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Destroying documents of title
340 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, for a fraudulent purpose, destroys, cancels, conceals or obliterates
(a) a document of title to goods or lands,
(b) a valuable security or testamentary instrument, or
(c) a judicial or official document.
Annotations
- Part IV
Fraudulent concealment
341 Every person who, for a fraudulent purpose, takes, obtains, removes or conceals anything is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Annotations
- Part IV
Theft, forgery, etc., of credit card
342 (1) Every person who
(a) steals a credit card,
(b) forges or falsifies a credit card,
(c) possesses, uses or traffics in a credit card or a forged or falsified credit card, knowing that it was obtained, made or altered
(i) by the commission in Canada of an offence, or
(ii) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence, or
(d) uses a credit card knowing that it has been revoked or cancelled,
is guilty of
(e) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
(f) an offence punishable on summary conviction.
Jurisdiction
(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be commenced in that place without the consent of the Attorney General of that province.
Unauthorized use of credit card data
(3) Every person who, fraudulently and without colour of right, possesses, uses, traffics in or permits another person to use credit card data, including personal authentication information, whether or not the data is authentic, that would enable a person to use a credit card or to obtain the services that are provided by the issuer of a credit card to credit card holders is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
Definitions
(4) In this section,
personal authentication information means a personal identification number or any other password or information that a credit card holder creates or adopts to be used to authenticate his or her identity in relation to the credit card; (authentifiant personnel)
traffic means, in relation to a credit card or credit card data, to sell, export from or import into Canada, distribute or deal with in any other way. (trafic)
Annotations | French
- Section 342
- For the purposes of section 342(3) a debit card “counts as a credit card”: R v Tuduce, 2014 ONCA 547 at para 17.
- Even where a credit card has been blocked and cannot be used for a transaction, an accused may be convicted of the crime. The offence is made out “whether or not the data” linked to the card is authentic. Therefore, “an accused can be convicted whether or not the data in the accused’s possession matches perfectly with genuine bank accounts”: R v Tuduce, 2014 ONCA 547 at paras. 87-90; R v Kokoouline, 2009 ONCA 253 at para 5.
Instruments for copying credit card data or forging or falsifying credit cards
342.01 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction, who, without lawful justification 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
(a) in the copying of credit card data for use in the commission of an offence under subsection 342(3); or
(b) in the forging or falsifying of credit cards.
Forfeiture
(2) Where a person is convicted of an offence under subsection (1), any instrument, device, apparatus, material or thing in relation to which the offence was committed or the possession of which constituted the offence may, in addition to any other punishment that may be imposed, be ordered forfeited to Her Majesty, whereupon it may be disposed of as the Attorney General directs.
Limitation
(3) No order of forfeiture may be made under subsection (2) in respect of any thing that is the property of a person who was not a party to the offence under subsection (1).
Annotations | French
- Section 342.01
- The offences created by this section are “preliminary and preventative in nature”. In other words “they are designed to capture an open-ended scope of conduct in order to thwart the commission of the crime of forging or falsifying credit cards.” Such types of crimes are cause harm and are costly to Canadian society: R v Beauchamp, 2015 ONCA 260 at para 229.
- Thus, the reach of the section is broad and extend to both a variety of object that can be used in the commission of the offence (instruments, devices, apparatuses materials and things) as well as to a number of different types of activities (making, repairing, buying, selling, exporting, importing, or possessing those objects): R v Beauchamp, 2015 ONCA 260 at para 237.
- The mental element of offences pursuant to this section requires knowledge that the items in question: (i) have been used; (ii) have been adapted for use; (iii) or are intended for use in falsifying or forging credit cards: R v Beauchamp, 2015 ONCA 260 at para 237.
- By way of example “it is an offence to “make” any of the targeted items knowing that they are “intended for use” in forging credit cards. It is similarly an offence to “repair” or to “possess” them with the same knowledge”: R v Beauchamp, 2015 ONCA 260 at para 239.
Unauthorized use of computer
342.1 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction who, fraudulently and without colour of right,
(a) obtains, directly or indirectly, any computer service;
(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;
(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or under section 430 in relation to computer data or a computer system; or
(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c).
