Extortion (Offence): Difference between revisions
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Latest revision as of 19:15, 5 September 2024
This page was last substantively updated or reviewed January 2016. (Rev. # 96383) |
Extortion | |
---|---|
s. 346 of the Crim. Code | |
Election / Plea | |
Crown Election | Indictment |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Indictable Dispositions | |
Avail. Disp. |
|
Minimum | 4 years incarceration, 5, or 7 years incarceration (firearm) |
Maximum | Life |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to extortion 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. 346 [extortion] | Indictable Offence(s) | (life max) |
Offences under s. 346 [extortion] 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).
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. 346 [extortion] |
When charged under s. 346 [extortion], 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.
Under s. 515(6)(a)(vii), offences charged under s. 346 have a reverse onus on bail where it has "been committed with a firearm".
- 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. 346 [extortion] 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. 346 [extortion] | / (varies on facts) |
Offences under s. 346 [extortion] are designated offences eligible for wiretap under s. 183.
Offences under s. 346 [extortion] 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
- Extortion
346 (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
- Extortion
(1.1) Every person who commits extortion is guilty of an indictable offence and liable
- (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
- (i) in the case of a first offence, five years, and
- (ii) in the case of a second or subsequent offence, seven years;
- (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- (b) in any other case, to imprisonment for life.
- Subsequent offences
(1.2) In determining, for the purpose of paragraph (1.1)(a) [extortion – with firearms or crim orgs[1]], whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
- (a) an offence under this section;
- (b) an offence under subsection 85(1) or (2) [use of firearm or imitation in commission of an offence] or section 244 [discharging firearm] or 244.2 [discharging firearm – recklessness]; or
- (c) an offence under section 220 [criminal negligence causing death], 236 [manslaughter], 239 [attempted murder], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault], subsection 279(1) [kidnapping] or section 279.1 [hostage taking] or 344 [robbery] if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
- Sequence of convictions only
(1.3) For the purposes of subsection (1.2) [extortion – subsequent offences[2]], the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
- Saving
(2) A threat to institute civil proceedings is not a threat for the purposes of this section.
R.S., 1985, c. C-46, s. 346; R.S., 1985, c. 27 (1st Supp.), s. 46; 1995, c. 39, s. 150; 2008, c. 6, s. 33; 2009, c. 22, s. 15.
[annotation(s) added]
Draft Form of Charges
Pre-ambles | ||
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"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 |
346(1.1) | extortion | without reasonable justification or excuse and with intent to obtain [name property], by [threats, accusations, menace, or violence] did [induce or attempt to induce] [alleged victim], [to do/cause to be done] [acitvity at issue] contrary to section 346(1.1) of the Criminal Code. |
Proof of the Offence
Proving extortion under s. 346 should include:[3]
|
- ↑ Found elsewhere in this same page.
- ↑ Found elsewhere in this same page.
- ↑
R v Barros, 2016 ABQB 243 (CanLII), per Lee J, at para 13
R v Natarelli, 1967 CanLII 11 (SCC), [1967] SCR 539, per Cartwright J
Interpretation of the Offence
Extortion is the criminalization of "intimidation and interference with freedom of choice."[1] It is aimed at the use of coercion to overcome a person's free will for some gain.[2]
A "veiled reference may constitute a threat if it is sufficient, in light of all the circumstances, to convey to the complainant the consequences which he or she fears or would prefer to avoid."[3]
The judge must look at the context of the threat to determine if it constitutes extortion.[4]
- Threatening Lawful Conduct
The mere fact that the threatened conduct is lawful, such as collecting a lawful debt, does not exclude the conduct from criminality.[5] However, not every "distasteful" attempt to collect a lawful debt will amount to extortion. It will be highly fact-dependent.[6] Any "legitimate" or "warranted" method, as considered from the perspective of a "reasonable person", will be considered acceptable.[7]
- Defence
The purpose of the "reasonable justification or excuse" defence seeks to draw a line between lawful "hard bargaining" and unlawful "criminal blackmail."[8]
- ↑
R v Davis, 1999 CanLII 638 (SCC), per Lamer CJ
R v Barros, 2016 ABQB 243 (CanLII), per Lee J, at para 16
- ↑ R v Alexander, 2005 CanLII 32566 (ON CA), [2005] OJ No 3777, per Doherty JA, at para 71 ("The section is aimed at those who would use coercion to overcome the free will of others for the purpose of extracting some gain:")
- ↑
Barros, ibid., at para 16
R v McClure, 1957 CanLII 485 (MB CA), 22 WWR 167, per Adamson CJ, at p. 172
see also R v Hodson, 2001 ABCA 111 (CanLII), 44 CR (5th) 71, per McClung JA, at paras 11 to 13
- ↑ see Alexander, supra
- ↑ Alexander, supra, at para 79 ("A distinction between threats used to collect legitimate debts that is based exclusively on whether the conduct constituting the threat is in and of itself unlawful would undermine the rationale for the crime of extortion. The potential for a threat to overwhelm a person’s free choice and compel that person to act in the manner dictated by the threat is not necessarily tied to the lawfulness of the conduct constituting the threat. Some threats, while not per se unlawful ..., will have a much more coercive effect than a threat to do something which is in and of itself unlawful...")
