Full Text:Volume 1.1C

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See also: Full Text:Volume 1.1

OFFENCES OF VIOLENCE

Failing to Provide the Necessities of Life


Failing to Provide the Necessities of Life
s. 215 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 18 months incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to failing to provide the necessities of life are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 215 [failing to provide the necessities of life] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 215 [failing to provide the necessities of life] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 215 [failing to provide the necessities of life] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 215 [failing to provide the necessities of life] , 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 215 [failing to provide the necessities of life] 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 215 [failing to provide the necessities of life] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Duty of persons to provide necessaries

215 (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.
Offence

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1) , fails without lawful excuse to perform that duty, if

(a) with respect to a duty imposed by paragraph (1)(a) [duty of persons to provide necessaries – child under 16] or (b) [duty of persons to provide necessaries – partners and spouses],
(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or
(b) with respect to a duty imposed by paragraph (1)(c) [duty of persons to provide necessaries – disabled], the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.
Punishment

(3) Every one who commits an offence under subsection (2) [failing to provide necessities of life – offence]

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

(4) ...

R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95; 2005, c. 32, s. 11; 2018, c. 29, s. 18; 2019, c. 25, s. 74.
[annotation(s) added]

CCC


Note up: 215(1), (2) and (3)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving failure to provide necessities of life (parental) under s. 215(1)(a) should include: [1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is a "parent", "foster parent", "guardian" or "head of a family" in relation to another person;
  5. the other person is a "child" under the age of 16 years, creating a "duty of care";
  6. the culprit "fails...to perform that duty" of providing "necessities of life":
    1. by permitting the other person to be "destitute or necessitous circumstances" or
    2. that "endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently", (215(2)(a))
  7. there is no lawful excuse for doing so

Proving failure to provide necessities of life (spousal) under s. 215(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is a "spouse" or "common-law partner" to another person, creating a "duty of care"
  5. the culprit "fails...to perform that duty" of providing "necessities of life":
    1. by permitting the other person to be "destitute or necessitous circumstances" or
    2. that "endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently", (215(2)(a))
  6. there is no lawful excuse for doing so

Proving failure to provide necessities of life (disability) under s. 215(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit has another person "under his charge";
  5. the other person "is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and ... is unable to provide himself with necessaries of life", creating a duty of care;
  6. the culprit "fails...to perform that duty" of providing "necessities of life":
    1. that "endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently." (215(2)(b))
  7. there is no lawful excuse for doing so
  1. R v JAR, 2012 BCPC 195 (CanLII), per Giardini J, at para 87

Interpretation of the Offence

Purpose

The purpose of s. 215 is to establish a uniform minimum level of care to be provided to certain designated persons, a societal standard rather than a personal standard.[1]

Existence of Duty

Factors to consider whether the there is a duty, includes the severity of the injury and the knowledge that it occurred.[2]

Actus Reus and Mens Rea

Where the duty is found, the crown must prove:[3]

  1. the culprit acts or omissions which led to the failure to provide necessaries of life were a marked departure from the conduct of a reasonably prudent person in similar circumstances, and
  2. it was objectively foreseeable that the failure to provide necessaries would lead to a risk of danger to the life or permanent endangerment to the health of the person to whom the duty is owed.

The accused's conduct is to be considered on an objective standard and so the individual characteristics and experiences of the accused are not relevant.[4]

"Endangers"

"Endangers" refers to exposing someone to danger, harm or risk but does not connote actual injury or damage.[5]

The Crown does not need to prove that the accused knew the risk of danger or that they intended to expose the victim to any risk of danger.[6]

"necessaries of life"

"Necessaries of life" are necessaries that "tend to preserve life and not necessaries in their ordinary legal sense".[7] This includes protection from harm.[8]

The judge must consider "the serverity of the injury and the knowledge that it occurred".[9]

Failure to seek medical attention can be a failure to provide necessaries of life.[10]

Constitutionality

The phrase "proof of which lies upon him" violates s. 11(d) and so those words are to be struck out.[11]

  1. R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122, per Lamer CJ
  2. R v Alexander, 2011 ONSC 980 (CanLII), per Molloy J cited in R v Turley, 2012 BCSC 397 (CanLII), per Stromberg-Stein J, at para 146
  3. Turley, supra
  4. R v Lovett, 2017 ABQB 46 (CanLII), per Eidsvik J, at para 11
  5. also see R v Letourneau, 2007 CanLII 345 (ON SC), per Boyko J, at paras 94 and 95
  6. Naglik, supra, at para 54
    Lovett, supra, at para 11
  7. R v JAR, 2012 BCPC 195 (CanLII), per Giardini J, at para 82 R v Brooks (1902), 5 CCC 372 (BCCA), 1902 CanLII 90 (BC SC), per Drake J
  8. R v JF, 2007 ONCA 500 (CanLII), 222 CCC (3d) 474, per MacFarland JA, at paras 50 to 51, aff’d R v JF 2008 SCC 60 (CanLII), per Fish J (6:1)
  9. Turley, supra, at para 146
    JAR, supra, at para 82
  10. R v Pertab, 2004 CanLII 47791 (ON SC), per Hill J, at para 29
  11. R v Scott, 1996 CanLII 7083 (SK QB), per Blacklock Linn J
    R v Curtis, 1998 CanLII 1999 (ON CA), per Goudge JA

Presumptions

215
...

Presumptions

(4) For the purpose of proceedings under this section,

(a) [Repealed, 2000, c. 12, s. 93]
(b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proof that the child is his child;
(c) evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to provide necessaries of life for the child; and
(d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence.

R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95; 2005, c. 32, s. 11; 2018, c. 29, s. 18.

CCC


Note up: 215(4)

Misc Definitions

"Child" is no longer defined in Part VIII.[1]

Section 214 defines "guardian" as including "a person who has in law or in fact the custody or control of a child".

The terms "abandon" and "expose" are defined in s. 214 and cover all of Part VIII. The terms "include":

(a) "a wilful omission to take charge of a child by a person who is under a legal duty to do so", and
(b) "dealing with a child in a manner that is likely to leave that child exposed to risk without protection;"

Section 2 defines:

  • "Mental disorder"
  • "common-law partner"
  1. Section 214 defining "child" was repealed in 2002

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 215 [failing to provide the necessities of life]), but are not serious personal injury offences, s. 606(4.2) 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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 215 [failing to provide the necessities of life] summary election 18 months incarceration
s. 215 [failing to provide the necessities of life] indictable election 5 years incarceration

Offences under s. 215 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months 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. 215 [failing to provide the necessities of life] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

For offences under s. 215 [failing to provide the necessities of life], 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.

Principles

Sentencing must emphasize denunciation and deterrence.[1]

Factors

Factors include:[1]

  1. use of weapon or confinement (Nickel)
  2. use of potentially harmful substances such as drugs or alcohol (Nickel)
  3. involvement of third parties (Nickel)
  4. multiplicity of victims or offences over time (Nickel)
  1. R v Nickel, 2012 ABCA 158 (CanLII), per Watson JA, at para 36

Range

see also: Failing to Provide the Necessities of Life (Sentencing Cases)

The range for a first time offender where the offence concerns the neglect of the elderly will often be between 4 and 8 months.[1]

  1. R v Peterson, 2005 CanLII 37972 (ON CA), per Weiler JA, at para 59
    cf. R v LS, 2012 ONCA 203 (CanLII), per curiam, at para 1

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 215 [failing to provide the necessities of life]
General Sentencing Orders
Order Conviction Description
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 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(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.

Record Suspensions and Pardons

Convictions under s. 215 [failing to provide the necessities of life] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

215
[omitted (1) and (2)]

Punishment

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

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

[omitted (4)]
R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95.

CCC

See Also

Related Offences
References

Abandoning Child


Abandoning Child
s. 218 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 18 months incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

The offence of abandoning a child is a hybrid offence for abandoning or exposing a child of no more than nine years old such that there is a likelihood of permanent injury or endangerment of life. It is found in Part VIII of the Criminal Code relating to "Offences Against the Person and Reputation". This offence includes situations where parents will leave a child somewhere temporarily such as in a car or home unattended or where a mother cannot or does not want to continue care of a child and leaves the child to be found by someone else.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 218 [abandoning child] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 218 [abandoning child] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 218 [abandoning child] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 218 [abandoning child] , 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 218 [abandoning child] 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 218 [abandoning child] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Abandoning child

218 Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured,

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

R.S., 1985, c. C-46, s. 218; 2005, c. 32, s. 12; 2019, c. 25, s. 75.

CCC


Note up: 218

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
218 abandoning a child "did [abandon or expose] [alleged victim's name], a child under the age of 10 years, so that the [life or health] of [alleged victim's name] was [endangered, likely to be endangered, permanently injured, or likely to be permanently injured], to wit: [description of particulars], contrary to section 218 of the Criminal Code."[1]

Proof of the Offence

Proving Abandoning a Child under s. 218 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit abandons or exposes a child;
  5. the culprit intended to abandon or expose the child;
  6. the child is under the age of 10;
  7. the culprit was aware of the child's age;
  8. the act causes the child's life likely to be endangered or health likely to be permanently injured; and
  9. the endangerment to the child was reasonably foreseeable to the culprit.

Interpretation of the Offence

Actus Reus

A 14-month-old child left in a vehicle for 3 hours during negative 14-degree temperatures would make out the offence.[1]

Mens Rea

The offence requires subjective fault.[2] The offence criminalizes risk and so may require knowledge of that risk.[3]

Age of Victim

Section 30 of the Interpretation Act determines age for this section.[4] The term "child" is not defined within the Code.[5] Section 658 provides methods of proof.[6]

Spousal Evidence

Section 4(3) of the Evidence Act removes spousal incompetence.

Endangerment

The Crown must prove more than the "potential" for endangerment. It must be actual endangerment.[7]

  1. R v Holzer, 1988 CanLII 3795 (AB QB), per MacCallum J
  2. R v ADH, 2013 SCC 28 (CanLII), per Cromwell J, at para 75
  3. ADH, ibid., at para 53
  4. See s. 30 of the IA: "A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary, of the same number, of the day of that person’s birth."
  5. See s. 214 which had the definition until repealed in 2002
  6. See Jurisdiction of the Courts#Young Persons
  7. R v Freitas (1999) 132 CCC (3d) 333 (MBCA), 1999 CanLII 14071 (MB CA), per Twaddle JA
    R v JR, [2000] OJ No 6073 (OntHCJ)(*no CanLII links)

"abandons or exposes"

Definitions

214 In this Part [Pt. VIII – Offences Against the Person and Reputation (s. 214 to 320.1)],
Template:Elipsis "abandon" or "expose" includes

(a) a wilful omission to take charge of a child by a person who is under a legal duty to do so, and
(b) dealing with a child in a manner that is likely to leave that child exposed to risk without protection;

...
R.S., 1985, c. C-46, s. 214; R.S., 1985, c. 27 (1st Supp.), s. 33, c. 32 (4th Supp.), s. 56; 2002, c. 13, s. 9.
[annotation(s) added]

CCC


Note up: 214

To "abandon" is to "leave [the child] to his fate".[1]

Simply leaving a child with someone contracted to take care of a child is not abandonment. There must be a "wilful omission to take charge of the child, or some mode of dealing with it calculated to leave it without proper care".[2] An act of giving up all claim to a child will also not be abandonment.[3]

  1. R v Reedy, (1981) 58 CCC (2d) 571, 1981 CanLII 3130, per Boyd J
  2. R v Davis (1909), 18 O.L.R. 387 (*no CanLII links) cited by Reedy and R v Bokane-Haraszt, 2007 ONCJ 228 (CanLII), per Bourque J
  3. Davis, ibid.

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 218 [abandoning child] OK Symbol.png (on indictment, victim must make request) X Mark Symbol.png OK Symbol.png

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 218), but are not serious personal injury offences, s. 606(4.2) 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

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 218 [abandoning child] indictable election 5 years incarceration
s. 218 [abandoning child] summary election 18 months incarceration

Offences under s. 218 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months 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. 218 [abandoning child] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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.

Principles

Ranges

see also: Abandoning Child (Sentencing Cases)

Prior cases have given both custodial and non-custodial sentences. The main factors concern the level of willful neglect and the overall risk to the child. Repetitive or highly dangerous behaviour will typically attract custodial sentences. For the more negligent offences, fines and probation have been given.

Where a child's life is put in danger will be an aggravating factor.[1] In these circumstances jail sentences will generally be given.[2]

  1. R v Nguyen, [2001] OJ No 647 (Ont. C.J.)(*no CanLII links) (“[w]hen actual endangerment to life or serious injury is realized in the commission of the offence, the Courts must consider that this fact makes the offence more serious.")
  2. Nguyen, ibid. (“[o]nly a full deprivation of liberty can bring home the message to this woman personally of the nature of her conduct, and adequately denounce this conduct.”)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 218 [abandoning child]
General Sentencing Orders
Order Conviction Description
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 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(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.


Record Suspensions and Pardons

Convictions under s. 218 [abandoning child] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)
Criminal Code, 1970

Section 189 renamed to 200.

Criminal Code, 1953-54
Abandoning child

189 Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured, is guilty of an indictable offence and is liable to imprisonment for two years.

CCC

Criminal Code, 1906

Section 216 renamed to 245.

Criminal Code, 1892
Abandoning children under two years of age

216 Every one is guilty of an indictable offence and liable to three years' imprisonment who unlawfully abandons or exposes any child under the age of two years, whereby its life is endangered, or its health is permanently injured.

See Also

Related Offences
Pre-Trial and Trial Issues

Criminal Negligence


Criminal Negligence
s. 219, 220 and 221 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
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 4 years incarceration
Maximum 10 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to criminal negligence are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Although criminal negligence is a broadly-defined offence, in practice, most charges of criminal negligence related to the accused's operation of a motor vehicle.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 220 [criminal negligence causing death] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)
s. 221 [criminal negligence causing bodily harm] Indictable Offence(s) OK Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 220 [criminal negligence causing death] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Offences under s. 221 [criminal negligence causing bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 220 [criminal negligence causing death] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 221 [criminal negligence causing bodily harm] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 220 [criminal negligence causing death] , the accused can be given a judicial summons without arrest. 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.

When charged under s. 221 [criminal negligence causing 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 220 and 221 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 Ban

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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 220 [criminal negligence causing death] X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png
s. 221 [criminal negligence causing bodily harm] X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Criminal negligence

219 (1) Every one is criminally negligent who

(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

Definition of “duty”

(2) For the purposes of this section, “duty” means a duty imposed by law.
R.S., c. C-34, s. 202.

CCC


Note up: 219(1) and (2)

Causing death by criminal negligence

220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

R.S., 1985, c. C-46, s. 220; 1995, c. 39, s. 141.

CCC


Note up: 220

Causing bodily harm by criminal negligence

221 Every person who by criminal negligence causes bodily harm to another person 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.

R.S., 1985, c. C-46, s. 221; 2019, c. 25, s. 76

CCC


Note up: 221

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
221 "... contrary to section 221 of the Criminal Code."

Proof of the Offence

Proving criminal negligence under s. 219 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit had a legal duty;
  5. the conduct showed "wanton or reckless disregard for the lives or safety of others"
    1. the conduct showed a "marked and substantial departure" form the conduct of a reasonably prudent

Proving criminal negligence causing death under s. 220 should include:

  1. elements of s. 219; and
  2. the alleged act caused the death of another person.