Marginal note:Definitions
(2) In this section,
computer data means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system; (données informatiques)
computer password means any computer data by which a computer service or computer system is capable of being obtained or used; (mot de passe)
computer program means computer data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function; (programme d’ordinateur)
computer service includes data processing and the storage or retrieval of computer data; (service d’ordinateur)
computer system means a device that, or a group of interconnected or related devices one or more of which,
(a) contains computer programs or other computer data, and
(b) by means of computer programs,
(i) performs logic and control, and
(ii) may perform any other function; (ordinateur)
data[Repealed, 2014, c. 31, s. 16]
electro-magnetic, acoustic, mechanical or other device means any device or apparatus that is used or is capable of being used to intercept any function of a computer system, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing; (dispositif électromagnétique, acoustique, mécanique ou autre)
function includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer system; (fonction)
intercept includes listen to or record a function of a computer system, or acquire the substance, meaning or purport thereof; (intercepter)
traffic means, in respect of a computer password, to sell, export from or import into Canada, distribute or deal with in any other way. (trafic)
Annotations | French
- Section 342.1
- There are four elements that the Crown must prove in order to establish the actus reus of this offence:
- (i) The accused obtained a computer service;
- (ii) The accused's use of the computer service was prohibited;
- (iii) A reasonable person in the accused's circumstances would conclude that the accused's use of the computer service was dishonest; and
- (iv) The accused acted without colour of right: R v McNish, 2020 ABCA 249 at para 54; R c Parent, 2012 QCCA 1653 at para 37.
- The mens rea for this offence requires that the “use of the computer be done fraudulently: R v McNish, 2020 ABCA 249 at para 55. To act fraudulently for the purposes of this section means to use a computer in an intentional and unmistaken manner, “with the subjective knowledge that the use is unauthorized”: R c Parent, 2012 QCCA 1653 at para 50; R v McNish, 2020 ABCA 249 at para 58. Unauthorized use without more is insufficient to make out the offence. R c Parent, 2012 QCCA 1653 at para 50.
Possession of device to obtain unauthorized use of computer system or to commit mischief
342.2 (1) Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to commit an offence under section 342.1 or 430, knowing that the device has been used or is intended to be used to commit such an offence, is
(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) guilty of an offence punishable on summary conviction.
Forfeiture
(2) If a person is convicted of an offence under subsection (1), in addition to any punishment that is imposed, any device in relation to which the offence was committed or the possession of which constituted the offence may be ordered forfeited to Her Majesty and may be disposed of as the Attorney General directs.
Limitation
(3) No order of forfeiture may be made under subsection (2) in respect of any thing that is the property of a person who was not a party to the offence under subsection (1).
Definition of device
(4) In this section, device includes
(a) a component of a device; and
(b) a computer program within the meaning of subsection 342.1(2).
Annotations
- Part IV
Robbery
343 Every one commits robbery who
Annotations | French
- Robbery may be committed in one of four ways: R v Jean, 2012 BCCA 448 at para 23.
- Regardless of the way in which the robbery is committed the offence “carries a double mens rea requirement. First, the offender must intend to use violence or force, and in the case of s343(d) intend to carry the offensive weapon in question”: R v Hillback, 2023 SCC 3 at para 10; R v Pelletier, 1992 CanLII 12794 (Que CA); R v Strong, 1990 ABCA 327 at para 33; R v Nadolnick, 2003 ABCA 363 at para 21; R v Roberts, 2016 NLTD(G) 18 at paras 152-154.
- Second, whether the robbery involved actual stealing (s343(a), (b) and (d)) or simply an intent to steal (s343(c)), the offender must have had the requisite mens rea requirement for theft given that s.2 of the Criminal Code defines “steals” as “to commit theft.” This mens rea requirement for theft requires a fraudulent intent, the absence of any colour of right over the property, and an intent to deprive an owner of their property”: R v Hillback, 2023 SCC 10 at para 10; R v Dorosh, 2003 SKCA 134 at para 14.
(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
Annotations | French
- The crime of robbery contrary to s343(a) is a specific intent crime with two key components: the act of stealing and in so doing, using or threatening to use of violence: R v Jean, 2012 BCCA 448 at paras 22-26; R v Newell, 2007 NLCA 9 at para. 32.
- The essential elements of the offence of robbery contrary to s343(a) are:
- To steal;
- To use violence or threats of violence;
- To use the violence or threat for the purpose of either
- a. ‘extorting whatever is stolen, or
- b. To prevent or overcome resistance to the stealing: R v Jean, 2012 BCCA 448 at para 23.
- "Steal" is defined in s.2 of the Code as meaning "to commit theft". Committing theft is in turn dealt with in s.322. Section 322(2) provides the following:
- Time when theft committed
- (2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable: R v Jean, 2012 BCCA 448 at para 24.
