View source for Obtaining Property by False Pretences (Offence)

{{Currency2|January|2020}}
{{LevelZero}}
{{HeaderOffences}}

{{OffenceBox 
|OffenceTitle=Obtaining Property by False Pretences 
|OffencePage=Obtaining Property by False Pretences 
|Section=362(2)(a), (b)
|Act={{OBCCC}} 
|CrownElection={{OBIndictableElection}} (over), {{OBHybridElection}} (under) 
|Jurisdiction={{OBJurisdictionAllUnder14}} (over), {{OBJurisdictionAbsolute}} (under) 
|Bail={{OBBailVar}} 
|SummaryDisp= {{OBDispAll}} 
|SummaryMin= {{OBMinNone}} 
|SummaryMax= {{OBSConviction}} 
|IndictableDisp= {{OBDispSame}} 
|IndictableMin= {{OBMinNone}} 
|IndictableMax= {{OBTime|2, 10 years}} }}

==Overview==
{{OverviewIX|obtaining property by false pretences}}

; Pleadings
{{PleadingsHeader-N}}
{{PleadingsIndictableList-N|s. 362(2)(a) {{DescrSec|362(2)(b)}}| {{No}} | {{Yes}} | {{No-Under14}} }}
{{PleadingsHybridList-N|s. 362(2)(b) {{DescrSec|362(2)(b)}} | {{Yes}} | {{No}} | {{No-Under14}} }}

{{PleadingsEnd}}

{{PleadingsAbsolute|s. 362(2)(b){{DescrSec|362(2)(b)}}}}

{{PleadingsIndictElection-Under14|s. 362(2)(a) {{DescrSec|362(2)(a)}}}}

; Release
{{ReleaseHeader}}

|s. 362(2)(b) {{DescrSec|362(2)(b)}} || {{ReleaseProfile-Hybrid}} 
|-
|s. 362(2)(a) {{DescrSec|362(2)(a)}}|| {{ReleaseProfile-Indictable}} 
|-

{{ReleaseEnd}}

{{ReleaseOptions-Hybrid|s. 362(2)(b) {{DescrSec|362(2)(b)}} }}

{{ReleaseOptions-Indictable|s. 362(2)(a) {{DescrSec|362(2)(a)}} }}

:<u>''Reverse Onus Bail''</u>
{{ReverseOnusCirc}}

:<u>''Fingerprints and Photos''</u>
{{IDCriminalAct|s. 362(2)}}

; Publication Bans
{{GeneralPubBan}}

; Offence Designations
{{DesignationHeader}}
|-
|s. 362(2)(b) {{DescrSec|362(2)(b)}}  <br> s. 362(2)(a) {{DescrSec|362(2)(a)}} || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent-->
{{DesignationEnd}}
{{SeeBelowForAncillary}}

{{reflist|2}}

==Offence Wording==

{{quotation2|
; False pretence or false statement
362 (1) Every one commits an offence who
:(a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretence, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person;
:(b) obtains credit by a false pretence or by fraud;
:(c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or herself or any person or organization that he or she is interested in or that he or she acts for, for the purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or organization,
::(i) the delivery of personal property,
::(ii) the payment of money,
::(iii) the making of a loan,
::(iv) the grant or extension of credit,
::(v) the discount of an account receivable, or
::(vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or
:(d) knowing that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or herself or another person or organization that he or she is interested in or that he or she acts for, procures on the faith of that statement, whether for his or her benefit or for the benefit of that person or organization, anything mentioned in subparagraphs (c)(i) to (vi) {{AnnSec3|362(1)(c)(i) to (vi)}}.

; Punishment
(2) Every one who commits an offence under paragraph (1)(a) {{AnnSec3|362(1)(a)}}
:(a) if the property obtained is a testamentary instrument or the value of what is obtained is more than $5,000, is guilty of
::(i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or
::(ii) an offence punishable on summary conviction; or
:(b) if the value of what is obtained is not more than $5,000, is guilty
::(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
::(ii) of an offence punishable on summary conviction.

; Idem
(3) Every person who commits an offence under paragraph (1)(b) {{AnnSec3|362(1)(b)}}, (c) {{AnnSec3|362(1)(c)}} or (d) {{AnnSec3|362(1)(d)}} 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.

; <s>Presumption from cheque issued without funds
(4) Where, in proceedings under paragraph (1)(a) {{AnnSec3|362(1)(a)}}, it is shown that anything was obtained by the accused by means of a cheque that, when presented for payment within a reasonable time, was dishonoured on the ground that no funds or insufficient funds were on deposit to the credit of the accused in the bank or other institution on which the cheque was drawn, it shall be presumed to have been obtained by a false pretence, unless the court is satisfied by evidence that when the accused issued the cheque he believed on reasonable grounds that it would be honoured if presented for payment within a reasonable time after it was issued.</s>
''* [see "Constitutionality" below]<br>
{{removed|(5)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 362; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 52;
{{LegHistory90s|1994, c. 44}}, s. 22;
{{LegHistory00s|2003, c. 21}}, s. 5;
{{LegHistory10s|2019, c. 25}}, s. 133.<br>
{{Annotation}}
|{{CCCSec2|362}}
|{{NoteUp|362|1|2|3|4}}
}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
| 362(1)(a)
| 
|"{{ellipsis1}}, by a false pretense did obtain or cause to be delivered to [name] in respect of which the offence of theft may be committed{{ToWit-Conduct}} {{contrary|362(1)(a)}}."
|-
| 362(1)(b)
| obtain credit by false pretense or fraud
|"{{ellipsis1}}, did obtain credit by false pretense or fraud{{ToWit-Conduct}} {{contrary|362(1)(b)}}."
|-
| 362(1)(c)
| 
|"{{ellipsis1}}, {{contrary|362(1)(c)}}."
{{DraftEnd}}

