Criminal Code of Canada - section 364(2) - Presumption

section 364(2)

INTRODUCTION AND BRIEF DESCRIPTION

Section 364(2) of the Criminal Code of Canada establishes that evidence of obtaining food, accommodation or beverage without payment and use of false pretenses or fraudulent means is proof of fraud.

SECTION WORDING

364(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.

EXPLANATION

Section 364(2) of the Criminal Code of Canada outlines the legal definition and consequences of fraud in relation to the use of food, beverages, or accommodations without payment. This section establishes that evidence of the accused obtaining these services without payment and engaging in any of the six listed fraudulent actions, such as making false statements or using worthless forms of payment, is proof of fraud unless there is evidence to the contrary. The purpose of this section is to protect businesses that provide these services from fraudulent customers who attempt to obtain goods and services without paying for them. This section also serves to deter individuals from engaging in fraudulent actions and provides the legal means to hold them accountable for their actions. As with other criminal offences, those found guilty of fraud under this section can face serious consequences, such as fines and imprisonment. This section emphasizes the importance of honesty and integrity in financial transactions and highlights the significance of personal responsibility in maintaining the trust of businesses and their customers.

COMMENTARY

Section 364(2) of the Canadian Criminal Code deals with fraud committed by an individual who obtains food, beverages or accommodation at a place that is in the business of providing those things, but fails to pay for them due to some deceitful manner. This provision creates a criminal offence for individuals who obtain services through fraudulent means at places like hotels and restaurants. The provision clearly states that evidence demonstrating the accused failed to pay for the food, beverages or accommodation they received and also engaged in one or more of the listed deceitful conduct is presumed to be proof of fraud. The types of deceitful conduct listed in the provision include making a false or fictitious show or pretence of having baggage, having false or pretended baggage, surreptitiously removing the baggage, absconding from the premises, making a knowingly false statement to obtain credit or time for payment, or offering a worthless cheque, draft or security in payment for the food, beverage or accommodation. This provision is intended to serve as a deterrent against people who engage in fraudulent conduct to obtain services for free. This offence is punishable by a maximum sentence of two years imprisonment, which clearly demonstrates the seriousness of the offence. The provision also allows for legal proceedings against the accused to be initiated quickly, and where there is evidence of fraud, the court will not demand that witnesses prove that the accused obtained the services through deceitful means. The provision serves to protect businesses that are in the business of providing services like food, beverages, or accommodation, from individuals who engage in fraudulent conduct by obtaining services they cannot afford. It also helps to ensure the fairness of the business environment by punishing those who engage in fraudulent activities. However, the section has been criticized by some individuals as being too broad, leading to the prosecution of some individuals who may not have intended to engage in fraudulent activities. For instance, an individual who mistakenly took someone else's bag at a hotel and then left the premises without correction might be charged with Fraud under this provision. The provision could also lead to the prosecution of individuals who may have been mistaken in their payment methods or who are sincerely unable to pay. In conclusion, Section 364(2) of the Criminal Code of Canada serves as a strong punitive deterrent against individuals who engage in fraudulent conduct to obtain free services. It helps ensure the fairness of the business environment by punishing those who engage in fraudulent activities. Nevertheless, there is a need for caution in its application, to prevent the prosecution of harmless practices.

STRATEGY

Section 364(2) of the Criminal Code of Canada specifically deals with fraud related to obtaining food, beverage, or accommodation without payment. This section can be challenging to deal with because it involves complex legal issues and sometimes requires a careful balance between defending the accused's rights and battling the allegations made against them. Therefore, in light of this, it is essential to consider some strategic considerations when dealing with this section of the Criminal Code of Canada. One crucial strategic consideration is the importance of engaging an experienced criminal defence lawyer, especially one with prior knowledge in dealing with fraud cases in Canada. The criminal defence lawyer could explore the facts and evidence of the case and assess the proper way to defend the accused party. The lawyer will also investigate the allegations made against the accused and determine if there are potential grounds to dismiss the charges. The accused and the defence lawyer need to create an effective legal strategy to deal with the accusations against them. This strategy should consist of factual and legal arguments, primarily based on the accused's potential defences. For instance, if the accused received the food, beverage, or accommodation under an agreement that they will pay later, then the accused could argue that there was no intention to commit fraud at the time. In such a situation, the accused could present evidence of a previous transaction or an agreement to prove their argument. Another possible defence strategy could be to question the Crown's evidence. The accused's defence lawyer can argue the admissibility of the evidence and challenge their authenticity. In addition, the defence could argue that the evidence was obtained through an unlawful search or seizure, rendering it inadmissible in court. The accused and their lawyer should consider any plea bargaining opportunities that may be available. In some situations, the accused may wish to plead guilty to a reduced charge to avoid the more severe repercussions of a severe fraud finding. If possible, the accused can enter into a plea negotiation with the prosecutor to reduce the charges and negotiate a reduced sentence. It is essential to seek guidance from a criminal defence lawyer who can provide expert counsel and ensure the accused's rights are not compromised during plea negotiation. In conclusion, when dealing with section 364(2) of the Criminal Code of Canada, it is necessary to engage an experienced criminal defence lawyer and establish a well-organised legal strategy. The defence strategy should focus on the accused's potential defences and challenge the admissibility of the evidence against them. Additionally, the accused should weigh up any plea bargaining opportunities that might be available to reduce the charges or minimise the sentences. By adopting these strategic considerations, the accused will be better equipped to effectively deal with the fraud allegations.