- The dictionary definition of “extort” is in part: “to wrest from a reluctant person by force, violence, torture, intimidation”: R v Jean, 2012 BCCA 448 at para 25.
- A robbery perpetrated by pursuant to s343(a) is “categorically a crime of violence.”: R v Lebar, 2010 ONCA 220 at para 33; R v Steele, 2014 SCC 61 at para 50.
- Where the robbery is perpetrated by way of threat of violence via s343(a) there is no additional minimum level of violence required for the offence to be made out: R v Lecky, 2001 CanLII 6026 (Ont CA) at para 4.
- The threat of violence for the purpose of s343(a) is “really a threat to cause physical harm or injury, thereby linking violence with the causation of harm or injury rather than the application of force”: R v CD, 2005 SCC 78 at para 32; R v Lecky, 2001 CanLII 6026.
- All that is required to prove a threat is sufficient evidence to “support a finding that an ordinary reasonable person would have felt a threat of violence conveyed in all the circumstances”: R v MacCormack, 2009 ONCA 72 at para 85.
- A threat may be explicit or implied: R v Pelletier, 1992 CanLII 12794 (Que CA).
- Where the threat is implied it "must be accompanied by a reasonable apprehension of physical harm": R v Sayers, 1983 CanLII 3496 (Ont CA); R v Olivieros Ortega, 2014 ONSC 6414 at para 9.
- For example, where a bank robber says, “robbery in progress” and makes gestures including trying to open the cash drawers, it is reasonable for the teller to have had an apprehension of physical harm, unless they complied with the demand: R v Sayers, 1983 CanLII 3496 (Ont CA) at para 15
- A reasonable apprehension of a physical harm means a "fearful state of mind that is reasonable in all of the circumstances”: R v Oliveiros Ortega, 2014 ONSC 6414 at para 10.
- The threat of violence component, pursuant to s 343(a), is completed once the “threat has been uttered, whether or not it has any impact on its intended target”: R v Olivieros Ortega, 2014 ONSC 6414 at para 18.
- Where the robbery is perpetrated with actual force and not just the attempt thereof, the violence requirement is satisfied by reference to the offence of assault. In other, words, a simple or technical assault can satisfy this element of the offence. For example, holding a victim’s arm while taking money satisfies the definition of robbery pursuant to s343(a): R v CD, 2005 SCC 78 at para 32.
- Whether the robbery is perpetrated by way of actual force or the threat of force, for the purpose of s343(a) for force or threat of force must occur before or contemporaneous to the theft and not after it: R v McKay, 2014 SKCA 19, R v Jean, 2012 BCCA 448 at para 26; R v Newell, 2007 NLCA 9 at para 32.
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
Annotations | French
- To satisfy the ‘personal violence’ requirement in s343(b) “something more than a mere technical assault is required”: R v Oakley, 1986 CanLII 4744 (Ont CA); R v CD, 2005 SCC 78 at para 32.
- For an accused person to be found guilty of robbing someone under s 343(b), violence must have been inflicted upon the victim at a time immediately proximate to the time of the theft, whether immediately preceding or following the theft. “There is no requirement that the violence must exactly accompany the theft”: R v Lieberman, 1970 CanLII 393 (Ont Ca) at para 32; R v Newell, 2007 NLCA 9 at para 25; R v Crabe, 1993 CanLII 14715 (BCCA) at para 11; R v Dubroy-Clement, 2021 ABQB 418 at para 119.
(c) assaults any person with intent to steal from him; or
Annotations | French
- For the offence of robbery to be completed under s343(c) the violence contemplated is no mere that a “mere assault.”: R v Chiang, 1999 BCCA 503 at para 11
- Moreover, “so long at the intention to steal is present, the Crown need not prove actual theft in order to prove a charge of robbery: R v Allen, 2000 CanLII 16954 (Ont CA) at a para 3;R v Summerfield, [2008] OJ No 1877 (SCJ) at para. 32; R** v Swaby, [2008] OJ No 5420 (SCJ) at para 7**.
(d) steals from any person while armed with an offensive weapon or imitation thereof.
Annotations | French
- It is not an essential element of the offence of robbery contrary to s343(d) that the accused used a firearm. “Rather, s. 343(d) refers to being “armed” with an offensive weapon” which may include a firearm: R v Watson, 2008 ONCA 614 at para 24.
- A person is armed with an offensive weapon if they are “equipped with it”, acquire it or if they “become possessed of some instrument which is either a weapon or an imitation weapon: R v Sloan, 1974 CanLII 1501 (BCCA).
