INTRODUCTION AND BRIEF DESCRIPTION
Section 321 of the Criminal Code of Canada defines a credit card as any device used to obtain money, goods, services, or anything of value on credit, or to access banking services through an automated machine.
SECTION WORDING
321 In this Part, "credit card" means any card, plate, coupon book or other device issued or otherwise distributed for the purpose of being used (a) on presentation to obtain, on credit, money, goods, services or any other thing of value, or (b) in an automated teller machine, a remote service unit or a similar automated banking device to obtain any of the services offered through the machine, unit or device.
EXPLANATION
Section 321 of the Criminal Code of Canada provides a definition for the term "credit card." The section explains that any card, plate, coupon book, or device that is issued or distributed for the purpose of obtaining credit, goods, services, or any other valuable thing is considered a credit card. Additionally, any card or device that can be used in an automated teller machine or similar banking device to obtain services is also considered a credit card. This definition is important in the context of the Criminal Code of Canada because the misuse of credit cards is a criminal offense. Section 342.1 of the Criminal Code makes it an offense to use a credit card that has been obtained through fraud, theft, or other illegal means. Similarly, section 342.2 makes it an offense to use a credit card with the knowledge that it has been revoked, cancelled, or expired. In addition, section 342.3 makes it an offense to sell or offer to sell a credit card that has been obtained through illegal means. This includes selling stolen or copycat credit cards. By defining the term "credit card," Section 321 helps to ensure that the provisions of the Criminal Code relating to credit card misuse are clear and enforceable. The section provides a framework for prosecutors and judges to interpret the law and ensures that individuals who misuse credit cards are held accountable for their actions.
COMMENTARY
Section 321 of the Criminal Code of Canada defines the term credit card" within Part XII of the code. This part outlines offences relating to forgery, fraud, and theft, specifically as they relate to credit cards and other payment methods. The definition provided in Section 321 is important, as it allows for greater clarity and specificity when it comes to prosecution under this part of the code. The definition of credit card" given in Section 321 is comprehensive, including any object that can be used for the purpose of obtaining goods or services on credit or using automated banking devices. This broad definition is useful, as it ensures that any device or object that can be used in these ways is included in the scope of the law. However, this definition can also be problematic in some contexts, such as with newer payment technologies that may not fit neatly into the categories outlined in the definition. One key advantage of the definition provided in Section 321 is that it allows for the prosecution of a wide range of offences related to credit card fraud and theft. For example, offences such as using a stolen credit card or creating a fake credit card can be prosecuted under Part XII of the Criminal Code, and the definition of credit card" provides a clear basis for determining what objects or devices can be considered as such. This helps to ensure that criminals who engage in credit card fraud are held accountable for their actions. However, the definition of credit card" does have some limitations. For example, the definition only includes objects issued for the purpose of being used on credit or with automated banking devices. This means that other payment methods, such as mobile payments or cryptocurrencies, may not necessarily be covered by this section of the Criminal Code. This can create challenges for law enforcement and prosecutors, who may need to rely on other sections of the code or other laws to address these types of offences. Another potential limitation of the definition in Section 321 is that it may become outdated over time, as new payment technologies and devices are developed. For example, while the definition currently includes coupon books," it may not account for newer forms of electronic coupons or discount codes that are becoming increasingly prevalent. As such, it may be necessary for the definition to be updated in the future to better reflect changing payment methods and technologies. Despite these limitations, the definition of credit card" provided in Section 321 is a key component of Part XII of the Criminal Code, as it provides a clear basis for prosecution in cases of credit card fraud, theft, and other related offences. While it may need to be updated over time to reflect changes in payment methods and technologies, it remains an important tool for ensuring that those who engage in credit card fraud are held accountable for their actions.
STRATEGY
Dealing with section 321 of the Criminal Code of Canada can be a complex matter, especially if it involves a criminal investigation or prosecution relating to credit card fraud. It is essential to understand the scope of the section and the possible defenses that may arise in such cases. One critical consideration when dealing with section 321 is the definition of a credit card, as outlined in the section. The section includes not only traditional credit cards but also other devices that can be used to obtain anything of value, such as coupon books or plates. Therefore, it is crucial to have a clear picture of the type of device involved in any alleged offense, particularly if it falls outside the common understanding of a credit card. Additionally, the section distinguishes between two types of transactions: using a credit card to obtain money, goods, or services on credit, and using it in an automated teller machine (ATM) or similar device to obtain services offered through the system. Strategic considerations when dealing with this section may include: 1. Establishing the Elements of the Offense To secure a conviction under section 321, the prosecution must establish the essential elements of the offense. These may include proving that the accused person knowingly used a credit card, that the card was obtained fraudulently, and that they used the card to obtain or attempt to obtain money, goods, or services. Therefore, a strategic consideration is identifying any weaknesses or gaps in the prosecution's evidence regarding these elements. This could include challenging the authenticity of the credit card or the owner of the card or identifying a lack of intent or knowledge on the part of the accused. 2. Evidence Collection When building a defense, it is essential to gather all the available evidence at the earliest possible stage. This could include obtaining and reviewing any bank records or CCTV footage that may be available. It is also crucial to document the accused's version of events as early as possible. Strategic considerations could include identifying and interviewing potential witnesses who may support the accused's version of events or provide evidence that contradicts the prosecution's case. 3. Evaluating Possible Defenses In cases of credit card fraud, several affirmative defenses could be raised. These may include claiming that the accused did not have the requisite intent to commit the offense, or they were acting at the direction of another person. A strategic consideration is assessing these and other possible defenses, and determining which have the strongest chance of success. 4. Plea Bargaining Where the evidence against the accused is strong, or where the sentence if convicted could be severe, a strategic consideration could be negotiating a plea deal with the prosecution. This could involve agreeing to plead guilty to a lesser offense in exchange for a reduced sentence. 5. Mitigation If convicted, mitigation strategies can help to reduce the sentence imposed by the court. This could include character references, a guilty plea, and an acceptance of responsibility. The specifics of any mitigating factors will depend on the facts of the case and the accused's specific circumstances. In conclusion, section 321 of the Criminal Code of Canada covers a broad range of possible offenses relating to credit cards. When facing an investigation or prosecution under this section, it is crucial to consider all available strategies and defenses. An experienced criminal defense lawyer can offer valuable insight and guidance.