|s. 380 of the Crim. Code|
|Election / Plea|
|Crown Election||Hybrid (under), Indictment (over, test.)|
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)|
|Minimum||2 years incarceration ($1 mill.+)|
|Maximum||2 years incarceration (under)|
14 years incarceration (over or test.)
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 History
- 8 See Also
Offences relating to fraud are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".
|Crown Election||Defence Election
|s. 380(1)(a) [fraud over $5,000]||Indictable Offence(s)||(14 years max)|
|s. 380(1)(b) [fraud not exceeding $5,000]||Hybrid Offence(s)||(absolute)||(absolute)|
Offences under s. 380(1)(b) [fraud not exceeding $5,000] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.
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
[fraud over $5,000]
[fraud not exceeding $5,000]
When charged under s. 380(1)(a) [fraud over $5,000] , the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
When charged under s. 380(1)(b) [fraud not exceeding $5,000] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
- Fingerprints and Photos
A peace officer who charges a person under s. 380(1)(a) or (b) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 380(1)(a) [fraud over $5,000]|
|s. 380(1)(b) [fraud not exceeding $5,000]|
Offences under s. 380 are designated offences eligible for wiretap under s. 183.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|380(1)(a)||Fraud over $5,000||"...by deceit, falsehood or other fraudulent means, did unlawfully defraud [victim], of [specify property or value of cash], a total value exceeding $5,000, contrary to section 380(1)(a) of the Criminal Code.|
|380(1)(a)||Fraud of testamentary instrument||"...by deceit, falsehood or other fraudulent means, did unlawfully defraud [victim], of [specify the document or instrument], a testamentary instrument, contrary to section 380(1)(a) of the Criminal Code.|
|380(1)(b)||Fraud Not Exceeding $5,000||"...by deceit, falsehood or other fraudulent means, did unlawfully defraud [victim], of [specify property or value of cash], a total value not exceeding $5,000, contrary to section 380(1)(b) of the Criminal Code.|
Proof of the Offence
Proving fraud under s. 380 should include:
Draft Jury Decision Trees
Interpretation of the Offence
Deceit, Falsehood, or Other Fraudulent Means
Generally, the jurisdiction of the offence includes the place where a false representation was made, the false document was prepared or signed, or where deprivation took place.
In order to attract the jurisdiction of the court, there needs to be a significant portion of the activities making up the offence occur within the court's jurisdiction.
Proof of Property
"Public or Any Person"
A "person" refers to an individual or legal person. It must be a specific victim or victims.
A conspiracy to defraud the operators of retail stores with counterfeit money is a conspiracy to defraud the public.
Admission of Documents
The Canada Evidence Act provides short-cuts to admit certain documents.
Under s. 30(1), "where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record."
Under s. 30(7), the applicant must give "at least seven days notice" of intention to produce records under this section "unless the court orders otherwise" and must produce it for inspection within 5 days of getting notice from the other side.
- Charter Issues
Documents that were obtained from the accused by compulsion by a person in authority, such as the Department of Community Services agent, is not a violation of the right against self-incrimination since the documents were not confessional and exist outside of state compulsion.
It is not necessary that the accused have any knowledge of the identity of the victim(s) of the fraudulent act.
In a setting where there were multiple parties involved with the act that amounted to fraud, criminal liability will be applicable where the parties contribution is beyond a de minimus range.
Merely following directions of a superior or employer is not generally a defence.
Under s. 660, where a completed fraud has not been made out the court must consider, as a matter of law, an alternative conviction for attempted fraud regardless of whether it is sought by the crown. 
Attempted fraud may apply where the victim discovers the deceitful conduct before being deprived of property or money.
- Form of Charge
- Proof of Property by Photographs
See photographic evidence - s. 491.2(1)
- Abuse of Process
There is no defence to fraud by relying on a "fiduciary duty" or other corporate obligations.
The unforeseeable collapse of a company due to the fraud is irrelevant to fraud charges.
- R v Warren, 2010 NLCA 29 (CanLII), per White JA - accused didn't know that the fraud would peculate to a second victim, still convicted for second victim
- R v Park, 2010 ABCA 248 (CanLII), per Berger JA, at para 29
- R v Lemire, 1964 CanLII 52 (SCC),  SCR 174, per Martland J
- R v Reis, 2003 MBCA 98 (CanLII), per Hamilton JA
- Reis, ibid.
R v McCague, McCague, 2006 ONCJ 208 (CanLII), per Trotter JA
R v Wolf, 2008 ONCA 352 (CanLII), per curiam
- Wolf, ibid.
- R v Potter; R v Colpitts, 2020 NSCA 9 (CanLII), at para 705 ("There is no such thing as a “fiduciary duty” defence to fraud. Corporate obligations cannot be used as a cloak to shield criminality. “… [D]eliberately practised fraudulent acts which, in the knowledge of the accused, actually put the property of others at risk” is criminal.")
- Potter, ibid., at para 714
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), (4.2)
|Victim Notice |
of Impact Statement
|s. x [x]|
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 380), 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