- Using your own finger in imitation or simulation of an offensive weapon does not constitute an offensive weapon for the purpose of s343(d): R v Sloan, 1974 CanLII 1501 (BCCA).*
Constitutionality
- The five-year mandatory minimum sentence prescribed in s. 344(1)(a)(i) for robbery with a prohibited or restricted firearm, in the case of a first offence, is constitutional: R v McIntyre, 2019 ONCA 161; R v Hilbach, 2023 SCC 3.
- Sections 344(1)(a)(i) and 344(1)(a.1) are constitutional: R v Hilbach, 2023 SCC 3.
Robbery
344 (1) Every person who commits robbery 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
(2) In determining, for the purpose of paragraph (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 244.2; or
(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 346 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
(3) For the purposes of subsection (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.
Stopping mail with intent
345 Every one who stops a mail conveyance with intent to rob or search it is guilty of an indictable offence and liable to imprisonment for life.
Annotations
- Part IV
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 244.2; 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.
Annotations | French
- Section 346
- “Extortion” means to induce anyone to do something or gain something by threats, accusations, menace or violence. For the accused to be convicted, it is not necessary that the extortion be succesful and that the accused gain what they were seeking: R v Noël, 2001 NBCA 80 at para 9 ; R v Davis, 1999 CanLII 638 (SCC)
- Extortion “criminalizes intimidation and interference with freedom of choice”: R v Davis, 1999 CanLII 638 (SCC) at para 45.
- The pursuit of the extortion can be “anything” which should be read as the “wide, unrestricted dictionary definition” of the term: R v Davis, 1999 CanLII 638 (SCC) at para 44.
- This broad interpretation of the word “anything” means that the term is not limited to “things of a proprietary or pecuniary nature”. The word “anything” includes sexual favours. For example, it is a crime to threaten exposure of nude photographs when coupled with a demand for sex: R v Davis, 1999 CanLII 638 (SCC) at paras 44-46; R v DGS, 2004 CanLII 7198 (Ont CA) at para 8.
- That the accused had an honest belief that what was demanded was owed is not a defence to the charge of extortion. For a reasonable justification defence to apply, the accused must both believe that what was demanded is owed and that there was “a reasonable justification or excuse for making the threats or menaces by which the accused sought to compel compliance”: R v Natarelli, 1967 CanLII 11 (SCC)
- In short, the totality of the accused’s conduct must be “considered in deciding whether the threat to collect a legitimate debt was made without reasonable justification or excuse”: R v Alexander, 2005 CanLII 32566 at para 78.
- A reasonable justification is assessed by asking the question of whether “a reasonable person on the accused’s position would have formed” the view that the threats were reasonably justifiable or excusable: R v Alexander, 2005 CanLII 32566 at para 78.
- A threat to cause grievous bodily harm or to kill can never be reasonably justified. For example, if an accused is found to have made a threat to kill or cause bodily harm to secure funds, believed were owed to them, the defence of reasonable justification could not succeed: R v Alexander, 2005 CanLII 32566 at para 77; R v Natarelli, 1967 CanLII 11 (SCC)
- Where there is found to be an air of reality to the defence of reasonable justification, the onus is on the Crown to prove beyond a reasonable doubt that no such justification exits: R v Alexander, 2005 CanLII 32566 at para 74.
Criminal interest rate
347 (1) Despite any other Act of Parliament, every one who enters into an agreement or arrangement to receive interest at a criminal rate, or receives a payment or partial payment of interest at a criminal rate, is
(a) guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) guilty of an offence punishable on summary conviction and liable to a fine of not more than $25,000 or to imprisonment for a term of not more than two years less a day, or to both.
