354

Possession of property obtained by crime

354 (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the 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.

Obliterated vehicle identification number

(2) In proceedings in respect of an offence under subsection (1), evidence that a person has in their possession a motor vehicle the vehicle identification number of which has been wholly or partially removed or obliterated or a part of a motor vehicle being a part bearing a vehicle identification number that has been wholly or partially removed or obliterated is, in the absence of any evidence to the contrary, proof that the motor vehicle or part, as the case may be, was obtained,

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

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

Definition of vehicle identification number

(3) For the purposes of subsection (2), vehicle identification number means any number or other mark placed on a motor vehicle for the purpose of distinguishing the motor vehicle from other similar motor vehicles.

Exception

(4) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under this section by reason only that the peace officer or person possesses property or a thing or the proceeds of property or a thing mentioned in subsection (1) for the purposes of an investigation or otherwise in the execution of the peace officer’s duties.

Annotations | French

• Section 354
• For an accused to be found guilty of the offence of possession of property obtained by crime contrary to s354 the Court must be satisfied beyond a reasonable doubt that: (1) the accused was in possession of property; (2) that the proper was obtained by the commission of a criminal offence and (3) that the accused knew that the property had been obtained by crime: R v Asouth, 2017 ONSC 5651 at para 114.
• Possession is defined in s4(3) of the Criminal Code which “contemplates three distinct types of possession: ‘personal possession’, ‘constructive possession’ and ‘joint possession’: R v Wu, 2010 BCCA 589; R v Harms, 2020 BCCA 242 at para. 29.
• Personal possession is also sometimes referred to as “actual possession” and requires the accused to have control over the property: R v Beaver, 1957 CanLII 14 (SCC); R v Henderson, 2016 ONSC 1070 at para 23.
• Control can be established where the accused manually handles the property even where it was handled only for a brief period: R v Henderson, 2016 ONSC 1070 at para 23 ; R v Fisher, 2005 BCCA 444.
• Constructive possession and joint possession do not require proof of manual handling: R v Fisher, 2005 BCCA 444 at para 24.
• “In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.” In other words, knowing that there is cocaine in a particular location does not without more constitute possession of that cocaine. For someone to be said to possess the cocaine that they know to be in a particular location, that person must have a measure of control over that location or a right to a measure of control over that location: R v Fisher, 2005 BCCA 444 at para 24; R v Caldwell, 1972 ALTASCAD 33 (CanLII); R v Smith, 1973 CanLII 1546 (BCCA); R v Pham, 2005 CanLII 44671 (CA), aff’ed 2006 SCC 26; R v Masilamany, 2017 ONSC 947 at para 13.
• The mental element of the crime requires that the accused person knew or was willfully blind as to whether the property was obtained by crime. Recklessness does not satisfy the mental element of the offence: R v Vinokurov, 2001 ABCA 113 at paras. 11-14; R v Harms, 2020 BCCA 242 at para 30.
• Possession of property obtained by crime ia an included offence to the charge of theft for both principals and parties, provided that the party participated in the criminal act along with the requisite knowledge: R v Francis, 2011 ONSC 4323 at para 20.
• 354(2)
• The presumption, that a vehicle with an obliterated vehicle identification number was obtained by the commission of an indictable offence, found in s354(2) is constitutional: Re Boyle and the Queen, 1983 CanLII 1804 (ONCA); R v Rai, 2001 CanLII 2939 (CA) at para. 4.
• In this section term ‘motor vehicle’ means “a vehicle that is drawn, propelled or driven by any means other than muscular power” and includes tractors or other agricultural implements: R v Petrisor, 1997 CanLII 11334 (Sask KB) at para 12.

355

Punishment

355 Every one who commits an offence under section 354

(a) if the subject matter of the offence is a testamentary instrument or the value of the subject matter of the offence is more than $5,000, is guilty of

(i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or

(ii) an offence punishable on summary conviction; or

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

Annotations

• Part IV

355.1

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.

Annotations

• Part IV

355.2

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.

Annotations

• Part IV

355.3

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.

Annotations

• Part IV

355.4

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.

Annotations

• Part IV

355.5

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.

Annotations

• Part IV

356

Theft from mail

356 (1) Everyone commits an offence who

(a) steals

(i) anything sent by post, after it is deposited at a post office and before it is delivered, or after it is delivered but before it is in the possession of the addressee or of a person who may reasonably be considered to be authorized by the addressee to receive mail,

(ii) a bag, sack or other container or covering in which mail is conveyed, whether or not it contains mail, or

(iii) a key suited to a lock adopted for use by the Canada Post Corporation;

(a.1) with intent to commit an offence under paragraph (a), makes, possesses or uses a copy of a key suited to a lock adopted for use by the Canada Post Corporation, or a key suited to obtaining access to a receptacle or device provided for the receipt of mail;

(b) has in their possession anything that they know has been used to commit an offence under paragraph (a) or (a.1) or anything in respect of which they know that such an offence has been committed; or

(c) fraudulently redirects, or causes to be redirected, anything sent by post.

