Trafficking in Stolen Property (Offence)

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Trafficking in Stolen Property
s. 355.2 to 355.5 of the Crim. Code
Election / Plea
Crown Election	Indictment (355.5(a)) Hybrid (355.5(b)) 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	5 or 14 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to trafficking in stolen property are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Sections 355.2 to 355.5 describe four offences relating to the trafficking of stolen property. There are offences for trafficking in stolen property of value exceeding $5,000 [355.2 and 355.5(a)] and trafficking in stolen property of value not exceeding $5,000 [355.2 and 355.5(b)]. There are also offences for the possession of stolen property for the purpose of trafficking of value exceeding $5,000 [355.4 and 355.5(a)] and possession of stolen property for the purpose of trafficking of value not exceeding $5,000 [355.4 and 355.5(b)].

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000]	Hybrid Offence(s)	Yes	(* only if Crown proceeds by Indictment)	(under 14 years max)
355.2, 355.4, or 355.5(a) [trafficking in property obtained by crime - greater than $5,000]	Indictable Offence(s)	N/A		(14 years max)

Offences under s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Offences under s. 355.2, 255.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000] 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. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000]	Template:ReleaseProfile-All
s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000]	Template:ReleaseProfileOnlyBail

When charged under s. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $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. Template:ReleaseOnlyBail

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. 355.2, 355.4, 355.5(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.

Designations

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

Offence Wording

Trafficking in property obtained by crime

355.2 Everyone commits an offence who traffics in any property or thing or any proceeds of any property or thing knowing that all or part of the property, thing or proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

2010, c. 14, s. 6.

– CCC

Possession of property obtained by crime — trafficking

355.4 Everyone commits an offence who has in their possession, for the purpose of trafficking, any property or thing or any proceeds of any property or thing knowing that all or part of the property, thing or proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

2010, c. 14, s. 6.

– CCC

Punishment

355.5 Everyone who commits an offence under section 355.2 or 355.4

(a) is, if the value of the subject matter of the offence is more than $5,000, guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years; or

(b) is, if the value of the subject matter of the offence is not more than $5,000,

(i) guilty of an indictable offence and liable to imprisonment for a term of not more than five years, or

(ii) guilty of an offence punishable on summary conviction.

2010, c. 14, s. 6.
[annotation(s) added]

– CCC

Proof of the Offences

Proving trafficking in property obtained by crime under s. 355.2 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit traffics anything or proceeds of anything; ☐ the culprit knew "that all or part" of the thing "was obtained by or derived directly or indirectly from": ☐ "the commission in Canada of an offence punishable by indictment"; or ☐ "an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment." ☐ The value of thing or proceed.

Proving possession of property obtained by crime — trafficking under s. 355.4 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit possesses any thing or proceeds of a thing; ☐ the culprit possessed it "for the purpose of trafficking"; ☐ the culprit knew "that all or part" of the thing or proceeds "was obtained by or derived directly or indirectly from" ☐ "the commission in Canada of an offence punishable by indictment;" or ☐ "an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment". ☐ The value of thing or proceed.

Interpretation

"traffic"

Definition of “traffic”

355.1 For the purposes of sections 355.2 and 355.4 , “traffic” means to sell, give, transfer, transport, export from Canada, import into Canada, send, deliver or deal with in any other way, or to offer to do any of those acts.
2010, c. 14, s. 6.
[annotation(s) added]

– CCC

In Rem

In rem prohibition

355.3 The importation into Canada or exportation from Canada of any property or thing or any proceeds of any property or thing is prohibited if all or part of the property, thing or proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

2010, c. 14, s. 6.

– CCC

Joint Trial for Theft or Trafficking

• see Possession of Stolen Property (Offence)#Joint Trial for Theft or Trafficking

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

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 355.2), 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

Sentencing Profile

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 355.2, 355.4, and 355.5(a) [trafficking in property obtained by crime - greater than $5,000]	N/A	14 years incarceration
s. 355.2, 355.4, and 355.5(b) [trafficking in property obtained by crime - no greater than $5,000]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 355.2, 355.4, and 355.5(b) [trafficking in property obtained by crime - no greater than $5,000]	indictable election	5 years incarceration

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Sentences

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. 355.2, 355.4, 355.5(b) [trafficking in property obtained by crime - no greater than $5,000]	any
s. 355.2, 355.4, 355.5(a) [trafficking in property obtained by crime - greater than $5,000]	N/A

Offences under s. 355.5(a) 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.

If convicted under s. 355.2 and 355.4 [value greater than $5,000] 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".

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

The purpose of the offence is to target the "downstream trade in property and profit obtained via crime". It also creates "economic conditions that are less conductive to committing the underlying criminal conduct".

Ranges

see also: Trafficking in Stolen Property (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 355.5	If an offence under s. 355.5 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.