Definitions
(2) In this section,
credit advanced means the aggregate of the money and the monetary value of any goods, services or benefits actually advanced or to be advanced under an agreement or arrangement minus the aggregate of any required deposit balance and any fee, fine, penalty, commission and other similar charge or expense directly or indirectly incurred under the original or any collateral agreement or arrangement; (capital prêté)
criminal rate means an effective annual rate of interest calculated in accordance with generally accepted actuarial practices and principles that exceeds sixty per cent on the credit advanced under an agreement or arrangement; (taux criminel)
insurance charge means the cost of insuring the risk assumed by the person who advances or is to advance credit under an agreement or arrangement, where the face amount of the insurance does not exceed the credit advanced; (frais d’assurance)
interest means the aggregate of all charges and expenses, whether in the form of a fee, fine, penalty, commission or other similar charge or expense or in any other form, paid or payable for the advancing of credit under an agreement or arrangement, by or on behalf of the person to whom the credit is or is to be advanced, irrespective of the person to whom any such charges and expenses are or are to be paid or payable, but does not include any repayment of credit advanced or any insurance charge, official fee, overdraft charge, required deposit balance or, in the case of a mortgage transaction, any amount required to be paid on account of property taxes; (intérêt)
official fee means a fee required by law to be paid to any governmental authority in connection with perfecting any security under an agreement or arrangement for the advancing of credit; (taxe officielle)
overdraft charge means a charge not exceeding five dollars for the creation of or increase in an overdraft, imposed by a credit union or caisse populaire the membership of which is wholly or substantially comprised of natural persons or a deposit taking institution the deposits in which are insured, in whole or in part, by the Canada Deposit Insurance Corporation or guaranteed, in whole or in part, by the Quebec Deposit Insurance Board; (frais pour découvert de compte)
required deposit balance means a fixed or an ascertainable amount of the money actually advanced or to be advanced under an agreement or arrangement that is required, as a condition of the agreement or arrangement, to be deposited or invested by or on behalf of the person to whom the advance is or is to be made and that may be available, in the event of his defaulting in any payment, to or for the benefit of the person who advances or is to advance the money. (dépôt de garantie)
Presumption
(3) Where a person receives a payment or partial payment of interest at a criminal rate, he shall, in the absence of evidence to the contrary, be deemed to have knowledge of the nature of the payment and that it was received at a criminal rate.
Proof of effective annual rate
(4) In any proceedings under this section, a certificate of a Fellow of the Canadian Institute of Actuaries stating that he has calculated the effective annual rate of interest on any credit advanced under an agreement or arrangement and setting out the calculations and the information on which they are based is, in the absence of evidence to the contrary, proof of the effective annual rate without proof of the signature or official character of the person appearing to have signed the certificate.
Notice
(5) A certificate referred to in subsection (4) shall not be received in evidence unless the party intending to produce it has given to the accused or defendant reasonable notice of that intention together with a copy of the certificate.
Cross-examination with leave
(6) An accused or a defendant against whom a certificate referred to in subsection (4) is produced may, with leave of the court, require the attendance of the actuary for the purposes of cross-examination.
Consent required for proceedings
(7) No proceedings shall be commenced under this section without the consent of the Attorney General.
Application
(8) This section does not apply to any transaction to which the Tax Rebate Discounting Act applies.
Annotations | French
- Section 347
- This section creates two separate but complementary offences: entering into an agreement or arrangement to receive interest at a criminal rate and receiving a payment or partial payment of interest at a criminal rate. The first offence targets agreements that are illegal on their face, while the second offence targets agreements that appear legal on their face, but in practice result in the payment or partial payment of an illegal interest rate (Degelder Construction Co v Dancorp Developments Ltd, [1998]. 3 SCR 90 at paras 28 and 31).
- A lender commits the first offence of entering into an agreement to receive a criminal interest rate if the agreement requires the borrower to pay an interest rate of 60 percent or more. The interest rate is calculated using the term of repayment set out in the loan agreement. A lender does not commit the offence if the agreement provides the mere possibility for the interest rate to become illegal. For example, if the repayment period is subject to change, or if a substantial interest rate is payable on demand, the interest rate may become illegal. However, this would not be enough to attract liability because the agreement does not require the borrower to pay an illegal interest rate (Degelder Construction Co v Dancorp Developments Ltd, [1998]. 3 SCR 90 at paras 19 and 29).
- Even if the credit agreement itself is not illegal, a lender can still violate this section by committing the second offence of receiving a payment or partial payment of interest at a criminal rate. When determining whether the interest payment was made at a criminal rate, the interest rate must be calculated based on the time period during which the credit was actually outstanding and being repaid, rather than during the term in the loan agreement (Degelder Construction Co v Dancorp Developments Ltd, [1998]. 3 SCR 90 at para 30).
- Exception
- If a lender enters into a legal loan agreement and then receives an interest payment at a criminal rate through the borrower’s voluntary act, the lender does not become guilty of an offence under this section. For example, the lender cannot be guilty of this offence if the actual interest rate received is illegal as a result of the borrower voluntarily paying off a loan before the end of the term set out in the agreement. In that case, the interest rate must be calculated based on the time period outlined in the loan agreement rather than on a repayment date unilaterally chosen by the borrower (Nelson v CTC Mortgage Corp, [1984]. CanLII 572 (BC CA) at paras 21-24, aff'd [1986] 1 SCR 749; Degelder Construction Co v Dancorp Developments Ltd, [1998]. 3 SCR 90 at para 34).
