.

Colour of right

(2) No person shall be convicted of an offence under sections 430 to 446 [certain property offences from Part XI] where he proves that he acted with legal justification or excuse and with colour of right.

Interest

(3) Where it is an offence to destroy or to damage anything,

(a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and
(b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.

R.S., c. C-34, s. 386.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 429(1), (2) and (3)


Defined terms: "person" (s. 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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 433, 434 and 436 -

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. 433 [arson, disregard for human life] N/A life incarceration
s. 434 [arson, damage to property]
s. 434.1 [arson, damage to own property]
N/A 14 years incarceration
s. 435 [arson, fraud] N/A 10 years incarceration
s. 436 [arson, negligence] N/A 5 years incarceration

Offences under s. 433, 434 and 436 are straight indictable. The maximum penalty is life incarceration under s. 433 [arson, disregard for human life], 14 years incarceration under s. 434 [arson, damage to property], 10 years incarceration under s. 435 [arson, fraud] and 5 years incarceration under s. 436 [arson, negligence].

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. 433 [arson, disregard for human life] N/A
s. 434 [arson, damage to property], 436 [arson, negligence] N/A
s. 435 [arson, fraud] N/A

For offences under s. 434 [arson, damage to property] and 436 [arson, negligence], 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).

If convicted under s. 433 [arson, disregard for human life] 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. 433 [arson, disregard for human life] 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.

Offences under s. 435 [arson, fraud] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

Conditional Sentences

The general gravity of the offence is usually serious enough to find that conditional sentences to be inappropriate.[1]

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

  1. R v Mirzahkalili, 2009 ONCA 905 (CanLII), 257 OAC 27, per curiam
    R v Bos, 2016 ONCA 443 (CanLII), 131 OR (3d) 755, per Tulloch JA, at para 127

Principles

Gravity

There are four categories of arson offences: [1]

  1. Mental illness (e.g. pyromania)
  2. Insurance fraud
  3. Revenge
  4. Vandalism / random mischief

Those with motivation of revenge or financial gain are the most morally blameworthy.[2]

Dispositions

Not every instance of arson under s. 434 constitutes a SPIO. It must be determined on the facts. [3]

It is not "uncommon" to order lengthy periods of probation as part of the sentencing where there are concerns of rehabilitation and protection of the public. [4]

  1. See Ruby, Sentencing (5th Ed) at 744 to 780
  2. R v Fournier, 2002 NBCA 71 (CanLII), [2002] 173 CCC (3d) 566, per Larlee JA at 25 (NBCA)
    R v Fewer, [2004] NJ No 433(*no CanLII links) , at para 37
  3. R v CPM, 2009 ABPC 58 (CanLII), 465 AR 385, per Allen J, at para 30
  4. R v Keber, 2005 BCCA 543 (CanLII), 218 BCAC 125, per Rowles JA, at para 7

Factors

It is not a mitigating factor that it was good luck that no one was hurt or killed in relation to an offence under s. 433(a).[1]

  1. R v KH, (1994) 146 NBR (2d) 372 (NBCA)(*no CanLII links) , at para 6
    R v Morningstar, 2017 NBQB 7 (CanLII), per Walsh J, at para 32

Ranges

see also: Arson (Sentencing Cases)

In British Columbia, the range of sentence for arsons is between 9 months and 3 years.[1]

In New Brunswick and Newfoundland, it has been stated that the sentence for arson with disregard for human life will "rarely be for a period of less than two years."[2]

  1. R v MacKendrick, 2007 BCPC 35 (CanLII), [2007] BCJ No 306, per Ball J, at para 43
    R v Keber, 2005 BCCA 543 (CanLII), [2005] BCJ No 2475 (BCCA), per Rowles JA
    R v Shore, 1999 BCCA 227 (CanLII), WCB (2d) 99 (BCCA), per Southin JA
    R v Allard, 1999 BCCA 481 (CanLII), [1999] BCJ No 1912 (BCCA), per Finch JA
  2. R v Combdon, 2008 NLTD 71 (CanLII), 842 APR 259, per Goodridge J, at para 44
    R v Morningstar, 2017 NBQB 7 (CanLII), per Walsh J, at para 34

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 433, 434, 434.1, 435, and 436
Weapons Prohibition Orders s. 433, 434, 434.1 and 436
  • On conviction under s. 433, 434, 434.1 , and 436 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.
Delayed Parole Order s. 433, 434.1, and 436
  • Periods of imprisonment of 2 years or more for convictions under s. 433, 434.1 or 436 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 433 [arson, disregard for human life], 434 [arson, damage to property], 434.1 [arson, damage to own property], 435 [arson, fraud], and 436 [arson, negligence] 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

Possession of Incendiary Materials


Possession of Incendiary Materials
s. 436.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
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 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to possession of incendiary materials are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 436.1 [possession of incendiary materials] Hybrid Offence(s) N/A (under 14 years max)

Offences under s. 436.1 [possession of incendiary materials] 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. 436.1 [possession of incendiary materials]

When charged under s. 436.1 [possession of incendiary materials], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 436.1 [possession of incendiary materials]

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Possession of incendiary material

436.1 Every person who possesses any incendiary material, incendiary device or explosive substance for the purpose of committing an offence under any of sections 433 to 436 [arson offences] is guilty of

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

1990, c. 15, s. 1; 2019, c. 25, s. 165.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 436.1

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
436.1 "..., contrary to section 436.1 of the Criminal Code.

Proof of the Offence

Proving possession of incendiary material under s. 436.1 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit possesses "incendiary material, incendiary device or explosive substance" and
  5. the possession is "for the purpose of committing an offence under any of sections 433 to 436".

Interpretation of the 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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. x [possession of incendiary materials]

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. 436.1 [possession of incendiary materials] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 436.1 [possession of incendiary materials] indictable election 5 years incarceration

Offences under s. 436.1 [possession of incendiary materials] 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 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. 436.1 [possession of incendiary materials] Any

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 Incendiary Materials (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 436.1 [possession of incendiary materials]
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Generally Available 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. 436.1 [possession of incendiary materials] 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

Unauthorized Use of Computer

This page was last substantively updated or reviewed January 2020. (Rev. # 79506)


Unauthorized Use of Computer
s. 342.1 and 342.2 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 5 or 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to unauthorized use of a computer 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 [unauthorized use of computer]
s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]
Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 342.1 [unauthorized use of computer] and 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] 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. 342.1 [unauthorized use of computer] or
342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]

When charged under s. 342.1 [unauthorized use of computer] or 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Fingerprints and Photos

A peace officer who charges a person under s. 342.1 [unauthorized use of computer] or
342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] 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. 342.1 [unauthorized use of computer]
s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]

Offences under s. 342.1 [unauthorized use of computer] 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

Unauthorized use of computer

342.1 (1) Everyone 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, fraudulently and without colour of right,

(a) obtains, directly or indirectly, any computer service;
(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;
(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or under section 430 [mischief] in relation to computer data or a computer system; or
(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c).

[omitted (2)]
R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18; 2014, c. 31, s. 16.

CCC (CanLII), (DOJ)


Note up: 342.1(1)

Possession of device to obtain unauthorized use of computer system or to commit mischief

342.‍2 (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 commit an offence under section 342.‍1 [unauthorized use of computer] or 430 [mischief], knowing that the device has been used or is intended to be used to commit such an offence, 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 unauthorized use of computer system or to commit mischief], 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 of forfeiture may be made under subsection (2) [forfeiture of device to commit computer offence] in respect of any thing that is the property of a person who was not a party to the offence under subsection (1) [possession of device to obtain unauthorized use of computer system or to commit mischief].
[omitted (4)]
1997, c. 18, s. 19; 2014, c. 31, s. 17; 2018, c. 29, s. 34.