- ↑ Alexander, supra, at para 84
- ↑ Alexander, supra, at para 84
- ↑ Alexander, supra, at para 83 ("The “reasonable justification or excuse” defence seeks to draw the line, for criminal purposes, between hard bargaining and criminal blackmail.")
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
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. 346 [extortion] |
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
- For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences
- Maximum Penalties
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 346 [extortion] | N/A | life incarceration |
Offences under s. 346 [extortion] are straight indictable. The maximum penalty is life.
- Minimum Penalties
Offence(s) | Crown Election |
Minimum Penalty First Offence |
Minimum Penalty Subsequent Offence |
---|---|---|---|
s. 346(1.1)(a) | N/A | 5 years incarceration | Same |
s. 346 [extortion] | N/A | N/A | 7 years incarceration |
s. 346 | N/A | 4 years incarceration | Same |
For offences with aggravating factors listed under s. 346(1.1)(a), the minimum penalty is 5 years incarceration, or 7 years incarceration with any prior convictions for under s. 346.
For offences with aggravating factors listed under s. 346(1.1)(a.1), the minimum penalty is 4 years incarceration incarceration.
- 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. 346 [extortion] no aggravating factors |
N/A | |||||||
s. 346 [extortion] with aggravating factors |
N/A |
Where no aggravating factors are present, there are no discharges or conditional sentences available.
Where any aggravating factors are present, there are no discharges, suspended sentences, stand-alone fines, or conditional sentences.
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
The gravity of the offence of extortion can vary greatly.[1] The offence could, but not necessarily, involve violence, property loss, or organized crime.[2]
- ↑ R v Widdifield, 2018 BCCA 62 (CanLII), at para 57
- ↑ Widdifield, ibid., at para 57
Ranges
- see also: Extortion (Sentencing Cases)
Where there is no evidence of violence or organized crime, the upper range of sentencing is 3 years.[1]
Extortion involving organized crime can be in the range of 6 years.[2]
- ↑ R v Saumier, 2008 BCCA 473 (CanLII), per Newbury JA
- ↑ e.g. R v Lindsay, 2009 ONCA 532 (CanLII), per MacPherson JA
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 346 [extortion] |
|
Weapons Prohibition Orders | s. 346 [extortion] |
|
Delayed Parole Order | s. 346 [extortion] |
|
- 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. 346 [extortion] 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
2008 to 2009
- Extortion
346 (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
- Extortion
(1.1) Every person who commits extortion is guilty of an indictable offence and liable
- (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
- (i) in the case of a first offence, five years, and
- (ii) in the case of a second or subsequent offence, seven years;
- (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- (b) in any other case, to imprisonment for life.
- Subsequent offences
(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
- (a) an offence under this section;
- (b) an offence under subsection 85(1) or (2) or section 244; or
- (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 344 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
- Sequence of convictions only
(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
- Saving
(2) A threat to institute civil proceedings is not a threat for the purposes of this section.
R.S., 1985, c. C-46, s. 346; R.S., 1985, c. 27 (1st Supp.), s. 46; 1995, c. 39, s. 150; 2008, c. 6, s. 33.– CCC
1995 to 2008
- Extortion
346 (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
- Extortion
(1.1) Every person who commits extortion is guilty of an indictable offence and liable
- (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- (b) in any other case, to imprisonment for life.
- Saving
(2) A threat to institute civil proceedings is not a threat for the purposes of this section.
R.S., 1985, c. C-46, s. 346; R.S., 1985, c. 27 (1st Supp.), s. 46; 1995, c. 39, s. 150.– CCC
See Also
- References
|
- 2016
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Wiretap Eligible Offences
- Serious Personal Injury Offences
- 1985, c. C-46
- 1985, c. 27 (1st Supp.)
- 1995, c. 39
- 2008, c. 6
- 2009, c. 22
- Notice of Settlement to Victim
- Offences Requiring Notice to Victim
- Offences with Maximum Penalty of Life
- Straight Indictable Offences
- Offences with Minimum Penalty of 5 Years
- Offences with Minimum Penalty of 7 Years
- Offences with Minimum Penalty of 4 Years
- Primary Designated Offences for DNA Orders
- Section 109 or 110 Prohibition Offences
- Delayed Parole
- Violence Offences