Allegation of value not necessary

(2) In proceedings for an offence under this section it is not necessary to allege in the indictment or to prove on the trial that anything in respect of which the offence was committed had any value.

Punishment

(3) Everyone 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 10 years; or

(b) is guilty of an offence punishable on summary conviction.

Annotations

• Part IV

357

Bringing into Canada property obtained by crime

357 Every person who brings into or has in Canada anything that they have obtained outside Canada by an act that, if it had been committed in Canada, would have been the offence of theft or an offence under section 342 or 354 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

• Part IV

358

Having in possession when complete

358 For the purposes of sections 342 and 354 and paragraph 356(1)(b), the offence of having in possession is complete when a person has, alone or jointly with another person, possession of or control over anything mentioned in those sections or when he aids in concealing or disposing of it, as the case may be.

Annotations

• Part IV

359

359 [Repealed, 2018, c. 29, s. 40]

Annotations

• Part IV

360

360 [Repealed, 2018, c. 29, s. 40]

Annotations

• Part IV

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).

362

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 pretence, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person;

(b) obtains credit by a false pretence or by fraud;

(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,

(i) the delivery of personal property,

(ii) the payment of money,

(iii) the making of a loan,

(iv) the grant or extension of credit,

(v) the discount of an account receivable, or

(vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or

(d) knowing that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or herself or another person or organization that he or she is interested in or that he or she acts for, procures on the faith of that statement, whether for his or her benefit or for the benefit of that person or organization, anything mentioned in subparagraphs (c)(i) to (vi).

Punishment

(2) Every one who commits an offence under paragraph (1)(a)

(a) if the property obtained is a testamentary instrument or the value of what is obtained is more than $5,000, is guilty of

(i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or

(ii) an offence punishable on summary conviction; or

(b) if the value of what is obtained is not more than $5,000, 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.

Idem

(3) Every person who commits an offence under paragraph (1)‍(b), (c) or (d) 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.

Presumption from cheque issued without funds

(4) Where, in proceedings under paragraph (1)(a), it is shown that anything was obtained by the accused by means of a cheque that, when presented for payment within a reasonable time, was dishonoured on the ground that no funds or insufficient funds were on deposit to the credit of the accused in the bank or other institution on which the cheque was drawn, it shall be presumed to have been obtained by a false pretence, unless the court is satisfied by evidence that when the accused issued the cheque he believed on reasonable grounds that it would be honoured if presented for payment within a reasonable time after it was issued.

Definition of cheque

(5) In this section, cheque includes, in addition to its ordinary meaning, a bill of exchange drawn on any institution that makes it a business practice to honour bills of exchange or any particular kind thereof drawn on it by depositors.

Annotations | French

• Section 362(1)
• The Crown only needs to prove that a bank account did not exist when a cheque was given by the accused and does not need to prove that the accused had no intention to honour the cheque (R v Morphett (1970), 1 CCC (2d) 98).

363

Obtaining execution of valuable security by fraud

363 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, with intent to defraud or injure another person, by a false pretence 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.

Annotations

• Part IV

364

Fraudulently obtaining food, beverage or accommodation

364 (1) Every one who fraudulently obtains food, a beverage or accommodation at any place that is in the business of providing those things is guilty of an offence punishable on summary conviction.

Presumption

(2) In proceedings under this section, evidence that the accused obtained food, a beverage or accommodation at a place that is in the business of providing those things and did not pay for it and

(a) made a false or fictitious show or pretence of having baggage,

(b) had any false or pretended baggage,

(c) surreptitiously removed or attempted to remove his baggage or any material part of it,

(d) absconded or surreptitiously left the premises,

(e) knowingly made a false statement to obtain credit or time for payment, or

(f) offered a worthless cheque, draft or security in payment for the food, beverage or accommodation,

is, in the absence of any evidence to the contrary, proof of fraud.

Definition of cheque

(3) In this section, cheque includes, in addition to its ordinary meaning, a bill of exchange drawn on any institution that makes it a business practice to honour bills of exchange or any particular kind thereof drawn on it by depositors.

Annotations

• Part IV

365

365 [Repealed, 2018, c. 29, s. 41]

Annotations

• Part IV

366

Forgery

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 any one 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.

Making false document

(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; or

(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.

When forgery complete

(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.

Forgery complete though document incomplete

(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.

Exception

(5) No person commits forgery by reason only that the person, in good faith, makes a false document at the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government.

Annotations

• Part IV

367

Punishment for forgery

367 Every one who commits forgery

(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.

Annotations

• Part IV

368

Use, trafficking or possession of forged document

368 (1) Everyone commits an offence who, knowing or believing that a document is forged,

(a) uses, deals with or acts on it as if it were genuine;

(b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine;

(c) transfers, sells or offers to sell it or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph (a) or (b); or

(d) possesses it with intent to commit an offence under any of paragraphs (a) to (c).

Punishment

(1.1) Everyone 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 10 years; or

(b) is guilty of an offence punishable on summary conviction.

Wherever forged

(2) For the purposes of proceedings under this section, the place where a document was forged is not material.

Annotations

• Part IV