CCC (CanLII), (DOJ)


Note up: 342.2(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
342.1(1)(a) unauthorized obtainment of a computer service "...did obtain, directly or indirectly, a computer service [to wit: ] contrary to section 342.1(1)(a) of the Criminal Code."
342.1(1)(b) unauthorized interception of a computer function "...did by means of an electro-magnetic, acoustic, mechanical or other device [to wit: name the device], [intercepted or caused to be intercepted], directly or indirectly, a function of a computer system [to wit: describe function that was unlawfully obtained] contrary to section 342.1(1)(b) of the Criminal Code."
342.1(1)(c) unauthorized use to obtain computer service "...did [use or causes to be used], directly or indirectly, a computer system with intent to [commit an offence under 342.1(1)(a)] contrary to section 342.1(1)(c) of the Criminal Code."
342.1(1)(c) unauthorized use to intercept a computer function "...did [use or causes to be used], directly or indirectly, a computer system with intent to [commit an offence under 342.1(1)(b)] contrary to section 342.1(1)(c) of the Criminal Code."
342.1(1)(c) unauthorized use to commit mischief to data "...did [use or causes to be used], directly or indirectly, a computer system with intent to [commit an offence section 430(5)] contrary to section 342.1(1)(c) of the Criminal Code."
342.2 possession of device to obtain unauthorized use of computer system or to commit mischief "...did without lawful justification or excuse [make, possess, sell, offer for sale, import, obtain for use, distribute or make available] a device that is designed or adapted primarily to commit an offence under [section 342.‍1 or 430], to wit: [describe act], contrary to section 342.2 of the Criminal Code."

Proof of the Offence

Proving fraudulently obtaining of computer services under s. 342.1(1)(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit obtained, "directly or indirectly, any computer service";
  5. the service was prohibited to the culprit;
  6. A reasonable person in the same circumstances as the accused would have agreed that this was a dishonest activity and
  7. the culprit did the prohibited act "fraudulently and without colour of right".

Proving unauthorized interception of a computer system function under s. 342.1(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "intercepts or causes to be intercepted, directly or indirectly, any function of a computer system";
  5. the interception was "by means of an electro-magnetic, acoustic, mechanical or other device";
  6. the culprit did the prohibited act "fraudulently and without colour of right".

Proving obtaining computer system with intent for unauthorized use under s. 342.1(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit obtained, directly or indirectly, any computer system;
  5. the culprit intended to commit the offence created by s. 342.1(1)(a) or s. 342.1(1)(b) or s. 430; and
  6. the culprit did the prohibited act "fraudulently and without colour of right".

Proving sharing passwords for unauthorized use of a computer system under s. 342.1(1)(d) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "uses, possesses, traffics in or permits another person to have access to a computer password";
  5. the password "would enable a person to commit an offence under paragraph (a), (b) or (c)";
  6. the culprit did the prohibited act "fraudulently and without colour of right".

Proving Possession of device to obtain unauthorized use of a computer system or to commit mischief under s. 342.2 should include:

  1. identity of accused as culprit
  2. date and time of the 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 device";
  5. the device is one that "that is designed or adapted primarily to commit an offence under section 342.1 or 430";
  6. the culprit knew "that the device has been used or is intended to be used to commit such an offence" and
  7. the culprit is "without lawful excuse".

Interpretation of the Offence

The crown must prove that the accused had the knowledge that the act and intended use was wrong.[1]

The Crown must also prove that the accused obtained the services "knowingly and voluntarily". This requires that there was an "intent to commit the prohibited act" and that the act was known to be prohibited "with regard to the planned purposes of this use".[2]

"Colour of Right"

Mistaken understanding of the proper use policy may provide for a defence.[3]

Definitions Relating to Computer Devices

342.1
[omitted (1)]

Definitions

(2) In this section,
"computer data" means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system;
"computer password" means any computer data by which a computer service or computer system is capable of being obtained or used;
"computer program" means computer data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function;
"computer service" includes data processing and the storage or retrieval of computer data;
"computer system" means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other computer data, and
(b) by means of computer programs,
(i) performs logic and control, and
(ii) may perform any other function;

...
"electro-magnetic, acoustic, mechanical or other device" means any device or apparatus that is used or is capable of being used to intercept any function of a computer system, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing;
"function" includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer system;
"intercept" includes listen to or record a function of a computer system, or acquire the substance, meaning or purport thereof;
"traffic" means, in respect of a computer password, to sell, export from or import into Canada, distribute or deal with in any other way.
R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18; 2014, c. 31, s. 16.

CCC (CanLII), (DOJ)


Note up: 342.1(2)

A computer system includes the switches which transfer text messages between cell phones.[4]

To establish a blackberry as a computer system there should be some evidence, particularly expert evidence, establishing it as containing a computer program.[5]

342.2
[omitted (1), (2) and (3)]

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].

1997, c. 18, s. 19; 2014, c. 31, s. 17; 2018, c. 29, s. 34.

CCC (CanLII), (DOJ)


Note up: 342.2(4)

Example Circumstances

The unauthorized access to policing systems such as CPIC may constitute fraudulent access to a computer system contrary to s. 342.1(1)(a).[6] There is suggestion that the act of engaging in "spear phishing" to gain access to email accounts is also a violation of s. 342.1.[7]

  1. R v Parent, 2012 QCCA 1653 (CanLII), per Gagnon JA
  2. Parent, ibid., at para 50 ("In order to prove the offence set out in paragraph 342.1(1)(a) Cr.C., the prosecution had to show that the respondent had obtained a computer service knowingly and voluntarily. This required evidence of his intent to commit the prohibited act, knowing that this act was prohibited with regard to the planned purposes of this use. In my view, this is the mens rea required for offences, subject of this appeal to be committed.")
  3. R v Lauzon, 2013 QCCQ 5060 (CanLII), per Labrie J
  4. R v Woodward, 2011 ONCA 610 (CanLII), 276 CCC (3d) 86, per Moldaver JA - required expert testimony
  5. R v Cockell, 2013 ABCA 112 (CanLII), 299 CCC (3d) 221, per Bielby JA, at para 66 ("There was no expert evidence as to the exact nature of a Blackberry, nor which showed it contained computer programs or other data, and that pursuant to those computer programs performed logic and control or any other function.")
  6. e.g. see Parent, ibid.
    R v Braile, 2018 ABQB 361 (CanLII), AJ No 596, per Mahoney J
    R v O’Brien, 2015 CM 1013 (CanLII), per Dutil J - re CPIC access and Security and Military Police Information System (SAMPIS) access
  7. United States v Baratov, 2017 ONCA 481 (CanLII), per Miller 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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 342.1 [unauthorized use of computer] (only if Crown proceeds by Indictment)

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 342.1), 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
See also: Property and Fraud Offences (Sentencing)
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 342.1 [unauthorized use of computer] and
s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]
summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 342.1 [unauthorized use of computer] indictable election 10 years incarceration
s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] indictable election 5 years incarceration

Offences under s. 342.1 and 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] are straight indictable. The maximum penalty is 10 years incarceration under s. 342.1 and 5 years incarceration under s. 342.2.

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 [unauthorized use of computer], 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] N/A

For offences under s. 342.1 and 342.2, 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: Unauthorized Use of Computer (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 342.1 [unauthorized use of computer]
Forfeiture of Computer Equipment s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]
  • Discretionary forfeiture order under section 342.2(2), If convicted under section 342.2.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 342.1 [unauthorized use of computer] 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

1997 to 2014

Unauthorized use of computer

342.1 (1) Every one who, fraudulently and without colour of right,

(a) obtains, directly or indirectly, any computer service,
(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system,
(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or an offence under section 430 in relation to data or a computer system, or
(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c)

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on summary conviction.
...
R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18.

