Forgery of or Uttering Forged Passport (s. 57(1)) Charges in Canada: Offences, Defences, Punishments

What is a forgery of or uttering forged passport charge?

Forgery of or uttering forged passport is covered under s. 57(1) of the Criminal Code found in Part II. Part II covers “Offences Against Public Order.”

A forgery of or uttering forged passport charge occurs when a person, whether they are inside out outside Canada, forges a passport or knows a passport is forged, and then uses this passport themselves or has someone else use it. This makes passport forgery a specific crime in Canada, as forgery of other documents is a criminal offence under section 366(1) of the Criminal Code. This section defines forgery as knowingly making a false document with intent to be used to prejudice a Canadian citizen, or to be allowed or exempted from doing a task. Sections 366(3) and (4) specify that one can be charged with forging a document whether or not the forged document is complete.

Examples

Some examples of a forgery or uttering forged passport charge may include the following:

• A person adds on to their existing passport;
• A person forgers an entirely new passport; and
• A person removes information from their existing passport.

Defences

The defences available for a forgery or uttering forged passport charges are entirely dependent on the facts of your case.

However, some defences to a possession of explosive without lawful excuse charge may include:

• The accused did not know the passport was forged;
• The document forged was not a passport;
• The accused did not intentionally use a forged passport; and
• Evidence was obtained via Charter violations.

Punishments

A forgery or uttering forged passport charge is an indictable offence which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding fourteen years.

Given this possibility, those charged with this offence qualify for a preliminary inquiry under s. 535 of the Criminal Code. Further, there is a  Defence election of court under s. 536(2) of the Criminal Code.

A forgery or uttering forged passport charge also entails severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s.57(1) of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a forgery or uttering forged passport charge under s.57(1) is established by proof, beyond a reasonable doubt, of the following:

• The accused forges a document OR knows the documents if forged;
• The document is a passport; and
• The accused uses or acts on the forged passport.

OR

• The accused forges a document OR knows the documents if forged;
• The document is a passport; and
• The accused causes OR attempts for another person to act on or use the passport.

The Guilty Mind (Mens Rea)

The mens rea for a forgery or uttering forged passport charge under s.57(1) includes proving, beyond a reasonable doubt, that:

• The accused intentionally uses a false passport; and
• The accused knew the passport was forged.

Defences

How to Beat a Forgery of or Uttering a Forged Passport Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a forgery of or uttering a forged passport charge.

No Knowledge

In Canadian Constitution Foundation v Attorney General of Canada, 2021 ONSC 1224, the court specifies that those committing an offence under 57(1) require both knowledge and intention to meet the mens rea requirements. Knowledge refers to the accused’s knowledge of the circumstances which they are held responsible for. If the accused had no knowledge that a passport had been forged, they would not meet the mens rea requirements for this offence.

No Intention

In Canadian Constitution Foundation v Attorney General of Canada, 2021 ONSC 1224, the court specifies that those committing an offence under 57(1) require both knowledge and intention to meet the mens rea requirements. Intention refers to the intent of the accused to act in an unlawful way. Therefore, if the accused can prove that they did not intend to commit forgery or use a forged document, the mens rea requirements for the offence will not be met.

Document Not a Passport

Section 57(1) deals specifically with passport forgery, whereas the forgery of other documents is covered under Section 366 of the Criminal Code. Forgery under section 366 is a hybrid offence and has a maximum punishment of 10 years of imprisonment, which is four years less than a charge under section 57(1). Therefore, if the accused can show that the document in question was not a passport, they may be subject to a more lenient sentence.

Any Applicable Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter. For example, the accused’s section 7 8 and 10 Charter rights were violated in R v Asipillai, 2015 ONSC 6881. This made evidence related to the forgery of documents inadmissible.

Identity

Depending on the circumstances of your case, a possible defence to a forgery of or uttering a forged passport charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who used the forged passport. This defence may be applicable in situations in which someone else has stolen your identity to commit passport fraud.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 14 years for those convicted of a forgery of or uttering a forged passport charge.

Persons found guilty of forgery of or uttering a forged passport are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or a conditional sentence order.

Frequently Asked Questions  

Can you go to jail for forgery of or uttering forged passport?

If you are found guilty of forgery of or uttering forged passport, you can go to jail. If the Crown proceeds by indictment, a forgery of or uttering forged passport charge carries a maximum sentence of no more than fourteen years in jail. There is no mandatory minimum for this offence. Therefore, there is a possibility that you can go to jail for a forgery of or uttering forged passport charge.

What is the maximum penalty for forgery of or uttering forged passport?

The maximum penalty for a possession of explosive without lawful excuse is no more than fourteen years imprisonment. This offence is indictable, meaning it is more serious than a summary conviction, in which the maximum sentence is 6 months imprisonment.

Is forgery of or uttering forged passport an indictable offence?

Forgery of or uttering forged passport is an indictable offence. This means that the Crown does not have the choice to elect this offence as a summary conviction, which has a lesser sentence. Since this offence is indictable, there is a longer term of imprisonment at risk, with the maximum sentence being no more than fourteen years imprisonment.

Published Decisions

Canadian Constitution Foundation v Attorney General of Canada, 2021 ONSC 1224

Though dealing with a different offence, this case interprets the mens rea requirements for a forgery of or uttering forged passport offence. This case specifies that both knowledge and intent are mens rea requirements for this offence, meaning that if an accused lacks one of these, the mens rea requirements of forgery of or uttering a forged passport cannot be met, and an accused would not be found guilty of this offence.

You can read the full decision here.

R v Berryman, 199 CanLII 286 (BCCA)

The accused was a passport officer who, on two occasions, accepted applicants for passports knowing that the information provided in these applications was false. As a result, the accused was charged with forgery of or uttering forged passport. At trial, the accused originally was found not guilty of forgery, as she did not physically make the passports themselves. However, on appeal it found that she still engaged in forgery by submitting the false documents, even if she did not make the passports herself.

You can read the full decision here.

R v Asipillai, 2015 ONSC 6881

The accused was waiting to pick up his father and brother at the airport. Border security had concerns regarding the validity of his brother’s permanent resident card, and asked the accused if he could obtain further documents to prove that his brother was indeed a permanent resident. The accused later provided three documents and provided them to border security. The documents appeared forged. In response, the accused was searched for items pertaining to passport forgery without being told the purpose for this search. Further, the accused was not given the opportunity to contact a lawyer. During a preliminary hearing it was found that the accused’s section 7, 8 and 10 Charter rights were violated, resulting in the evidence of the fake documents being inadmissible.

You can read the full decision here.

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