Proving criminal negligence causing bodily harm under s. 221 should include:

  1. elements of s. 219;
  2. another person suffered bodily harm
  3. the alleged act caused the harm
  1. R v Wudrich, 2013 SKQB 35 (CanLII), per Gabrielson J, at paras 11, 16

Interpretation of the Offence

A person who signals the start of a race by dropping a “flag” is a party to the race and can be found guilty of criminal negligence.[1]

"another person"

The meaning of "another person" does not include a foetus as it is not a "human being" within the meaning of s. 223.[2]

  1. R v MR, 2011 ONCA 190 (CanLII), per O'Connor ACJ
  2. R v Sullivan, [1991] 1 SCR 489, 1991 CanLII 85 (SCC), per Lamer CJ

Legal Duties

For the purpose of s. 219, a "duty" refers to "a duty imposed by law."[1]

Legal duties exist in common law and statute.[2]

  1. S. 219(2)
  2. R v Coyne (1958), 124 CCC 176, 31 C.R. 335, 1958 CanLII 463 (NB CA), per Ritchie JA, at pp. 179-80 (CCC)
    see also R v Thornton (C.A.), 1991 CanLII 7212 (ON CA), per Galligan JA

Parental Duties

Under s. 215 every person has a duty:

Duty of persons to provide necessaries

215 (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.


...
R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95; 2005, c. 32, s. 11.

CCC


Note up: 215(1)

There is further a common law duty "to take reasonable steps to protect his or her child from illegal violence used by the other parent or by a third person towards the child which the parent foresees or ought to foresee".[1]

For more details see Failing to Provide the Necessities of Life (Offence).

Legal duties include the duty of foster parents to provide children in their car with the necessities of life.[2]

  1. R v Popen (1981), 60 CCC (2d) 232, 1981 CanLII 3345 (ON CA), per Martin JA, at p. 240 (CCC)
    R v Thornton (C.A.), 1991 CanLII 7212 (ON CA), per Galligan JA
  2. R v JF, 2007 ONCA 500 (CanLII), 222 CCC (3d) 474, per MacFarland JA, at paras 50 to 51, aff’d on appeal

Other Duties

Duty of persons undertaking acts dangerous to life

216. Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.
R.S., c. C-34, s. 198.

CCC


Note up: 216

Duty of persons undertaking acts

217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.
R.S., c. C-34, s. 199.

CCC


Note up: 217

Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
2003, c. 21, s. 3.

CCC


Note up: 217.1

Similar to s. 216 to 217.1, s. 45 also provides exemption for liability for surgical procedures. [1]

The protections of s. 216 are based on an objective standard of care expected of a member of the medical profession with reasonable knowledge, skill and care.[2]

  1. See Acting in Authority
  2. R v Rogers, 1968 CanLII 813 (BC CA), per Tysoe JA

Mens Rea

Dangerous Driving

The mens rea for criminal negligence relating to dangerous driving requires evidence of the accused's subjective state of mind or by showing that the prohibited conduct "constituted a marked and substantial departure from the conduct of a reasonably prudent person".[1]

Causing Death

Where death occurred as a result of the act or omission, the fault element is made out where the accused "shows wanton or reckless disregard for the lives or safety of other persons".[2] This is measured on a "modified objective standard of fault" from the perspective of a "reasonable person... in the circumstances".[3] The question is whether the accused's conduct "departed from that of a reasonable person in the circumstances".[4] where the charges criminal negligence causing death, the Crown must prove that there was a "marked and substantial" departure from the standard of care.[5] The difference between "marked departure" and "marked and substantial departure" remains unsettled.[6]

The terms "wanton" and "reckless" are defined in common law.[7]

  1. R v Kerr, 2013 BCCA 506 (CanLII), per Neilson JA, at para 25
    Javanmardi, infra, at para 21
    R v JF, 2008 SCC 60 (CanLII) , [2008] 3 S.C.R. 215, per Fish J, at para 10
    R v Beatty, 2008 SCC 5 [2008] 1 SCR 49, per Charron J, at para 33
    R v Roy, 2012 SCC 26 (CanLII) , [2012] 2 SCR 60, per Cromwell J, at para 30
    R v L(J), 2006 CanLII 805 (ON CA) , 204 C.C.C. (3d) 324 (Ont. C.A.), per Weiler JA, at para 15
    R v Al-Kassem, 2015 ONCA 320 (CanLII) , 78 M.V.R. (6th) 183, per curiam, at para 6
  2. R v Javanmardi, 2019 SCC 54, per Abella J, at para 20
  3. Javanmardi, ibid., at paras 20 to 21
  4. Javanmardi, ibid., at para 21
  5. Javanmardi, ibid., at para 21 ("In the context of criminal negligence causing death, however, the requisite degree of departure has been described as an elevated one — marked and substantial")
  6. Javanmardi, ibid., at para 23
  7. Javanmardi, ibid., at para 20

Alternate Charges

662
...

Conviction for dangerous operation when another offence charged

(5) For greater certainty, when a count charges an offence under section 220 [criminal negligence causing death], 221 [criminal negligence causing bodily harm] or 236 [manslaughter] arising out of the operation of a conveyance, and the evidence does not prove that offence but proves an offence under section 320.13, the accused may be convicted of an offence under that section.
...
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.

CCC


Note up: 662(5)

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 220 [criminal negligence causing death],
s. 221 [criminal negligence causing bodily harm]
OK Symbol.png OK Symbol.png OK Symbol.png

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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 221 [criminal negligence causing bodily harm] N/A 10 years incarceration
s. 220(a) [criminal negligence causing death (with firearm)] and
s. 220(b) [criminal negligence causing death (no firearm)]
N/A life incarceration

Offences under s. 220(a) or (b), 221 are straight indictable. The maximum penalty is 10 years incarceration under s. 221 or life incarceration under s. 220(a), (b).

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 220(a) [criminal negligence causing death (with firearm)] N/A 4 years incarceration Same

For offences under s. 220(a) there is a mandatory minimum penalty of 4 years incarceration.

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. 220(a) N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 221 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 220(b) 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

Offences under s. 220(a) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For offences under s. 221, 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. 220(b) 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. 220(b) 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

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Criminal Negligence (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 220(a), (b) or 221
Delayed Parole Order s. 220 or 221
  • Periods of imprisonment of 2 years or more for convictions under s. 220 or 221 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 220 [criminal negligence causing death] or 221 [criminal negligence causing bodily harm] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See Also

Assisted Dying Offences


Assisted Dying
s. 241.3, 241.4 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 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)
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to assisted dying offences are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 241.3 [failure to comply with safeguards] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 241.4(1) [forgery in relation to medical request] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 241.4(2) [destruction of documents] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 241.3 [failure to comply with safeguards], s. 241.4(1) [forgery in relation to medical request] and s. 241.4(2) [destruction of documents] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 241.3 [failure to comply with safeguards] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 241.4(1) [forgery in relation to medical request] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 241.3, the accused can be given a judicial summons without arrest. 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.

When charged under s. 241.4(1), 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.

Reverse Onus Bail

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)).
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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 241.3 [failure to comply with safeguards] and 241.4 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Failure to comply with safeguards

241.3 A medical practitioner or nurse practitioner who, in providing medical assistance in dying, knowingly fails to comply with all of the requirements set out in paragraphs 241.2(3)(b) to (i) [eligibility for medical assistance in dying – safeguards beyond medical opinion] and subsection 241.2(8) [assisted dying – notice to pharmacist of purpose] is guilty of

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

2016, c. 3, s. 3; 2019, c. 25, s. 80.

CCC


Note up: 241.3

Forgery

241.4 (1) Everyone commits an offence who commits forgery in relation to a request for medical assistance in dying.

Destruction of documents

(2) Everyone commits an offence who destroys a document that relates to a request for medical assistance in dying with intent to interfere with

(a) another person’s access to medical assistance in dying;
(b) the lawful assessment of a request for medical assistance in dying;
(c) another person invoking an exemption under any of subsections 227(1) or (2) [exemption for medical assistance in dying and exception for aiding practitioners], 241(2) to (5) [aiding suicide – exemption for related persons] or 245(2) [administering noxious thing – exemption]; or
(d) the provision by a person of information under section 241.31 [filing information].
Punishment

(3) Everyone who commits an offence under subsection (1) [forgery in relation to assisted dying] or (2) [document destruction re assisted dying] is guilty of

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

(4) In subsection (2) [document destruction re assisted dying], document has the same meaning as in section 321 [offences against rights of property – definitions].

2016, c. 3, ss. 3, 5; 2019, c. 25, s. 81.

CCC


Note up: 241.4(1), (2), (3), and (4)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XX of the Criminal Code.

Proof of the Offence

Proving Failure to comply with safeguards under s. 241.3 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)

Proving Forgery in Relation to Assisted Dying under s. 241.4 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)


Interpretation of the Offence

Eligibility for medical assistance in dying

241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
Grievous and irremediable medical condition

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
Safeguards

(3) Before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must

(a) be of the opinion that the person meets all of the criteria set out in subsection (1) [eligibility for medical assistance in dying];
(b) ensure that the person’s request for medical assist­ance in dying was
(i) made in writing and signed and dated by the person or by another person under subsection (4) [eligibility for medical assistance in dying – person unable to sign], and
(ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition;
(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) [eligibility for medical assistance in dying – person unable to sign] — before two independent witnesses who then also signed and dated the request;
(d) ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;
(e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in subsection (1) [eligibility for medical assistance in dying];
(f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph (e) [eligibility for medical assistance in dying – safeguards – written second opinion] are independent;
(g) ensure that there are at least 10 clear days between the day on which the request was signed by or on behalf of the person and the day on which the medical assistance in dying is provided or — if they and the other medical practitioner or nurse practitioner referred to in paragraph (e) [eligibility for medical assistance in dying – safeguards – written second opinion] are both of the opinion that the person’s death, or the loss of their capacity to provide informed consent, is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;
(h) immediately before providing the medical assist­ance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying; and
(i) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.
Unable to sign

(4) If the person requesting medical assistance in dying is unable to sign and date the request, another person — who is at least 18 years of age, who understands the nature of the request for medical assistance in dying and who does not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death — may do so in the person’s presence, on the person’s behalf and under the person’s express direction.

Independent witness

(5) Any person who is at least 18 years of age and who understands the nature of the request for medical assist­ance in dying may act as an independent witness, except if they

(a) know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death;
(b) are an owner or operator of any health care facility at which the person making the request is being treated or any facility in which that person resides;
(c) are directly involved in providing health care serv­ices to the person making the request; or
(d) directly provide personal care to the person making the request.
Independence — medical practitioners and nurse practitioners

(6) The medical practitioner or nurse practitioner providing medical assistance in dying and the medical practitioner or nurse practitioner who provides the opinion referred to in paragraph (3)(e) are independent if they

(a) are not a mentor to the other practitioner or responsible for supervising their work;
(b) do not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death, other than standard compensation for their services relating to the request; or
(c) do not know or believe that they are connected to the other practitioner or to the person making the request in any other way that would affect their objectivity.
Reasonable knowledge, care and skill

(7) Medical assistance in dying must be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules or standards.

Informing pharmacist

(8) The medical practitioner or nurse practitioner who, in providing medical assistance in dying, prescribes or obtains a substance for that purpose must, before any pharmacist dispenses the substance, inform the pharmacist that the substance is intended for that purpose.

Clarification

(9) For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.
2016, c. 3, s. 3.
[annotation(s) added]

CCC


Note up: 241.2(1), (2), (3), (4), (5), (6), (7), (8), and (9)


Defintions

Definitions

241.1 The following definitions apply in this section and in sections 241.2 to 241.4 [provisions re medically assisted dying].
"medical assistance in dying" means

(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or
(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death. (aide médicale à mourir)

"medical practitioner" means a person who is entitled to practise medicine under the laws of a province. (médecin)

"nurse practitioner" means a registered nurse who, under the laws of a province, is entitled to practise as a nurse practitioner — or under an equivalent designation — and to autonomously make diagnoses, order and interpret diagnostic tests, prescribe substances and treat patients. (infirmier praticien)

"pharmacist" means a person who is entitled to practise pharmacy under the laws of a province. (pharmacien)

2016, c. 3, s. 3.

CCC


Note up: 241.1

Defences

Exemption for medical assistance in dying

227 (1) No medical practitioner or nurse practitioner commits culpable homicide if they provide a person with medical assistance in dying in accordance with section 241.2 [procedure relating to assisted dying].

Exemption for person aiding practitioner

(2) No person is a party to culpable homicide if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2 [procedure relating to assisted dying].

Reasonable but mistaken belief

(3) For greater certainty, the exemption set out in subsection (1) [exemption for medical assistance in dying] or (2) [exemption for person aiding practitioner] applies even if the person invoking it has a reasonable but mistaken belief about any fact that is an element of the exemption.

Non-application of section 14

(4) Section 14 [consent to death] does not apply with respect to a person who consents to have death inflicted on them by means of medical assistance in dying provided in accordance with section 241.2 [procedure relating to assisted dying].

Definitions

(5) In this section, medical assistance in dying, medical practitioner and nurse practitioner have the same meanings as in section 241.1 [definitions re assisted dying].
R.S., 1985, c. C-46, s. 227; R.S., 1985, c. 27 (1st Supp.), s. 34; 1997, c. 18, s. 9; 1999, c. 5, s. 9; 2016, c. 3, s. 2.
[annotation(s) added]

CCC


Note up: 227(1), (2), (3), (4), and (5)

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 241.3 [failure to comply with safeguards]
s. 241.4(1) [forgery in relation to medical request]

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
Maximum Penalties


Minimum Penalties
Available Dispositions
Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

Ancillary Sentencing Order

Offence-specific Orders
General Sentencing Orders
Order Conviction Description
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 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(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.

Record Suspensions and Pardons

Convictions under s. 279 [kidnapping or forceable confinement] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

References

Administering a Noxious Substance


Administering a Noxious Substance
s. 245 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable.
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 2 years incarceration (annoy), 14 years incarceration (harm)
Reference
Offence Elements
Sentence Digests

Overview

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.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 245(a) [administer noxious thing - intent to cause danger or harm] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 245(a) [administer noxious thing - intent to cause danger or harm] are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 245(b) [administer noxious thing - intent to aggrieve or annoy] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 245(a) [administer noxious thing - intent to cause danger or harm] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 245(a) [administer noxious thing - intent to cause danger or harm] , the accused can be given a judicial summons without arrest. 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.

When charged under s. 245(b) [administer noxious thing - intent to aggrieve or annoy], 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 245(a) and 245(b) [administer noxious thing] 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 245(a) [administer noxious thing - intent to cause danger or harm] X Mark Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png

Offences under s. 245(a) [administer noxious thing - intent to cause danger or harm] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 245 [administer noxious thing] 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

Administering noxious thing

245 (1) Every person who administers or causes to be administered to any other person or causes any other person to take poison or any other destructive or noxious thing is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than 14 years, if they did so with intent to endanger the life of or to cause bodily harm to that person; or
(b) of an indictable offence and liable to imprisonment for a term of not more than two years or of an offence punishable on summary conviction, if they did so with intent to aggrieve or annoy that person.
Exemption

(2) Subsection (1) [administering noxious thing – offence] does not apply to

(a) a medical practitioner or nurse practitioner who provides medical assistance in dying in accordance with section 241.2 [procedure relating to assisted dying]; and
(b) a person who does anything for the purpose of aiding a medical practitioner or nurse practitioner to provide medical assistance in dying in accordance with section 241.2 [procedure relating to assisted dying].
Definitions

(3) In subsection (2) [administering noxious thing – exemption], medical assistance in dying, medical practitioner and nurse practitioner have the same meanings as in section 241.1 [definitions re assisted dying].

R.S., 1985, c. C-46, s. 245; 2016, c. 3, s. 6; 2019, c. 25, s. 83.
[annotation(s) added]

CCC


Note up: 245(1), (2) and (3)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
245 "... contrary to section 245 of the Criminal Code."