- Mens Rea – Entering into an Agreement to Receive Interest at a Criminal Rate
- The fault element required for this offence created by s 347(1) is knowledge or wilful blindness to the fact that the agreement charges an effective annual interest rate above 60 percent (R v Saikaley, 2017 ONCA 374 at paras 104).
- Mens Rea – Receiving Payment of Interest at a Criminal Rate
- Similarly, the fault element required for this offence created by s 347(1) is also knowledge or wilful blindness to the fact that the agreement charges an effective annual interest rate above 60 percent. For the offence of receiving a payment or partial payment of interest at a criminal rate specifically, there is a presumption under s 347(3) that the accused knew that the payment was made at a criminal interest rate. The accused must produce evidence to rebut this presumption (R v Saikaley, 2017, ONCA 374 at paras 104–108) .
- The Crown does not need to prove that the accused was swindling or tricking the borrower (R v McRobb (1984), 20 CCC (3d) 493 (Ont Co Ct) at para 28, aff’d in part (1986), 32 CCC (3d) 479 (Ont CA)).
- Monetary Value of Goods, Services, or Benefits
- “Credit advanced” includes both money advanced under an agreement and the advance of “goods, services, or benefits”. An advance of the monetary value of goods, services, or benefits means a deferral of payment for such items. For example, a utility company provides goods and services to its customers in exchange for a specific amount of money paid on a certain date each month. If a customer does not pay the required amount on the required date, the company has “advanced credit” to the customer. If the company’s agreement with the customer requires the customer to pay a late penalty in this situation, that penalty falls under the definition of “interest” under this section and must be less than the value of an effective annual interest rate of 60 percent of the deferred amount. When a customer fails to pay for goods or services on time, the effective interest rate (for example, as a result of applicable late penalties) is not the result of a voluntary act under the customer’s control that could excuse the lender for charging a criminal interest rate (Garland v Consumers’ Gas Co, 1998. 3 SCR 112 at paras 34–35, 40, 48, and 65 ).
- Defences
- The borrower’s willingness to enter into an agreement to pay a criminal interest rate is not a defence. However, proof that the accused made a mistake about the terms of the loan could be a defence (R v McRobb (1984), 20 CCC (3d) 493 (Ont Co Ct) at para 35, aff’d in part (1986), 32 CCC (3d) 479 (Ont CA)).
Definitions
347.1 (1) The following definitions apply in subsection (2).
interest has the same meaning as in subsection 347(2). (intérêts)
payday loan means an advancement of money in exchange for a post-dated cheque, a pre-authorized debit or a future payment of a similar nature but not for any guarantee, suretyship, overdraft protection or security on property and not through a margin loan, pawnbroking, a line of credit or a credit card. (prêt sur salaire)
Non-application
(2) Section 347 and section 2 of the Interest Act do not apply to a person, other than a financial institution within the meaning of paragraphs (a) to (d) of the definition financial institution in section 2 of the Bank Act, in respect of a payday loan agreement entered into by the person to receive interest, or in respect of interest received by that person under the agreement, if
(a) the amount of money advanced under the agreement is $1,500 or less and the term of the agreement is 62 days or less;
(b) the person is licensed or otherwise specifically authorized under the laws of a province to enter into the agreement; and
(c) the province is designated under subsection (3).
Designation of province
(3) The Governor in Council shall, by order and at the request of the lieutenant governor in council of a province, designate the province for the purposes of this section if the province has legislative measures that protect recipients of payday loans and that provide for limits on the total cost of borrowing under the agreements.
Revocation
(4) The Governor in Council shall, by order, revoke the designation made under subsection (3) if requested to do so by the lieutenant governor in council of the province or if the legislative measures described in that subsection are no longer in force in that province.
Annotations
- Part IV
Breaking and entering with intent, committing offence or breaking out
348 (1) Every one who
(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein,
is guilty
(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
Presumptions
(2) For the purposes of proceedings under this section, evidence that an accused
(a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or
(b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
(i) committing an indictable offence therein, or
(ii) entering with intent to commit an indictable offence therein.
Definition of place
(3) For the purposes of this section and section 351, place means
(a) a dwelling-house;
(b) a building or structure or any part thereof, other than a dwelling-house;
(c) a railway vehicle, a vessel, an aircraft or a trailer; or
(d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.
