INTRODUCTION AND BRIEF DESCRIPTION
This section criminalizes the willful giving of false receipts or acknowledgments of property with the intention to mislead or defraud, as well as the acceptance, transmission, or use of such false documents.
SECTION WORDING
388 Every one who wilfully (a) with intent to mislead, injure or defraud any person, whether or not that person is known to him, gives to a person anything in writing that purports to be a receipt for or an acknowledgment of property that has been delivered to or received by him, before the property referred to in the purported receipt or acknowledgment has been delivered to or received by him, or (b) accepts, transmits or uses a purported receipt or acknowledgment to which paragraph (a) applies, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
EXPLANATION
Section 388 of the Criminal Code of Canada deals with the offence of fraudulently giving or using a receipt or acknowledgment of property. This offence involves intentionally misleading, injuring, or defrauding another person by providing them with a receipt or acknowledgment of property that has not yet been received or delivered. This section covers both the act of giving such a receipt or acknowledgment and the act of accepting, transmitting, or using one that has been fraudulently given. Such actions are considered serious, and are classified as an indictable offence, meaning that they are subject to imprisonment for up to two years upon conviction. The purpose of this section is to prevent individuals from using fraudulent receipts or acknowledgments to deceive others. This can include situations where a person provides a false receipt or acknowledgment in order to obtain payment for goods or services that were never provided, or where a person accepts a fraudulent receipt or acknowledgment as proof of ownership of property that they do not actually own. Section 388 is an important provision in the Criminal Code of Canada, as it helps to protect individuals from fraud and deception in financial transactions. It serves as a deterrent against those who would engage in fraudulent activities, and helps to maintain the trust and integrity of Canada's financial system.
COMMENTARY
Section 388 of the Criminal Code of Canada criminalizes the willful act of misleading, injuring, or defrauding a person by giving them a fake receipt or acknowledgment of property that has not yet been delivered or received. Those who accept, transmit, or use such a receipt or acknowledgment also face the same penalty as the person who created it. This section aims to prevent fraudulent activities where goods or services are promised but not delivered, or payments are made without proof of transactions. One of the significant aspects of Section 388 is that the offense is classified as an indictable offense and carries a punishment of imprisonment for not more than two years. An indictable offense is a serious offense that requires a formal indictment, which is a written formal accusation presented by a grand jury. This shows that the provision is taken seriously, and the consequences are severe if convicted. Moreover, Section 388 applies even if the victim is not known to the perpetrator. This means that anyone who is wrongfully given a fake receipt or acknowledgment can seek remedies through criminal law. This provision aims to protect people from fraudulent activities, especially in business transactions where fake receipts can be used to deceive clients or employees. Additionally, Section 388 also criminalizes the use of fake receipts and acknowledgments, not just the act of creating them. This makes it a comprehensive provision that covers all aspects of the fraudulent activity. Section 388 is an essential provision in the Criminal Code of Canada as it helps to enforce honesty and transparency in business transactions. The requirement of a receipt or acknowledgment of payment or delivery helps prevent disputes between parties. In cases where a person is given a fake receipt or acknowledgment, they can use this provision to seek justice and hold the perpetrator accountable for their wrongful actions. Moreover, Section 388 can deter people from engaging in fraudulent activities, knowing that the punishment is severe. However, there are some limitations to the effectiveness of Section 388. For instance, it can be challenging to prove that a person willfully gave a fake receipt or acknowledgment. The prosecution must show that the person had the intent to mislead, injure, or defraud another person when creating the receipt or acknowledgment. This requirement can be challenging to prove beyond a reasonable doubt in some cases. In conclusion, Section 388 of the Criminal Code of Canada is a crucial provision that aims to prevent fraudulent activities in business transactions. It criminalizes the act of giving fake receipts or acknowledgments and the use of such documents, even if the victim is not known to the perpetrator. Although it has limitations in proving intent, this provision serves as an essential tool for holding people accountable for wrongful activities and promoting transparency and honesty in business transactions.
STRATEGY
When dealing with Section 388 of the Criminal Code of Canada, there are several strategic considerations that should be taken into account. These strategies could be employed by both the defender and prosecutor. In this article, we will explore some of these strategies. 1. Proving the intent: One of the main elements of Section 388 is proving the intent. The prosecutor must prove beyond a reasonable doubt that the accused intentionally gave a false receipt in order to mislead, injure, or defraud someone. The defense, on the other hand, must try to show that their client did not have the intent to deceive anyone. Strategies that could be employed by the defense include arguing that any mistakes were unintentional or that the accused had a legitimate reason for giving the receipt. 2. Validity of the receipt: Another important element is proving the receipt's validity. In order for a conviction under Section 388, it must be proven that the accused gave or used a receipt that purports to be an acknowledgment of property that has not yet been delivered or received. The defense could argue that the receipt was valid and that the property had already been delivered or received. 3. Evidence: Both the prosecutor and the defense must gather evidence to support their case. Strategies that could be employed include interviewing witnesses, obtaining documentation, and analyzing the accused's behavior and actions. The defense may also want to use character witnesses to testify on behalf of their client's good character. 4. Plea Bargaining: Another strategy that could be employed is plea bargaining. This is where the defense and prosecutor work together to agree on a plea deal. The Defense may plead guilty to a lesser charge, and the prosecutor would drop the charges under Section 388. This strategy is often used when there is weak or limited evidence. 5. Sentencing: Once a conviction is obtained, both parties must consider the appropriate sentence. Strategies that could be employed include presenting mitigating circumstances or character evidence, arguing for a lenient sentence, or appealing the sentence. In conclusion, Section 388 of the Criminal Code of Canada is a serious offense that requires careful consideration and strategizing. Both the defense and prosecutor must gather evidence, prove intent, and consider possible plea bargaining or sentencing strategies. By employing these strategies, both parties can achieve the best possible outcome for their client.