Proof of the Offence

Proving Administering a Noxious Substance under s. 245 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit administered a substance to the victim
  5. the substance was noxious
  6. the culprit intended to either
    1. aggrieve the victim or
    2. intended to endanger the life of or to cause bodily harm

Interpretation of the Offence

To "administer" something does not require that it be taken internally.[1]

"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.[2]

  1. R v Clark, 2008 ABCA 271 (CanLII), per curiam (3:0) - pouring oil over someone's head
    R v Carr, 2010 ONCA 290 (CanLII), per curiam (3:0) - corrosive chemical applied to skin
  2. R v Burkholder, 1977 ALTASCAD 8 (CanLII), per Prowse JA (3:0)

"Noxious Substance"

What constitutes "noxious" will depend on the factual context.[1] 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.[2] Factors include "the inherent characteristics of the substance, the quantity administered and the manner in which it is administered".[3]

The crown does not need to prove that the accused knew the substance was noxious.[4] But the accused must have intended to cause bodily harm.[5]

  1. R v Clark, 2008 ABCA 271 (CanLII), per curiam (3:0) , at para 14
    R v Burkholder, 1977 ALTASCAD 8 (CanLII), per Prowse JA (3:0)
  2. Burkholder, ibid.
  3. Burkholder, ibid.
  4. Burkholder, ibid., at para 32
  5. Burkholder, ibid.

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 245(a) [administer noxious thing - intent to cause danger or harm] OK Symbol.png (where SPIO, Crown must notify victims) OK Symbol.png
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] X Mark Symbol.png OK Symbol.png

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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 245(a) [administer noxious thing - intent to cause danger or harm] N/A 14 years incarceration
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] indictable election 2 years incarceration

Offences under s. 245(a) and (b) [administer noxious thing] are straight indictable. The maximum penalty is 14 years incarceration under s. 245(a) and 2 years incarceration under s. 245(b).

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. 245(a) [administer noxious thing - intent to cause danger or harm] 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
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] summary election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 245(b) [administer noxious thing - intent to aggrieve or annoy] indictable election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

If convicted under s. 245(a) [administer noxious thing - intent to cause danger or harm] 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) [administer noxious thing - intent to cause danger or harm] , 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.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Administering a Noxious Substance (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 245(a) [administer noxious thing - intent to cause danger or harm]
Weapons Prohibition Orders s. 245(a) or (b) [administer noxious thing]
  • On conviction under s. 245(a) 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.
  • Where there is a conviction under s. 245(a) or (b) [administer noxious thing] 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))
Delayed Parole Order s. 245 [administer noxious thing]
  • Periods of imprisonment of 2 years or more for convictions under s. 245 [administer noxious thing] 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 245(a) and (b) [administering a noxious substance, all forms] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

Criminal Code, 1953-54
Administering noxious thing

217 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 is liable

Causing bodily harm
(a) to imprisonment for fourteen years, if he intends thereby to endanger the life of or to cause bodily haarm to that person, or,
Intent to annoy
(b) to imprisonment for two years, if he intends thereby to aggrieve or annoy that person.

Criminal Code, 1892
Administering poison so as to endanger life

245 Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who unlawfully administers to, or causes to be administered to or taken by any other person, any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm.

Administering poison with intent to injure

246 Every one is guilty of an indictable offence and liable to three years' imprisonment who unlawfully administers to, or causes to be administered to or taken by, any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person.

See Also

Related Offences
Pre-Trial and Trial Issues

Overcoming Resistance


Overcoming Resistance
s. 246 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
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)
Minimum None
Maximum Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to overcoming resistance are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 246 [overcoming resistance and administering stupefying substance] Indictable Offence(s) N/A OK Symbol.png OK Symbol.png (life max)

Offences under s. 246 [overcoming resistance and administering stupefying substance] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 246 [overcoming resistance and administering stupefying substance] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 246 [overcoming resistance and administering stupefying substance], the accused can be given a judicial summons without arrest. 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.

Reverse Onus Bail

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)).
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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 246 [overcoming resistance and administering stupefying substance] OK Symbol.png

Offences under s. 246 [overcoming resistance and administering stupefying substance] 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

Overcoming resistance to commission of offence

246. Every one who, with intent to enable or assist himself or another person to commit an indictable offence,

(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or
(b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing,

is guilty of an indictable offence and liable to imprisonment for life.
R.S., c. C-34, s. 230; 1972, c. 13, s. 70.

CCC


Note up: 246

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving overcoming resistance in the commission of the offence under s. 246(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. attempts "to choke, suffocate or strangle another person" or
    2. does anything "calculated to choke, suffocate or strangle"
  5. the culprit "attempts to render another person insensible, unconscious or incapable of resistance";
  6. the culprit did the prohibited act with the intent "to enable or assist himself or another person to commit an indictable offence".

Proving administering a stupefying substance under s. 246(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. administers a substance;
    2. causes to be administered a substance,
    3. attempts to administer a substance, or
    4. causes or attempts to cause any person to take a substance;
  5. the substance is a "stupefying or overpowering drug, matter or thing" and
  6. the culprit did the prohibited act with the intent "to enable or assist himself or another person to commit an indictable offence".

Interpretation of the Offence

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 246 [overcoming resistance and administering stupefying substance]

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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 246 [overcoming resistance and administering stupefying substance] N/A life incarceration

Offences under s. 246 [overcoming resistance and administering stupefying substance] are straight indictable. The maximum penalty is life.

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. 246 [overcoming resistance and administering stupefying substance] 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

If convicted under s. 246 [overcoming resistance and administering stupefying substance] 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. 246 [overcoming resistance and administering stupefying substance] 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

There are no statutory requirements that the sentences be consecutive.

Principles

Choking, suffocating or strangling another person is inherently dangerous and is easily capable of causing death or brain injury. The difference between mere unconsciousness and permanent damage is slim.[1]

Choking is often serious and can be life-threatening. Where the victim has been choked to the point of unconsciousness or bodily harm it is not a mere detail to an underlying offence. It should have an aggravating effect on sentence. The court should consider would be whether to impose:[2]

  1. a consecutive sentence for the choking offence under s. 245
  2. a concurrent sentence that is greater than the sentence underlying the choking
  3. a sentence for the underlying offence that is greater than it would otherwise be.
  1. R v Lemmon, 2012 ABCA 103 (CanLII), per Martin JA (3:0), at paras 28 to 29
  2. Lemmon, ibid.

Ranges

see also: Overcoming Resistance (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 246 [overcoming resistance and administering stupefying substance]
SOIRA Orders s. 246(b)
  • On conviction under s. 246(b), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))).
      • There is an option for early termination under s. 490.015 after 20 years.

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Delayed Parole Order s. 246 [overcoming resistance and administering stupefying substance]
  • Periods of imprisonment of 2 years or more for convictions under s. 246 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 246 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

Related Offences
References

Criminal Harassment


Criminal Harassment
s. 264 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to criminal harassment are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 264 [harassment] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment X Mark Symbol.png (under 14 years max)

Offences under s. 264 [harassment] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 264 [harassment] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 264 [harassment] , 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 264 [harassment] 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 264 [harassment] X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png

Offences under s. 264 [harassment] 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

Criminal harassment

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) [criminal harassment – prohibited conduct] that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

Prohibited conduct

(2) The conduct mentioned in subsection (1) [criminal harassment – offence] consists of

(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
Punishment

(3) Every person who contravenes this section is guilty of

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

...
R.S., 1985, c. C-46, s. 264; R.S., 1985, c. 27 (1st Supp.), s. 37; 1993, c. 45, s. 2; 1997, c. 16, s. 4, c. 17, s. 9; 2002, c. 13, s. 10.
[annotation(s) added]

CCC


Note up: 264(1), (2) and (3)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
264 "... contrary to section 264 of the Criminal Code."

Proof of the Offence

Proving criminal harassment under s. 264 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit has engaged in the conduct set out in s. 264(2)(a), (b), (c) or (d) of the Criminal Code;
  5. the complainant was harassed by the conduct;
  6. the culprit, who engaged in such conduct, knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
  7. the conduct caused the complainant to fear for their safety or the safety of anyone known to them; and
  8. the complainant’s fear was, in all the circumstances, reasonable. [2]
  1. R v Coppola, 2007 ONCJ 184 (CanLII), per Wolder J
    R v Sillipp, 1997 ABCA 346 (CanLII), per Berger J, at para 18
    R v Sanchez, 2012 BCCA 469 (CanLII), per MacKenzie JA
  2. See R v Kosikar, 1999 CanLII 3775 (ON CA), 138 CCC (3d) 217 (Ont. C.A.), per Goudge JA, at para 19

Interpretation of the Offence

Actus Reus

Repeated Communications

The requirement for the accused to be "repeatedly communicating" with the victim under s. 264(2)(b) can be made out with as few as two instances depending on the circumstances.[1]

Harassed

To establish harassment, the crown must prove "that the prohibited conduct tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered the complainant"[2] Each of these terms are synonymous with harassment and are not cumulative. [3]

Harassment requires a "sense of being subject to ongoing torment."[4] Harassment is more than merely being “vexed, disquieted or annoyed”.[5]

Threatening Conduct

Threatening conduct is "a tool of intimidation which is designed to instil a sense of fear in the recipient."[6] The consideration of the "design" is upon the "effect of the accused's conduct on a reasonable person in the shoes of the target of the conduct."[7]

The conduct must be assessed "objectively", "with due consideration for the circumstances in which they took place" and "with regard to the effects those acts had on the recipient".[8]

Whether conduct is threatening is to be considered from "the perspective of the complainant".[9] It can be from a "single act provided it carries as a consequence that the complainant is in a state of being harassed."[10]

It is not necessary that the conduct "contain threats or violent behaviour".[11] It is also not necessary that there be spoken words at all.[12]

The offences should not include conduct that is merely "mean, petty, uncooperative and spiteful".[13]

"besetting or watching"

Besetting is active in nature that involves a "physical element of approaching and, with respect to another person, importuning or seeking to argue with that person".[14]

Watching is the passive act of "continually observing for a purpose".[15]

Merely looking at someone and smiling while standing alone is not sufficient to be "watching".[16]

Fear for Safety

Safety extends beyond simply fear of physical harm but also includes psychological and emotional security.[17]

Fear for safety includes "a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physical danger or harm".[18] But a mere fear for one's "financial well-being" is not enough.[19]

"Reasonable fear" is determined on an objective standard.[20]

  1. R v Ohenhen, 2005 CanLII 34564 (ON CA), per MacFarland JA, at para 32
  2. R v Kosikar, 1999 CanLII 3775 (ON CA), per Goudge JA
  3. R v Kordrostami, 2000 CanLII 5670 (ON CA), (2000), 47 O.R. (3d) 788, per Sharpe JA, at para 11 (C.A.)
  4. Kosikar, supra, at para 25
  5. see R v Petrenko, 2009 CanLII 66612 (ON SC), [2009] OJ No 5094, per Durno J, at para 10 (S.C.J.)
  6. R v MH, 2014 ONSC 36 (CanLII), per Hackland J, at para 60
    See also R v Burns, 2008 ONCA 6 (CanLII), per curiam, at para 2
  7. R v Sims, 2017 ONCA 856 (CanLII), per Laskin JA, at para 20
  8. MH, supra, at para 60
    Burns, supra
  9. MH, supra, at para 58
  10. Kosikar, supra, at para 22
    R v Kohl, 2009 ONCA 100 (CanLII), per Armstrong JA (single instance of accused jumping out of bushes and chasing the victim who was a stranger)
  11. MH, supra, at para 59
  12. MH, supra, at para 61
    Kohl, supra
  13. R v McDougall (1991), 1990 CanLII 6788 (ON CA), 62 CCC (3d) 174 (Ont. C.A.), per Doherty JA, at para 47 - in reference to another offence
  14. R v Eltom, 2010 ONSC 4001 (CanLII), per Trotter J, at para 13
  15. Eltom, ibid., at para 13
  16. Eltom, ibid., at para 14
  17. R v Gowing, [1994] OJ No 2743 (Gen.Div.)(*no CanLII links) , at para 5 (aff’d on appeal Gowing, [1998] OJ No 90)
  18. R v Szostak, 2012 ONCA 503 (CanLII), 111 O.R. (3d) 241, per Rosenberg JA, at para 31
  19. see R v Lincoln, 2008 ONCJ 14 (CanLII), per Brewer J
  20. MH, supra, at para 66

Mens Rea

The mens rea requires an intent to commit the prohibited act. The knowledge requirement can be satisfied by recklessness or willful blindness that the act caused the victim to be harassed.[1]

There is no requirement that it be proven that the "accused subjectively intended to engage in threatening conduct".[2]

The harassment need not be foreseeable to the accused.[3]

There is no requirement to prove the mens rea of the offence where it can be inferred from the facts.[4]

The level of intent can be proven by way of pre-offence conduct and details of the relationship between the accused and victim.[5]

  1. R v Kosikar, 1999 CanLII 3775 (ON CA), (1999), 124 O.A.C. 289, per Goudge JA
    R v MH, 2014 ONSC 36 (CanLII), per Hackland J, at para 57
    R v Davis, 1999 CanLII 14505 (MB QB), (1999), 143 Man. R. (2d) 105, per Beard J, at para 35
  2. R v Sim, 2017 ONCA 856 (CanLII), per Laskin JA, at para 15
  3. Davis, supra, at para 35 ("The mental element of the offence does not include a requirement that the accused foresee that his conduct will cause the complainant to be fearful")
  4. Petrenko, supra
    R v Holmes, 2008 ONCA 604 (CanLII), [2008] OJ No 3415 (C.A.), per curiam
  5. MH, supra, at para 65

Circumstances of Offence

Lawful Authority

The phrase "lawful authority" means merely rendering legally permissible that which would otherwise be prohibited.[1]

  1. R v Sillipp, 1997 ABCA 346 (CanLII), per Berger J, at para 20

Evidence

Section 486.3(2) creates a mandatory prohibition for a self-represented accused to cross-examine the alleged victim (regardless of age) on application of the Crown or victim where the accused is charged with criminal harassment (264), sexual assault (271), sexual assault with a weapon/causing bodily harm (272) or aggravated sexual assault (273) and it is not necessary for the "proper administration of justice".

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 264 [harassment]

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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 264.1 [harassment] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 264.1 [harassment] indictable election 10 years incarceration

Offences under s. 264.1 [harassment] are hybrid. If prosecuted by indictment, the maximum penalty is 10 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).

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. 264.1 [harassment] summary election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 264.1 [harassment] indictable election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 264 [harassment] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Harassment in a domestic context is considered "particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender."[1]

The absence of physical violence does not reduce the seriousness of the offence and is not mitigating. The offence targets the use of "psychological violence" that is done over a "prolonged period" of time.[2]

Factors

264.
...

Factors to be considered

(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened

(a) the terms or conditions of an order made pursuant to section 161 [s. 161 prohibition order] or a recognizance entered into pursuant to section 810 [peace bond – injury or damage], 810.1 [peace bond - sexual offence] or 810.2 [peace bond - serious personal injury]; or

(b) the terms or conditions of any other order or recognizance, or of an undertaking, made or entered into under the common law, this Act or any other Act of Parliament or of a provincial legislature that is similar in effect to an order or recognizance referred to in paragraph (a).

