Assault Peace Officer (Offence)

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Assault Peace Officer
s. 270, 270.01 and 270.02 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 6 or 18 months incarceration
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5, 10 or 14 years incarceration
Reference
Offence Elements
Sentence Digests


Overview

The offences of assault peace officer and related crimes are found in Part VIII of the Criminal Code relating to "Offences Against the Person and Reputation".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 270(a) [assault peace officer] or [assault person aiding a peace officer]
s. 270(b) [assault to prevent arrest]
s. 270(c)(i), (ii) [assault to person executing duty]
s. 270.01 [assault peace officer with a weapon]
s. 270.01 [assault peace officer causing bodily harm]
Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment
s. 270.02 [aggravated assault peace officer] Indictable Offence(s) N/A Yes

Offences under s. 270 and 270.01 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 270.02 are straight indictable. There is a Defence election of Court under s. 536(2).

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release
When charged under s. 270.01, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he 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. He can also be released by a justice under s. 515.

When charged under s. 270.02, 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)).

A peace officer who charges a person under s. 270, 207.1 or 270.02 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
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.

Offence Designations
Offences under s. 270.01 and 270.02 are designated offences eligible for wiretap under s. 183.

Offences under s. 270(1)(a) are "designated" offences under s. 752 for the purpose of dangerous offender applications.

Offences under s. 270, 270.01 and 270.02 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.

Offence Wording

Assaulting a peace officer
270. (1) Every one commits an offence who

(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
(c) assaults a person
(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
(ii) with intent to rescue anything taken under lawful process, distress or seizure.

Punishment
(2) Every one who commits an offence under subsection (1) is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.

R.S., c. C-34, s. 246; 1972, c. 13, s. 22; 1980-81-82-83, c. 125, s. 19.


CCC

Assaulting peace officer with weapon or causing bodily harm
270.01 (1) Everyone commits an offence who, in committing an assault referred to in section 270,

(a) carries, uses or threatens to use a weapon or an imitation of one; or
(b) causes bodily harm to the complainant.

Punishment
(2) Everyone who commits an offence under subsection (1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months.

2009, c. 22, s. 9.


CCC

Aggravated assault of peace officer
270.02 Everyone who, in committing an assault referred to in section 270, wounds, maims, disfigures or endangers the life of the complainant is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

2009, c. 22, s. 9.


CCC

Proof of the Offence

Proving assault peace officer under s. 270(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaulted the victim
  5. the victim was a "peace officer" or "public officer";
  6. the culprit knew the victim was a peace officer or public officer;
  7. the victim was "engaged in the execution of his duty"

Proving assault person aiding a peace officer under s. 270(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaulted the victim
  5. the victim was "acting in aid of" a "peace officer" or "public officer";
  6. the culprit knew the victim was aiding a peace officer or public officer;
  7. the officer was "engaged in the execution of his duty".

Proving assault to prevent arrest under s. 270(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaulted the victim;
  5. the culprit intended to "prevent the lawful arrest or detention of himself or another person"

Proving assault person executing duties under s. 270(c)(i) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaulted the victim; and
  5. the victim was "engaged in the execution of a process against lands or goods or in making a lawful distress or seizure".

Proving assault person attempting to rescue under s. 270(c)(ii) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaulted the victim; and
  5. the culprit intended to "rescue anything taken under lawful process, distress or seizure".

Proving Assaulting peace officer with weapon or causing bodily harm under s. 270.01 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the requisite elements of assault peace officer offence under s. 270
  5. either:
    1. at the time of the assault, the culprit "carries, uses or threatens to use" a thing; and
    2. the thing is "a weapon or an imitation of one"; or
    3. causes bodily harm to the victim.

Proving aggravated assault of peace officer under s. 270.02 should include:

  1. the requisite elements of assault peace officer offence under s. 270
  2. the assault results in wounding, maiming, disfigurement or endangerment of life of the victim.
  3. the culprit caused the resultant injury.

