Counterfeiting (Offence): Difference between revisions

Counterfeiting
	s. 449, 450, and 452 of the Crim. Code
Election / Plea
Crown Election	Indictment;
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1)
Minimum	None
Maximum	14 years incarceration
Reference
	Offence Elements; Sentence Digests;

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Overview

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

Pleadings

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

Offences under s. 449 [make counterfeit money],
450 [possess counterfeit money], and
452 [utters, uses, sends counterfeit money] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 449 [make counterfeit money] , s. 450 [possess counterfeit money], or s. 452 [utters, uses, sends counterfeit money]

When charged under s. 449 [make counterfeit money], 450 [possess counterfeit money], or 452 [utters, uses, sends counterfeit money], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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

while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
"for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
where the offence involved a 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. 449 [make counterfeit money], 450 [possess counterfeit money], or 452 [utters, uses, sends counterfeit money] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

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

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 449 [make counterfeit money], 450 [possess counterfeit money], and 452 [utters, uses, sends counterfeit money]					(14 years max)

Offences under s. 449 [make counterfeit money], 450 [possess counterfeit money], and 452 [utters, uses, sends counterfeit money] are designated offences eligible for wiretap under s. 183.

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

Offence Wording

Making

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

– CCC (CanLII), (DOJ)

Note up: 449

Possession, etc., of counterfeit money

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

(a) buys, receives or offers to buy or receive counterfeit money;

(b) has in their custody or possession counterfeit money; or

(c) introduces counterfeit money into Canada.

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

– CCC (CanLII), (DOJ)

Note up: 450

Uttering, etc., counterfeit money

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

(a) utters or offers to utter counterfeit money or uses counterfeit money as if it were genuine, or

(b) exports, sends or takes counterfeit money out of Canada.

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

– CCC (CanLII), (DOJ)

Note up: 452

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
449	making counterfeit money	"... did make or begin to make counterfeit money, to wit: [conduct], contrary to section 449 of the Criminal Code."
450(a)		"... without lawful justification or excuse, did buy, receive, offer to buy or offer to receive counterfeit money, to wit: [conduct], contrary to section 450(a) of the Criminal Code."
450(b)		"... without lawful justification or excuse, did have in his or her custody or possession counterfeit money, to wit: [conduct], contrary to section 450(b) of the Criminal Code."
450(c)		"... without lawful justification or excuse, did introduce into Canada counterfeit money, to wit: [conduct], contrary to section 450(c) of the Criminal Code."
452(a)	uttering counterfeit money	"..., did utter, offer to utter or use as if it were genuine counterfeit money, to wit: [particulars], contrary to section 452(a) of the Criminal Code."
452(b)	exporting counterfeit money	"..., did export, send or take counterfeit money out of Canada, to wit: [particulars], contrary to section 452(b) of the Criminal Code."

Proof of the Offence

Proving making counterfeit money under s. 449 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit made or began to make counterfeit money ☐ the culprit knew the money was counterfeit Proving possession counterfeit money under s. 450 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ Either: ☐ buys, receives or offers to buy or receive counterfeit ☐ possesses counterfeit or ☐ brings counterfeit money into the country ☐ the culprit knew the money was counterfeit	Proving uttering counterfeit money under s. 452 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ Either: ☐ uses counterfeit as real money ☐ export, send, or take counterfeit out of the country ☐ the culprit knew the money was counterfeit

Interpretation of the Offence

Intention to Spend

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

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

Nature of Currency

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

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

"lawful justification" or "excuse"

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

Constitutionality

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

↑ R v Duane, 1984 ABCA 115 (CanLII), 12 CCC (3d) 368, per Kerans JA, at para 4 ("mere lack of intention not to use it as currency does not legitimate possession of counterfeit money.")
↑ R v Robinson, 1973 CanLII 22 (SCC), [1974] SCR 573, per Ritchie J
↑ R v Freng, 1993 CanLII 913 (BC CA), 86 CCC (3d) 91, at para 21 (" We conclude the proper construction of ss. 450 and 452 requires the Crown to prove beyond a reasonable doubt all the essential elements of the charges in question and that knowledge of the character of the counterfeit money is an essential element.")
↑ R v Burge, 1986 CanLII 806 (BC CA), 32 CCC (3d) 389, per Carrothers JA, at para 9
↑ Duane, supra
↑ Robinson v R, 1973 CanLII 22 (SCC), [1974] SCR 573
↑ Burge, ibid.