CCC

See Also

Identity Fraud

This page was last substantively updated or reviewed January 2020. (Rev. # 79506)


Identity Fraud
s. 403 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 identity fraud are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 403 [identity fraud] Hybrid Offence(s) Yes (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 403 [identity fraud] 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. 403 [identity fraud]

When charged under s. 403 [identity fraud] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 403 [[identity fraud]

Offences under s. 403 [identity fraud] 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

Identity fraud

403 (1) Everyone commits an offence who fraudulently personates another person, living or dead,

(a) with intent to gain advantage for themselves or another person;
(b) with intent to obtain any property or an interest in any property;
(c) with intent to cause disadvantage to the person being personated or another person; or
(d) with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.
Clarification

(2) For the purposes of subsection (1) [identity fraud], personating a person includes pretending to be the person or using the person’s identity information — whether by itself or in combination with identity information pertaining to any person — as if it pertains to the person using it.

Punishment

(3) Everyone who commits an offence under subsection (1) [identity fraud]

(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.

R.S., 1985, c. C-46, s. 403; 1994, c. 44, s. 27; 2009, c. 28, s. 10.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 403(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
403(1)(a) identity fraud - gain advantage "..., did fraudulently personate [name1], with intent to gain advantage to himself or [name2], contrary to section 403(1) of the Criminal Code."
403(1)(b) identity fraud - obtain property "..., did fraudulently personate [name1], with intent to gain property or an interest in property for himself or [name2], contrary to section 403(1) of the Criminal Code."
403(1)(c) identity fraud - cause disadvantage "..., did fraudulently personate [name1], with intent to cause disadvantage to [name1] or [name2], contrary to section 403(1) of the Criminal Code."
403(1)(d) identity fraud - defeat justice "..., did fraudulently personate [name1], with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice, contrary to section 403(1) of the Criminal Code."


(d) with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.

Proof of the Offence

Proving identity fraud under s. 403(1) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit personated another person, including "pretending to be the person or using the person’s identity information"
  5. the other person was either living or dead
  6. the personation was in a "fraudulent" manner
  7. the personation was with the intent to do any of the following:
    1. to "gain advantage for themselves or another person";
    2. to "obtain any property or an interest in any property";
    3. to "cause disadvantage to the person being personated or another person"; or
    4. to "avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice."

Interpretation of the Offence

Purpose

The purpose of the offence is "to prevent individuals from assuming the identity of someone else with the intention of gaining an advantage which the individual would not otherwise be enabled to obtain."[1]

Fictitious Identities

This offence does not include impersonations that involve the use of fictious identities.[2]

"Fraudulently"

The word "fraudulently" refers to dishonest or morally wrong conduct.[3]

Advantage

The meaning of "advantage" is broad. It can include simply benefiting from the ability to disguise one's past.[4] It is not limited to financial benefit.[5]

Disadvantage

Personating other people online to engage in inappropriate or illegal acts is likely to the "disadvantage" of the person impersonated.[6]

It can include avoidance of arrest[7], escape from detection[8]

Identity Information
Definition of “identity information”

402.1 For the purposes of sections 402.2 [identity theft] and 403 [identity fraud], “identity information” means any information — including biological or physiological information — of a type that is commonly used alone or in combination with other information to identify or purport to identify an individual, including a fingerprint, voice print, retina image, iris image, DNA profile, name, address, date of birth, written signature, electronic signature, digital signature, user name, credit card number, debit card number, financial institution account number, passport number, Social Insurance Number, health insurance number, driver’s licence number or password.
2009, c. 28, s. 10.

CCC (CanLII), (DOJ)


Note up: 402.1

  1. R v Boyle, 2005 BCCA 537 (CanLII), 218 BCAC 101, per Hall JA, at para 5
  2. R v Northrup, 1982 CanLII 3710 (NB CA), 1 CCC (3d) 210, per Angers JA
    R v Westerdahl (1988) 82 NSR (2d) 178(*no CanLII links)
    R v Carew, 1992 CanLII 1530 (BC SC), per Shaw J
  3. R v DeMarco, 1973 CanLII 1542, 13 CCC (2d) 369, per Martin JA
    R v Anderson, 1991 CanLII 7831 (SK QB), 92 Sask R 8, per Baynton J, at para 7
  4. Boyle, supra
  5. R v Hetsberger, 1980 CanLII 2986, , 51 CCC (2d) 257, per Blair JA
  6. R v Chartier, 2015 MBPC 50 (CanLII), 125 WCB (2d) 677, per Rolston J
  7. Northrup, supra
    R v Rozon (1974), 28 CRNS 232(*no CanLII links)
  8. R v Marsh (1975), 31 CRNS 232 (Ont. C.C.)(*no CanLII links)

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 403 [identity fraud]


For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 403), 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. 403 [identity fraud] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 403 [identity fraud] indictable election 10 years incarceration

Offences under s. 403 [identity fraud] 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. 403 [identity fraud] any

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-related Orders

Order Conviction Description
DNA Orders s. 403 [identity fraud]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 403 [identity fraud] 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 2009

Personation with intent

403. Every one who fraudulently personates any person, living or dead,

(a) with intent to gain advantage for himself or another person,
(b) with intent to obtain any property or an interest in any property, or
(c) with intent to cause disadvantage to the person whom he personates or another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 403; 1994, c. 44, s. 27.

CCC

See Also

References

Identity Theft

This page was last substantively updated or reviewed May 2020. (Rev. # 79506)


Identity Theft
s. 402.2 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 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to identity theft are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 402.2(1) [identity theft] and
s. 402.2(2) [trafficking in identity information]
Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 402.2 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. 402.2, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 402.2(1) [identity theft] and
s. 402.2(2) [trafficking in identity information]
(under 10 years max)

Offences under s. 402.2 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

Identity Theft and Identity Fraud

...

Identity theft

402.‍2 (1) Every person commits an offence who obtains or possesses another person’s identity information with intent to use it to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

Trafficking in identity information

(2) Everyone commits an offence who transmits, makes available, distributes, sells or offers for sale another person’s identity information, or has it in their possession for any of those purposes, knowing that or being reckless as to whether the information will be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

Clarification

(3) For the purposes of subsections (1) [identity theft] and (2) [trafficking in identity information], an indictable offence referred to in either of those subsections includes an offence under any of the following sections:

(a) section 57 (forgery of or uttering forged passport);
(b) section 58 (fraudulent use of certificate of citizenship);
(c) section 130 (personating peace officer);
(d) section 131 (perjury);
(e) section 342 (theft, forgery, etc., of credit card);
(f) section 362 (false pretence or false statement);
(g) section 366 (forgery);
(h) section 368 (use, trafficking or possession of forged document);
(i) section 380 (fraud); and
(j) section 403 (identity fraud).
Jurisdiction

(4) An accused who is charged with an offence under subsection (1) [identity theft] or (2) [trafficking in identity information] 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. However, no proceeding in respect of the offence shall be commenced in a province without the consent of the Attorney General of that province if the offence is alleged to have been committed outside that province.

Punishment

(5) Everyone who commits an offence under subsection (1) [identity theft] or (2) [trafficking in identity information]

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

2009, c. 28, s. 10; 2018, c. 29, s. 45.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 402.2(1), (2), (3), (4), and (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
402.‍2(1) Identity theft "..., did knowingly obtain or possess [name1]'s identity information [specifics] with intent to use it to commit an indictable offence, to wit: [name offence, e.g. fraud, theft of specific items, etc.] contrary to section 402.2(1) of the Criminal Code."
402.‍2(2) "..., did transmit, make available, distribute, sell, or offer to sell [name1]'s identity informioant [specifics] contrary to section 402.‍2(2) of the Criminal Code."

Proof of the Offence

Sections 402.2 outlines two offences.