Annotations | French
Aggravating circumstance — home invasion
348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,
(a) knew that or was reckless as to whether the dwelling-house was occupied; and
(b) used violence or threats of violence to a person or property.
Annotations | French
- Section 348.1
- The term “dwelling-house” is defined in s 2 and courts have interpreted the term under s 348.
- The term “property” is defined in s 2.
- A “home invasion” requires the following three elements:
- (1) the accused committed one of the listed crimes in relation to a dwelling-house;
- (2) the accused had knowledge or was reckless to the fact that the dwelling-house was occupied; and
- (3) the accused used or threatened to use violence against a person or property (R v Campeau, 2009 SKCA 3 at para 24).
- The relationship between the accused and the occupant of the dwelling-house does not affect the application of this section. This section applies whether the dwelling-house is occupied by a stranger to or a relative of the accused (R v Fraser, 2007 SKCA 113 at para 25).
- Violence does not need to occur inside the dwelling-house to satisfy the third essential element for a home invasion. For instance, if an accused pulls an occupant out of the house and uses violence against the occupant in the course of committing one of the listed offences, that element will be satisfied (R v Ginnish, 2014 NBCA 5 at para 46).
- Sentences
- When determining an appropriate sentence for an offence that includes the aggravating circumstance of home invasion, courts will consider the following factors:
- (i) the accused’s motive for entering the dwelling-house;
- (ii) the degree of violence the accused used or threatened to use against the victim;
- (iii) the nature of the relevant listed offence; and
- (iv) other relevant factors of the listed offence (R v Campeau, 2009 SKCA 3 at para 32).
Being unlawfully in dwelling-house
349 (1) Every person who, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or of an offence punishable on summary conviction.
Presumption
(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.
Annotations | French
- Section 349
- The term “enter” is defined in s 350(a).
- The term “dwelling-house” is defined in s 2. See annotations under s 348 that deal with the meaning of "dwelling-house"
- Presumption of Intent
- This provision requires proof of the following two elements: (i) the accused entered a dwelling-house without lawful excuse; and (ii) the accused had an intent to commit an indictable offence therein. For the second element, section 349(2) creates a presumption of intent that the accused can rebut by providing “evidence to the contrary”. To rebut the presumption, the accused does not need to provide a “reasonable and logical explanation” for being in the dwelling-house, but the accused must "lead evidence capable of raising a reasonable doubt about whether they were present in the dwelling-house with the intent to commit an indictable offence". Where the accused provides “evidence to the contrary” that is accepted as believable, the burden is on the Crown to prove the requisite intent beyond a reasonable doubt (R v Austin, [1968] SCR 891 at 893–894).
- The presumption under s 349(2) has been declared constitutional despite the fact that it imposes an onus on the accused to lead evidence to displace a presumption (R v Nagy (1988), 30 OAC 12 (CA)).
- Evidence to the contrary is any evidence that “tends to negate the accused’s intention to commit an indictable offence” after breaking and entering a place. This evidence may emerge from either the Crown’s case or the accused’s defence and must be believed by the trier of fact (the judge or the jury, as the case may be) (R v Atkinson, 2012 ONCA 380 at para 105; R v Campbell (1974), 17 CCC (2d) 320 at 322 (Ont CA).
Entrance
350 For the purposes of sections 348 and 349,
(a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and
(b) a person shall be deemed to have broken and entered if
(i) he obtained entrance by a threat or an artifice or by collusion with a person within, or
(ii) he entered without lawful justification or excuse by a permanent or temporary opening.
Annotations | French
- Section 350
- For the purposes of subsection 350(b)(i), the term “artifice” means “a stratagem or manoeuvre”. For instance, following closely behind a car that is lawfully entering a parking garage is considered entering by artifice. Likewise, lying or deceiving someone to gain entry to a place can constitute an “artifice” (R v Leger (1975), 28 CCC (2d) 480 (Co Ct), aff’d (1976) 31 CCC (2d) 413 (CA); R v Kane, 1999 CarswellOnt 3493 (SC)).
- For the purposes of s 350(b)(i), the term “collusion” includes an agreement with a person who is lawfully within a place to provide access for an unlawful purpose (R v SK, [1997] OJ No 2321 (Ct J (Prov Div)).
- For the purposes of s 350(b)(ii) entering “without lawful justification or excuse” does not include entering a public place with the intent to commit an offence. For instance, a person entering a retail store during business hours with the intent to steal merchandise cannot be charged with breaking and entering (R v Farbridge, 1984 ABCA 301).