Making

Definitions

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

(a) a false coin or false paper money that resembles or is apparently intended to resemble or pass for a current coin or current paper money,

(b) a forged bank-note or forged blank bank-note, whether complete or incomplete,

(c) a genuine coin or genuine paper money that is prepared or altered to resemble or pass for a current coin or current paper money of a higher denomination,

(d) a current coin from which the milling is removed by filing or cutting the edges and on which new milling is made to restore its appearance,

(e) a coin cased with gold, silver or nickel, as the case may be, that is intended to resemble or pass for a current gold, silver or nickel coin, and

(f) a coin or a piece of metal or mixed metals that is washed or coloured by any means with a wash or material capable of producing the appearance of gold, silver or nickel and that is intended to resemble or pass for a current gold, silver or nickel coin;

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

– CCC (CanLII), (DOJ)

Note up: 448

Possession

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

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

Uttering and Use

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

↑ R v Kelly, 1979 CanLII 2903 (ON CA), 48 CCC (2d) 560, per Martin JA

Proof of Counterfeit Character

Special Provisions as to Proof

When counterfeit complete

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

Certificate of examiner of counterfeit

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

Cross-examination and notice

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

– CCC (CanLII), (DOJ)

Note up: 461 (1), (2) and (3)

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

↑ R v Serratore, 1980 CanLII 2833 (ON CA), 53 CCC (2d) 106, per MacKinnon ACJ
↑ R v MacIntosh, 1971 CanLII 465 (ON CA), 1 OR 512, per Schroeder JA

Misc Definitions

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

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

Section 2 defines "bank-note".

Digests

Counterfeiting (Offence Cases)

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

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

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

Sentencing Principles and Ranges

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

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 449 [make counterfeit money], s. 450 [possess counterfeit money] and s.452 [utters, uses, sends counterfeit money]	N/A	14 years incarceration

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

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone 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. 449 [make counterfeit money], 450 [possess counterfeit money], 452 [utters, uses, sends counterfeit money]	N/A

If convicted under s. 449, 450 or 452 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 these sections are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Counterfeiting is seen as a deliberate and sophisticated crime. The main motivator is typically greed.

In circumstances of major offences, the Crown has presented evidence of the prevalence and effect of counterfeiting in Canada and the World.^[1]

↑ R v Flynn, 2012 BCPC 313 (CanLII)

Ranges

see also: Counterfeiting (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Forfeiture

Ownership

462 (1) Counterfeit money, counterfeit tokens of value and anything that is used or is intended to be used to make counterfeit money or counterfeit tokens of value belong to Her Majesty.

Seizure

(2) A peace officer may seize and detain

(a) counterfeit money,

(b) counterfeit tokens of value, and

(c) machines, engines, tools, instruments, materials or things that have been used or that have been adapted and are intended for use in making counterfeit money or counterfeit tokens of value,

and anything seized shall be sent to the Minister of Finance to be disposed of or dealt with as he may direct, but anything that is required as evidence in any proceedings shall not be sent to the Minister until it is no longer required in those proceedings.
R.S., c. C-34, s. 420.

– CCC (CanLII), (DOJ)

Note up: 462 (1) and (2)

Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 449, 450 or 452	For conviction under s. 449, 450, and 452, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Forfeiture or Seized Counterfeit Items (s. 463)

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. 449 [make counterfeit money], 450 [possess counterfeit money] or 452 [utters, uses, sends counterfeit money] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

Possession, etc., of counterfeit money

450 Every one who, without lawful justification or excuse, the proof of which lies on him,

(a) buys, receives or offers to buy or receive,

(b) has in his custody or possession, or

(c) introduces into Canada,

counterfeit money is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 408.

– CCC (CanLII), (DOJ)

Uttering, etc., counterfeit money

452 Every one who, without lawful justification or excuse, the proof of which lies on him,

(a) utters or offers to utter counterfeit money or uses counterfeit money as if it were genuine, or

(b) exports, sends or takes counterfeit money out of Canada,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 410.

– CCC (CanLII), (DOJ)