Fraudulently Obtaining Food, Beverage or Accommodation (s. 364) Laws in Canada

What is a fraudulently obtaining food, beverage or accommodation charge?

 Fraudulently obtaining food, beverage or accommodation is covered under s. 364 of the Criminal Code found in Part IX. Part IX covers “Offences Against Rights of Property.”

A fraudulently obtaining food, beverage or accommodation charge occurs when a person obtains food, beverage, or accommodation fraudulently at any place that is in the business of providing those things. These types of businesses include but are not limited to restaurants, grocery stores, bars, and hotels.

There is a presumption that in the proceedings under this section did not pay for the food, beverage, or accommodation and made a false or fictitious show of attempting to pay, or offered a worthless cheque, draft or security in payment for the food, beverage, or accommodation. In the absence of any evidence to the contrary, that will be considered proof of fraud.

Fraudulently obtaining food, beverage or accommodation is a summary offence. All summary offences are tried in the Provincial Court with no jury and the accused does not have the liberty to have a preliminary hearing or to be tried in a higher court. As per s. 786(2) of the Criminal Code, there is a 12-month limitation period from the time of the commission of the offence for a charge to be laid.

Examples

Some examples of a fraudulently obtaining food, beverage or accommodation charge may include the following:

• Giving a worthless cheque as payment for food, beverage, or accommodation;
• Giving a false statement to an establishment selling food, beverages, or accommodations that you will pay when you intend not to pay;
• Sneaking out of an establishment selling food, beverage, or accommodations to not pay; and
• Trying to offer an alternative to payment after services have been provided and not paying.

Defences

The defences available to a fraudulently obtaining food, beverage, or accommodation charge are entirely dependent on the facts of your case.

However, some defences to a failure to attend court or appear charge may include:

• The accused did not knowingly offer a worthless form of payment;
• The accused was not attempting to abscond or surreptitiously leave the premises without paying;
• The accused was not trying to surreptitiously remove baggage from the premises without paying; and
• The accused paid for the food, beverage, or accommodation.

Punishment

A fraudulently obtaining, food, beverage or accommodation charge is a summary offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 2 years less one day and/or a fine of $5,000.00.

The length of punishment someone receives for fraudulently obtaining food, beverage, or accommodation will depend on the facts of their specific case. There are no mandatory minimum penalties for this offence. A fraudulently obtaining food, beverage, or accommodation conviction can have consequences outside the court system, including problems with employment or immigration.

Overview of the Offence 

According to s. 364 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a fraudulently obtaining food, beverage or accommodation charge under s. 364 is established by proof, beyond a reasonable doubt, of the following:

• The accused at a specified date and time, in the correct jurisdiction, obtained food, beverage, or accommodation at a place in the business of providing those things; and
• The accused obtained the food, beverage, or accommodation fraudulently.
• If an accused does any of the following without payment for food, beverage, or accommodations then they will be presumed to have fraudulently obtained that thing:
  • Made a false or fictitious show or pretence of having baggage.
  • Had any false or pretend baggage,
  • Surreptitiously removed or attempted to remove his baggage or any material part or it,
  • Absconded or surreptitiously left the premises,
  • Knowingly made a false statement to obtain credit or time for payment, or
  • Offered a worthless cheque, draft or security in payment for the food, beverage or accommodation,

R v Tremblay held that “food”, and its French equivalent, “aliments”, are not limited to solid food and include alcoholic beverages.

R v Williams stated that offering to pay a different price for food, beverage, or accommodation or offering to return to a place later to pay the bill establishes fraud. R v Williams also stated that an arrangement for later payment that was agreed to may negate the presumption of the accused’s fraudulent intent.

The Guilty Mind (Mens Rea)

The mens rea for a fraudulently obtaining food, beverage or accommodation charge unders. 364 include proving, beyond a reasonable doubt, that:

• The accused had fraudulent intent; or
• The accused obtained food, beverage, or accommodation and left knowing they would not pay.

Defences

How to Beat a Fraudulently Obtaining Food, Beverage or Accommodation 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 fraudulently obtaining food, beverage, or accommodation charge:

Factual innocence

A strong defence against a fraudulently obtaining food, beverage, or accommodation charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you had fraudulent intent, you knowingly intended not to pay for food, beverage, or accommodation, or that you did not obtain the thing you are accused of obtaining fraudulently. Then you may have a defence that you were factually innocent.