Reasons

(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4) [criminal harassment – factors], but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.
R.S., 1985, c. C-46, s. 264; R.S., 1985, c. 27 (1st Supp.), s. 37; 1993, c. 45, s. 2; 1997, c. 16, s. 4, c. 17, s. 9; 2002, c. 13, s. 10; 2019, c. 25, s. 91.
[annotation(s) added]

CCC


Note up: 264(4) and (5)

  1. R v Bates, 2000 CanLII 5759 (ON CA), (2000), 134 O.A.C. 156, at para 30 (C.A.)
  2. R v Finnessey (2000), O.A.C. 396, 2000 CanLII 16862 (ON CA), per curiam, at para 16 (C.A.)
    R v MH, 2014 ONSC 36 (CanLII), per Hackland J

Ranges

see also: Criminal Harassment (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders
Order Conviction Description
DNA order s. 264 [harassment]
Weapons Prohibition Orders s. 264 [harassment]
  • For offences under s. 264 [harassment] that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"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.
SOIRA Orders s. 264 [harassment]
  • On conviction under s. 264 [harassment], as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Delayed Parole Order s. 264 [harassment]
  • Periods of imprisonment of 2 years or more for convictions under s. 264 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 264 [harassment] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

Uttering Threats


Uttering Threats
s. 264.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration (property)
5 years incarceration (person)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to uttering threats are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 264.1(1)(a) [uttering threats, death or bodily harm]
s. 264.1(1)(b) [uttering threats, property damage]
s. 264.1(1)(c) [uttering threats, harm to animal]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 264.1 [uttering threats] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 264.1 [uttering threats] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 264.1 [uttering threats], 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 264.1 [uttering threats] 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 264.1 [uttering threats] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Assaults
Uttering threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.
Punishment

(2) Every one who commits an offence under paragraph (1)(a) [threats – harm animal] is guilty of

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

(3) Every one who commits an offence under paragraph (1)(b) [threats – damage property] or (c) [threats – harm animal]

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

R.S., 1985, c. 27 (1st Supp.), s. 38; 1994, c. 44, s. 16; 2019, c. 25, s. 92.
[annotation(s) added]

CCC


Note up: 264.1(1), (2) and (3)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
264.1 "..., contrary to section 264.1 of the Criminal Code.

Proof of the Offence

Proving uttering threats (death of bodily harm) under s. 264.1(1)(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "utters, ... coveys or causes any person to receive" a communication;
  5. that communication conveyed a threat to "cause death or bodily harm to any person",
  6. the communication were meant to be taken seriously as a threat; and
  7. any person received the threat.

Proving uttering threats (damage property or injure animals) under s. 264.1(1)(b), (c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "utters, ... coveys or causes any person to receive" a communication;
  5. that communication conveyed a threat to "burn, destroy or damage real property" or "kill, poison, or injure an animal that is the property of any person";
  6. the communication were meant to be taken seriously as a threat; and
  7. any person received the threat.

Interpretation of the Offence

The necessary mens rea requires that the accused intended to speak words to intimidate or intended the words to be "taken seriously".[1]

  1. R v O'Brien, 2013 SCC 2 (CanLII), per Fish J

Threatening Words

A "threat" has been interpreted to include any "menace or denunciation that ill will befall the recipient".[1]

"Bodily harm" includes psychological hurt or injury in addition to physical.[2]

The test for whether an utterance constituted a criminal threat is a question of law not fact. The words "must be looked at in the context in which they were spoken or written, in light of the person to whom they were addressed and the circumstances in which they were uttered. They should be viewed in an objective way and the meaning attributed to the words should be that which a reasonable person would give to them."[3]

Factors that are to be considered include:[4]

  1. the actual words spoken;
  2. the circumstances in which the words were uttered;
  3. the manner in which they were spoken;
  4. the person to whom they were addressed and that person’s situation; and
  5. the speaker and that person’s situation

A conditional and future threats in certain cases will satisfy the elements of a criminal threat.[5]

It is further of no relevance whether the accused was capable in carrying out the threat.[6]

Identity of Recipient

Where the potential target of the threat is unknown at the time the threat is made may still allow for conviction so long as it is targeting unascertainable or identifiable group.[7]

Actual Receipt of Threat

There is no requirement that the accused intend the recipient of the threat to convey it to the target.[8]

Victim's Reaction

The fact that the subject of the threats did not feel threatened by them is not, by itself, reason to result in an acquittal.[9] There is no need that anyone be intimidated by the utterance.[10]

If the utterance meets all other requirement, it is irrelevant whether the victim appreciated the threatening nature of the utterance.[11] To put it another way, the effect of the threat on the prospective victim is of no consequence.[12]

It is not necessary for the victim to actually feel intimidated or actually take the words seriously. The reaction only is relevant to understanding the accused's intention in making the utterance.[13]

Reasonableness
See also: Reasonable Person Test

Reasonableness must be applied in light of the circumstances in which the utterance was made.[14]

A reasonable person considering the words must be one who is "objective, fully-informed, right-minded, dispassionate, practical and realistic".[15]

Ambiguous language

It is a valid defence where there is a reasonably credible or plausible alternative meaning of the words.

Words such as “I’ll get you”, and “Let me get my hands on him.”, in isolation are ambiguous and do not necessarily amount to a threat to cause bodily harm.[16]

Words such as "I'll kick your ass" have been found to be sufficiently specific to amount to a threat.[17]

The phrase “I hate you, I hope you die this time” immediately after an assault was found to be an expression of feelings and her hope.[18]

Specific contexts

A poem can be considered a threat where a reasonable person in all the relevant circumstances would see it as a threat.[19]

A threat to "hit" someone is by itself not a threat to cause bodily harm.[20]

An email concluding with the phrase "let’s see how long your lifespan reaches" can be a threat to cause death.[21]

Freedom of Speech

Where the defence allege the statement was protected under the right to freedom of expression, it would be "necessary to consider the [text] as political commentary before determining whether it's constituted a threat at law."[22]

  1. R v Leblanc, (1988) 90 N.B.R. (2d) 63, 1988 CanLII 131 (NB CA), per Angers JA (2:1) aff'd [1989] 1 SCR 1583 1989 CanLII 56 (SCC), per Dickson CJ
  2. R v McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, per Cory J
  3. McCraw, ibid.
    R v Clemente, [1994] 2 SCR 758, 1994 CanLII 49 (SCC), per Cory J
    R v Batista, 2008 ONCA 804 (ONCA), per Lang JA (3:0), at para 19 ("The crown is required to prove that, when viewed objectively, or nerd reasonable person would consider the appellant's poem about it to a threat to cause… Death.")
  4. R v Narwal, 2013 BCSC 340 (CanLII), per Weatherill J, at para 16
  5. R v Ross, (1986), 26 CCC (3d) 413 (Ont. C.A.), 1986 CanLII 4625 (ON CA), per Morden JA
    R v Deneault, 2002 BCCA 178 (CanLII), per Rowles JA
  6. R v LeBlanc, [1989] 1 SCR 1583 1989 CanLII 56 (SCC), per Dickson CJ
    McCraw, supra, at p. 524 (cited to SCR)
  7. R v Remy (1993) 82 CCC (3d) 176 (QCCA), 1993 CanLII 3851 (QC CA), per Proulx JA appeal refused (1993), 84 CCC (3d) vi (translated: "a threat to cause the death of a member of an ascertained group of citizens contravenes this section.")
    R v Deneault, 2002 BCCA 178 (CanLII), (2002) BCJ No 517 (BCCA), per Rowles JA (3:0)
    R v Upson, 2001 NSCA 89 (CanLII), per Flinn JA (3:0), at para 31
  8. R v Tibando, 1994 CanLII 198 (ON CA), (1994), 88 CCC (3d) 229 at 231 (Ont. C.A.), per Houlden JA ("There is no requirement under the section that the accused intend the recipient of the threat to convey it to the intended victim ...")
    R v McRae, [2013] 3 SCR 931, 2013 SCC 68 (CanLII), per Cromwell and Karakatsanis J (7:0)
  9. See R v Carons, 1978 ALTASCAD 206 (CanLII), (1978), 10 A.R. 300 (S.C. (A.D.)), per Prowse JA
    R v MacDonald (D.) 2002 CanLII 14251 (ON CA), per Doherty JA, at para 27
  10. McRae, supra
  11. R v Carons, 1978 ALTASCAD 206 (CanLII), (1978), 42 CCC (2d) 19 (Alta. C.A.), per Prowse JA
  12. R v Nabis, [1975] 2 SCR 485, 1974 CanLII 179 (SCC), [1974] 18 CCC (2d) 144, per Beetz J (6:3)
  13. R v Roussin, 2014 MBCA 30 (CanLII), [2014] M.J. No. 78 (C.A.), per Beard JA, at para 11, ("is not necessary that the recipient, himself or herself, actually feels intimidated or actually takes the words seriously. The recipient's reaction to the accused's words is relevant only to the extent that it assists in understanding the accused's intention in speaking the words at issue.”)
  14. Batista, supra{{atL|21ptb|16
  15. Batista, supra, at para 24
  16. R v Gingras (1986) 16 W.C.B. 399(*no CanLII links)
  17. e.g. R v Waskewitch, 2011 SKPC 28 (CanLII), per Kolenick J
    R v H(D), 2002 BCPC 386 (CanLII), per Maltby J
  18. R v Simms, 2013 YKTC 110 (CanLII), per Luther CJ
  19. R v Basta (2008) 238 CCC (3d) 97 (ONCA), 2008 ONCA 804 (CanLII), per Lang JA
  20. R v Taylor, 2010 CanLII 49583 (NL PC), per Porter J
  21. R v Reilly, 2016 ONSC 4942 (CanLII), per MacDonnell J
  22. Batista, supra, at para 22

Words Intended to be Taken Seriously

Uttering threats is a "specific intent" offence.[1]

The words must be meant to intimidate or to be taken seriously.[2] Words spoken in jest, of course, are not to be taken seriously.[3]

A determination of whether the accused intended the threat to be taken seriously “will often be based to a large extent upon consideration of the words used by the accused”.[4]

In determining the intent of the accused, the judge may look at circumstances such as whether the accused had been drinking, whether he had beaten the victim while drinking in the past, and whether the accused knew that he was violent towards the victim in similar circumstances.[5]

The mens rea of the offence is that the accused must intend the words to instill fear in someone.[6] This intent requires a subjective component.[7]

The mens rea of the offence requires that the threat be made with actual menace and not innocently.[8] It must be intended "to be taken seriously or to intimidate".[9]

It is irrelevant whether the accused actually intended to carry out the threat.[10]

Intention can be inferred from the circumstances in which the utterance was made including the "words used", the "context in which they were spoken", the person to whom the words were directed, and how the words were perceived by those who hear them.[11]

Unless there is testimony by the accused explaining the words used, the court may infer the intent on a plain meaning of utterance in the context they were uttered.[12]

It is not necessary to prove that the utterance was actually taken seriously by the recipient. However, a failure on the part of the recipient to take the utterance seriously may raise a doubt as to whether it was intended to be taken seriously.[13]

A statement made while letting out steam can be interpreted as not intending to be taken seriously.[14]

An angry or frustrated outburst will not be considered sufficient to amount to sufficient intent.[15]

  1. R v Bone, [1993] M.J. No.222 (C.A.), 1993 CanLII 14711 (MB CA), per Twaddle JA
    R v Standing, 2007 SKPC 102 (CanLII), per Harradence J
  2. R v Clemente (V.F.), 1994 CanLII 49 (SCC), [1994] 2 SCR 758, per Cory J, at p. 4
  3. Clemente, ibid., at p. 4
  4. R v McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, per Cory J (7:0), at p. 78
  5. R v Lowry, 2002 CanLII 41437 (ON CA), per curiam
  6. R v KWD (1993) 85 Man.R. (2d) 220(*no CanLII links) at 16
  7. McCraw, supra, at p. 82 (cited to SCR)
    R v Noble (P.D.J.), 2010 MBCA 60 (CanLII), per Chartier JA, at paras 8 to 9
    R v O’Brien, 2012 MBCA 6 (CanLII), per Beard J, at para 23
  8. R v LeBlanc, 1989 CanLII 56 (SCC), [1989] 1 SCR 1583, per Dickson CJ
  9. Noble, supra, at para 8
  10. Noble, supra, at para 8
  11. Noble, supra, at para 9
    R v McRae, [2013] 3 SCR 931, 2013 SCC 68 (CanLII), per Cromwell and Karakatsanis J (7:0), at paras 19 to 23
  12. Clemente, supra, at p. 762
  13. e.g. R v O’Brien, 2013 SCC 2 (CanLII), per Fish J
  14. R v Knox, 2012 CanLII 55973 (NLTD), per Dymond J
  15. e.g. R v Payne-Binder, 1991 CanLII 2715 (YK CA), per Proudfoot JA - accused uttered "they're dead" in open court during a hearing

Threat to Property

When considered objectively, the accused must have conveyed words involving a threat to damage, destroy or burn real or personal property.[1]

  1. see R v Noble, 2010 MBCA 60 (CanLII), [2010] M.J. No. 19 (C.A.), per Chartier JA, at paras 5 to 9
    R v Upson, 2001 NSCA 89 (CanLII), [2001] NSJ No. 189 (C.A.), per Flinn JA (3:0), at para 53

Appellate Review

Whether an utterance is a "threat to cause bodily harm" is a question of law and reviewable on a standard of correctness.[1]

  1. R v Felteau, 2010 ONCA 821 (CanLII), per curiam (3:0), at para 5

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 264.1(1)(a) [treat to person]), but are not serious personal injury offences, s. 606(4.2) 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

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 264.1(1)(a) [uttering threats, death or bodily harm]
s. 264.1(1)(b) [uttering threats, property damage]
s. 264.1(1)(c) [uttering threats, harm to animal]
Summary Conviction 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
(* 18 months prior to Sept 18, 2018)
s. 264.1(1)(a) [uttering threats, death or bodily harm] Indictable Conviction 5 years incarceration
s. 264.1(1)(b) [uttering threats, property damage]
s. 264.1(1)(c) [uttering threats, harm to animal]
Indictable Conviction 2 years incarceration

Offences under s. 264.1(2) or (3) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration under s. 264.1(2) and 2 years incarceration under s. 264.1(3). If prosecuted by summary conviction, the maximum penalty is 18 months incarceration under s. 264.1(2) and 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) under s. 264.1(3).

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. 264.1 [uttering threats] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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.

Principles

Factors

Section 269.01 creates an aggravating factor where the victim is a "public transit operator".[1]

Range

see also: Uttering Threats (Sentencing Cases)

In Newfoundland, the range for uttering threats not involving an intimate relationship can go as low as a conditional discharge all the way to 3 years imprisonment.[1] However, for the most part when jail is ordered it is between one to six months.[2]

  1. R v Lyver, 2010 CanLII 11910 (NL PC), [2010] N.J. No. 92 (P.C.), per Gorman J, at para 41 citing a variety of cases
  2. Lyver, ibid., at para 41

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 264.1 [uttering threats]
Weapons Prohibition Orders s. 264.1 [uttering threats]
  • On conviction under s. 264.1 [uttering threats] 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).
  • For offences under s. 264.1 [if weapon involved] where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.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.
  • Where there is a conviction under s. 110 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))
Delayed Parole Order s. 264.1 [uttering threats]
  • Periods of imprisonment of 2 years or more for convictions under s. 264.1 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 264.1 [uttering threats] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

On September 19, 2019, Bill C-75 came into force and changed the maximum summary penalty from 18 months to 2 years.

See Also

References

Common Assault


Common Assault
s. 265, 266 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to assault are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation". The offence of common assault is set out in s. 265. It is the most basic of offences of violence. Section 265 sets out three ways for the offence to occur. It can be through the intentional non-consensual application of force. It can also be an attempt or threat of non-consensual application of force or lastly the interference with a person while having a weapon.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 266 [assault] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 266 [assault] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 266 [assault] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 266 [assault], 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.

Fingerprints and Photos

A peace officer who charges a person under s. 266 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
Offence(s) Pub. Ban of Participants
(486.5(1),(2))
Youth Witness or
Youth Alleged Victim
(486.31) Jury ID ban (631(6)) Evidence Ban
(Bail: 517) (Prelim.: 539) (Jury: 648)
Sexual Offence
Publication Ban
(486.4)
{{{1}}} {{{2}}} {{{2}}} s. 266 [assault]

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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 266 [assault] X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png (under 10 years max)

Offences under s. 266 [assault] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. s. 266 [assault] are offences of "serious criminality" as defined in s. 36 of the Immigration and Refugee Protection Act. A conviction will render a permanent resident or a foreign national is "inadmissible on grounds of serious criminality".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Assault

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.