Interpretation of the Offence

Much of the same requirements and principles from the underlying offence of assault applies here.

Cross Referenced Terms
Section 2 defines "public officer" and "peace officer".

Execution of his Duty

Other offences that require the lawful execution of an officer's duties include Obstruction of a Peace Officer (129).

Lawful Arrest or Detention

Evidence

Many jurisdiction require that police officers file a "use of force" report with the supervisor every time an officer uses force upon a suspect.[1]

  1. e.g. required under the Ontario Provincial Police Services Act

Kienapple

See also: Kienapple Principle

A conviction for obstruction of justice and assault peace officer arising from the same event will violate the Kienapple rule.[1]

  1. R v Wilhelm, 2014 ONSC 1637 (CanLII) at para 100

Common Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 270(a) [assault peace officer] or [assault person aiding a peace officer]
s. 270(b) [assault to prevent arrest]
s. 270(c)(i), (ii) [assault to person executing duty]
Summary Election six months jail and/or a $5,000 fine
s. 270(a) [assault peace officer] or [assault person aiding a peace officer]
s. 270(b) [assault to prevent arrest]
s. 270(c)(i), (ii) [assault to person executing duty]
Indictable Election 5 years custody
s. 270.01 [assault peace officer with a weapon]
s. 270.01 [assault peace officer causing bodily harm]
Summary Election 18 months custody
s. 270.01 [assault peace officer with a weapon]
s. 270.01 [assault peace officer causing bodily harm]
Indictable Election 10 years custody
s. 270.02 [aggravated assault peace officer] N/A 14 years custody

Offences under s. 270 and 270.01 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration under s. 270 and 10 years incarceration under s. 270.01. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine under s. 270 and 18 months incarceration under s. 270.01.

Offences under s. 270.02 are straight indictable. The maximum penalty is 14 years incarceration.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 270, 270.01 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 270.02 N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 270 and 270.01, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 270.02 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 s. 270.02 are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

Sentences to be served consecutively
270.03 A sentence imposed on a person for an offence under subsection 270(1) or 270.01(1) or section 270.02 committed against a law enforcement officer, as defined in subsection 445.01(4), shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events.
2015, c. 34, s. 2.


CCC

Principles

Objectives — offence against peace officer or other justice system participant
718.02 When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

2009, c. 22, s. 18.


CCC

All offences involving assaults of peace officers is serious and so court must emphasize denunciation.[1]

Spitting has been considered a serious offence. It is repulsive and disgusting[2].

Spitting can be harmful presents a risk of transferring diseases. This could result in permanent infections or at a minimum weigh on the officer's mind for some time.[3]

  1. R v Beaudin, 2012 ONCA 615 (CanLII) at para 1
  2. R v Solomon, [2001] OJ No 5733 (CJ) at 2
  3. R v Solomon, at para 2
    R v Joseph [2001] OJ No 5726 at para 3
    R v Charlette, 2010 SKCA 78 (CanLII) at para 9 - offender spat twice in officer's face and once on clothing ("The possibility of contracting a disease is real, and the fear of developing a disease preys on the victim’s mind for some time to come.") R v Ryan, [2001] O.J. No. 5069 (C.J.) at 4
    R v Ratt, 2012 SKPC 154 (CanLII) - herpes can spread by spitting including in the eye

Factors

Primary Factors

  • spitting: degree of risk of communicating diseases

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 270, 270.01 or 270.02
Weapons Prohibition Orders s. 270, 270.01 or 270.02
  • Where there is a conviction under s. 270 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
  • On conviction under s. 270.01 where "violence against a person was used, threatened or attempted", and was prosecuted by indictment, punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a).
  • On conviction under s. 270.02 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
Delayed Parole Order s. 270, 270.01 or 270.02
  • Periods of imprisonment of 2 years or more for convictions under s. 270, 270.01 or 270.02 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
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 Conviction Description
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.

See Also

Related Offences