Proving Identity Theft under s. 402.2(1) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit obtained or possessed another persons' identity information;
  5. the circumstances of the act give rise "to a reasonable inference that the information [was] intended to be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence"
  6. the culprit was aware of the circumstances that give rise to the inference.
  7. the indictable offence was one or more of the following:
    1. section 57 (forgery of or uttering forged passport);
    2. section 58 (fraudulent use of certificate of citizenship);
    3. section 130 (personating peace officer);
    4. section 131 (perjury);
    5. section 342 (theft, forgery, etc., of credit card);
    6. section 362 (false pretence or false statement);
    7. section 366 (forgery);
    8. section 368 (use, trafficking or possession of forged document);
    9. section 380 (fraud); and
    10. section 403 (identity fraud).

Proving Trafficking in Identity Information under s. 402.2(2) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit did at least one of the prohibited acts in relation to a thing:
    1. transmitted;
    2. made available;
    3. distributed;
    4. sold; or
    5. offered
  5. if none of the prohibited acts apply, possession of the thing "for any of those purposes";
  6. the thing was another person's identity information;
  7. the culprit was aware or "reckless" as to "whether the information will be used to commit an indictable offence"
  8. the indictable offence was one or more of the following:
    1. section 57 (forgery of or uttering forged passport);
    2. section 58 (fraudulent use of certificate of citizenship);
    3. section 130 (personating peace officer);
    4. section 131 (perjury);
    5. section 342 (theft, forgery, etc., of credit card);
    6. section 362 (false pretence or false statement);
    7. section 366 (forgery);
    8. section 368 (use, trafficking or possession of forged document);
    9. section 380 (fraud); and
    10. section 403 (identity fraud).

Interpretation of the Offence

Identity Defined

Definition of “identity information”

402.1 For the purposes of sections 402.2 [identity theft] and 403 [identity fraud], “identity information” means any information — including biological or physiological information — of a type that is commonly used alone or in combination with other information to identify or purport to identify an individual, including a fingerprint, voice print, retina image, iris image, DNA profile, name, address, date of birth, written signature, electronic signature, digital signature, user name, credit card number, debit card number, financial institution account number, passport number, Social Insurance Number, health insurance number, driver’s licence number or password.
2009, c. 28, s. 10.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 402.1


"Personation"

A person does not commit the offence of "personation" merely by adopting a false identity or the use of a pseudonym.[1] The offence requires a fraudulent purpose.[2]

The person being assumed should be real, either alive or dead, and not simply a fictitious creation.[3] The accused must be shown to have attempted to take on the identity of the person, and not simply use a name of a person living or dead.[4] Often this can be proven by inference.[5]

  1. R v Northrup, 1982 CanLII 3710 (NB CA), 1 CCC (3d) 210, per Angers JA
    R v Jahanrakhshan, 2013 BCCA 196 (CanLII), per Groberman JA, at para 24
  2. Northrup, supra, cited positively by R v Hall, 1984 CanLII 3573 (ON CA), , 12 CCC (3d) 93, per Martin JA
  3. Jahanrakhshan, supra, at para 25
  4. Jahanrakhshan, supra, at para 28 citing R v Westerdahl, (1988), 82 NSR (2d) 178 (NSCA)(*no CanLII links)
  5. Jahanrakhshan, supra , at para 29

"Transmits, Makes Available, etc"

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 402.2), 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. 402.2 summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 402.2 indictable election 5 years incarceration

Offences under s. 402.2 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. 402.2(1) [identity theft] and
s. 402.2(2) [trafficking in identity information]
any

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

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 402.2 [identity theft and trafficking in ID info]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 402.2 [identity theft and trafficking in ID info] 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

Money Laundering

This page was last substantively updated or reviewed August 2021. (Rev. # 79506)
Money Laundering
s. 462.31 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 money laundering are found in Part XII.2 of the Criminal Code relating to "Proceeds of Crime".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 462.31 [money laundering] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)
s. 462.33 [breach of a restraint order] Hybrid Offence(s) (* only if Crown proceeds by Indictment)

Offences under s. 462.31 [money laundering] 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. 462.33 [breach of a restraint order] 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. 462.31 [money laundering]
s. 462.33(11), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 462.31 [money laundering]
s. 462.33 [money laundering]

Offences under s. 462.31 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

Offence
Laundering proceeds of crime

462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that, or being reckless as to whether, all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of

(a) the commission in Canada of a designated offence; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
Punishment

(2) Every one who commits an offence under subsection (1) [money laundering – offence]

(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.
Exception

(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) [money laundering – offence] if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, s. 28; 2001, c. 32, s. 13; 2005, c. 44, s. 2(F); 2019, c. 29, s. 103.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 462.31(1), (2) and (3)


Defined terms: "designated offence" (s. 462.3), "person" (s. 2), and "property" (s. 2)

462.33
[omitted (1), (2), (3), (3.01), (3.1). (4), (5), (6), (7), (8), (9) and (10)]

Offence

(11) Any person on whom an order made under subsection (3) [application for restraint order – requirements for granting order] is served in accordance with this section and who, while the order is in force, acts in contravention of or fails to comply with the order is guilty of an indictable offence or an offence punishable on summary conviction.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 37, s. 21; 1996, c. 16, s. 60; 1997, c. 18, s. 30; 2001, c. 32, s. 15; 2005, c. 44, s. 4; 2019, c. 25, s. 181.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 462.33(11)

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
462.31 Money Laundering "..., did use, transfer the possession of, send to or deliver to [name of person or place] or transport, alter, dispose of, or otherwise deal with, property or proceeds and knowing that all or part of that property or proceeds was obtained or derived directly or indirectly from the commission of an enterprise crime offence or a designated drug offence, to wit: [conduct], contrary to section 462.31 of the Criminal Code."
462.33 "..., ..., to wit: [conduct], contrary to section 462.33 of the Criminal Code."

Proof of the Offence

Proving money laundering under s. 462.31 should include:[1]

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with" the subject matter of the offence;
  5. the subject matter is "any property or any proceeds of any property obtained or derived directly or indirectly as a result of"
    1. the commission in Canada of an enterprise crime offence or an offence; or
    2. an act or omission anywhere that, it had occurred in Canada, would have constituted an enterprise crime offence or an offence
  6. the offence is a "designated offence";
  7. the culprit had an intent to conceal or convert the property or proceeds; and
  8. the culprit knows or believes "that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of" the "commission in Canada of a designated offence" or "act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence".
  1. R v Tan Tien Nguyen, 2013 ONSC 605 (CanLII), per Ricchetti J, at para 315
    R v Bailey, 2014 ABPC 103 (CanLII), per Fradsham J, at para 454
    R v Barna, 2018 ONCA 1034 (CanLII), 371 CCC (3d) 217, per curiam, at para 12 ("The essential elements of laundering proceeds of crime are: (1) that the accused dealt with property (in this case, the bank draft) or proceeds of property; (2) that the property was obtained by crime (in this case, fraud); (3) that the accused knew or believed that the property had been obtained by crime; and (4) that the accused intended to conceal or convert the property...")
    R v Tejani, 1999 CanLII 3765 (ON CA), 138 CCC (3d) 366, per Laskin JA

Interpretation of the Offence

Money laundering is defined by the OECD as the "processing of criminal proceeds to disguise their illegal origin in order to legitimise the ill-gotten gains of crime."[1]

Actus Reus

The actus reus is "very broad", involving dealing with any property in one of the enumerated ways.[1]

  1. R v Barna, 2014 ONSC 1011 (CanLII), per Pattillo J, at para 184
    R v Tejani, 1999 CanLII 3765 (ON CA), 123 O.A.C. 329, 138 CCC (3d) 366, per Laskin JA, at para 26

Mens Rea

There are two elements of mens rea. There must be "knowledge or belief" that the property was "derived from" a designated offence, and there must be an "intent to conceal or convert" the property or proceeds.[1]

Specificity

It is not necessary that they know the exact origin, only that they know the type of crime it is from.[2] Details of the crime are not necessary.[3] However, it is insufficient to have a belief of an "unspecified criminal activity."[4]

