Forgery (Offence)

Forgery
	s. 367 and 368 of the Crim. Code
Election / Plea
Crown Election	Hybrid; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable. Preliminary inquiry also available.
Summary 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	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
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); (* varies)
Minimum	None
Maximum	10 years incarceration, 14 years incarceration (368.1)
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

Overview

Offences relating to forgery 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. 366/367 [forgery] s. 368 [use, trafficking or possession of forged document] and s. 368.1 [forgery instruments]	Hybrid Offence(s)	Yes	Yes, if Crown proceeds by Indictment	{{{4}}}

Offences under s. 367 [forgery] and 368 [use, trafficking or possession of forged document] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

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. 366/367 [forgery] s. 368 [use, trafficking or possession of forged document] and s. 368.1 [forgery instruments]	Template:ReleaseProfileAll

When charged under s. 366/367 [forgery] s. 368 [use, trafficking or possession of forged document] and s. 368.1 [forgery instruments], 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 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));

Fingeprints and Photos

A peace officer who charges a person under s. 366/367 [forgery]
s. 368 [use, trafficking or possession of forged document] and
s. 368.1 {DescrSec 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 Ban

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
368.1}}

Offences under s. 366/367 [forgery], s. 368 [use, trafficking or possession of forged document] and s. 368.1 {DescrSec 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

Forgery

366. (1) Every one commits forgery who makes a false document, knowing it to be false, with intent

(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or

(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.

Making false document

(2) Making a false document includes

(a) altering a genuine document in any material part;

(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or

(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.

When forgery complete

(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.

Forgery complete though document incomplete

(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.

Exception

(5) No person commits forgery by reason only that the person, in good faith, makes a false document at the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government.
R.S., 1985, c. C-46, s. 366; 2009, c. 28, s. 7.

– CCC

Punishment for forgery

367. Every one who commits forgery

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 367; 1994, c. 44, s. 24; 1997, c. 18, s. 24.

– CCC

Use, trafficking or possession of forged document

368. (1) Everyone commits an offence who, knowing or believing that a document is forged,

(a) uses, deals with or acts on it as if it were genuine;

(b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine;

(c) transfers, sells or offers to sell it or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph (a) or (b); or

(d) possesses it with intent to commit an offence under any of paragraphs (a) to (c).

Punishment

(1.1) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) is guilty of an offence punishable on summary conviction.

Wherever forged

(2) For the purposes of proceedings under this section, the place where a document was forged is not material.
R.S., 1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s. 25; 2009, c. 28, s. 8.

– CCC

Forgery instruments

368.1 Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, or is guilty of an offence punishable on summary conviction, who, without lawful authority or excuse, makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses any instrument, device, apparatus, material or thing that they know has been used or know is adapted or intended for use by any person to commit forgery.
2009, c. 28, s. 9.

– CCC

Proof of the Offence

Proving forgery under s. 366, 367 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit made or altered a document; ☐ the document made or altered was a "false document"; ☐ the culprit knew the document was false; ☐ the prohibited act was "with intent" that either: ☐ "it should in any way be used or acted on as genuine, to the prejudice of any one"; or ☐ "a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything" and ☐ the making was not in "good faith" at "the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government". Proving using, trafficking or possessing forged documents under s. 368 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the document was of monetary value; ☐ the document was a "forged" document; ☐ the culprit knew the document of some monetary value was forged; ☐ the culprit either: ☐ uses, deals with or acts on a document as if it were genuine ☐ causes or attempts to cause any person to use, deal with or act on a document as if it were genuine; ☐ transfers, sells or offers to sell a document or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph 368(a) or (b); or ☐ possesses the document with intent to commit an offence under s. 368(a) to (c). Proving forgery instruments under s. 368.1 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses" a thing; ☐ the thing is an "instrument, device, apparatus, material or thing that ... has been used or ... is adapted or intended for use ... to commit forgery." ☐ the culprit knew that the item had been used for, adapted or intended for use to commit forgery; and ☐ the culprit had no "lawful authority or excuse" to do the prohibited conduct.

Interpretation of the Offence

Actus Reus

Only the party named on a cheque may endorse it to another person. Anyone else who endorses a cheque payable to someone else is committing the act of forgery.^[1]

Mens Rea

The mens res for forgery under s. 366(1) requires an "intent to deceive" which requires an intent that is more than mere "carelessness or negligence". The intent to deceive should generally "be coupled with an intent that the document be used to someone’s prejudice, or that a person be induced to act in a certain way." Prejudice need not result as long as there was an intent for the document to be treated as genuine.^[2]

The Crown must show the "falsity of the endorsement the document has been shown to be a forged document and its use with knowledge is sufficient to show the commission of the offence."^[3]

The accused must have known that "the document was false and intended for somebody to act upon it as if it was genuine.".^[4]

It is not necessary that the accused "intended" to defraud anyone.^[5]

Uttering vs Forgery

Uttering forged documents is distinct from making forged documents. The "forgery" is the making of the document, the "uttering" is the use of the document.^[6]

