section 362(4)

INTRODUCTION AND BRIEF DESCRIPTION

If an accused obtained something through a bounced cheque, it is presumed to have been obtained by false pretence unless they can prove they believed on reasonable grounds that the cheque would be honoured.

SECTION WORDING

362(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.

EXPLANATION

Section 362(4) of the Criminal Code of Canada deals with the crime of obtaining property by false pretenses, specifically in cases where the accused used a dishonored check to receive property. When a check is presented for payment, and there are no funds or insufficient funds in the accused's bank account to cover the amount, a presumption arises that the accused obtained the property through false pretenses. This presumption can be rebutted by the accused if they can provide evidence that they believed, on reasonable grounds, that the check would be honored if presented for payment within a reasonable time after it was issued. This section is aimed at protecting individuals and businesses from being defrauded through the use of bounced checks. If an accused person uses a dishonored check to obtain goods or services from another person or business, it is considered a false pretense because they are representing that they have the necessary funds to cover the check, when in fact they do not. This section helps to ensure that those who engage in this kind of fraudulent behavior are held responsible for their actions. It is important to note that the burden of proof in these cases falls on the accused. They must provide evidence to show that they had a reasonable belief that the check would be honored in order to avoid the presumption of false pretense. However, once the presumption is established, it can be difficult for the accused to overcome, especially if there is strong evidence that they knowingly used a bad check to obtain property. Overall, section 362(4) is an important tool for prosecutors in cases involving obtaining property by false pretenses. It helps to ensure that those who engage in this kind of fraudulent behavior are held accountable for their actions and that victims are able to seek justice and restitution for their losses.

COMMENTARY

Section 362(4) of the Criminal Code of Canada is extremely important in safeguarding the integrity of financial transactions and ensuring that individuals do not obtain goods or services by fraudulent means. This section establishes an important presumption in cases where an accused has obtained something by means of a cheque that is subsequently dishonoured due to the lack of funds or insufficient funds on deposit to their credit. In such cases, unless the accused can provide evidence that they had a reasonable belief that the cheque would be honoured, it is deemed to be obtained by false pretences. This section of the Criminal Code of Canada serves as a powerful deterrent against fraudulent activity. It ensures that individuals who seek to use cheques to obtain goods or services with no intention of providing the necessary funds to back them up are held accountable for their actions. By making it clear that such actions will be subject to criminal charges, this section helps to protect law-abiding citizens and businesses from financial harm. One of the key aspects of this section is the role of evidence in establishing guilt or innocence. The Criminal Code of Canada makes it clear that the court may only presume that the accused obtained something by false pretences if there is evidence to support such a presumption. This requirement ensures that individuals are not unfairly accused or convicted of criminal activity without sufficient evidence to support such a charge. At the same time, it highlights the importance of providing evidence to establish reasonable belief. As such, the burden of proving that the accused had a reasonable belief that the cheque would be honoured falls upon them. This places a significant onus on the accused to provide a valid explanation for why they believed the cheque would be honoured. They must be able to provide evidence to demonstrate that they acted in good faith and had no intention of defrauding anyone. In many cases, this may prove to be a difficult task, particularly if the accused has a history of issuing bad cheques or has engaged in other fraudulent activities. In conclusion, Section 362(4) of the Criminal Code of Canada plays a vital role in protecting the integrity of financial transactions and safeguarding individuals from financial harm. It serves as a powerful deterrent against fraudulent activities and establishes a presumption of false pretences in cases where an accused has obtained something by means of a dishonoured cheque. However, it also recognizes the importance of evidence in establishing guilt or innocence, and places a significant burden on the accused to provide evidence of a reasonable belief that the cheque would be honoured. As such, it serves as an important tool in maintaining the integrity of financial transactions and holding individuals accountable for their actions.

STRATEGY

Section 362(4) of the Criminal Code of Canada is a provision that establishes a presumption of fraud or false pretence when an accused person obtained something by means of a cheque that was dishonoured for lack of funds. This section is relevant in cases where an accused person issues a cheque that bounces and tries to use the item obtained by the cheque (e.g. goods, services) or to keep the money received, without paying for it. In such cases, the Crown can rely on the presumption in Section 362(4) to establish that the accused person obtained the item by false pretence, unless the accused can show that they had a reasonable belief that the cheque would be honoured. When dealing with Section 362(4), there are several strategic considerations that a lawyer for the accused person should keep in mind. First, it is important to note that the presumption of false pretence is rebuttable, but the burden is on the accused to prove, on a balance of probabilities, that they had a reasonable belief that the cheque would be honoured. Therefore, the defence must be prepared to present evidence that supports the accused's belief that the cheque would be honoured, such as the accused's prior history of financial dealings, the nature of the transaction, or any assurances or representations made by the bank or the payee. Second, it is important to be aware of the timing of the cheque and the presentation for payment, as these factors may affect the reasonableness of the accused's belief that the cheque would be honoured. For example, if the cheque was post-dated or the accused had reason to believe that there would be sufficient funds in the account by the time the cheque was presented, this may support the accused's position that they had a reasonable belief in the cheque's validity. Third, a lawyer for the accused should consider whether there are any defences available to the accused that would preclude the Crown from relying on Section 362(4). For example, if the accused can show that they did not have the intent to defraud or that they did not obtain the item by means of the cheque (e.g. if the item was received before the cheque was issued), this may defeat the Crown's case. Similarly, if the accused can show that they had a valid reason for the insufficient funds in the account (e.g. a bank error or a hold on the account), this may support the accused's position that they did not act with fraudulent intent. Fourth, a lawyer for the accused should consider whether there are any mitigating factors or circumstances that may be relevant to sentencing, if the accused is found guilty. For example, if the accused has no prior criminal record, has made efforts to repay the amount owed, or has taken steps to address their financial situation or addiction, these factors may be relevant to the imposition of a less severe sentence. Based on these considerations, there are several strategies that a lawyer for the accused may employ in defence against a charge under Section 362(4). These may include: 1. Obtaining evidence of the accused's financial history or prior dealings with the payee or the bank, to support the accused's belief that the cheque would be honoured. 2. Arguing that the accused had a valid reason for the insufficient funds in the account, such as a bank error or a hold on the account. 3. Seeking to challenge the Crown's evidence of the accused's intent to defraud or to obtain the item by means of the bounced cheque, by showing that the accused had a legitimate reason for issuing the cheque. 4. Attempting to negotiate a plea agreement with the Crown that would result in a lesser charge or sentence, based on mitigating factors or circumstances. Ultimately, the strategic considerations and strategies employed in defence against a charge under Section 362(4) will depend on the facts of each case and the evidence available. It is important for the defence to carefully review the evidence, investigate the circumstances surrounding the bounced cheque, and challenge the Crown's case where possible, to achieve the best possible outcome for the accused.