Wilful Blindness

The knowledge element of the offence can be made out by wilful blindness.[5] Wilful blindness will not apply in money laundering where it is found that the accused was deceived, even in the face of profound naivety.[6]

  1. R v Barna, 2014 ONSC 1011 (CanLII), [2014] O.J. No. 2373, per Pattillo J, at para 186
    See R v Tejani, 1999 CanLII 3765 (ON CA), 138 CCC (3d) 366, per Laskin JA, at para 27
    R v Daoust, 2004 SCC 6 (CanLII), at para 241
  2. R v Tan Tien Nguyen, 2013 ONSC 605 (CanLII), per Ricchetti J, at para 317
  3. Tejani, supra, at para 36
  4. Tejani, supra, at para 34
  5. R v Bailey, 2014 ABPC 103 (CanLII), per Fradsham J, at para 473
    Barna, supra, at para 187
    Tejani, supra, at para 41
  6. R v Garnett, 2016 NSSC 131 (CanLII), per Campbell J, at para 13

"or otherwise deals with"

The phrase "or otherwise deals with" were read out of the section as the wording does not appear in the french version.[1]

  1. R v Barna, 2014 ONSC 1011 (CanLII), per Pattillo J, at para 185 appealed to 2018 ONCA 1034
    R v Bois, 2004 SCC 6 (CanLII), [2004] 1 SCR 217, per Bastarache J

"convert" and "conceal"

The act of "converting" does not require any effort to conceal. The two terms are separate.[1] "Convert" uses its "ordinary" meaning.[2]

  1. R v Daoust, 2004 SCC 6 (CanLII), [2004] 1 SCR 217, per Bastarache J
  2. Daoust, ibid.

"property"

A bank draft can constitute "property."[1]

  1. R v Barna, 2018 ONCA 1034 (CanLII), 371 CCC (3d) 217, per curiam

"Designated Offence"

See also: Forfeiture of Proceeds of Crime#Designated Offence Defined

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 462.31 [money laundering]
s. 462.33(11) [breach of a restraint order]

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. 462.31 [money laundering] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 462.31 [money laundering] indictable election 10 years incarceration
s. 462.33(11) [breach of a restraint order] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 462.33(11) [breach of a restraint order] indictable election 5 years incarceration [1]

Offences under s. 462.31 [money laundering] 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. 462.33(11) [breach of a restraint order] 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. 462.31 [money laundering] any
s. 462.33(11) [breach of a restraint order] Indictable

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.

Where this offence is accompanied by a fraud charge. The judge may be able to sentence money laundering as consecutive to the fraud sentence.[2]

  1. Note: the maximum penalty of is based on s. 743 which designates 5 years where not specified.
  2. R v Neilson, 2020 ABQB 556 (CanLII), per Eidsvik J, at para 106

Principles

Ranges

see also: Money Laundering (Sentencing Cases)

It is suggested that money laundering alone will net a sentence in a range between 2 years less a day CSO to a jail sentence between 18 months and 5 years.[1]

  1. R v Sheck v. Canada (Minister of Justice), 2019 BCCA 364 (CanLII), 381 CCC (3d) 161, per Griffin JA, at para 62

Ancillary Sentencing Orders

Offence-related Orders

Order Conviction Description
DNA Orders s. 462.31 [money laundering]


General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 462.31 [money laundering] 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)

2001 to 2005

Laundering proceeds of crime

462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of

(a) the commission in Canada of a designated offence; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
Punishment

(2) Every one who commits an offence under subsection (1)

(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.
Exception

(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, s. 28; 2001, c. 32, s. 13.

CCC

See Also

Related Offences
References

Procuring and Trafficking Government Documents


Procuring and Trafficking Government Documents
s. 56.1 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. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to procuring and trafficking government documents 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. 56.1 [procuring and trafficking government documents] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 56.1 [procuring and trafficking government documents] 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. 56.1 [procuring and trafficking government documents] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 56.1 [procuring and trafficking government documents]

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Identity documents

56.1 (1) Every person commits an offence who, without lawful excuse, procures to be made, possesses, transfers, sells or offers for sale an identity document that relates or purports to relate, in whole or in part, to another person.

For greater certainty

(2) For greater certainty, subsection (1) [procuring identity documents] does not prohibit an act that is carried out

(a) in good faith, in the ordinary course of the person’s business or employment or in the exercise of the duties of their office;
(b) for genealogical purposes;
(c) with the consent of the person to whom the identity document relates or of a person authorized to consent on behalf of the person to whom the document relates, or of the entity that issued the identity document; or
(d) for a legitimate purpose related to the administration of justice.

[omitted (3)]

Punishment

(4) Every person who commits an offence under subsection (1) [procuring identity documents]

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

2009, c. 28, s. 1.

CCC (CanLII), (DOJ)


Note up: 56.1(1), (2) 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 procuring and trafficking government documents under s. 56.1 should include:

  1. the culprit "procures" documents;
  2. the documents are "identity documents";
  3. the documents relate or purport to relate, in whole or in part to another person;
  4. the documents are intended to be made, possessed, transferred, sold or offered for sale;
  5. the culprit had no "lawful excuse";
  6. the prohibited act was not carried out
    1. "in good faith, in the ordinary course of the person’s business or employment or in the exercise of the duties of their office";
    2. "for genealogical purposes";
    3. "with the consent of the person to whom the identity document relates or of a person authorized to consent on behalf of the person to whom the document relates, or of the entity that issued the identity document"; and
    4. "for a legitimate purpose related to the administration of justice."

Interpretation of the Offence

"Identity Documents"

Identity documents

56.1
[omitted (1) and (2)]

Definition of “identity document”

(3) For the purposes of this section, “identity document” means a Social Insurance Number card, a driver’s licence, a health insurance card, a birth certificate, a death certificate, a passport as defined in subsection 57(5) [definition of passport], a document that simplifies the process of entry into Canada, a certificate of citizenship, a document indicating immigration status in Canada, a certificate of Indian status or an employee identity card that bears the employee’s photograph and signature, or any similar document, issued or purported to be issued by a department or agency of the federal government or of a provincial or foreign government.
[omitted (4)]
2009, c. 28, s. 1.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 56.1(3)

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 56.1 [procuring and trafficking government documents]

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. 56.1 [procuring and trafficking government documents] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 56.1 [procuring and trafficking government documents] indictable election 5 years incarceration

Offences under s. 56.1 [procuring and trafficking government documents] 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. 56.1 [procuring and trafficking government documents] any

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

Offences-specific Orders

  • None
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 56.1 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".

See Also

References


CORRUPTION OFFENCES

Bribery

This page was last substantively updated or reviewed January 2020. (Rev. # 79506)


Bribery
s. 119 and 120 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction s. 119:
Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)
* Must be indictable. Preliminary inquiry also available.
s. 120:
Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* 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 bribery are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 119 [bribery of judicial officers] Indictable Offence(s) N/A exclusive jurisdiction.
Presumptive jury trial
s. 120 [bribery of officers, other] Indictable Offence(s) N/A

Offences under s. 119 [bribery of judicial officers] are exclusive jurisdiction offences under s. 469 and so cannot be tried by a provincial court judge. It is presumptively tried by judge and jury.

Offences under s. 120 [bribery of officers, other] 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. 119 [bribery of judicial officers] or 120 [bribery of officers, other]

An accused charged under s. 119 [bribery of judicial officers] or 120 [bribery of officers, other] is a s. 469 offence and so can only be released by a Superior Court Judge under s. 522.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Fingerprints and Photos

A peace officer who charges a person under s. 119 [bribery of judicial officers] or 120 [bribery of officers, other] 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. 119 [bribery of judicial officers] (14 years max)
s. 120 [bribery of officers, other] (14 years max)

Offences under 119 [bribery of judicial officers] and 120 [bribery of officers, other] are designated offences eligible for wiretap under s. 183.

Offences under s. 119 [bribery of judicial officers] require the consent of the Attorney General to prosecute.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Bribery of judicial officers, etc.