CCC


Note up: 265(1), (2), (3), and (4)

Assault

266. Every one who commits an assault 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. 245; 1972, c. 13, s. 21; 1974-75-76, c. 93, s. 22; 1980-81-82-83, c. 125, s. 19.

CCC


Note up: 266

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section 266 of the Criminal Code.

Proof of the Offence

Proving assault by force under s. 265(1)(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit applied force on the victim
  5. the culprit intended to apply force and it was not by reflex or carelessly
  6. the manner in which assault occurred (whether by fist, open hand, or object)
  7. injuries, if any, that occurred
  8. compare physical build between the accused and victim
  9. that the complainant did not consent (see also s. 265(3) and (4))
  10. that the complainant did not assault, threaten or provoke the accused
  11. whether an alcohol was involved

Proving assault by threat under s. 265(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit attempted or threatened to apply force to the victim
  5. the culprit meant the threat to be taken seriously
  6. the culprit had the ability to give effect to his purpose OR the victim reasonably believed he had the ability to give effect to his purpose
  7. no intentional physical contact was made
  8. compare physical build between the accused and victim
  9. that the complainant did not consent (see also s. 265(3) and (4))
  10. that the complainant did not assault, threaten or provoke the accused
  11. whether an alcohol was involved

Proving assault, carrying weapon under s. 265(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was "openly wearing or carrying a weapon or imitation thereof"
  5. the culprit accosted or impeded the victim or begged
  6. compare physical build between the accused and victim
  7. that the complainant did not consent (see also s. 265(3) and (4))
  8. that the complainant did not assault, threaten or provoke the accused
  9. whether an alcohol was involved

Interpretation of the Offence

Force

An assault includes “the least of touching” without consent.[1] The amount of force used is not material.[2]

This broad definition does present a risk of "absurd consequences", but it should be left to the courts to draw the line.[3]

The doctrine of implied consent will exclude some of the trivial assaults from being criminally liable.[4]

  1. R v Dawydiuk, 2010 BCCA 162 (CanLII), (2010), 253 CCC (3d) 493 (BCCA), per Rowles JA
    R v Burden, 1981 CanLII 355 (BC CA), (1981) 25 CR (3d) 283 (BCCA), per McFarlane JA
  2. R v Palombi (2007), 222 CCC (3d) 528, 2007 ONCA 486 (CanLII) (Ont. C.A.), per Rosenberg JA
    Burden, supra
    R v McDonald, [2012] N.J. No. 2504 (C.A.) (*no CanLII links)
    Collins v Wilcock, [1984] 3 All ER 374 (Q.B.), at p. 378, (“has long been established that any touching of another person, however slight, may amount to a battery.”)
  3. see R v Jobidon, [1991] 2 SCR 714, 1991 CanLII 77 (SCC), per Gonthier J
  4. e.g. see discussion in R v Bennett, 2006 CanLII 31012 (NL PC), per Gorman J, at paras 41 to 44

Intention

The Crown must prove the accused had intention to apply force. [1] The use of the word “intentionally” refers to the application of force or “to the manner in which force is applied”[2]

An element of "hostility" has never been essential in the proof of assault. It would otherwise exclude liability due to pranks getting out of hand, non-consensual surgical treatment.[3]

Force due to carelessness or reflex is not sufficient.[4]

  1. R v Ewanchuk, 1999 CanLII 711 (SCC), (1999), 131 CCC (3d) 481(SCC), per Major J
    R v Bartlett, 1989 CanLII 4889 (NL SCTD), (1989), 79 Nfld. & P.E.I.R. 143 (NLSC), per Cameron J
  2. R v George, 1960 CanLII 45 (SCC), per Fauteux J
  3. F v West Berkshire Health Authority, [1989] 2 All ER 545 (H.L.), at page 564
  4. R v Starratt, 1971 CanLII 541 (ON CA), [1972] 5 CCC (2d) 32 (C.A.), per Gale CJ
    R v Wolfe (1974), 20 CCC (2d) 382 (Ont. C.A.), 1974 CanLII 1643 (ON CA), per Gale CJ

Attempts or Threatens

An uttered threat accompanied by a preparatory action will amount to an assault.[1]

  1. e.g. R v Brogan, 2013 MBQB 6 (CanLII), per Greenberg J - offender committed assault when he "stood up, clenched his fists and said “Let’s go”"

Consent

See Consent

Traditional Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Offence(s) Testimonial Screen (486) Support Person Screen or CCTV (286.2) Cross-exam. Prohib. Sexual Offence Publication Ban Victim's Right to Privacy in Records Identity Protection Order (486.31)
s. 266 [assault]
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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 266 [assault] -

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 266), but are not serious personal injury offences, s. 606(4.2) 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

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 266 [assault] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 266 [assault] indictable election 5 years incarceration

Offences under s. 266 [assault] 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).

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. 266 [assault] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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.

Principles

Assaults by Peace Officers

Sentences for assaults by peace officers on prisoners should be upon general deterrence and denunciation.[1]

  1. R v Andalib-Goortani, 2015 ONSC 1403 (CanLII), per Trotter J, at para 59

Ranges

see also: Common Assault (Sentencing Cases)
Assaults by Peace Officers

In Ontario, sentences in the range of 30 to 60 days for assaults by peace officers on prisoners should be considered lenient.[1]

  1. R v Andalib-Goortani, 2015 ONSC 1403 (CanLII), per Trotter J, at para 59

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 266
Weapons Prohibition Orders s. 266 [assault]
    • Where there is a conviction under s. 266 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))
Delayed Parole Order s. 266
  • Periods of imprisonment of 2 years or more for convictions under s. 266 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 266 [assault] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

Related Offences
Trial-related Matters

Assault with a Weapon or Causing Bodily Harm


Assault with a Weapon or Causing Bodily Harm
s. 267 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 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)
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

The offences of assault with a weapon and assault causing bodily harm 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)
Preliminary Inquiry
s. 267(a) [assault with a weapon] and
s. 267(b) [assault causing bodily harm]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 267(a) [assault with a weapon] and
s. 267(b) [assault causing bodily harm]
If related to IPV and
with previous conviction for IPV
(s. 718.3(8))
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)

Offences under s. 267 [assault with a weapon or causing bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury. Offences under s. 267 [assault with a weapon or causing bodily harm] (assuming IPV offence with prior, see 718.3(8)) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 267 [assault with a weapon or causing bodily harm] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 267 [assault with a weapon or causing 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 267 [assault with a weapon or causing bodily harm] 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 267 [assault with a weapon or causing bodily harm] OK Symbol.png OK Symbol.png (primary) OK Symbol.png X Mark Symbol.png OK Symbol.png

Offences under s. 267 [assault with a weapon or causing bodily harm] are designated offences eligible for wiretap under s. 183.

Section s. 267 [assault with a weapon or causing bodily harm] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.

Offences under s. 267 [assault with a weapon or causing bodily harm] 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

Assault with a weapon or causing bodily harm

267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof,
(b) causes bodily harm to the complainant, or
(c) chokes, suffocates or strangles the complainant.

R.S., 1985, c. C-46, s. 267; 1994, c. 44, s. 17; 2019, c. 25, s. 93.

CCC


Note up: 267

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
267(a) assault with a weapon "... did in committing an assault upon [name of alleged victim] [carry, use or threaten to use] a weapon or imitation weapon, to wit: [name of weapon] contrary to section 267(a) of the Criminal Code."
267(b) assault causing bodily harm "... did in committing an assault upon [name of alleged victim] caused bodily harm to him contrary to section 267(b) of the Criminal Code."
267(c)[1] assault with a weapon "... did in committing an assault upon [name of alleged victim] did [choke, suffocate or strangle] him contrary to section 267(c) of the Criminal Code."

Proof of the Offence

Proving assault with a weapon under s. 267(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 culprit committed the assault either:
    1. while carrying a weapon;
    2. "use of a weapon" or
    3. threaten to use a weapon.

Proving assault causing bodily harm under s. 267(b) should include:[2]

  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. "bodily harm" was inflicted on the victim;
  6. the assault caused the bodily harm
  7. seriousness of injuries:
    1. a hurt or injury interfered with the victim's health or comfort and whether it was "more than merely transient or trifling in nature"
    2. treatment / duration of injuries

Interpretation of the Offence

Actus Reus

See also: Common Assault (Offence)

The actus reus of assault with a weapon matches that of the offence of common assault but adds the additional act of using or threatening to use a weapon.

Threatens

The offence can be made out without applying any force or even intending to do so. A threat to assault with a weapon and the ability to do so is sufficient.[3]

  1. From September 19, 2019
  2. R v Swenson, 1994 CanLII 4683 (SK CA), [1994] 9 W.W.R. 124, 123 Sask. R. 106 (C.A.)
  3. R v Horncastle, [1972] 8 CCC (2d) 253, 1972 CanLII 1320 (NB CA), per Limerick JA (“... It is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if he threatens to do so and has the present ability to do so. Mens rea lies in the intention to threaten not in the intention to carry out that threat.”)
    R v Madsen, 1991 CanLII 7629 (SK QB), per Batten J, at para 9

Mens Rea

An intention to throw an object without an intention to throw the object at someone, is not sufficient mens rea.[1] By contrast where there is objectively foreseeability of harm of the act, there may be liability.[2] Where the accused throws something carelessly it will usually not be sufficient intent for the mens rea. [3]

However, a recklessness in the act is sufficient to convict.[4]

The doctrine of transferred intent allows the intent to assault one person to satisfy the mens rea for an assault against another person where that second person was not the target. The result is that the intention of a failed assault will transfer to the successful assault of another person. [5]

Intent to assault is made out by heating a lighter and applying it to a child's arm to teach him a lesson.[6]

  1. R v Vandergraaf, (1994) 93 CCC (3d) 286, 1994 CanLII 16617 (MB CA), per Philp JA -- a hockey fan at a game throws a jar of peanut butter onto the rink. The jar hits victim
  2. R v Nurse, (1993) 83 CCC (3d) 546 (Ont. C.A.), 1993 CanLII 14691 (ON CA), per Morden ACJ -- accused fires gun into the air and was convicted because it was objectively foreseeable that harm would be caused
  3. R v L(A), 2007 NUCJ 21 (CanLII), per Johnson J -- accused carelessly, in anger and while intoxicated, throws a beer bottle at a dashboard and bounces off hitting someone
    R v Kemp, 1993 CanLII 8899 (SK QB), (1993) Carswell Sask. 116 (Sask. Q.B.), per Gunn J a hockey player, in frustration, shoots a puck into the bleachers hitting a person in the head
  4. R v Mooney, (1997) Carswell Ont. 4433 (O.Ct.J.)(*no CanLII links) accused convicted for throwing a phone in the direction of accused, it bounces off a wall, hitting the victim in the head
  5. R v Delaney, (1989) Y.J. No. 182 (Y.T. Ct.)(*no CanLII links) , at para 37
    See also: R v Deakin, [1974] 3 W.W.R. 435, 16 CCC (2d) 1 (Man. Ct. of App.), 1974 CanLII 1464 (MB CA), per Matas JA
    R v Phan, 2009 ABPC 190 (CanLII), 476 A.R. 323 (ABPC), per Cummings J
  6. R v Earl, 2006 NSSC 52 (CanLII), per Coughlan J

Intent

Assault causing bodily harm is a general intent offence.[1]

The accused does not need to intend the consequences of his actions. Where he is reckless whether the act caused bodily harm will be sufficient.[2]

The mens rea requires that there be an "objective foreseeability of risk of bodily harm" in general. There is no need for establishing the risk of the specific type of harm that occurs.[3]

Sufficient intent is made out where the accused was engaged in a course of conduct that was objectively dangerous and bodily harm results.[4]

An intention to intimidate or frighten is not sufficient to establish an intention to cause serious bodily harm.[5]

  1. R v MKK, 2012 SKQB 531 (CanLII), per Acton J, at para 5
    R v Janvier (1979), 1979 ALTASCAD 27 (CanLII), 11 C.R. (3d) 399, [1979] AJ No 251 (QL) (Alta. C.A.), per Sinclair JA
  2. See R v AE, 2000 CanLII 16823 (ON CA), (2000), 146 CCC (3d) 449, 35 C.R. (5th) 386 (Ont. C.A.), per Weiler JA
  3. See R v Dewey, 1999 ABCA 5 (CanLII), 1999 ABCA 5, 132 CCC (3d) 348, per McClung JA
  4. See R v DeSousa (1992), 1992 CanLII 80, [1992] 2 SCR 944, per Sopkina J
    R v Van De Wiel (1997), 158 N.S.R.(2d) 368, 1997 CanLII 9923 (NSSC), per Scanlan J, at para 20
  5. See also, R v CD; R v CDK, 2005 SCC 78 (CanLII), per Bastarache J
    R v Moquin, 2010 MBCA 22 (CanLII), per Beard JA, at paras 22 to 28

Causing

See also: Causation

For an accused to be found to have caused injury from violence the court must be satisfied that the act was a "contributing cause...outside the de minimis range".[1] This has also been stated by concluding that the action must be a "contributing" cause and not just a "minimal" or "insignificant" cause.[2]

There is variation between jurisdictions on whether the crown must prove intention to cause harm. There is a line of cases that conclude that the Crown must prove that the harm was an "objectively foreseeable consequence of the assault".[3] There is also a line of cases that conclude that merely the intent to apply force is sufficient.[4]

The shooting of a gun into the air creates an objective foreseeability that a person will be hit by the falling bullets and suffer bodily harm.[5]

  1. Smithers v R, 1977 CanLII 7 (SCC), [1978] 1 SCR 506, per Dickson J, at p. 89
  2. R v Pinske (1988), 30 B.C.L.R. (2d) 114 aff'd 1989 CanLII 47 (SCC), [1989] 2 SCR 979, per Lamer J
  3. R v Palombi, 2007 ONCA 486 (CanLII), per Rosenberg JA
    R v Dewey (1998) 132 CCC (3d) 348 (Sask. C.A.), 1999 ABCA 5 (CanLII), per McClung JA
    R v Nurse (1993), 83 CCC (3d) 546 (Ont. C.A.), 1993 CanLII 14691 (ON CA), per Morden ACJ
    See also: R v Cador, 2010 ABCA 232 (CanLII), per curiam
  4. R v Swenson (1994), 91 CCC (3d) 541 (Sask. C.A.), 1994 CanLII 4683 (SK CA), per Vancise JA
    R v Brooks (1988), 41 CCC (3d) 157 (BCCA), 1988 CanLII 3018 (BC CA), per Macdonald JA
    R v Munroe, (1978) 41 CCC (2d) 193 (NSCA) (*no CanLII links) (complete citation pending)
  5. R v Nurse, (1993) 83 CCC (3d) 546 (Ont. C.A.), 1993 CanLII 14691 (ON CA), per Morden ACJ

Consent

One cannot consent to being stabbed.[1]

  1. R v Carriere, 1987 ABCA 39 (CanLII), (1987), 35 CCC (3d) 276 (Alta. C.A.), per Laycraft CJ, at p. 287: ("One cannot consent to be stabbed. The public policy of the law intervenes to nullify the apparent consent of each of the combatants.")

Cross-Referenced Terms

Section 2 defines weapons, and bodily harm. The section on weapons will also address the "use" of weapons.