↑ R v JJV, 1994 CanLII 6514 (NB CA)
↑ R v Benson (M.) et al., 2012 MBCA 94 (CanLII)
↑ R v Elkin (1978), 42 CCC (2d) 185 (B.C.C.A.), 1978 CanLII 2487 (BC CA), per McIntyre JA
↑ R v Sebo, [1988] AJ No 475 (C.A.), 1988 ABCA 200 (CanLII), per Kerans JA
↑ R v Atwal, [2015] OJ No 3748 (C.J.), 2015 ONSC 4425 (CanLII), per Hill J
R v GT, 2016 CanLII 82183 (NL PC), per Gorman J, at para 59
↑ Benson, supra, at para 33
R v Wightman, [2003] AJ No 1453 (P.C.), 2003 ABPC 202 (CanLII) ("Forgery deals with the making of the document; uttering deals with the use of the document.")

"False documents"

The Code defines "false document" under s. 321:

s. 321
...
false document means a document

(a) the whole or a material part of which purports to be made by or on behalf of a person
(i) who did not make it or authorize it to be made, or

(ii) who did not in fact exist,

(b) that is made by or on behalf of the person who purports to make it but is false in some material particular,

(c) that is made in the name of an existing person, by him or under his authority, with a fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who makes it or under whose authority it is made; (faux document)

...
R.S., 1985, c. C-46, s. 321; R.S., 1985, c. 27 (1st Supp.), s. 42.

– CCC

While "making" a false document is defined under s. 366 as:

s. 366
...

Making false document

(2) Making a false document includes

(a) altering a genuine document in any material part;

(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or

(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.

...

– CCC

The document cannot simply be "false" but it must be proven to be "false" in relation to the purpose for which it was created.^[1]

"False document" and "forged document" are not interchangable terms.^[2] A document that contains a lie is not necessarily a "false document". It must be false in "some material particular" in relation to the purpose for which it was created.^[3]

A fake or false item that was made as a "novelty" item cannot be a "false document" and the creation of which does not carry the requisite mens rea for the offence.^[4]

A "false document" will include documents purported to have been made by a person (real or fake) who did not, in fact, make it.^[5]

A failure of the signatory to indicate on the document that they are acting as a proxy for the authorized party is not a forgery.^[6]

Attesting in an affidavit to a witness's signature without having met the witness is a forgery under s. 366(2)(b).<ref> R v Paquette, [1979] 2 SCR 168, 1979 CanLII 212 (SCC), per Laskin CJ reversing 1977 CanLII 2089 (QC CA), per Montgomery JA

↑ R v Benson, 2012 MBCA 94 (CanLII), per Steel JA ("it must be false in relation to the purpose for which it was created")
↑ R v Hawrish, [1986] S.J. No. 846 (C.A.), 1986 CanLII 3208 (SK CA), per Hall JA
↑ R v Ogilvie, 1993 CanLII 3510 (QC CA), per Fish and Baudouin JJA
↑ R v Sommani, 2007 BCCA 199 (CanLII), per Lowry JA
↑ Sommani, ibid.
↑ R v Foley, 1994 CanLII 9760 (NL CA), per Marshall JA, at paras 29 to 33

Defence For Public Officers

Public officers acting in the course of their duties or employment

368.2 No public officer, as defined in subsection 25.1(1), is guilty of an offence under any of sections 366 to 368.1 if the acts alleged to constitute the offence were committed by the public officer for the sole purpose of establishing or maintaining a covert identity for use in the course of the public officer’s duties or employment.
2009, c. 28, s. 9.

– CCC

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

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 367, 368, 368.1), 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

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

Sentencing Profile

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 367, 368 and 368.1	Summary Election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 367 and 368	Indictable Election	10 years custody
s. 368.1	Indictable Election	14 years custody

Offences under s. 367 and 368 are hybrid. If prosecuted by indictment, the maximum penalty is 10 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. 368.1 are hybrid. If prosecuted by indictment, the maximum penalty is 14 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).

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. 367, 368	any
s. 368.1	Summary Election
s. 368.1	Indictable Election

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.

Principles

Ranges

see also: Forgery (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 366, 367, 368, 368.1	If an offence under s. 366, 367, 368, 368.1 is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

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*.

History

See also: List of Criminal Code Amendments

1997 to 2009

Forgery

366. (1) Every one commits forgery who makes a false document, knowing it to be false, with intent

(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or

(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.

Making false document

(2) Making a false document includes

(a) altering a genuine document in any material part;

(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or

(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.

When forgery complete

(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.

Forgery complete though document incomplete

(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.
R.S., c. C-34, s. 324.

– CCC

Uttering forged document

368. (1) Every one who, knowing that a document is forged,

(a) uses, deals with or acts on it, or

(b) causes or attempts to cause any person to use, deal with or act on it,

as if the document were genuine,

(c) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(d) is guilty of an offence punishable on summary conviction.

Wherever forged

(2) For the purposes of proceedings under this section, the place where a document was forged is not material.
R.S., 1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s. 25.

– CCC