Administering a Noxious Substance (Offence)
|Administering a Noxious Substance|
|s. 245 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-Charge, or Judge (varies on charge)|
|Maximum||2 years incarceration (annoy), 14 years incarceration (harm)|
Offences relating to administering a noxious substance are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
Section 245 describes two offences. The first being where a noxious substances is administered with the intent to endanger life or cause bodily harm (s. 245(a)). The second where a noxious substances is administered with the intent to aggrieve or annoy (s. 245(b)). The differentiating feature is the purpose for which the substance is administered.
|Crown Election|| Defence Election|
|s. 245(a) and (b) [administering a noxious substance, all forms]||Indictable Offence(s)||N/A||Yes|
When charged under s. 245(b), the accused cannot be given an attendance notice or a summons without arrest, nor can he be released by an arresting officer. He can be released by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.
When charged under s. 245(a), the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
Offences under s. 245(a) are "designated" offences under s. 752 for the purpose of dangerous offender applications.
Offences under s. 245 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Administering noxious thing
245. Every one who administers or causes to be administered to any person or causes any person to take poison or any other destructive or noxious thing is guilty of an indictable offence and liable
- (a) to imprisonment for a term not exceeding fourteen years, if he intends thereby to endanger the life of or to cause bodily harm to that person; or
- (b) to imprisonment for a term not exceeding two years, if he intends thereby to aggrieve or annoy that person.
R.S., c. C-34, s. 229.
Proof of the Offence
Proving Administering a Noxious Substance under s. 245 should include:
Interpretation of the Offence
To "administer" something does not require that it be taken internally.
"Bodily Harm" refers to its ordinary meaning. It can include "any hurt or injury calculated to interfere with the health and comfort" of the victim.
What constitutes "noxious" will depend on the factual context. It will be noxious if the thing, "in the light of all of the circumstances attendant upon its administration, it is capable of effecting, or in the normal course of events will effect, a consequence" that is enumerated in s. 245. Factors include "the inherent characteristics of the substance, the quantity administered and the manner in which it is administered".
R v Clark, 2008 ABCA 271 (CanLII) at para 14
R v Burkholder, 1977 ALTASCAD 8 (CanLII)
- Burkholder, ibid.
- Burkholder, ibid.
- Burkholder, ibid. at para 32
- Burkholder, ibid.
Participation of Third Parties
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
|s. 245(a) [administering noxious thing, endanger life or cause bodily harm]||N/A||14 years custody|
|s. 245(b) [administering noxious thing, annoy]||N/A||2 years custody|
Offences under s. 245(a) and (b) are straight indictable. The maximum penalty is 14 years incarceration under s. 245(a) and 2 years incarceration under s. 245(b).
These offences have no mandatory minimum penalties.
s. 718.3, 787
| Custody and
| Custody and
| Conditional |
If convicted under s. 245(a) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".
Offences under 245(a), that occur between November 30, 2007 and November 19, 2012, are not eligible for a conditional sentence as they are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person". It will also not be available if the offence was committed in relation to a criminal organization or terrorism offence committed on Nov 30, 2007 or afterwards.
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
|DNA Orders||s. 245(a)||
|Weapons Prohibition Orders||s. 245(a) or (b)||
|Delayed Parole Order||s. 245||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).|
General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|
Pre-Trial and Trial Issues