119 (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who

(a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by them in their official capacity, or
(b) directly or indirectly, corruptly gives or offers to a person mentioned in paragraph (a), or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by that person in their official capacity.
Consent of Attorney General

(2) No proceedings against a person who holds a judicial office shall be instituted under this section without the consent in writing of the Attorney General of Canada.
R.S., 1985, c. C-46, s. 119; 2007, c. 13, s. 3.

CCC (CanLII), (DOJ)


Note up: 119(1) and (2)

Bribery of officers

120. Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who

(a) being a justice, police commissioner, peace officer, public officer or officer of a juvenile court, or being employed in the administration of criminal law, directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment with intent
(i) to interfere with the administration of justice,
(ii) to procure or facilitate the commission of an offence, or
(iii) to protect from detection or punishment a person who has committed or who intends to commit an offence; or
(b) directly or indirectly, corruptly gives or offers to a person mentioned in paragraph (a), or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment with intent that the person should do anything mentioned in subparagraph (a)(i), (ii) or (iii).

R.S., 1985, c. C-46, s. 120; 2007, c. 13, s. 4.

CCC (CanLII), (DOJ)


Note up: 120

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
119(1)(a) "..., being the holder of a judicial office or being a member of Parliament or a provincial legislature corruptly did accept, obtain, agree to accept, attempt to obtain money, valuable consideration, office, place or employment for himself or herself in respect of [details] by [name1] in his or her official capacity, to wit: [particulars], contrary to section 119(1)(a) of the Criminal Code."
119(1)(b) "..., corruptly did give or offer to [name1], a person who holds a judicial office or is a member of parliament or a provincial legislature, money, valuable consideration, office, place or employment in respect of [details] by [name1] in his or her official capacity for [name1 or name2], to wit: [particulars], contrary to section 119(1)(b) of the Criminal Code."
120(a) "..., contrary to section 120(a) of the Criminal Code."
120(b) "..., contrary to section 120(b) of the Criminal Code."

Proof of the Offence

Proving bribery of judicial officers (recipient) under s. 119(a) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit was "a holder of judicial office", a "member of Parliament" or member of the "legislature of a province", and
  5. "accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person" a thing, # the thing is "money, valuable consideration, office, place or employment"
  6. act is done "in their official capacity"
  7. act is done "corruptly" and
  8. written consent by the Attorney General of Canada

Proving bribery of judicial officers (provider) under s. 119(b) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "gives or offers to a person" a thing and
  5. that recipient person is "a holder of judicial office", a "member of Parliament" or member of the "legislature of a province", or to an third party for the recipient person's benefit;
  6. the thing is "money, valuable consideration, office, place or employment"
  7. act is done "in their official capacity"
  8. act is done "corruptly" and
  9. written consent by the Attorney General of Canada

Proving bribery of officers (recipient) under s. 120(a) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit is "a justice, police commissioner, peace officer, public officer or officer of a juvenile court, or being employed in the administration of criminal law,"
  5. the culprit "accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person," a thing;
  6. he does so "corruptly"
  7. The thing is "any money, valuable consideration, office, place or employment"
  8. the culprit intended
    1. "to interfere with the administration of justice,"
    2. "to procure or facilitate the commission of an offence", or
    3. "to protect from detection or punishment a person who has committed or who intends to commit an offence;"

Proving bribery of officers (provider) under s. 120(b) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "gives or offers" a thing to a recipient person;
  5. the recipient person is "a justice, police commissioner, peace officer, public officer or officer of a juvenile court, or being employed in the administration of criminal law," or to an third party for the recipient person's benefit;
  6. the culprit does so "corruptly"
  7. the thing is "any money, valuable consideration, office, place or employment";
  8. the culprit intended:
    1. "to interfere with the administration of justice,"
    2. "to procure or facilitate the commission of an offence", or
    3. "to protect from detection or punishment a person who has committed or who intends to commit an offence;"

Interpretation of the Offence

Section 119(2) requires the consent of the attorney general before a prosecuting a person in judicial office for bribery under s. 119.[1]

"Official Capacity"

A member of cabinet is acting in his "official capacity" when he takes ministerial actions related to the administration of his department.[2]

"corruptly"

The term "corruptly" means "an act done by a man knowing that he was doing what was wrong and doing do with evil feelings and evil intentions."[3]

  1. 119(2) states "No proceedings against a person who holds a judicial office shall be instituted under this section without the consent in writing of the Attorney General of Canada."
  2. Arseneau v The Queen, 1979 CanLII 216 (SCC), [1979] 2 SCR 136, per Ritchie J
    R v Kormos, 1998 CanLII 14958 (ON SC), 14 CR (5th) 312, per Vaillancourt J, at para 55
  3. R v Butler (1975), 26 CCC (2d) 445(*no CanLII links)
    {{CanLIIRP|Brown|g15xf|1956 CanLII 154 (ON CA)}|116 CCC 287}, per Laidlaw JA
    see also R v Guttman, 1981 CanLII 3374 (QC CS), 64 CCC (2d) 342, per Boilard J citing Butler
    The term "corruptly" is also found in Secret Commissions (Offence) and Corruptly taking reward for recovery of goods

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 119 and 120 -

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 119 and 120), 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. 119 [bribery of judicial officers] and
s. 120 [bribery of officers, other]
N/A 14 years incarceration

Offences under s. 119 [bribery of judicial officers] and 120 [bribery of officers, other] 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
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. 119 [bribery of judicial officers],
s. 120 [bribery of officers, other]
N/A

If convicted under s. 119 and 120 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. 119 [bribery of judicial officers] and 120 [bribery of officers, other] 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.

A public official under s. 750 will be rendered ineligible to hold office.

Principles

Ranges

see also: Bribery (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 119 [bribery of judicial officers] or 120 [bribery of officers, other]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 119 [bribery of judicial officers] or 120 [bribery of officers, other] 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)

Prior to 2007, s. 119 and 120 read:

Bribery of judicial officers, etc.

119 (1) Every one who

(a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, corruptly
(i) accepts or obtains,
(ii) agrees to accept, or
(iii) attempts to obtain,

any money, valuable consideration, office, place or employment for himself or another person in respect of anything done or omitted or to be done or omitted by him in his official capacity, or

(b) gives or offers, corruptly, to a person mentioned in paragraph (a) any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by him in his official capacity for himself or another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Consent of Attorney General

(2) No proceedings against a person who holds a judicial office shall be instituted under this section without the consent in writing of the Attorney General of Canada.
R.S., c. C-34, s. 108.

CCC

Bribery of officers

120. Every one who

(a) being a justice, police commissioner, peace officer, public officer or officer of a juvenile court, or being employed in the administration of criminal law, corruptly
(i) accepts or obtains,
(ii) agrees to accept, or
(iii) attempts to obtain,

for himself or any other person any money, valuable consideration, office, place or employment with intent

(iv) to interfere with the administration of justice,
(v) to procure or facilitate the commission of an offence, or
(vi) to protect from detection or punishment a person who has committed or who intends to commit an offence, or
(b) gives or offers, corruptly, to a person mentioned in paragraph (a) any money, valuable consideration, office, place or employment with intent that the person should do anything mentioned in subparagraph (a)(iv), (v) or (vi),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 109.