Identity

The Crown must charge the right person with a crime. Depending on the circumstances of your case, a possible defence to a fraudulently obtaining food, beverage, or accommodation charge may be to raise an identity defence. By using an identity defence, you are arguing that the accused was wrongly identified as the person who was fraudulent in obtaining food, beverage, or accommodation. With this defence, you will need to prove that the wrong person was charged.

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.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 2 years less 1 day and/or a $5,000.00 fine for those convicted of a fraudulently obtaining food, beverage, or accommodation charge.

Persons found guilty of fraudulently obtaining food, beverage, or accommodation are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or conditional sentence order. Sentencing decisions are usually based on various factors, such as how serious the accused actions were and the degree of harm they caused.

Frequently Asked Questions

Is fraudulently obtaining food, beverage or accommodation a serious offence?

Fraudulently obtaining food, beverage, or accommodation is a summary offence. Summary offences are characterized as less serious offences and carry lesser penalties or sentences. However, this does not mean that upon conviction, a summary offence won’t affect future employment or immigration status.

All summary offences are tried in the Provincial Court with no jury and the accused does not have the liberty to have a preliminary hearing or to be tried in a higher court. Furthermore, any appeals for summary offences are made to the next highest court, the Superior Court. Lastly, unlike indictable offences, for summary offences, there exists a statute of limitation. As per s. 786(2) of the Criminal Code, there is a 12-month limitation period from the time of the commission of the offence for a charge to be laid.

Can you go to jail for dining and dashing?

Dining and dashing is considered to be fraudulently obtaining food, beverage, or accommodation under s. 364 of the Criminal Code. It is possible to go to jail if you are convicted of dining and dashing. The maximum sentence upon conviction is 2 years of imprisonment less 1 day. Sentencing decisions are usually based on various factors, such as how serious the accused actions were and the degree of harm they caused.

What are examples of fraudulently obtaining food, beverage or accommodation?

Some examples of fraudulently obtaining food, beverage, or accommodation include:

• Dining and dashing
• Claiming to have left payment in the car and leaving without paying after obtaining food, beverage, or accommodations
• Paying for food, beverage, or accommodation with a worthless cheque, draft or security
• Sneaking out of a business that provides accommodations without paying
• When checking out of a business that provides accommodations, saying you will return to pay after loading your baggage, but you do actually have baggage. Then leave the business without paying

Published Decisions

R v Whitstone, 2018 SKQB 83 (CanLII)

The accused was charged with fraudulently impersonating a person with the intent to obtain groceries contrary to s. 403 of the Criminal Code and with fraudulently obtaining food contrary to s. 346(1). The accused was sentenced to 6 months of incarceration due to being on an 18-month conditional sentence order when committing the new offences.

The accused appealed their sentence due to their aboriginal status. The Judge on appeal set aside the 6-month sentence of incarceration and referred the matter back to Provincial Court for sentencing. The judge made no determination that the imposition of 6 months imprisonment was inappropriate, rather, that the accused’s aboriginal ancestry needed to be factored into the sentencing decision.

You can read the full decision here.

R v Williams, 2017 ONCJ 818 (CanLII)

The accused was charged with fraudulently obtaining beverages at a restaurant after consuming beverages and not paying for them. The accused purchased $127 worth of drinks and when given the bill, offered to pay $60 or to come back and pay on another day. The accused then left without paying. It was argued that because the accused discussed with his friend about returning to pay the bill later, this was evidence of an intention on the part of the accused to return with payment.

The above argument was rejected by the trial judge who stated that there was no evidence of any attempts to pay the bill after the evening in question. The judge also determined that the actions of the accused created a presumption of fraudulent intent which was not rebutted. Therefore, the accused was found guilty of fraudulently obtaining beverages.

You can read the full decision here.

R v Tremblay, 1987 CanLII 6907 (QCCA)

The accused ordered alcoholic beverages at the bar of a hotel and signed for the bill using the name of another person who was staying at the hotel. The other person did not give permission for the accused to use their name to sign for his drinks. The accused appealed their charge of fraudulently obtaining beverages as they claimed that alcoholic beverages are not covered under section 364 of the Criminal Code. The court held that “food”, and its French equivalent, “aliments”, are not limited to solid food and include alcoholic beverages.

You can read the full decision here.