|This page was last substantively updated or reviewed January 2020. (Rev. # 86508)|
|Obtaining Property by False Pretences|
|s. 362(2)(a), (b) of the Crim. Code|
|Election / Plea|
|Crown Election||Indictment (over), Hybrid (under)|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|Avail. Disp.||same as summary|
|Maximum||2, 10 years incarceration|
Offences relating to obtaining property by false pretences are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
|Crown Election||Defence Election
|s. 362(2)(a) [false pretenses – value under $5,000]||Indictable Offence(s)||(under 14 years max)|
|s. 362(2)(b) [false pretenses – value under $5,000]||Hybrid Offence(s)||(under 14 years max)|
Offences under s. 362(2)(b)[false pretenses – value under $5,000] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.
Offences under s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 362(2)(b) [false pretenses – value under $5,000]|
|s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.]|
When charged under s. 362(2)(b) [false pretenses – value under $5,000] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
When charged under s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.] , the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
- Fingerprints and Photos
A peace officer who charges a person under s. 362(2) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 362(2)(b) [false pretenses – value under $5,000]
s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.]
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|362(1)(a)||"..., by a false pretense did obtain or cause to be delivered to [name] in respect of which the offence of theft may be committed, to wit: [conduct], contrary to section 362(1)(a) of the Criminal Code."|
|362(1)(b)||obtain credit by false pretense or fraud||"..., did obtain credit by false pretense or fraud, to wit: [conduct], contrary to section 362(1)(b) of the Criminal Code."|
|362(1)(c)||"..., contrary to section 362(1)(c) of the Criminal Code."|
Proof of the Offence
Proving obtain property by false pretenses under s. 362(a) should include:
Proving obtain credit by false pretense under s. 362(b) should include:
Interpretation of the Offence
"False credit" can include obtaining a form of mortage financing.
The offence is still made out if the accused falsely obtains credit for someone else. He does not need to be the recipient.
Section 362(4) violates s. 11(d) of the Charter and is invalid.
R v Majeed, 2015 ONCJ 330 (CanLII), per Brownstone J, at para 16
Majeed, ibid., at para 16
R v Cohen, 1984 CanLII 3598 (QC CA),  QJ No 316 (QCCA), per Tyndale JA
R v Driscoll, 1987 ABCA 159 (CanLII), 38 CCC (3d) 28, per Laycraft JA
R v Ferguson, 1992 CanLII 12814 (PE SCTD), 70 CCC (3d) 330, per DesRoches J
contra R v Bunka, 1984 CanLII 2519 (SKQB), 12 CCC (3d) 437, per Walker J
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
s. 606(4.1) [SPIO]
for Interest in Agreement
s. 606(4.2) [5+ years]
|Victim Notice |
of Impact Statement
|s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.]||(* only if Crown proceeds by Indictment)|
|s. 362(2)(b) [false pretenses – value under $5,000]|
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 362(2)), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
|s. 362(2)(a) [false pretenses – value of $5,000 or more or testamentary instr.]||N/A||10 years incarceration|
|s. 362(2)(b) [false pretenses – value under $5,000]||N/A||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|s. 362(2)(b) [false pretenses – value under $5,000]||N/A||2 years incarceration|
Offences under s. 362(1)(a) [false pretenses – value of $5,000 or more or testamentary instr.] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
Offences under s. 362(1)(b) [false pretenses – value under $5,000], (c), and (d) are straight indictable. The maximum penalty is 10 years incarceration.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 362(1)(a) [false pretenses – value of $5,000 or more or testamentary instr.]||any|
|s. 362(1)(b) [false pretenses – value under $5,000],
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 362(2)(a) or (3)||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.|
Record Suspensions and Pardons
Convictions under s. 362(2) or (3) are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
1994 to 2003