CCC

See Also

Related Offences
References

Frauds on the Government


Frauds on the Government
s. 121 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
Jurisdiction Prov. Court

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

* Must be indictable.
None
2 years less a day incarceration
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 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to frauds on the government are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 121 [frauds on the government] Hybrid Offence(s) N/A (under 14 years max)

Offences under s. 121 [frauds on the government] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

When charged under s. 121 [frauds on the government], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
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. 121 [frauds on the government] (under 10 years max)

Offences under s. 121 [frauds on the government] are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Frauds on the government

121 (1) Every one commits an offence who

(a) directly or indirectly
(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or
(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person, a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with
(iii) the transaction of business with or any matter of business relating to the government, or
(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,
whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;
(b) having dealings of any kind with the government, directly or indirectly pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which the dealings take place, or to any member of the employee’s or official’s family, or to anyone for the benefit of the employee or official, with respect to those dealings, unless the person has the consent in writing of the head of the branch of government with which the dealings take place;
(c) being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official;
(d) having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with
(i) anything mentioned in subparagraph (a)(iii) or (iv), or
(ii) the appointment of any person, including themselves, to an office;
(e) directly or indirectly gives or offers, or agrees to give or offer, to a minister of the government or an official, or to anyone for the benefit of a minister or an official, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence, or an act or omission, by that minister or official, in connection with
(i) anything mentioned in subparagraph (a)(iii) or (iv), or
(ii) the appointment of any person, including themselves, to an office; or
(f) having made a tender to obtain a contract with the government,
(i) directly or indirectly gives or offers, or agrees to give or offer, to another person who has made a tender, to a member of that person’s family or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or
(ii) directly or indirectly demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender.
Contractor subscribing to election fund

(2) Every one commits an offence who, in order to obtain or retain a contract with the government, or as a term of any such contract, whether express or implied, directly or indirectly subscribes or gives, or agrees to subscribe or give, to any person any valuable consideration

(a) for the purpose of promoting the election of a candidate or a class or party of candidates to Parliament or the legislature of a province; or
(b) with intent to influence or affect in any way the result of an election conducted for the purpose of electing persons to serve in Parliament or the legislature of a province.
Punishment

(3) Every person who commits an offence under this section is guilty of

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

R.S., 1985, c. C-46, s. 121; 2007, c. 13, s. 5; 2019, c. 25, s. 33.

CCC (CanLII), (DOJ)


Note up: 121(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
121(1)(a) "..., contrary to section 121(1) of the Criminal Code.
121(1)(f) "..., contrary to section 121(1) of the Criminal Code.

Proof of the Offence

Proving frauds on the government - Participating in Bribery of an Official under s. 121(1)(a) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit did any of the following:
    1. gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or
    2. being an official, demands, accepts or offers or agrees to accept from any person for himself or another person, a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with
    3. the transaction of business with or any matter of business relating to the government, or
    4. a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow.

Proving frauds on the government - Conferring Benefits on Employee or Official Without Consent under s. 121(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "pays a commission or reward to or confers an advantage or benefit of any kind on" a person;
  5. the person is "an employee or official of the government with which the dealings take place, or to any member of the employee’s or official’s family, or to anyone for the benefit of the employee or official, with respect to those dealings,"
  6. the person does not have "the consent in writing of the head of the branch of government with which the dealings take place"; and
  7. the prohibited conduct occurs while "having dealings of any kind with the government".

Proving frauds on the government - Employee or Official Requesting Benefits Without Consent under s. 121(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit is "an official or employee of the government";
  5. the person "has dealings with the government a commission, "
  6. the culprit "directly or indirectly demands, accepts or offers or agrees to accept from a person" a thing;
  7. the thing is a "reward, advantage or benefit of any kind"
  8. the benefit was in favour of "themselves or another person"; and
  9. the person does not "have the consent in writing of the head of the branch of government that employs them or of which they are an official".

Proving frauds on the government - influence peddling under s. 121(1)(d) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "having or pretending to have influence" over a person;
  5. the person is a "the government or with a minister of the government or an official"
  6. the culprit "directly or indirectly demands, accepts or offers or agrees to accept" a thing;
  7. the thing is "a reward, advantage or benefit of any kind as consideration";
  8. the benefit was in favour of "themselves or another person"; and
  9. the exchange is "for cooperation, assistance, exercise of influence or an act or omission in connection" with either:
    1. anything mentioned in subparagraph (a)(iii) or (iv), or
    2. the appointment of any person, including themselves, to an office.

Proving frauds on the government - Bribery of a Minister under s. 121(1)(e) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "directly or indirectly gives or offers, or agrees to give or offer," to a person;
  5. the person is "a minister of the government or an official, or to anyone for the benefit of a minister or an official,"
  6. the subject is "a reward, advantage or benefit of any kind as consideration"
  7. the exchange is "for cooperation, assistance, exercise of influence, or an act or omission, by that minister or official, in connection with"
  8. either:
    1. anything mentioned in subparagraph (a)(iii) or (iv), or
    2. the appointment of any person, including themselves, to an office

Proving frauds on the government - Participating in Bribery Relating to Tenders under s. 121(1)(f) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "made a tender to obtain a contract with the government",
  5. the culprit either:
    1. "directly or indirectly gives or offers, or agrees to give or offer, to another person who has made a tender, to a member of that person’s family or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or
    2. "directly or indirectly demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender."

Proving Contractor subscribing to election fund under s. 121(2) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "directly or indirectly subscribes or gives, or agrees to subscribe or give, to any person" a thing;
  5. the thing is "any valuable consideration";
  6. the prohibited conduct was "in order to obtain or retain a contract with the government";
  7. the prohibited conduct was either:
    1. "for the purpose of promoting the election of a candidate or a class or party of candidates to Parliament or the legislature of a province"; or
    2. "with intent to influence or affect in any way the result of an election conducted for the purpose of electing persons to serve in Parliament or the legislature of a province."

Interpretation of the Offence

Participating in Bribery of an Official - s. 121(1)(a)

Conferring Benefits on Employee or Official Without Consent - s. 121(1)(b)

Employee or Official Requesting Benefits Without Consent - s. 121(1)(c)

Completion of Offence Under s. 121(1)(c)

Fraud under s. 121(1)(c) is complete once the benefit is paid to a family member.[1]

Influence Peddling - s. 121(1)(d)

The purpose of the offence under s. 121(1)(d) is to "preserve both government integrity and the appearance of government integrity."[1]

"in connection with a matter of business"

It is an essential element that the subject-matter of influence "actually" be connected to government.[2]

The terms found in should not be interpreted strictly.[3]

"relating to the government"

A "matter of business" relates to government if its mandate is "facilitated by government."[4] This includes any commercial transaction where the government "could impose or amend terms and conditions that would favour one vendor over others."[5]

Where an accused subjectively believes the promised influence is connected to a matter of business that relates to the government, but the connection cannot be proven as a fact, then the accused is guilty of attempting to commit the offence.[6]

The meaning of "government" does not "depend on some government action or can be facilitated by government under its existing operational structure."[7]

  1. R v Carson, 2018 SCC 12 (CanLII), 145 WCB (2d) 82, per Karakatsanis J, at para 1
  2. Carson, ibid., at para 26
  3. Carson, ibid., at paras 5, hr51s24
  4. Carson, ibid., at para 5
  5. Carson, ibid., at para 5
  6. Carson, ibid., at para 29
  7. Carson, ibid., at para 41

Bribery of a Minister - s. 121(1)(e)

Participating in Bribery Relating to Tenders - s. 121(1)(f)

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]


For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 121 [frauds on the government] ), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

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. 121 [frauds on the government] N/A 5 years incarceration

Offences under s. 121 [frauds on the government] are straight indictable. The maximum penalty is 5 years incarceration.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
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. 121 [frauds on the government] N/A

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 121 [frauds on the government]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 121 [frauds on the government] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