Possession of break-in instrument
351 (1) Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe knowing that the instrument has been used or is intended to be used for that purpose,
(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.
Disguise with intent
(2) Every person who, with intent to commit an indictable offence, has their face masked or coloured or is otherwise disguised is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.
Annotations | French
- Section 351
- The term “motor vehicle” is defined in s 2.
- The term “possession” is defined in s 4(3).
- This provision requires proof of the following elements: (i) the accused was in possession of the instruments; (ii) the instruments must be suitable for breaking into a place, motor vehicle, vault, or safe; and (iii) the instruments must be found in circumstance that give rise to a reasonable inference that the accused intended to use them for one of the listed purposes. R. v. Holmes, 1988 CanLII 84 (SCC), [1988] 1 SCR 914 at para 921.
- The Crown does not need to prove that the accused was targeting a specific motor vehicle. However, such evidence would be a significant factor in determining if the circumstances give rise to a reasonable inference that the accused intended to use the instruments to break into the motor vehicle. R v K. (S.), 1995 CanLII 1601 (BC CA)
Possession of instruments for breaking into coin-operated or currency exchange devices
352 Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into a coin-operated device or a currency exchange device, knowing that the instrument has been used or is or was intended to be used for that purpose, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Annotations | French
- Section 352
- The term “possession” is defined in s 4(3).
- An instrument is “suitable for the purpose of breaking into a coin-operated device or a currency exchange device” if a reasonable person would believe that the instrument could be used for that purpose, even if the actual instrument could not have performed that purpose (R v Garland and Clowe, 1978 CanLII 2296 (NL SC) at para 28.)
Selling, etc., automobile master key
353 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction who
(a) sells, offers for sale or advertises in a province an automobile master key otherwise than under the authority of a licence issued by the Attorney General of that province, or
(b) purchases or has in his possession in a province an automobile master key otherwise than under the authority of a licence issued by the Attorney General of that province.
Exception
(1.1) A police officer specially authorized by the chief of the police force to possess an automobile master key is not guilty of an offence under subsection (1) by reason only that the police officer possesses an automobile master key for the purposes of the execution of the police officer’s duties.
Terms and conditions of licence
(2) A licence issued by the Attorney General of a province as described in paragraph (1)(a) or (b) may contain such terms and conditions relating to the sale, offering for sale, advertising, purchasing, having in possession or use of an automobile master key as the Attorney General of that province may prescribe.
Fees
(2.1) The Attorney General of a province may prescribe fees for the issue or renewal of licences as described in paragraph (1)(a) or (b).
Record to be kept
(3) Every one who sells an automobile master key
(a) shall keep a record of the transaction showing the name and address of the purchaser and particulars of the licence issued to the purchaser as described in paragraph (1)(b); and
(b) shall produce the record for inspection at the request of a peace officer.
Failure to comply with subsection (3)
(4) Every one who fails to comply with subsection (3) is guilty of an offence punishable on summary conviction.
Definitions
(5) The definitions in this subsection apply in this section.
automobile master key includes a key, pick, rocker key or other instrument designed or adapted to operate the ignition or other switches or locks of a series of motor vehicles. (passe-partout d’automobile)
licence includes any authorization. (licence)
Annotations | French
- Section 353
- The term “motor vehicle” is defined in s 2.
- The term “possession” is defined in s 4(3).
- A coat hanger folded in a way that it can be used to unlock a vehicle is not a master key despite the fact that it appears to meet the definition of an “instrument designed or adapted to operate the ignition or other switches or locks of a series of motor vehicles.” This term only refers to an item the sale or possession of which requires a licence (R v Young, (1983) 3 CCC (3d) 395 (ONCA) at paras 10-12) .
Tampering with vehicle identification number
353.1 (1) Every person commits an offence who, without lawful excuse, wholly or partially alters, removes or obliterates a vehicle identification number on a motor vehicle.
Definition of vehicle identification number
(2) For the purpose of this section, vehicle identification number means any number or other mark placed on a motor vehicle for the purpose of distinguishing it from other similar motor vehicles.
Exception
(3) Despite subsection (1), it is not an offence to wholly or partially alter, remove or obliterate a vehicle identification number on a motor vehicle during regular maintenance or any repair or other work done on the vehicle for a legitimate purpose, including a modification of the vehicle.
Punishment
(4) Every person 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 five years; or
(b) is guilty of an offence punishable on summary conviction.
Annotations
- Part IV