Fraud (Offence)

Fraud
	s. 380 of the Crim. Code
Election / Plea
Crown Election	Hybrid (under), Indictment (over, test.); 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. (over, test.), Prov. Court only (under)
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) same as summary
Minimum	2 years incarceration ($1 mill.+)
Maximum	2 years incarceration (under); 14 years incarceration (over or test.)
Reference
	Offence Elements; Sentence Digests;

Overview

Offences relating to fraud are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 380(1)(a) [fraud over $5,000]	Indictable Offence(s)			(14 years max)
s. 380(1)(b) [fraud not exceeding $5,000]	Hybrid Offence(s)		(absolute)	(absolute)

Offences under s. 380(1)(b) [fraud not exceeding $5,000] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Offences under s. 380(1)(a) [fraud over $5,000] 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. 380(1)(a) [fraud over $5,000]
s. 380(1)(b) [fraud not exceeding $5,000]

When charged under s. 380(1)(a) [fraud over $5,000] , 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.

When charged under s. 380(1)(b) [fraud not exceeding $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.

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. 380(1)(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.

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. 380(1)(a) [fraud over $5,000]
s. 380(1)(b) [fraud not exceeding $5,000]

Offences under s. 380 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

Fraud

380 (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(ii) of an offence punishable on summary conviction,

where the value of the subject-matter of the offence does not exceed five thousand dollars.

Minimum punishment

(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1) [fraud^[1]], the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.

Affecting public market

(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 380; R.S., 1985, c. C-46, s. 380; R.S., 1985, c. 27 (1st Supp.), s. 54; 1994, c. 44, s. 25; 1997, c. 18, s. 26; 2004, c. 3, s. 2; 2011, c. 6, s. 2.
[annotation(s) added]

– CCC

Note up: 380 (1), (1.1) and (2)

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
380(1)(a)	Fraud over $5,000	"...by deceit, falsehood or other fraudulent means, did unlawfully defraud [victim], of [specify property or value of cash], a total value exceeding $5,000, contrary to section 380(1)(a) of the Criminal Code.
380(1)(a)	Fraud of testamentary instrument	"...by deceit, falsehood or other fraudulent means, did unlawfully defraud [victim], of [specify the document or instrument], a testamentary instrument, contrary to section 380(1)(a) of the Criminal Code.
380(1)(b)	Fraud Not Exceeding $5,000	"...by deceit, falsehood or other fraudulent means, did unlawfully defraud [victim], of [specify property or value of cash], a total value not exceeding $5,000, contrary to section 380(1)(b) of the Criminal Code.

Proof of the Offence

Proving fraud under s. 380 should include:^[2] ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ that the complainant owned something of value (property, money, valuable security, or a service) ☐ that the culprit deprived the complainant of something of value or was put at risk of losing something of value ☐ Any representations made ☐ money or property of value paid to the accused ☐ reason money was paid to the culprit ☐ the ownership, value and continuity of the property, money, or service, including whether it is over $5,000 (for 380(a)) or under $5,000 (for 380(b)) (consider accordance with s. 491.2 and s. 657.1). ☐ either: ☐ the culprit had subjective knowledge of the prohibited act that caused deprivation; ☐ the culprit had subjective knowledge that the conduct would likely result in deprivation^[3] ☐ that the deprivation must have been caused by any of the following acts: ☐ deceit, ☐ falsehood, or ☐ some other fraudulent means; (see Causation)

Draft Jury Decision Trees

Draft Jury Decision Trees

↑ Found elsewhere in this same page.
↑ R v Garrick, 2012 ONSC 725 (CanLII), per Ricchetti J, at para 126 for fraud over
↑ see also R v McCarthy, 2008 CanLII 49582 (ON SC), per Thorburn J, at paras 12 to 20

Interpretation of the Offence

Fraud is considered a form of commercial crime, which has been defined as "an illegal act ... committed by an individual or corporation in the course of a legitimate occupation or pursuit in the industrial or commercial sector for the purpose of obtaining money or property, avoiding the payment of money or the loss of property, or obtaining business or personal advantage."^[1]

Actus Reus

The actus reus for fraud requires the dual elements of a "dishonest act" and a "deprivation".^[2] A "dishonest act" is made up of an act of "deceit, fralsehood, or other fraudulent means.^[3]

↑ Nightingale, "The Law of Fraud and Related Offences" at 1.2(a)
McMahon "Practical Handbook for Professional Investigators"[1]
↑ R v Théroux, 1993 CanLII 134 (SCC), [1993] 2 SCR 5, per McLachlin J
↑ Theroux, ibid.

