361

False pretence

361 (1) A false pretence 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 is made with a fraudulent intent to induce the person to whom it is made to act on it.

Exaggeration

(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.

Question of fact

(3) For the purposes of subsection (2), it is a question of fact whether commendation or depreciation amounts to a fraudulent misrepresentation of fact.

Annotations | French

• Section 361
• Mens Rea
• The fault element of this offence is subjective. To convict the accused, the Crown must prove that the accused knew of the false representation (R v Lucchesi, 1990 CarswellOnt 1624 (CA)).
• Fraudulent Intent
• Lying or making false representation to induce someone to complete a transaction can satisfy the element of fraudulent intent. For example, giving a cheque to complete a purchase knowing that there are no funds in the account to honour the purchase agreement meets the element of fraudulent intent (R v Koncan , (1986) 38 Man R (2d) 107 (MBCA) at para 25); R v Duglas, 1972 Carswell NB 7 (CA).
• The accused does not have a fraudulent intent if, when representing a third party, they did not know the third party would be unable to meet the financial obligations entered into by the accused on their behalf. For example, if a family member were to give a cheque for a purchase agreement with the signatory authority of another family member’s bank account and that bank account did not have sufficient funds, the element of fraudulent intent cannot be met without further evidence that the accused knew that there were no funds in the account (R v Buckle (1946), 3 CR 243 (SKCA)).
• Evidence for intent to defraud can be satisfied through inferences. However, the accused's intent cannot be inferred from the fact that he did not testify (R v Castle, [1937] OWN 245 (ONCA); R v Milec 1996 CanLII 315 (ON CA)).
• Offence Committed Through Conditional Sales Agreements
• The offences of theft and false pretences are mutually exclusive; when only possession is taken without the consent of the owner, the offence of theft is made out. By contrast, in order for the offence of false pretences to be committed in the context of transferring property, the transfer of property must be induced by false pretences. The property in question does not have to be fully acquired in order for the offence to be made out; the offence can be committed through the medium of a conditional sales agreement if the property interest obtained by the accused in that agreement is sufficient to support a conviction. (R v Hemingway, [1955] SCR 712 at paras 27-38 ; R v Dawood, 1975 ALTASCAD 10 (CanLII) at para 18).
• Switching Tags
• The accused can be guilty of the offence of false pretence if they switch the price tag from a cheaper good for that of a more expensive one before purchasing it (R v Dawood, 1975 ALTASCAD 10 (CanLII) at paras 31-32).