Principes relatifs à l'article 347 Ccr (Taux d’intérêt criminel)

R. v. Marsy, 2006 ABPC 371 (CanLII)

[37] Dealing first with the issues related to the criminal rate of interest, I take the cases to stand for the following propositions:

1. Sec. 347 creates two separate offences. Subsection 1(a) makes it illegal to enter into an agreement or arrangement to receive interest at a criminal rate, while subsection 1(b) makes it illegal to receive a payment or partial payment of interest at a criminal rate. (Garland v. Consumers Gas Co.)

2. Sec. 347(1)(a) should be narrowly construed. Whether an agreement or arrangement for credit violates subsection 1(a) is determined as of the time the transaction is entered into. If the agreement or arrangement permits the payment of interest at a criminal rate but does not require it, there is no violation of 347(1)(a), although 347(1)(b) might be engaged. (Degelder Construction Co. v. Dancorp Developments Ltd.)

3. Sec. 347(1)(b) should be broadly construed. Whether an interest payment violates the subsection is determined as of the time the payment is received. For the purposes of sec. 347(1)(b), the effective annual rate of interest from a payment is calculated over the period during which credit is actually outstanding. (Degelder Construction Co. v. Dancorp Developments Ltd.)

4. The definition of “interest” is extremely comprehensive, encompassing many types of payments which would not be considered interest proper at common law or under general accounting principles. In order to constitute “interest” under sec. 347, a charge, whatever its form, must be “paid or payable for the advancing of credit under an agreement or arrangement.” (Garland v. Consumers Gas Co.)

5. The mens rea is found in the intentional entering into an agreement providing for the receipt of a criminal rate of interest. The onus is on the Crown to prove that intent. Whether or not an accused knew that the charging of a rate of interest is irrelevant. (R. v. McRobb)

6. The Supreme Court of Canada stated that “the broad language of sec. 347 was presumably intended ... to prevent creditors from avoiding the statutes simply by manipulating the form of payment exacted from their debtors – a practice which has historically undermined the effectiveness of anti-usury laws applying a strict definition of interest.” Further, “it is the substance, not really the form, of a change or expense which determines whether it is governed by sec. 347.” (Garland v. Consumers Gas Co.)

7. Loan agreements and subsequent extension agreements providing a lender with a rate of interest in excess of 60% are illegal. (Terracan Capital Corp. v. Pine Projects Ltd.)