INTRODUCTION AND BRIEF DESCRIPTION
Section 362(5) of the Criminal Code of Canada expands the definition of a cheque to include a bill of exchange drawn on any institution that regularly honours bills of exchange drawn on it by depositors.
SECTION WORDING
362(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.
EXPLANATION
Section 362(5) of the Criminal Code of Canada is a provision that helps to define the term "cheque" in criminal law. This section expands the definition of a cheque beyond its ordinary meaning and includes a bill of exchange drawn on any institution that makes it a business practice to honour bills of exchange. This means that if an individual writes a bill of exchange on a particular financial institution, such as a bank, and that institution has a practice of honouring those bills of exchange from their depositors, then that bill of exchange is considered a "cheque" under the Criminal Code. The significance of this provision is that it helps to establish the legal parameters for the use of cheques in the Canadian criminal justice system. By defining what falls under the term "cheque," this provision ensures that individuals who engage in illegal activities involving cheques, such as fraud or forgery, can be prosecuted under the appropriate criminal statutes. Additionally, it provides protection for individuals who use bills of exchange as a form of payment, as it establishes the legal validity of these instruments. In essence, Section 362(5) of the Criminal Code of Canada is an important provision that helps to clarify the legal meanings of financial instruments in the context of criminal law. It provides a level of certainty and consistency for individuals who use cheques and bills of exchange in their financial transactions, and helps to ensure that those who engage in criminal activity involving these instruments are held accountable for their actions.
COMMENTARY
Section 362(5) is an important provision in the Criminal Code of Canada that defines the term cheque" for the purposes of criminal law. The provision extends the definition beyond its traditional meaning to include other forms of negotiable instruments, such as bills of exchange, that are drawn on institutions that have a practice of honouring them. The purpose of the provision is to ensure that the criminal law encompasses a broad range of financial transactions that involve the use of negotiable instruments. The inclusion of bills of exchange within the definition of cheque" is significant, as it reflects the evolving nature of the financial industry and the increasing use of non-traditional payment methods. Bills of exchange are commonly used in international trade and commerce, and are a valuable tool for facilitating cross-border transactions. By including bills of exchange within the definition of cheque", the Criminal Code acknowledges their importance in modern business practices and provides legal certainty for those who use them. The provision also recognizes the role of financial institutions in the payment system, particularly those that have a practice of honouring certain types of negotiable instruments. By extending the definition of cheque" to include bills of exchange drawn on such institutions, the Criminal Code recognizes their importance and ensures that they have legal standing in criminal proceedings. This is important for ensuring that businesses can rely on these institutions to facilitate their financial transactions, and that they are protected by the criminal law in the event of fraud or other criminal activity. Overall, section 362(5) is an important provision in the Criminal Code that reflects the changing nature of the financial industry and the growing use of negotiable instruments in business transactions. By providing a broad definition of cheque" that includes bills of exchange drawn on institutions that have a practice of honouring them, the Criminal Code provides legal certainty for businesses and financial institutions and ensures that the criminal law can be used to protect them in the event of fraud or other criminal activity.
STRATEGY
Section 362(5) of the Criminal Code of Canada is a significant provision that carries severe legal consequences for those found guilty of committing offences under it. This section relates to the offence of Fraudulent Use of Cheques, which makes it a criminal offence to make, issue, or deliver a cheque with the intent to defraud another person or organization. When dealing with this section of the Criminal Code of Canada, it is essential to understand the rules and regulations surrounding it and the potential legal implications of being charged or convicted under it. Strategic considerations when dealing with this section of the Code include the following; - Awareness of the Crime: The first strategic consideration is understanding the crime's nature and the applicable rules. As per the Criminal Code of Canada, it is illegal to make, issue, or deliver a cheque with the intention of defrauding another individual. Also, the Code defines "cheque" broadly to include any bill of exchange drawn on any institution that honours bills of exchange. - Legal Representation: The second strategic consideration is to have legal representation to protect your interests. A skilled and experienced criminal defense lawyer can inform you of your rights and be your advocate throughout the criminal proceedings. They can challenge the evidence the prosecution presents, suggest possible defense strategies, and work to mitigate potential penalties resulting from a conviction. - Disclosure: The third strategic consideration is disclosure. The prosecution is required to disclose to the defense all information or evidence that it intends to use at trial. Defense counsel must carefully review all documents and information to mount a viable defense. Any inconsistencies, omissions, or procedural breaches in disclosure can be raised before the court. - Plea Bargaining: The fourth strategic consideration is to understand the potential benefits and drawbacks of plea bargaining. That is, the accused may agree to plead guilty to a lesser charge or accept a deal to obtain a reduced sentence. A plea bargain could save time, money, and other resources and may be a pragmatic approach to obtaining a favorable outcome. - Mitigating Factors: Finally, defendants considering a guilty plea may wish to provide mitigating evidence to the court to reduce their sentence. Mitigating factors can be presented to the court to demonstrate that the accused did not intend to cause harm, or that the accused suffered mental or emotional challenges that led to the commission of the offence. Valid mitigating factors may lead to a reduction in the sentence imposed. In summary, strategic considerations when dealing with section 362(5) of the Criminal Code of Canada revolve around legal representation, disclosure, and potential mitigating factors. By understanding the applicable rules and regulations and enlisting the services of a well-informed legal professional, defendants can mount a proper defense to achieve a favorable outcome.