Kienapple

See also: Kienapple Principle

Many cases state that an accused cannot be convicted of Assault with a Weapon and Assault Causing Bodily Harm where they arise out of the same circumstances.[1] The same goes for the offence of assault with a weapon and aggravated assault.[2]

Where the evidence is substantially the same for proving the elements of possession for a dangerous purpose and assault with a weapon, convictions on both are precluded.[3]

A conviction can be entered on both aggravated assault and assault with a weapon.[4]

Kienapple does not apply to assault causing bodily harm and unlawful confinement, as "bodily harm" is an essential element to Assault CBH.[5]

Many cases state that an accused cannot be convicted of assault with a weapon and assault causing bodily harm where they arise out of the same circumstances.[6]

  1. e.g. R v Arnill, 1999 CanLII 3188 (ON CA), [1999] OJ No 332 (C.A.), per curiam
    R v Basilio, 2003 CanLII 15531 (ON CA), (2003), 175 CCC (3d) 440 (Ont. C.A.), per Gillese JA
    R v Briscoe, 1992 CanLII 938 (BC CA), (1992), 76 CCC (3d) 563 (BCCA), per Wood JA
  2. Basilio, supra
  3. Briscoe, supra
  4. R v Foster, 2008 BCSC 1368 (CanLII), per Ehrcke J
  5. R v Bannert, 2009 ABCA 15 (CanLII), per curiam
  6. e.g. Arnill, supra
    Basilio, supra
    Briscoe, supra

Considered Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of assault causing bodily harm or with a weapon.

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 267 [assault with a weapon or causing bodily harm]

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. 267(a) [assault with a weapon] or
s. 267(b) [assault causing bodily harm]
summary election 18 months incarceration
s. 267(a) [assault with a weapon] or
s. 267(b) [assault causing bodily harm]
indictable election 10 years incarceration
s. 267(a) [assault with a weapon] or
s. 267(b) [assault causing bodily harm]
If related to IPV and
with previous conviction for IPV
(s. 718.3(8))[1]
indictable election 14 years incarceration

Offences under s. 267 [assault with a weapon or causing bodily harm] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration. Where the offender is convicted for a second-time for intimate partner violence (IPV) and the election is to proceed by indictment, then 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. 267 [assault with a weapon or causing bodily harm] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 267 [assault with a weapon or causing bodily harm] 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

There are no statutory requirements that the sentences be consecutive.

Principles

Where assault offences involve weapons of any type "denunciation and deterrence are paramount factors in sentencing".[2]

  1. From September 19, 2019
  2. R v Hamlyn, 2016 ABCA 127 (CanLII), per curiam, at para 21
    R v Gorman, 2008 ABCA 311 (CanLII), per Slatter JA, at para 8
    R v Ruksys, 2006 ABCA 270 (CanLII), per Martin JA, at paras 7 to 8

Ranges

see also: Common Assault (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 267 [assault with a weapon or causing bodily harm]
Weapons Prohibition Orders s. 267 [assault with a weapon or causing bodily harm]
  • On conviction under s. 267(b) [assault causing bodily harm] 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).
  • For offences under s. 267(a) [assault with a weapon] where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.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.
  • Where there is a conviction under s. 267 [summary conviction] 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))
Delayed Parole Order s. 267 [assault with a weapon or causing bodily harm]
  • Periods of imprisonment of 2 years or more for convictions under s. 267 [assault with a weapon or causing bodily harm] 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 267 [assault with a weapon or causing bodily harm] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

Section 267 was amended in 199, c. 44, s. 17, increasing the maximum summary penalty to 18 months and the maximum indictable penalty to 10 years.

Enactment 1980-81-82-83, c. 125, s. 19 replaced s. 245 with the following:

Assault with a weapon or causing bodily harm

245.1 (1) Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant, is guilty of an indictable offence and is liable to imprisonment for ten years.
Definition of “bodily harm”

(2) For the purposes of this section and sections 245.3 and 246.2, “bodily harm” means any hurt or injury to the complainant that interferes with his or her health or comfort and that is more than merely transient or trifling in nature.

Section 231 was renumbered to s. 245.

Criminal Code, 1953-54, c. 51 joined common assault with assault causing bodily harm:

231 Every one who commits a common assault is guilty of

(a) an indictable offence and is liable to imprisonment for two years, or
(b) an offence punishable on summary conviction.
Causing bodily harm by assault or otherwise

(2) Every one who unlawfully causes bodily harm to any person or commits an assault that causes bodily harm to any person is guilty of an indictable offence and is liable to imprisonment for two years.

The Criminal Code 1892, c. 29:

Wounding

242 Every one is guilty of an indictable offence and liable to three years' imprisonment who lawfully wounds or inflicts any grievous bodily harm upon any other person, either with or without any weapon or instrument.

Assaults causing actual bodily harm

262 Every one who commits any assault which occasions actual bodily harm is guilty of art indictable offence and liable to three years' imprisonment.

See Also

Related Offences
Motions

Aggravated Assault


Aggravated Assault
s. 268 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
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)
Minimum None
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to aggravated assault are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 268 [aggravated assault] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)
s. 268 [aggravated assault]
If related to IPV and
with previous conviction for IPV
(s. 718.3(8))
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)

Offences under s. 268 [aggravated assault] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 268 [aggravated assault] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 268 [aggravated assault], the accused can be given a judicial summons without arrest. 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 268 [aggravated assault] 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 268 [aggravated assault] OK Symbol.png OK Symbol.png (Primary) OK Symbol.png (enumerated in s. 752 definition (b)) X Mark Symbol.png OK Symbol.png

Offences under s. 268[aggravated assault] are designated offences eligible for wiretap under s. 183.

Section s. 268 [aggravated assault] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.

Offences under s. 268 [aggravated assault] 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

Aggravated assault

268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Excision

(3) For greater certainty, in this section, “wounds” or “maims” includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or
(b) the person is at least eighteen years of age and there is no resulting bodily harm.
Consent

(4) For the purposes of this section and section 265 [assault], no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) [aggravated assault – excision – surgery] and (b) [aggravated assault – excision – 18 and no harm].

R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.
[annotation(s) added]

CCC


Note up: 268(1), (2), (3), and (4)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
268 aggravated assault "... did [wound, maim, disfigure or endanger the life of] [name or initialism of victim] thereby committing an aggravated assault contrary to section 268 of the Criminal Code."

Proof of the Offence

Proving aggravated assault under s. 268 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that an assault occurred (e.g. intentional application of force with no consent)
  5. the injuries sustained
  6. the injuries amounted to the victim being:
    1. wounded,
    2. maimed,
    3. disfigured, or
    4. had life endangered
  7. that there was no provocation
Jury decision tree [1]

Draft Jury Decision Trees

Interpretation of the Offence

The elements of aggravated assault are the same as those of common assault (s. 266) with the addition of:[2]

  1. the assault wounded, maimed or endangered life;
  2. the accused's conduct caused the wounding, maiming or endangerment; and
  3. a reasonable person would have realized the accused’s conduct would subject the victim to the risk of bodily harm
  1. R v Adem, 2018 ABCA 333 (CanLII), per curiam (3:0)
  2. R v McConnell, 2014 BCSC 973 (CanLII), per Romilly J, at para 8
    R v Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574, per Cory J
    R v Brodie (1995), 1995 CanLII 2601 (BC CA), 60 BCAC 153, per Taylor JA

Actus Reus

The Crown does not need to prove that the accused had an intent to wound, maim or disfigure the complainant. However, he must prove that the accused had "objective foresight of bodily harm".[1] This same standard applies to assault causing bodily harm.[2]

"wound, maim or disfigure"

"Wound" refers to any break in the skin[3] or cutting of the skin or tissue which causes bleeding.[4] It generally refers to permanent damage.[5]

"Maiming" refers to "a hurt to the body that causes a person to be less able to fight".[6] This includes breaking of bones.

"Disfigure" refers to injuries that amount to "more than a temporary marring of the figure or appearance".[7]

Endangerment

The "endangerment" of life refers to the consequence of the injuries received (a product of wounds, maiming or disfigurement) and not simply the risk created by accused assaultive behaviour. No injuries are not necessary.[8]

  1. R v Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574, per Cory J, at p. 485
  2. R v Dewey, 1999 ABCA 5 (CanLII), per McClung JA, at para 9
  3. R v Littletent, 1985 ABCA 22 (CanLII), AJ No. 256, per Moir JA
  4. Littletent, ibid., at para 2
    R v Hilderman, 2005 ABQB 106 (CanLII), per Martin J, at paras 9, 19
  5. R v Reid, 2013 ABPC 228 (CanLII), per Semenuk J, at para 24
  6. R v Schultz, [1962] 133 CCC 174 (Alta. S.C. App. Div.), 1962 CanLII 553 (AB CA), per Smith CJ
  7. R v Innes and Brotchie, [1972] 7 CCC (2d) 544 (BCCA), 1972 CanLII 1255 (BC CA), per McFarlane JA
  8. R v De Freitas, 1999 CanLII 14071 (MB CA), per Twaddle JA at 11 and 12

Mens Rea

The mens rea for this offence is the same mens rea for common assault with the addition of an objective foresight of the risk of bodily harm.[1]

There is no need for an intent "to maim, wound or disfigure the complainant". The offence criminalizes the assault not the desire to bring about the consequence.[2]

An objective foresight standard means the Court must inquire whether "any reasonable person would inevitably realize" that the person who be subject to a "risk of, at least, some harm".[3]

A party to an offence under s. 21(1)(b), it is not necessary that the party have a greater mens rea than the principal. It also not necessary to establish an objective foresight of the specific wounds being caused by the assault.[4]

  1. R v Williams, 2003 SCC 41 (CanLII), [2003] 2 SCR 134, per Binnie J
    R v Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484, per Cory J ("objective foresight of bodily harm")
  2. R v Nanemahoo, 2011 ABCA 182 (CanLII), per curiam, at para 22
    Godin, supra, per Cory J ("It is not necessary that there be an intent to wound or maim or disfigure")
  3. R v DeSousa, [1992] 2 SCR 944, 1992 CanLII 80 (SCC), per Sopinka J
  4. Nanemahoo, supra, at para 23

Discharging a Firearm

Where the aggravated assault arises from the discharge of a firearm, the crown must prove:[1]

  1. that the accused intentionally applied force or intentionally threatened to apply while having the ability to carry it out;
  2. that a reasonable person in the accused's position would have been able to foresee that pointing or firing the firearm would subject the victim to a risk of bodily harm; and
  3. that actual wounding, maiming, or disfigurement resulted.
  1. R v Foti, 2002 MBCA 122 (CanLII), per Steel JA

Common Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of aggravated assault.

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 268 [aggravated assault] OK Symbol.png (where SPIO, Crown must notify victims) OK Symbol.png

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 details on general principles and factors of assault-based offences, see Violent and Assaultive Offences (Sentencing)
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 268 [aggravated assault] N/A 14 years incarceration
s. 268 [aggravated assault]
If related to IPV and
with previous conviction for IPV
(s. 718.3(8))
N/A life incarceration

Offences under s. 268 [aggravated assault] are straight indictable. The maximum penalty is 14 years incarceration. Where the offender is convicted for a second-time for intimate partner violence (IPV), then the maximum penalty is life.

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. 268 [aggravated assault] 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

If convicted under s. 268 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. 268 [aggravated assault] 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

There are no statutory requirements that the sentences be consecutive.

Principles

Aggravated assault is the most serious of violent crimes short of homicide and so must include incarceration.[1] General deterrence is the primary factor.[2]

The types of offences include a range with the high end including an unprovoked attack with a weapon. While a consensual fight that escalates tends to be on the lower end.[3]

It is only "in the rarest and most exceptional case will a suspended sentence be a demonstrably fit sentence for aggravated assault".[4]

Those instances of offences that are unprovoked and premeditated, the emphasis should be on denunciation, which should exclude a community-based sentence.[5]

  1. R v Marsman, 2007 NSCA 65 (CanLII), per MacDonald CJ (3:0)
    R v Keshane, 2005 SKCA 18 (CanLII), [2005] S.J. No. 97, per Cameron JA (3:0)
  2. R v Perlin, [1977] NSJ No. 548 (*no CanLII links)
    R v Dzikowski, 1990 CanLII 2539 (NS CA), [1990] NSJ No. 353, per Matthews JA (3:0)
    R v King, [1999] NSJ No. 331, 1999 NSCA 103 (CanLII), per curiam (3:0)
  3. R v Craig, 2005 BCCA 484 (CanLII), per Kirkpatrick JA (3:0), at para 10
  4. R v Hamlyn, 2016 ABCA 127 (CanLII), per curiam (3:0), at para 21
  5. R v Derkson, 2009 YKSC 66 (CanLII), per Richard J

Ranges

see also: Aggravated Assault (Sentencing Cases)

The range of appropriate sentence can be very broad, ranging from suspended sentence to mid-range penitentiary sentences.[1]

British Columbia

It has been stated that the "range of sentence for similar offences [namely aggravated assault] was described as being between 16 months and six years”[2] Further it has been stated as "18 months to six years"[3] and "two years less a day to six years".[4]

Newfoundland and Labrador

In Newfoundland, it is suggested that aggravated assault where a knife is involved is in the range of 3 to 6 years. [5]

Ontario

In Ontario, the ranges of sentence have been separated into three groups.[6] There are those in the low range which are considered "exceptional" due to their unusual degree of mitigation which will reduce the amount of jail required. The second group consists of the middle range of 18 months to 2 years less a day. These involve first time offenders and arise from quasi-consensual fights that resort to excessive force. The third group is the high range which is generally between 4 to 6 years. These involve recidivists involved in unprovoked or premeditated violence with no suggestion of consent or self-defence.[7]

The upper range of 6 years are reserved for those offenders with a prior criminal record who commits an "unprovoked" and "premeditated" assaults.[8]

  1. see comments in R v Comeau [1999] OJ No 1540(*no CanLII links)
    R v Peters, 2010 ONCA 30 (CanLII), per Blair JA (3:0) -- court suggesting suspended sentence being available
  2. R v Craig, 2005 BCCA 484 (CanLII), 201 CCC (3d) 495, per Kirkpatrick JA (3:0)
    R v Johnson, 1998 CanLII 4838 (BC CA), (1998), 131 CCC (3d) 274 (B.C.C.A), per Prowse JA (3:0)
  3. R v Willier, 2005 BCCA 404 (CanLII), per Smith JA (3:0)
  4. R v Biln, 1999 BCCA 369 (CanLII), per McEachern JA (3:0)
  5. R v Wheeler, [2011] N.J. No. 391, 2011 CanLII 69366 (NL PC), per Gorman J, at para 72
  6. R v Tourville, 2011 ONSC 1677 (CanLII), per Code J
    R v Brethour, 2013 ONSC 1167 (CanLII), per Beaudoin J, at paras 17 to 19
  7. Brethour, ibid., at paras 17 to 19
  8. Tourville, supra, at para 30

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 268 [aggravated assault]
Weapons Prohibition Orders s. 268 [aggravated assault]
  • On conviction under s. 268 [aggravated assault] 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.
  • For offences under s. 268 [if weapon etc. involved] where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.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. 268 [aggravated assault]
  • Periods of imprisonment of 2 years or more for convictions under s. 268 [aggravated assault] 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 268 [aggravated assault] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

Prior to the 1997 amendments to s. 268, it read:

Aggravated assault

268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46

The first instance of aggravated assault as a criminal offence was found in An Act to amend the Criminal Code, SC 1980-81-82-83, c. 125, s. 19. It created s. 245.2, which stated:

Aggravated assault

245.2 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and is liable to imprisonment for fourteen years.

See Also

References

Assault Peace Officer


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 12 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.
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

See also: Disarming a Peace Officer (Offence)

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)
Preliminary Inquiry
s. 270(1)(a) [assault peace officer/assault person aiding a peace officer]
s. 270(1)(b) [assault to prevent arrest]
s. 270(1)(c)(i), (ii) [assault to person executing duty]
s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 270.02 [aggravated assault peace officer] Indictable Offence(s) N/A OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 270 and s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Offences under s. 270.02 [aggravated assault peace officer] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 270(1)(a) [assault peace officer/assault person aiding a peace officer]
s. 270(1)(b) [assault to prevent arrest]
s. 270(1)(c)(i), (ii) [assault to person executing duty]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 270.02 [aggravated assault peace officer] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 270 and s. 270.01 [assault peace officer with a weapon or assault peace officer causing 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.