Deceit, Falsehood, or Other Fraudulent Means

Deceit, Falsehood, or Other Fraudulent Means

Jurisdiction

Generally, the jurisdiction of the offence includes the place where a false representation was made, the false document was prepared or signed, or where deprivation took place.

In order to attract the jurisdiction of the court, there needs to be a significant portion of the activities making up the offence occur within the court's jurisdiction.^[1]

Where the subject-matter is under $5,000 in value, the offence is an absolute jurisdiction offence and must be tried in provincial court.^[2]

↑ Re Libman and R, 1985 CanLII 51 (SCC), [1985] 2 SCR 178, per La Forest J
↑ see s. 553(a)

Proof of Property

Proof of Ownership

"Public or Any Person"

A "person" refers to an individual or legal person. It must be a specific victim or victims.^[1]

A conspiracy to defraud the operators of retail stores with counterfeit money is a conspiracy to defraud the public.^[2]

↑ R v Bernard, 2013 ONCA 371 (CanLII), per curiam, at para 2
↑ Bernard, ibid., at para 4

Admission of Documents

See also: Business Records and Financial Institution Records

The Canada Evidence Act provides short-cuts to admit certain documents.

Under s. 30(1), "where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record."

Under s. 30(7), the applicant must give "at least seven days notice" of intention to produce records under this section "unless the court orders otherwise" and must produce it for inspection within 5 days of getting notice from the other side.

Charter Issues

Documents that were obtained from the accused by compulsion by a person in authority, such as the Department of Community Services agent, is not a violation of the right against self-incrimination since the documents were not confessional and exist outside of state compulsion.^[1]

↑ R v D'Amour, 2002 CanLII 45015 (ONCA)], [2002] OJ No 3103, 166 CCC (3d) 477, per Doherty JA - case worker compelled accused to provide T-4 slips

Other Issues

It is not necessary that the accused have any knowledge of the identity of the victim(s) of the fraudulent act.^[1]

Parties

In a setting where there were multiple parties involved with the act that amounted to fraud, criminal liability will be applicable where the parties contribution is beyond a de minimus range.^[2]

Merely following directions of a superior or employer is not generally a defence.^[3]

Attempts

Under s. 660, where a completed fraud has not been made out the court must consider, as a matter of law, an alternative conviction for attempted fraud regardless of whether it is sought by the crown. ^[4]

Attempted fraud may apply where the victim discovers the deceitful conduct before being deprived of property or money.^[5]

Form of Charge

Sufficiency of count relating to fraud

586. No count that alleges false pretences, fraud or any attempt or conspiracy by fraudulent means is insufficient by reason only that it does not set out in detail the nature of the false pretence, fraud or fraudulent means.
R.S., c. C-34, s. 515.

– CCC

Note up: 586

Proof of Property by Photographs

See photographic evidence - s. 491.2(1)

Abuse of Process: See also: Abuse of Process

The criminal justice system cannot be used to collect a debt.^[6] The claimant of such abuse is to be held to a "high" threshold of proof.^[7]

Defences

There is no defence to fraud by relying on a "fiduciary duty" or other corporate obligations.^[8]

The unforeseeable collapse of a company due to the fraud is irrelevant to fraud charges.^[9]

↑ R v Warren, 2010 NLCA 29 (CanLII), 918 APR 7, per White JA - accused didn't know that the fraud would peculate to a second victim, still convicted for second victim
↑ R v Park, 2010 ABCA 248 (CanLII), 259 CCC (3d) 50, per Berger JA, at para 29
↑ R v Lemire, 1964 CanLII 52 (SCC), [1965] SCR 174, per Martland J
↑ R v Reis, 2003 MBCA 98 (CanLII), 177 Man R (2d) 152, per Hamilton JA
↑ Reis, ibid.
↑ R v McCague, 2006 ONCJ 208 (CanLII), 209 CCC (3d) 557, per Trotter JA
R v Wolf, 2008 ONCA 352 (CanLII), OJ No 1713, per curiam
↑ Wolf, ibid.
↑ R v Potter; R v Colpitts, 2020 NSCA 9 (CanLII), at para 705 ("There is no such thing as a “fiduciary duty” defence to fraud. Corporate obligations cannot be used as a cloak to shield criminality. “… [D]eliberately practised fraudulent acts which, in the knowledge of the accused, actually put the property of others at risk” is criminal.")
↑ Potter, ibid., at para 714

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. 380

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 380), 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 Fraud

History

History of Fraud Offences