==Proof of the Offence==
{{ElementHeader}}
{{ElementLeft}}

{{Proving|obtain property by false pretenses|362(a)}}
{{InitialElements}}
# {{box}} the culprit "obtains anything" or "causes it to be delivered to another person";
# {{box}} the prohibited conduct was "by false pretenses" or "through the medium of a contract obtained by a false pretence";
# {{box}} the subject-matter is something "in respect of which the offence of theft may be committed";

{{Proving|obtain credit by false pretense|362(b)}}
{{InitialElements}}
# {{box}} the culprit "obtains credit"; and
# {{box}} the prohibited conduct was "by false pretence" or "fraud".

<!--{{ElementRight}} -->

{{Proving|obtain property by false statement|362(c)}}
{{InitialElements}}
# {{box}} the culprit "makes or causes to be made, directly or indirectly, a false statement in writing";
# {{box}} the prohibited conduct was "with the intent that it should be relied on";
# {{box}} the false statement is "with respect to the financial condition or means or ability to pay of himself or herself or any person or organization that he or she is interested in or that he or she acts for";
# {{box}} the prohibited conduct was " for the purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or organization" any of the following:
## {{box}} the delivery of personal property,
## {{box}} the payment of money,
## {{box}} the making of a loan,
## {{box}} the grant or extension of credit,
## {{box}} the discount of an account receivable, or
## {{box}} the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note.


{{Proving|false pretenses or false statement|362(d)}}
{{InitialElements}}
# {{box}} the culprit "procures on the faith of that statement, whether for his or her benefit or for the benefit of that person or organization" a thing;
# the thing is either:
## {{box}} the delivery of personal property,
## {{box}} the payment of money,
## {{box}} the making of a loan,
## {{box}} the grant or extension of credit,
## {{box}} the discount of an account receivable, or
## {{box}} the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; and 
# {{box}} the culprit knew the "that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or herself or another person or organization that he or she is interested in or that he or she acts for"

{{ElementEnd}}

==Interpretation of the Offence==

"False credit" can include obtaining a form of mortage financing.<ref>
{{CanLIIRx|Majeed|gjjh7|2015 ONCJ 330 (CanLII)}}{{perONCJ|Brownstone J}}{{atL|gjjh7|16}}<br>
</ref>

The offence is still made out if the accused falsely obtains credit for someone else. He does not need to be the recipient.<ref>
{{ibid1|Majeed}}{{AtL|gjjh7|16}}<br>
{{CanLIIRP|Cohen|gb8gr|1984 CanLII 3598 (QC CA)|[1984] QJ No 316 (QCCA)}}{{perQCCA|Tyndale JA}}<br>
</ref>

; Constitutionality
Section 362(4) violates s. 11(d) of the Charter and is invalid.<ref>
{{CanLIIRP|Driscoll|2dkv5|1987 ABCA 159 (CanLII)|38 CCC (3d) 28}}{{perABCA-H|Laycraft JA}}<br>
{{CanLIIRP|Ferguson|gbt6j|1992 CanLII 12814 (PE SCTD)|70 CCC (3d) 330}}{{perPEISC|DesRoches J}}<br>
{{contra}} {{CanLIIRP|Bunka|g7sk4|1984 CanLII 2519 (SKQB)|12 CCC (3d) 437}}{{perSKQB-H|Walker J}}
</ref>

{{reflist|2}}

==="false pretences"===
{{quotation2|
; False pretence
361 (1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.
<br>
; Exaggeration
(2) Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to such an extent that it amounts to a fraudulent misrepresentation of fact.
<br>
; Question of fact
(3) For the purposes of subsection (2) {{AnnSec3|361(2)}}, it is a question of fact whether commendation or depreciation amounts to a fraudulent misrepresentation of fact.