When charged under s. 270.02 [aggravated assault peace officer] , the accused can be given a judicial summons without arrest. 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.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 270,
207.1 [assault peace officer causing bodily harm] or
270.02 [aggravated assault peace officer] 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 270(1)(a) [assault peace officer] or [assault person aiding a peace officer]
s. 270(1)(b) [assault to prevent arrest]
s. 270(1)(c)(i), (ii) [assault to person executing duty]
X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png
s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm]
s. 270.02 [aggravated assault peace officer]
OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png

Offences under s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm] and 270.02 [aggravated assault peace officer] are designated offences eligible for wiretap under s. 183.

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

Offences under s. 270,
270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm] and
270.02 [aggravated assault peace officer] 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) [assaulting a peace officer] 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.
[annotation(s) added]

CCC


Note up: 270(1) and (2)

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 [assault peace officer],

(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) [assault peace officer with weapon or causing bodily harm] 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.

2009, c. 22, s. 9; 2019, c. 25, s. 95.
[annotation(s) added]

CCC


Note up: 270.01(1) and (2)

Aggravated assault of peace officer

270.02 Everyone who, in committing an assault referred to in section 270 [assault peace officer], 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


Note up: 270.02

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
270 Assault peace officer "..., contrary to section 270 of the Criminal Code.
270.01 "..., contrary to section 270.01 of the Criminal Code.
270.02 "..., contrary to section 270.02 of the Criminal Code.

Proof of the Offence

Proving assault peace officer under s. 270(1)(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(1)(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(1)(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(1)(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(1)(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 jurisdictions 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), per Hill J, at para 100 ("On appeal, the Crown accepted that convictions for obstruction of a peace officer in the execution of his duty and assault of a peace officer in the execution of his duty arising from the same factual allegations cannot stand without violating the Kienapple principle")

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 270(1)(a) [assault peace officer/assault person aiding a peace officer] OK Symbol.png OK Symbol.png OK Symbol.png

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(1)(a) [assault peace officer/assault person aiding a peace officer]
s. 270(1)(b) [assault to prevent arrest]
s. 270(1)(c)(i), (ii) [assault to person executing duty]
summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 270(1)(a) [assault peace officer/assault person aiding a peace officer]
s. 270(1)(b) [assault to prevent arrest]
s. 270(1)(c)(i), (ii) [assault to person executing duty]
indictable election 5 years incarceration
s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm] summary election 18 months incarceration
s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm] indictable election 10 years incarceration
s. 270.02 [aggravated assault peace officer] N/A 14 years incarceration

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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) 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 [assault peace officer with a weapon or assault peace officer causing bodily harm] 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 [aggravated assault peace officer] 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) [assaulting a peace officer] or 270.01(1) [assault peace officer with weapon or causing bodily harm] or section 270.02 [aggravated assault of peace officer] committed against a law enforcement officer, as defined in subsection 445.01(4) [harming service animals – definitions], 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


Note up: 270.03

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) [assaulting a peace officer], section 270.01 [assault peace officer with weapon or causing bodily harm] or 270.02 [aggravated assault of peace officer] or paragraph 423.1(1)(b) [impeding justice system participant in their duties], 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


Note up: 718.02

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), per curiam, at para 1
  2. R v Solomon, [2001] OJ No 5733 (CJ)(*no CanLII links) at 2
  3. Solomon, ibid., at para 2
    R v Joseph [2001] OJ No 5726(*no CanLII links) , at para 3
    R v Charlette, 2010 SKCA 78 (CanLII), per Jackson JA, 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] OJ No 5069 (C.J.)(*no CanLII links) at 4
    R v Ratt, 2012 SKPC 154 (CanLII), per Daunt J - 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 [assault peace officer with a weapon or assault peace officer causing bodily harm] or 270.02 [aggravated assault peace officer]
Weapons Prohibition Orders s. 270, 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm] or 270.02 [aggravated assault peace officer]
  • 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 [assault peace officer with a weapon or assault peace officer causing bodily harm] or 270.02 [aggravated assault peace officer]
  • 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 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 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(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.

Record Suspensions and Pardons

Convictions under s. 270(1)(a) [assault peace officer/assault person aiding a peace officer] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

Related Offences

Kidnapping and Unlawful Confinement


Kidnapping and Unlawful Confinement
s. 279(1.1), (2) of the Crim. Code
Election / Plea
Crown Election Indictment (279(1.1)), Hybrid (279(2))
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 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 4, 5, 7 years incarceration (kipnap w/ firearm)
Maximum 10 years incarceration (confine)
Life (kidnap)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to kidnapping and unlawful confinement are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 279(1.1) [kidnapping] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)
s. 279(2) [forcible confinement] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 279(1.1) [kidnapping] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.

Offences under s. 279(2) [forcible confinement] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Notice is required if prior convictions are being relied upon to seek an increased penalty under s. 279(1.1)(a)(ii). Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 279(1.1) [kidnapping] X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 279(2) [forcible confinement] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 279(1.1) [kidnapping], the accused can be given a judicial summons without arrest. 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.

When charged under s. 279(2) [forcible confinement], 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.

Under s. 515(6)(a)(vii), offences charged under s. 279(1.1) have a reverse onus on bail where it has "been committed with a firearm".

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 279 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 279(1.1) [kidnapping] OK Symbol.png OK Symbol.png (primary) OK Symbol.png X Mark Symbol.png
s. 279(2) [forcible confinement] X Mark Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 279(1.1) [kidnapping] are designated offences eligible for wiretap under s. 183.

Section s. 279(1.1) [kidnapping] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.

Offences under s. 279(2) [forcible confinement] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 279(1.1) or (2) 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

Kidnapping

279 (1) Every person commits an offence who kidnaps a person with intent

(a) to cause the person to be confined or imprisoned against the person’s will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
(c) to hold the person for ransom or to service against the person’s will.
Punishment

(1.1) Every person who commits an offence under subsection (1) [kidnapping] is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;
(a.2) if the person referred to in paragraph (1)(a) [kidnapping – confined or imprisoned], (b) [kidnapping – transport out of Canada] or (c) [kidnapping – ransom or service] is under 16 years of age, to imprisonment for life and, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the person referred to in that paragraph, to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for life.

[omitted (1.2), (1.21), and (1.3)]

Forcible confinement

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

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

(3) [Repealed, 2018, c. 29, s. 26]

R.S., 1985, c. C-46, s. 279 R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14; 2008, c. 6, s. 30; 2009, c. 22, s. 12; 2013, c. 32, s. 1; 2018, c. 29, s. 26; 2019, c. 25, s. 103.
[annotation(s) added]

CCC


Note up: 279(1), (1.1) and (2)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving kidnapping under s. 279(1.1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit moved or took a person from one place to another[1]
  5. the victim did not consent
  6. the culprit had no lawful authority to do so
  7. the culprit intended to
    1. confine or imprison the victim
    2. cause the person to be sent in or out of the country
    3. holding the person for ransom or service

Proving Forcible Confinement under s. 279(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "confines, imprisons or forcibly seizes" another person
  5. the other person did not consent to the confinement
  6. the culprit had no "lawful authority" to confine the complainant
  7. the culprit intended to confine the victim
  8. the culprit used force or threat of force
  1. e.g. see R v Oakley, (1977) 36 CCC (2d) 436 (ABCA), 1977 ALTASCAD 118 (CanLII), per Morrow JA

Interpretation of the Offence

Kidnapping vs Confinement

For the offence of kidnapping, the crown must prove that the accused took the victim from one place to another without consent. [1] This is the key distinction between confinement and kidnapping. Confinement is the deprivation of a person's liberty to move, while kidnapping is the moving of a person. All kidnappings are confinements but not all confinements are kidnapping.[2]

Kidnapping is considered "an aggravated form of unlawful confinement, which continues until the victim is freed".[3]

Kienapple

See Kienapple Principle

  1. R v Oakley, (1977), 1977 ALTASCAD 118 (CanLII), 4 AR 103, 36 CCC (2d) 436 (Alta SCAD), per Morrow JA
  2. see R v Tremblay (1997), 1997 CanLII 10526 (QC CA), 117 CCC (3d) 86 (QCCA), per curiam
    R v Niedermier, 2005 BCCA 15 (CanLII), per curiam
  3. R v Vu, 2012 SCC 40 (CanLII), per Moldaver JA, at para 40

Confinement

The essence of the offence is "forcible deprivation of another person's physical liberty or freedom".[1] It's guiding principle is "illegal domination of one person by another".[2]

Meaning of Confinement

Unlawful confinement is made out by "physical restraint" that is "contrary to the wishes of the person restrained" resulting in a deprivation of "liberty to move from one place to another".[3]

"Confinement" means "the state or condition of being confined, restriction or limitation".[4] It is to "keep that person in a place, within or to limits, or a defined area, to restrict or secure that person". [5]

Confinement includes "restraining another person's liberty, though not necessarily the other person's ability to escape."[6]

There is no requirement for "physical application of bindings".[7] The restraint can be by "psychological means, such as threats, intimidation or the imposition of fear".[8] There must either be "actual physical restraint" or "coercive restraint".[9]

The victim must be "fully restrained" so that they cannot "move about from place to place".[10]

The duration of confinement must be "significant".[11] However, the Crown does not need to prove that the confinement happened throughout the "entire period specified in the count."[12]

A person who voluntarily enters into a car, but is then denied the ability to leave will usually make out the offence.[13]

Where consent was obtained by fraud, deceit, or trickery, then the consent is not valid.[14]

Actus Reus

There must be proven that there was at least a minimal deprivation of the victim's freedom. [15]

The duration of the confinement does not need to be lengthy. A "significant" period of time where the victim is "coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire" will be sufficient.[16]

A child confined by a lawful guardian can be considered lawful confinement.[17]

An arrest by a peace officer or private citizen can be unlawful confinement. For example, where an officer takes a lawfully arrested man out to a remote area to abandon him in freezing weather makes out the offence.[18]

Confinement refers to the "physical restraint, contrary to the wishes of the person restrained, ...thereby depriving the person of his or her liberty to move from one place to another". [19]

There is no need for physical application of bindings.[20]

Mens Rea

Confinement is a general intent offence.[21]

The offence requires an "intent to effect deprivation of freedom of movement"[22]

A person who knowingly becomes involved with the confinement of a person known to them to have been kidnapped can be found to be a party to the initial offence of kidnapping.[23]

  1. R v Fagg, 2014 BCSC 2632 (CanLII), per Saunders J, at para 38
  2. R v Luxton, 1990 CanLII 83 (SCC), [1990] 2 SCR 711, per Lamer CJ
  3. R v Gratton (1985), 18 CCC (3d) 462 (ONCA), 1985 CanLII 3549 (ON CA), per Cory JA, at para 29
    Fagg, supra, at para 38
  4. R v EB, [2006] OJ 1864(*no CanLII links) , per Watt J, at para 115
  5. EB, ibid., at para 115
  6. EB, ibid., at paras 115 and 116
  7. Gratton, supra, at para 29
  8. R v Kematch, 2010 MBCA 18 (CanLII), per Monnin JA, at para 55
    Fagg, supra, at para 41
  9. R v Pritchard, 2008 SCC 59 (CanLII), per Binne J
  10. EB, ibid., at para 119
  11. Gratton, supra, at para 29
    EB, supra, at para 119
  12. EB, supra, at para 119
  13. see for example Tremblay, supra
  14. R v Metcalfe, 1983 CanLII 248 (BC CA), (1983), 10 CCC (3d) 114, per Nemetz CJ, at paras 9, 11, 12
    R v Johnson, (1984), 65 NSR (2d) 54 (NSSCAD)(*no CanLII links) , leave denied [1985] SCCA No. 263
    R v Brown (1972), 8 CCC (2d) 13 (Ont CA), 1972 CanLII 1353 (ON CA), per MacKay JA
  15. R v B(SJ), 2002 ABCA 143 (CanLII), 312 AR 313, per Berger JA
  16. R v Pritchard, 2008 SCC 59 (CanLII), per Binnie J (7:0), at para 24 ("The authorities establish that if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement")
  17. R v Whalen, 2001 NWTSC 63(*no CanLII links)
  18. R v Munson, 2003 SKCA 28 (CanLII), per curiam
  19. Gratton, supra
    R v Neidermier, 2005 BCCA 15 (CanLII), per curiam
  20. Gratton, supra
  21. R v B(SJ), 2002 ABCA 143 (CanLII), per Berger JA
  22. B(SJ), ibid., at para 41
  23. R v Vu, 2012 SCC 40 (CanLII), per Moldaver J

Defences

See also: 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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 279(1.1) [kidnapping] N/A life incarceration
s. 279(2) [confinement] summary election 18 months custody
s. 279(2) indictable election 10 years incarceration

Offences under s. 279(1.1) are straight indictable. The maximum penalty is life incarceration.

Offences under s. 279(2) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months.

Minimum Penalties

Where the aggravating factors in s. 279(1.1)(a) are established, there is a mandatory minimum of 5 years incarceration or 7 years incarceration with prior convictions. Where the aggravating factor in s. 279(1.1)(a.1) are established, there is a mandatory minimum of 4 years incarceration. Where the aggravating factor in s. 279(1.1)(a.2) are established, there is a mandatory minimum of 5 years incarceration.

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. 279(1.1) 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
s. 279(2) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 279(1.1)
with aggravating factors
N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 279(1) are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Subsequent Offences

279.
...[(1), (1.1)]...

Subsequent offences

(1.2) In determining, for the purpose of paragraph (1.1)(a) , whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under subsection (1) [kidnapping];
(b) an offence under subsection 85(1) [use of firearm in commission of an offence] or (2) [use of an imitation firearm in commission of an offence] or section 244 [discharging firearm] or 244.2 [discharging firearm – recklessness]; or
(c) an offence under section 220 [criminal negligence causing death], 236 [manslaughter], 239 [attempted murder], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault], 279.1 [hostage taking], 344 [robbery] or 346 [extortion] if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Factors to consider

(1.21) In imposing a sentence under paragraph (1.1)(a.2) [kidnapping – punishment – under 16 years], the court shall take into account the age and vulnerability of the victim.

Sequence of convictions only

(1.3) For the purposes of subsection (1.2) [kidnapping – subsequent offences], the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
...
R.S., 1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14; 2008, c. 6, s. 30; 2009, c. 22, s. 12; 2013, c. 32, s. 1; 2018, c. 29, s. 26.
[annotation(s) added]

CCC


Note up: 279(1.2), (1.21) and (1.3)

Principles

Ranges

The range of sentence should not be narrow given the variable range of circumstances of kidnapping.[1]

One category of kidnapping, described as "the classic form of kidnapping" should be in a range of 10 years to life.[2] Another category is a "technical" kidnapping, usually where there was a "relatively short period of confinement", which should range between 4 to 6 years.[3]

Hostage-taking has been interpreted as a form of terrorism.[4]

  1. R v Deo and Mangat, 2007 BCCA 626 (CanLII), per Finch JA
  2. R v Brar, 2014 BCCA 175 (CanLII), per Willcock JA (3:0), at para 19
  3. Brar, ibid., at para 19
  4. R v Maltby, 1986 CanLII 4644 (ON CA), per Grange JA

Ancillary Sentencing Order

Offence-specific Orders
Order Conviction Description
DNA Orders s. 279 [kidnapping or forceable confinement]
Weapons Prohibition Orders s. 279 [kidnapping or forceable confinement]
  • On conviction under s. 279 [kidnapping or forceable confinement] 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.
  • Where there is a conviction under s. 279 [kidnapping or forceable confinement] [summary election] 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))
SOIRA Order s. 279(1.1), (2)
    • On conviction under s. 279(1.1), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))).
      • There is an option for early termination under s. 490.015 after 20 years.