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

1985 to 2007

Frauds on the government

121 (1) Every one commits an offence who

(a) directly or indirectly
(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or
(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person,

a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(iii) the transaction of business with or any matter of business relating to the government, or
(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,

whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

(b) having dealings of any kind with the government, pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which he deals, or to any member of his family, or to any one for the benefit of the employee or official, with respect to those dealings, unless he has the consent in writing of the head of the branch of government with which he deals, the proof of which lies on him;
(c) being an official or employee of the government, demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind directly or indirectly, by himself or through a member of his family or through any one for his benefit, unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies on him;
(d) having or pretending to have influence with the government or with a minister of the government or an official, demands, accepts or offers or agrees to accept for himself or another person a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with
(i) anything mentioned in subparagraph (a)(iii) or (iv), or
(ii) the appointment of any person, including himself, to an office;
(e) gives, offers or agrees to give or offer to a minister of the government or an official a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with
(i) anything mentioned in subparagraph (a)(iii) or (iv), or
(ii) the appointment of any person, including himself, to an office; or
(f) having made a tender to obtain a contract with the government
(i) gives, offers or agrees to give or offer to another person who has made a tender or to a member of his family, or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or
(ii) demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind as consideration for the withdrawal of his tender.
Contractor subscribing to election fund

(2) Every one commits an offence who, in order to obtain or retain a contract with the government, or as a term of any such contract, whether express or implied, directly or indirectly subscribes or gives, or agrees to subscribe or give, to any person any valuable consideration

(a) for the purpose of promoting the election of a candidate or a class or party of candidates to Parliament or the legislature of a province; or
(b) with intent to influence or affect in any way the result of an election conducted for the purpose of electing persons to serve in Parliament or the legislature of a province.
Punishment

(3) Every one who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 110.

CCC

See Also

References

Secret Commissions

This page was last substantively updated or reviewed January 2020. (Rev. # 79506)


Secret Commissions
s. 426 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court

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

* Must be indictable.
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 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to secret commissions are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 426(1)(a) [secret commissions - corrupt provider]
s. 426(1)(b) [secret commissions - corrupt receiver]
Hybrid Offence(s) (under 14 years max)

Offences under s. 426 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. 426

When charged under s. 426, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 426(1)(a) [secret commissions - corrupt provider] (max 5 year penalty)
s. 426(1)(b) [secret commissions - corrupt receiver] (max 5 year penalty)

Offences under s. 426 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

Secret commissions

426 (1) Every one commits an offence who

(a) directly or indirectly, corruptly gives, offers or agrees to give or offer to an agent or to anyone for the benefit of the agent — or, being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person — any reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal; or
(b) with intent to deceive a principal, gives to an agent of that principal, or, being an agent, uses with intent to deceive his principal, a receipt, an account or other writing
(i) in which the principal has an interest,
(ii) that contains any statement that is false or erroneous or defective in any material particular, and
(iii) that is intended to mislead the principal.
Privity to offence

(2) Every one commits an offence who is knowingly privy to the commission of an offence under subsection (1) [Secret commissions – various methods].

Punishment

(3) A person who commits an offence under this section is guilty of

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

[omitted (4)]
R.S., 1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s. 56; 2007, c. 13, s. 7; 2019, c. 25, s. 161.

CCC (CanLII), (DOJ)


Note up: 426(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
426(1)(a) giving of offering secret commissions "..., directly or indirectly, corruptly give, offer or agree to give or offer to [name1], a reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, an act relating to the affairs or business of [name1]’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal, to wit: [particulars], contrary to section 426(1)(a) of the Criminal Code."
426(1)(a) demanding or accepting secret commissions "..., being and agent, directly or indirectly, corruptly did demand, accept, offer to accept or agree to accept from [name1], a reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, an act relating to the affairs or business of [name1]’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal, to wit: [particulars], contrary to section 426(1)(a) of the Criminal Code."
426(1)(b) deceiving a principal "..., did with intent to deceive [name1], a principal, gives to [name2], an agent of that principal, a receipt, an account or other writing in which the principal had an interest and that contain a statement that was false, erroneous, or defective, in a material particular and that was intended to mislead [name1], to wit: [particulars], contrary to section 426(1)(b) of the Criminal Code."
426(1)(b) deceiving a principal "..., being the age of [name1], with intent to deceive them, did use a receipt, an account or writing in which he had an interest and that contained a statement that was false, erroneous or defective in a material particular and that was intended to mislead [name1], to wit: [particulars], contrary to section 426(1)(b) of the Criminal Code."

Proof of the Offence

Proving corrupt provider under s. 426(1)(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. "gives offers or agrees to give" something to a person "or to anyone for the benefit of" that person
    2. the culprit, "being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person" something
  5. the culprit "gives offers or agrees to give" something to a person "or to anyone for the benefit of" that person;
  6. that person is an "agent"
  7. the thing is "any reward, advantage or benefit of any kind" and
  8. the act is "consideration" for "doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal"

Proving corrupt receiver under s. 426(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit intended "to deceive a principal"
  5. he "gives to an agent of that principal" or "being an agent, uses ... , a receipt, an account or other writing"
  6. the writing is one:
    1. "in which principal has an interest",
    2. "that contains any statement that is false or erroneous or defective in any material particular", and
    3. "that is intended to mislead the principal."
  1. R v Kelly, 1992 CanLII 62 (SCC), [1992] 2 SCR 170, per Cory J - re previous wording of s. 426

Interpretation of the Offence

Offeror Offence

The "gravamen of the offence [under s. 426(1)(a)] is the offer to the agent and the corrupt intention accompanying the offer."[1]

Principal

There does not need to be "a specific principal at the time the prohibited offer was made."[2]

Agent

Whether or not the agent was actually influenced is not an essential element to the offence.[3] A "corrupt" offer occurs "even though the agent may not intend to carry out the corrupt act."[4]

Corruptly

Secrecy is "the corrupting element of the offence". This includes non-disclosure "that makes it impossible for the principal to determine whether to act upon the advice of the agent or accept the actions of the agent."[5]

The "secrecy" of the benefit, "not the benefit itself which constitutes the essence of the offence."[6]

The "act of doing the very thing which the statute forbids is a corrupt act" and satisfies the meaning of "corruptly" in s. 426.[7]

  1. R v Wile (CA), 1990 CanLII 6830 (ON CA), 58 CCC (3d) 85, per curiam
  2. Wile, ibid.
  3. Wile, ibid.
    R v Reid, 1968 CanLII 394 (ON CA), [1969] 1 OR 158, [1969] 2 CCC 31 (CA), per MacKay JA
  4. Wile, supra
    Reid, supra
  5. R v Kelly, 1992 CanLII 62 (SCC), [1992] 2 SCR 170, per Cory J
  6. Kelly, ibid.
  7. R v Brown, 1956 CanLII 154 (ON CA), 116 CCC 287, per Laidlaw JA

Misc Definition

426
[omitted (1), (2) and (3)]

Definition of “agent” and “principal”

(4) In this section, "agent" includes an employee, and "principal" includes an employer.
R.S., 1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s. 56; 2007, c. 13, s. 7; 2019, c. 25, s. 161.

CCC (CanLII), (DOJ)


Note up: 426(4)

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)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 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. 426 Straight Indictable 5 years custody
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. 426 any


Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 426
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 426 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)

Prior to 2007. s. 426 read:

Secret commissions

426 (1) Every one commits an offence who

(a) corruptly
(i)gives, offers or agrees to give or offer to an agent, or
(ii)being an agent, demands, accepts or offers or agrees to accept from any person,

any reward, advantage or benefit of any kind as consideration for doing or forbearing to do, or for having done or forborne to do, any act relating to the affairs or business of his principal or for showing or forbearing to show favour or disfavour to any person with relation to the affairs or business of his principal; or

(b) with intent to deceive a principal, gives to an agent of that principal, or, being an agent, uses with intent to deceive his principal, a receipt, an account or other writing
(i) in which the principal has an interest,
(ii) that contains any statement that is false or erroneous or defective in any material particular, and
(iii) that is intended to mislead the principal.
Privity to offence

(2) Every one commits an offence who is knowingly privy to the commission of an offence under subsection (1).

Punishment

(3) A person who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Definition of “agent” and “principal”

(4) In this section, “agent” includes an employee, and “principal” includes an employer.
R.S., 1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s. 56.

CCC

See Also

Reference
Related