Flight from a Peace Officer (Repealed Offence)
|Flight from a Peace Officer|
|s. 249.1 of the Crim. Code|
|Election / Plea|
|Crown Election||Hybrid / Indictable|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-Charge, or Judge (varies on charge)|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|Maximum||5, 14 years incarceration or Life|
Offences relating to flight from a peace officer are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election||Defence Election
|s. 249.1(2) [flight from police without bodily harm]||Hybrid Offence(s)||Yes||(* only if Crown proceeds by Indictment)||(under 14 years max)|
|s. 249.1(3) [flight from police with bodily harm or death]||Indictable Offence(s)||N/A||(14 years max)|
Offences under s. 249.1(2) [flight from police without bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2). Offences under s. 249.1(3) [flight from police with bodily harm or death] are straight indictable. There is a Defence election of Court under s. 536(2).
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 249.1(2) [flight from police without bodily harm]|
|s. 249.1(3) [flight from police with bodily harm or death]|||||||
When charged under s. 249.1(3) [flight from police with bodily harm or death] , the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.
When charged under s. 249.1(2) [flight from police without bodily harm] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He 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. 249.1 [flight from police] 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 criminal or regulatory prosecutions, 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
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 249.1 [flight from police]|
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
- There is no release by police for straight indictable offences
Proof of the Offence
Proving flight from a peace officer under s. 249.1(1) should include:
Interpretation of the Offence
The passenger can be liable along with the driver where the passenger had “the exercise of a directing authority”. 
A “reasonable excuse” for flee police provides a justification for the offence and does not negate any essential element of the offence itself.  For example, a desire to think things through goes to motive and still results in a conviction.
Warrantless entry into a dwelling was not permitted when a possibly mentally ill individual reports people breaking into his house.
- R v Slessor, 1969 CanLII 248 (ON CA),  O.J. No. 1514 (C.A.), per Gale CJ
- R v Armstrong, 2011 ONCA 709 (CanLII), per Watt JA, at para 9
R v Kulchisky, 2007 ABCA 110 (CanLII), per Berger JA, at para 10
R v Fonseca, 2012 BCPC 13 (CanLII), per Dhillon J, at para 81
See also Reasonable Excuse
- R v Larson, 2011 BCCA 454 (CanLII), per Groberman JA
Section 2 defines "bodily harm", "motor vehicle", "peace officer".
Participation of Third Parties
- 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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. 249.1 [flight from police]|
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
- Maximum Penalties
|s. 249.1 [without bodily harm]||Summary Conviction||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|s. 249.1 [without bodily harm]||Indictable Conviction||5 years incarceration|
|s. 249.1 [with bodily harm]||N/A||14 years incarceration|
|s. 249.1 [with death]||N/A||life incarceration|
Offences under s. 249.1 [without bodily harm] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .
Offences under s. 249.1 [with bodily harm or death] are straight indictable. The maximum penalty is 14 years incarceration [bodily harm] or life incarceration [death].
- Minimum Penalties
Offences under s. 249.1 have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
without bodily harm
with bodily harm or death
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).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
This offence will often attract a sentence that will be consecutive to other convictions that arise out of the same interaction.
- Offence-specific Factors
- whether there were pedestrians or other vehicles on the road
- condition of the road at the time
- whether blood alcohol level above 0.16
- see s. 255.1
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 249.1(2), (4)||
|Driving Prohibition Orders (s. 259)|
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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.|
- Related Offences