Paternity fraud: Is it or should it be a criminal offence under the Criminal Code of Canada? You be the judge.
Canadian theft and fraud laws are built on the simple notion that exploitive dishonesty should be forbidden. Starting from the premise that honesty and dishonesty are such basic notions that everybody understands them, criminal law should clearly prohibit acts commonly considered dishonest to underline this understanding.
A person commits fraud who dishonestly by
- unfair nondisclosure;
- unfair exploitation induces any person or the public to part with any property or to suffer a financial loss.
This covers dishonest appropriation by deceit as in cases where the owner is deceived into willingly parting with his property with the intention of permanently depriving the other of it.
While deceit means any false representation it does not include an expression of opinion not made as a statement of fact. A seller has some latitude in "puffing" his goods, but he is not authorized to misrepresent them or to assign to them benefits they do not possess. Statements made for the purpose of deceiving prospective purchasers cannot properly be characterized as mere puffing.
Unfair nondisclosure is where a duty to disclose arises from
- a special relationship entitling the victim to rely on the accused or
- conduct by the accused creating a false impression in the victim's mind or
- circumstances where nondisclosure would create a false impression in the mind of any reasonable person.
Unfair exploitation means exploitation
- of another's mental deficiency
- of another's mistake intentionally or recklessly induced by the accused or
- another's mistake induced by the unlawful conduct of a third party acting with the accused.
341. Every one who, for a fraudulent purpose, takes, obtains, removes or conceals anything is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Concealing a child from the biodad? or is the crime "parental abduction?"
361. (1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.
362. (1) Every one commits an offence who (a) by a false pretence ... obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person; (b) obtains credit by a false pretence or by fraud; (c) knowingly makes ... a false statement in writing ... with respect to the financial condition or means or ability to pay ... (i) the delivery of personal property, (ii) the payment of money, (iii) the making of a loan, ... or credit ... (vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or (d) knowing that a false statement in writing has been made ...
(2) Every one who commits an offence under paragraph (1)(a)
(a) ... liable to a term of imprisonment not exceeding ten years, where the property obtained is a testamentary instrument or the value of what is obtained exceeds five thousand dollars; or (b) is guilty (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on summary conviction, where the value of what is obtained does not exceed five thousand dollars.
(3) ... under paragraph (1)(b), (c) or (d) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.