R.S., c. C-34, s. 319.
{{Annotation}}
|{{CCCSec2|361}}
|{{NoteUp|361|1|2|3}}
}}

===Misc Definitions===

{{quotation2|
362 <br>
{{removed|(1), (2), (3) and (4)}}
; Definition of “cheque”
(5) In this section, '''“cheque”''' includes, in addition to its ordinary meaning, a bill of exchange drawn on any institution that makes it a business practice to honour bills of exchange or any particular kind thereof drawn on it by depositors.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 362; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 52; {{LegHistory90s|1994, c. 44}}, s. 22; {{LegHistory00s|2003, c. 21}}, s. 5.
|{{CCCSec2|362}}
|{{NoteUp|362|5}}
}}

==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}

; Testimonial Aids
{{3rdPTestimonyAids}}

; On Finding of Guilt
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS -->
|s. 362(2)(a) {{DescrSec|362(2)(a)}} || {{No}} || {{Yes-Indictment}} ||  ||
|-
|s. 362(2)(b) {{DescrSec|362(2)(b)}} || {{No}} || {{No}} || ||
|-
{{VictimEnd}}

{{606Notice5Y|s. 362(2)}}

{{RestitutionNotice}}

{{VISNotice}}

==Sentencing Principles and Ranges==
{{seealsoSentencing}}
{{seealso|Sentencing for Property Offences}}

; Maximum Penalties
{{SProfileMaxHeader}}
{{SProfileMax|s. 362(2)(a) {{DescrSec|362(2)(a)}} | {{NA}} | {{Max10Years}} }} 
{{SProfileMax|s. 362(2)(b) {{DescrSec|362(2)(b)}} | {{NA}}  | {{summaryconviction}}  }}
{{SProfileMax|s. 362(2)(b) {{DescrSec|362(2)(b)}} | {{NA}}  | {{Max2Years}} }}
{{SProfileEnd}}

{{MaxPenaltyHybrid|s. 362(1)(a) {{DescrSec|362(2)(a)}}|'''{{Max2Years}}'''|'''{{summaryconviction}}'''}}

{{MaxPenaltyIndictment|s. 362(1)(b) {{DescrSec|362(2)(b)}}, (c), and (d)|'''{{Max10Years}}'''}}

; Minimum Penalties
{{NoMinimumPenalties}}

; Available Dispositions
{{SProfileAvailHeader}}
|s. 362(1)(a) {{DescrSec|362(2)(a)}} || any || {{SProfileAll}}
|-
|s. 362(1)(b) {{DescrSec|362(2)(b)}},<br> s. 362(1)(c), <br>s. 362(1)(d) || {{NA}}|| {{SProfileAll}}
|-
{{SProfileEnd}}

{{AllDispositionsAvailable}}

; Consecutive Sentences
{{NoConsecutive}}

===Principles===

===Ranges===
{{seealsoRanges|Obtaining Property by False Pretences}}

==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}
	
; Offence-specific Orders
{{AOrderHeader}}

{{AOrder1|[[DNA Orders]]| s. 362(2)(a) or (3) |
* {{SecondDNA(AorB)|s. 362(2)(a) or (3)}} }}

{{AOrderEnd}}

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==Record Suspensions and Pardons== 
{{RecordSuspension|s. 362(2) or (3) }}

==History==
{{seealso|List of Criminal Code Amendments|Table of Concordance (Criminal Code)}}

===1994 to 2003===
{{quotation1|
; False pretence or false statement
362 (1) Every one commits an offence who
:(a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretence, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person;
:(b) obtains credit by a false pretence or by fraud;
:(c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or any person, firm or corporation that he is interested in or that he acts for, for the purpose of procuring, in any form whatever, whether for his benefit or the benefit of that person, firm or corporation,
::(i) the delivery of personal property,
::(ii) the payment of money,
::(iii) the making of a loan,
::(iv) the grant or extension of credit,
::(v) the discount of an account receivable, or
::(vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or
:(d) knowing that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or another person, firm or corporation that he is interested in or that he acts for, procures on the faith of that statement, whether for his benefit or for the benefit of that person, firm or corporation, anything mentioned in subparagraphs (c)(i) to (vi).

; Punishment
(2) Every one who commits an offence under paragraph (1)(a)
:(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding ten years, where the property obtained is a testamentary instrument or the value of what is obtained exceeds five thousand dollars; or
:(b) is guilty
::(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
::(ii) of an offence punishable on summary conviction,

where the value of what is obtained does not exceed five thousand dollars.
<br>
; Idem
(3) Every one who commits an offence under paragraph (1)(b), (c) or (d) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
<br>
; Presumption from cheque issued without funds
(4) Where, in proceedings under paragraph (1)(a), it is shown that anything was obtained by the accused by means of a cheque that, when presented for payment within a reasonable time, was dishonoured on the ground that no funds or insufficient funds were on deposit to the credit of the accused in the bank or other institution on which the cheque was drawn, it shall be presumed to have been obtained by a false pretence, unless the court is satisfied by evidence that when the accused issued the cheque he believed on reasonable grounds that it would be honoured if presented for payment within a reasonable time after it was issued.
<br>
; Definition of “cheque”
(5) In this section, “cheque” includes, in addition to its ordinary meaning, a bill of exchange drawn on any institution that makes it a business practice to honour bills of exchange or any particular kind thereof drawn on it by depositors.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 362; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 52; {{LegHistory90s|1994, c. 44}}, s. 22.
|[http://canlii.ca/t/hz9v CCC]
|{{NoteUp|}}
}}
==See Also==
; References
* [[Pre-Trial and Trial Motions Checklist]]
{{OffencesNavBar/Property}}