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

    • On conviction under s. 279(2), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Delayed Parole Order s. 279 [kidnapping or forceable confinement]
  • Periods of imprisonment of 2 years or more for convictions under s. 279 [kidnapping or forceable confinement] 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 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 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(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.

Record Suspensions and Pardons

History

See Also

Related Offences
References

History of Kidnapping and Unlawful Confinement

History

See also: List of Criminal Code Amendments and Kidnapping and Unlawful Confinement (Offence)

2013 to Present

On June 23, 2013, s. 279 was amended to increase the maximum penalty to life for offences against persons under 16, and added the vulnerability as a aggravating factor.[1]

Kidnapping

279 (1) Every person commits an offence who kidnaps a person with intent

(a) to cause the person to be confined or imprisoned against the person’s will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
(c) to hold the person for ransom or to service against the person’s will.
Punishment

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;
(a.2) if the person referred to in paragraph (1)(a), (b) or (c) is under 16 years of age, to imprisonment for life and, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the person referred to in that paragraph, to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for life.
Subsequent offences

(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under subsection (1);
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 239, 272, 273, 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Factors to consider

(1.21) In imposing a sentence under paragraph (1.1)(a.2), the court shall take into account the age and vulnerability of the victim.

Sequence of convictions only

(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

Forcible confinement

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Non-resistance

(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.
R.S., 1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14; 2008, c. 6, s. 30; 2009, c. 22, s. 12; 2013, c. 32, s. 1.

CCC

The changes from 2013 are underlined.

  1. see s. 279(1.1) and (1.2)

2009 to 2013

Kidnapping

279 (1) Every person commits an offence who kidnaps a person with intent

(a) to cause the person to be confined or imprisoned against the person’s will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
(c) to hold the person for ransom or to service against the person’s will.
Punishment

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Subsequent offences

(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under subsection (1);
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 239, 272, 273, 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only

(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

Forcible confinement

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Non-resistance

(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.

R.S., 1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14; 2008, c. 6, s. 30; 2009, c. 22, s. 12.

CCC

The changes from 2009 are underlined.

2008 to 2009

Kidnapping

279 (1) Every person commits an offence who kidnaps a person with intent

(a) to cause the person to be confined or imprisoned against the person’s will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
(c) to hold the person for ransom or to service against the person’s will.
Punishment

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

; Subsequent offences (1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under subsection (1);
(b) an offence under subsection 85(1) or (2) or section 244; or
(c) an offence under section 220, 236, 239, 272, 273, 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only

(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

Forcible confinement

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Non-resistance

(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.

R.S., 1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14; 2008, c. 6, s. 30.

CCC

The changes from 2008 are underlined.

1997 to 2008

Kidnapping

279 (1) Every person commits an offence who kidnaps a person with intent

(a) to cause the person to be confined or imprisoned against the person’s will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
(c) to hold the person for ransom or to service against the person’s will.
Punishment

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Forcible confinement

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Non-resistance

(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.
R.S., 1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14.

CCC

Trafficking in Persons


Trafficking in Persons
s. 279.01(2), 279.02(2), 279.011(2), s. 279.01(1) and 279.011(1) of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
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 5 years incarceration (under 18)
6 years incarceration (under 18 with harm)
Maximum 5, 10, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to trafficking in persons are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence],
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors],
279.02(2) [material benefit from trafficking, under 18],
279.03(1) [Withholding or destroying docs], and
279.03(2) [Withholding or destroying docs, under 18]
Indictable Offence(s) N/A OK Symbol.png OK Symbol.png
s. 279.02(1) [material benefit from trafficking],
279.03(1) [Withholding or destroying docs], and
279.03(2) [Withholding or destroying docs, under 18]
Hybrid Offence(s) N/A OK Symbol.png OK Symbol.png

Offences under s. 279.01 [trafficking in persons – general], 279.011 [trafficking in persons, under 18 – general], 279.02 , and 279.03 are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
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. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence],
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors],
s. 279.02(2) [material benefit from trafficking, under 18],
s. 279.03(2) [Withholding or destroying docs, under 18]
X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 279.02(1) [material benefit from trafficking],
s. 279.03(1) [Withholding or destroying docs]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 279.01(2) , 279.02(2) [material benefit from trafficking, under 18], 279.011(2) , s. 279.01(1) [trafficking in persons – general] and 279.011(1) [trafficking in persons, under 18 – general], the accused can be given a judicial summons without arrest. 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.

When charged under s. 279.02(1) [material benefit from trafficking], 279.03(1) [Withholding or destroying docs] , 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.

Reverse Onus Bail

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)).
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.

Section s. 279.01 [trafficking in persons – general], 279.011 [trafficking in persons, under 18 – general], 279.02 , and 279.03 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence],
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors],
s. 279.02(2) [material benefit from trafficking, under 18],
s. 279.03(2) [Withholding or destroying docs, under 18]
OK Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png
s. 279.02(1) [material benefit from trafficking] and
s. 279.03(1) [Withholding or destroying docs]
OK Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 279.01 [trafficking in persons – general], 279.011 [trafficking in persons, under 18 – general], 279.02 , and 279.03 are designated offences eligible for wiretap under s. 183.

Offences under s. 279.01, 279.011, 279.02, and 279.03 are "designated" offences under s. 752 for dangerous offender applications.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Trafficking in Persons

Trafficking in persons

279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable

(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case.
Consent

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) [trafficking in persons] is valid.

Presumption

(3) For the purposes of subsections (1) [trafficking in persons] and 279.011(1) [trafficking in persons, under 18], evidence that a person who is not exploited lives with or is habitually in the company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation.

2005, c. 43, s. 3; 2014, c. 25, s. 18; 2015, c. 16, s. 1.

CCC


Note up: 279.01(1), (2) and (3)

Trafficking in Young Persons

Trafficking of a person under the age of eighteen years

279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable

(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of six years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case.
Consent

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) [trafficking in persons, under 18] is valid.
2010, c. 3, s. 2.

CCC


Note up: 279.011(1) and (2)

Material Benefit

Material benefit — trafficking

279.02 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1) [trafficking in persons], 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.
Material benefit — trafficking of person under 18 years

(2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.011(1) [trafficking in persons, under 18], is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.

2005, c. 43, s. 3; 2010, c. 3, s. 3; 2014, c. 25, s. 19; 2019, c. 25, s. 104.

CCC


Note up: 279.02(1) and (2)

Withholding or Destroying Documents

Withholding or destroying documents — trafficking

279.03 (1) Every person who, for the purpose of committing or facilitating an offence under subsection 279.01(1) [trafficking in persons], conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person’s identity or immigration status  — whether or not the document is of Canadian origin or is authentic  —  is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
Withholding or destroying documents — trafficking of person under 18 years

(2) Everyone who, for the purpose of committing or facilitating an offence under subsection 279.011(1) [trafficking in persons, under 18], conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person’s identity or immigration status  — whether or not the document is of Canadian origin or is authentic  —  is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year.

2005, c. 43, s. 3; 2010, c. 3, s. 3; 2014, c. 25, s. 19; 2019, c. 25, s. 105.

CCC


Note up: 279.03(1) and (2)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving trafficking in persons under s. 279.01(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. recruits a person,
    2. transports a person,
    3. transfers a person,
    4. holds a person,
    5. conceals a person,
    6. harbours a person; or
    7. exercises control, direction or influence over the movements of a person,
  5. the act is done "for the purpose of exploiting them or facilitating their exploitation"
    1. the culprit caused the victim to provide or offer to provide a labour or service
    2. the victim could reasonably be expected to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

Proving aggravated trafficking under s. 279.01(1)(a) should include:

  1. the underlying elements of s. 279.01;
  2. the culprit either:
    1. kidnaps the victim,
    2. commits an aggravated assault or aggravated sexual assault against the victim, or
    3. cause death to, the victim
  3. the act occurs during the commission of the trafficking offence.


Proving Trafficking in Young Persons under s. 279.011(1)(b) should include:

  1. the underlying elements of s. 279.01;
  2. the victim was under the age of 18 at the time of the offence;
  3. the culprit knew, was reckless or willfully blind to that fact.

Proving aggravated trafficking in young persons under s. 279.011(1)(a) should include:

  1. the underlying elements of s. 279.01;
  2. the victim was under the age of 18 at the time of the offence;
  3. the culprit knew, was reckless or willfully blind to that fact.
  4. the culprit either:
    1. kidnaps the victim,
    2. commits an aggravated assault or aggravated sexual assault against the victim, or
    3. cause death to, the victim
  5. the act occurs during the commission of the trafficking offence.

Proving materially benefiting from trafficking under s. 279.02(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit receives a financial or other material benefit;
  5. the culprit knew that it results from the commission of an offence under s. 279.01(1) or 279.011(1).

Proving materially benefiting from trafficking a young person under s. 279.02(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit receives a financial or other material benefit;
  5. the culprit knew that it results from the commission of an offence under s. 279.01(1) or 279.011(1);
  6. the victim was under the age of 18 at the time of the offence; and
  7. the culprit knew, was reckless or willfully blind to that fact.

Proving withholding or destroying documents under s. 279.03(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit concealed, removed, withheld, or destroyed documents
  5. the documents belonged to a person other than the accused;
  6. the documents were travel documents or any document that establishes or purports to establish another person’s identity or immigration status;
  7. the act was for the purpose of committing or facilitating an offence under s. 279.01 or 279.011.

Proving withholding or destroying documents of a young person under s. 279.03(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit concealed, removed, withheld, or destroyed documents
  5. the documents belonged to a person other than the accused;
  6. the documents were travel documents or any document that establishes or purports to establish another person’s identity or immigration status;
  7. the act was for the purpose of committing or facilitating an offence under s. 279.01 or 279.011;
  8. the victim was under the age of 18 at the time of the offence; and
  9. the culprit knew, was reckless or willfully blind to that fact.

Interpretation of the Offence

The human trafficking provisions were implemented as part of Canada ratification of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.[1]

The offence of human trafficking is to be distinguished from the offence of human smuggling. The former requires a type of exploitation of the victim to compel them to participate, while the latter involves the willing participation of the person being smuggled.[2]

Section 279.011 was found to be constitutional. [3]

  1. R v Moazami, 2014 BCSC 1727 (CanLII), per Bruce J, at para 373
  2. R v Ng, 2006 BCPC 111 (CanLII), per MacLean J, at paras 3 to 12 - in context of human trafficking under IRPA
  3. R v Stone, 2013 ONSC 653 (CanLII), per Miller J

Recruits, transports, transfers, receives, holds, conceals or harbours a person

"Harbours" is also found in the offence of Abduction of a Young Person (Offence).

"Control, Direction or Influence" Over Movement

See also: Procuring and Living on the Avails of Prostitution (Repealed Offence)#Control or Influence

This language is the same as found in s. 212(1)(h) for exercising control over a prostitute.[1]

Control

"Control" is said to refer to "invasive behaviour, to ascendancy which leaves little choice to the person controlled."[2]

Direction

"Direction" over the movements of a person exists where "rules or behaviours are imposed".[3] This does not exclude persons who are given "certain latitude or margin for initiative".[4]

Influence

Influence includes any action exercised over a person with a view to aiding, abetting, or compelling that person to act in a certain manner.[5] It requires a "ability through position or power to bring about a particular result or effect".[6]

"Influence" includes less restrictive actions from "direction" or "control".[7]

Influence will be made out where the accused uses physical, psychological, sexual, or material means to give a reasonable person the impression that non-compliance will put their safety in danger.[8]

  1. see Procuring and Living on the Avails of Prostitution (Repealed Offence)
  2. R v RJG, 2001 CanLII 369 (SK PC), per Kolenick J, at para 46
  3. R v Perreault, 1996 CanLII 5641 (QC CA), per curiam, at pp. 575, 576
    RJG, supra, at para 46
  4. Perreault, supra, at pp. 575-576br> RJG, supra, at para 46
  5. R v Ng, 2007 BCPC 204 (CanLII), per MacLean J
    Perreault, supra, at p. 575-576 ("Any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence")
    R v Rodney, 1999 ABPC 12 (CanLII), per Fradsham J
  6. Rodney, ibid., at para 34
  7. Perreault, supra, at p. 575-576
  8. R v Urizar, 2013 QCCA 46 (CanLII), per curiam

Exploitation

Language defining exploitation comes from the definition of Criminal Harassment (Offence).

Exploitation

279.04 (1) For the purposes of sections 279.01 to 279.03 [trafficking in persons offences], a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

Factors

(2) In determining whether an accused exploits another person under subsection (1) [trafficking in persons – exploitation definition], the Court may consider, among other factors, whether the accused

(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority.
Organ or tissue removal

(3) For the purposes of sections 279.01 to 279.03 [trafficking in persons offences], a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.
2005, c. 43, s. 3; 2012, c. 15, s. 2.

CCC


Note up: 279.04(1), (2) and (3)

Section 279.04 was amended on June 28, 2012 in order to clarify the factors for determining whether there is exploitation, and to include the factor of emotional and psychological harm.[1]

Threatened Safety

"Safety" can include physical, mental, psychological, or emotional safety.[2]

"Reasonable belief"

A reasonable belief "requires an objective foundation, based on a reasonable person's view".[3] Age, gender and personal circumstances are also taken into account.[4]

  1. R v Moazami, 2014 BCSC 1727 (CanLII), per Bruce J, at para 375
    R v Stone and Beford, 2013 ONSC 653 (CanLII), per Miller J, at para 18
  2. R v Ryback, 1996 CanLII 1833 (BC CA), per Finch JA, at para 37
    R v Sillipp, 1995 CanLII 5591 (AB QB), (1995), 99 CCC (3d) 394, per Murray J - context of criminal harassment
    R v Goodwin, 1997 CanLII 3717 (BC CA), per Donald J, at para 17
  3. Sillipp, supra
  4. Sillipp, supra

Material Benefit

The term "financial or other material benefit" is also found in s. 467.1 of the Code concerning "criminal organizations".

Whether something is of material benefit will "depend on the facts of the particular case".[1]

  1. R v Lindsay, 2004 CanLII 16094 (ON SC), per Fuerst J

Evidence

Holdback of Disclosure

For offences under this section (s. 279.01, 279.011, 279.02, or 279.03), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

Jurisdiction

Section 7(4.11) provides jurisdiction to Canadian Courts for offences of human trafficking that occur outside of Canada by persons who are citizens or permanent residents of Canada.[1]

Misc Definitions

"Victim" is defined in s. 2.

Section 118 of the Immigration and Refugee Protection Act, SC 2001, c 27 has a similar scope as human trafficking.

Trafficking in Persons (s. 279.01) and Trafficking in Persons (s. 279.011) under the Age of 18 are both wiretap eligible offences under s. 184.

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence],
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors],
s. 279.02(2) [material benefit from trafficking, under 18],
s. 279.03(2) [Withholding or destroying docs, under 18]
s. 279.02(1) [material benefit from trafficking],
s. 279.03(1) [Withholding or destroying docs]

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)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 279.02 and 279.03), but are not serious personal injury offences, s. 606(4.2) 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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 279.03(1) [Withholding or destroying docs] N/A 5 years incarceration
s. 279.02(1) [material benefit from trafficking] and
s. 279.03(2) [Withholding or destroying docs, under 18]
N/A 10 years incarceration
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors], and
s. 279.02(2) [material benefit from trafficking, under 18]
N/A 14 years incarceration
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence] and
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence]
N/A life incarceration