Criminal Code of Canada Notes on False Pretenses, False Statements, Fraud Involving Securities

Criminal Code of Canada Notes on False Pretenses, False Statements,
Fraud Involving Securities

Summarized from Martin’s Criminal Code 2010

Found at http://investoradvocates.ca/

False Pretence / Exaggeration / Questions of Fact

361.1 (1) A false pretense is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that it is made with fraudulent intent to induce the person to whom it is made to act on it.
(2) Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to such an extent that it amounts to a fraudulent misrepresentation of fact.

False Pretence or False Statement

362. (1) Every one commits an offence who
(a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretense, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person;
(c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or herself or any person or organization that he or she is interested in or that he or she acts for, for the purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or organization.

Obtaining credit by fraud or false pretense [subsec. (1)(b)] … Furthermore, there is a presumption that where money was obtained by a false pretense, prima facie , there is an intent to defraud.

Obtaining Execution of Valuable Security by Fraud

363. Every one who, with intent to defraud or injure another person, by a false pretense causes or induces any person
(a) to execute, make, accept, endorse or destroy the whole or any part of a valuable security, or
(b) to write, impress or affix a name or seal on any paper or parchment in order that it may afterwards be made or converted into or used or dealt with as a valuable security,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. R.S., C-34, s. 321.

The following is extracted from the Justice Department Criminal Code of Canada:

Forgery and Offences Resembling Forgery

FORGERY / Making false document / When forgery complete / Forgery complete though document incomplete.

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 anyone 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.
(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; …
(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.

Cross References

374. Drawing document without authority.

375. Obtaining by forged document.

This section describes the offense of forgery. Every person who makes a false document, knowing it to be false, with the intent that it should be used as genuine to the prejudice of another person, or that another person should be induced, believing the document to be genuine, to do or refrain from doing anything, commits the offence of forgery.

Annotations – Meaning of “false document”

The provisions of this subsection do not exclude the definition of “false document” in s. 321. Thus the accused may be convicted of forgery where he makes a “false document” as that phrase is defined in s. 321. Specifically, the accused makes a “false document: where he prepares a document which is false in some material particular. A document which is false in reference to the very purpose for which it was created is clearly one which is false in a material particular…
It is not necessarily the case that a document which merely contains a lie falls within the definition of a false document. However, a document which is false in reference to the very purpose for which it was created is one that is false in a material particular within the meaning of s. 321 and therefore capable of founding a conviction under this section. R. v. Ogilvie (1993), 81 C.C.C. (3d) 125, [1993] R.J.Q. 453 (C.A.)

Punishment for Forgery

367. Every one who commits forgery
(a) is guilty of an indictable offence and liable to imprisonment for a term on exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction. R.S.C., c. C-34, 325; 1994. C. 44, s. 24; 1997, c. 18, s. 24.

Cross References

Forgery is defined in s. 366. This offence may be the basis for an application for an authorization to intercept private communications by reason of s. 183. Forgery is an enterprise crime offence for purposes of Part XII.2

This section describes the offence of uttering a forged document. Any person who, with knowledge that a document is forged, uses or acts upon it as though it were genuine is guilty of the offence of uttering. … that an intention to defraud is not an element of the offence under this section. Rather, the intent required is the intent to deceive, such an interpretation is consistent with the forgery offense defined by s. 366(1)(b) which as well does not require proof of an intent to defraud.

Drawing Document Without Authority Etc.

374. Every one who
(a) with intent to defraud and without lawful authority makes, executes, draws, signs, accepts or endorses a document in the name or on the account of another person by procuration or otherwise, or
(b) makes use of or utters a document knowing that it has been made, executed, signed, accepted or endorsed with intent to defraud and without lawful authority, in the name or on the account of another person, by procuration or otherwise,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. R.S., c. C-34, s. 332.

Synopsis

This section describes the offence of drawing or using a document without authority. Anyone who makes, executes, draws, signs, accepts or endorses a document in the name of or on behalf of another person without lawful authority and with an intention to defraud, or who knowingly makes use of, or utters such a document, commits an indictable offence. The maximum term of punishment is 14 years’ imprisonment.

Obtaining, Etc, by Instrument Based on Forged Document

375. Everyone who demands, receives or obtains anything, or causes or procures anything to be delivered or paid to any person under, on, or by virtue of any instrument issued under the authority of law, knowing that it is based on a forged document, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. R.S., c. C-34, s. 333.

Synopsis

This section creates the offence of using an instrument based on a forged document. Anyone who demands, receives or obtains anything, or causes anything to be delivered or paid, by virtue of an instrument issued under legal authority, but knowing that it is based on a forged document, commits an indictable offence. The maximum term of punishment is 14 years…
Sections 487.012 to 487.017 provide procedures for the making of production orders that would require persons to produce documents, data or information to police officers or public officers designated in the order.

HYPERLINK “http://laws.justice.gc.ca/fra/C-46/page-10.html” \l “codese:487_03-ss:_1_1_” Endorsement
(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.
(2) [Repealed, 2007, c. 22, s. 7]
1993, c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13; 2007, c. 22, s. 7; 2008, c. 18, s. 12.
Annotations – Meaning of Fraud Generally

The classic definition of fraud is found in the judgement Buckley J., in London & Globe Finance Corp. Ltd. (Re), (1903) 1 Ch. 728 at pp. 732-3 “To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud by deceit to induce a course of action.”

…Scott v. Metropolitan Police Commissioner (1974) 60 Cr. App. R. 124 (H.L.) [held] that this definition is not exhaustive and that to “defraud” ordinarily means “to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud, be entitled.”
Meaning of “Other Fraudulent Means” Generally: … Other fraudulent means includes mere omission where, through silence, an individual hides from the other person a fundamental and essential information. The silence or omission must be such that it would mislead a reasonable person. R.v. Emond (1997), 117 C.C.C. (3d) 275 (Que. C.A.) leave to appeal to S.C.C. refused 117 C.C.C. (3d) vi.
… The dishonesty lies in the wrongful use of something in which another person has an interest, in such a manner that this other’s interest is extinguished or put at risk. The use is wrongful in this sense if it constitutes conduct which reasonable decent persons would consider dishonest and unscrupulous. R. v. Zlatic [1993] 2 S.C.R. 29, 79 C.C.C. (3d) 466.

… Economic loss does not have to be proven by the Crown and fraud is complete when money is paid for corporate shares to which the accused falsely ascribed certain attributes: R. v. Knelson and Baran (1962), 133 C.C.C. 210, 38. C.R. 181 (B.C.C.A.)

Mens rea – The mens rea of fraud is established by proof of subjective knowledge of the prohibited act, and subjective knowledge of the act could have as a consequence deprivation, in the sense of causing another to lose their pecuniary interest in certain property or in placing that interest at risk. There is no requirement that the accused subjectively appreciate the dishonesty of his acts: R. v. Théroux, [1993] 2 S.C. R. 5, 79 C.C.C. (3d) 449; R. v Zlatic, supra.

Advertisements

About smarstan

Founding shareholder of Alberta Wind Energy Corporation. Defrauded of my founding shares by two deceptive "advisors" for their own unjust enrichment and my ongoing fight for justice and restitution in a system of deception, lies and cover-ups.
This entry was posted in Breach of Trust. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s