Full Text:Volume 1.1C

Failing to Provide the Necessities of Life

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• < Offences

Failing to Provide the Necessaries 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 necessaries 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)		(* only if Crown proceeds by Indictment)	(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]

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]			(under 10 years max)

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) [duty of persons to provide necessaries], 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.

[omitted (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

---

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 necessaries of life (parental) under s. 215(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit is a "parent", "foster parent", "guardian" or "head of a family" in relation to another person; ☐ the other person is a "child" under the age of 16 years, creating a "duty of care"; ☐ the culprit "fails...to perform that duty" of providing "necessaries of life": ☐ by permitting the other person to be "destitute or necessitous circumstances" or ☐ 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)) ☐ there is no lawful excuse for doing so

Proving failure to provide necessaries of life (spousal) under s. 215(1)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit is a "spouse" or "common-law partner" to another person, creating a "duty of care" ☐ the culprit "fails...to perform that duty" of providing the "necessaries of life": ☐ by permitting the other person to be "destitute or necessitous circumstances" or ☐ 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)) ☐ there is no lawful excuse for doing so

Proving failure to provide necessaries of life (disability) under s. 215(1)(c) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit has another person "under his charge"; ☐ 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; ☐ the culprit "fails...to perform that duty" of providing "necessaries of life": ☐ 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)) ☐ there is no lawful excuse for doing so

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.

Existence of Duty

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

Actus Reus and Mens Rea

Where the duty is found, the crown must prove:

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.

"Endangers"

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

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.

"necessaries of life"

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

The judge must consider "the severity of the injury and the knowledge that it occurred."

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

Constitutionality

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

Presumptions

215
[omitted (1), (2) and (3)]

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

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Misc Definitions

"Child" is no longer defined in Part VIII.

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"

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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

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

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.

Factors

Factors include:

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)

Range

see also: Failing to Provide the Necessaries 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.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 215 [failing to provide the necessities of life]	If an offence under s. 215 [failing to provide the necessities of life] is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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

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

• Homicide (Offence)
• Criminal Negligence (Offence)

References

• Pre-Trial and Trial Motions Checklist

Abandoning Child

This page was last substantively updated or reviewed August 2021. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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)		(* only if Crown proceeds by Indictment)	(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]

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]			(under 10 years max)

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

---

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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit abandons or exposes a child; ☐ the culprit intended to abandon or expose the child; ☐ the child is under the age of 10; ☐ the culprit was aware of the child's age; ☐ the act causes the child's life likely to be endangered or health likely to be permanently injured; and ☐ 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.

Mens Rea

The offence requires subjective fault. The offence criminalizes risk and so may require knowledge of that risk.

Age of Victim

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

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.

"abandons or exposes"

Definitions

214 In this Part [Pt. VIII – Offences Against the Person and Reputation (s. 214 to 320.1)],
...
"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

---

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

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." An act of giving up all claim to a child will also not be abandonment.

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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]	(on indictment, victim must make request)

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

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

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.

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. In these circumstances jail sentences will generally be given.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 218 [abandoning child]	If an offence under s. 218 is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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

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

• Failing to Provide the Necessities of Life (Offence)

Pre-Trial and Trial Issues

• Pre-Trial and Trial Motions Checklist

Criminal Negligence

This page was last substantively updated or reviewed January 2020. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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)			(life max)
s. 221 [criminal negligence causing bodily harm]	Indictable Offence(s)			(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]
s. 221 [criminal negligence causing bodily harm]

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]
s. 221 [criminal negligence causing bodily harm]

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

---

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

---

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

---

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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit had a legal duty; ☐the culprit did something or omitted to do something that it was their legal duty to do; ☐ the conduct showed "wanton or reckless disregard for the lives or safety of others"	Proving criminal negligence causing death under s. 220 should include: ☐ elements of s. 219; ☐ the conduct showed a "marked and substantial departure" form the conduct of a reasonably prudent and ☐ the alleged act caused the death of another person.
Proving criminal negligence causing bodily harm under s. 221 should include: ☐ elements of s. 219; ☐ another person suffered bodily harm ☐ the alleged act caused the harm

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.

A person who subjects another person to extreme "sweat lodge" that causes death may be liable.

"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.

Legal Duties

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

Legal duties exist in common law and statute.

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.

[omitted (2), (3) and (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.

– CCC

---

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."

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.

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

---

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

---

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

---

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

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.

Mens Rea

The mens rea element requires proof of a "wanton or reckless disregard for the lives and safety of other persons."

The assesessment of "wanton" and "reckless" are analyzed on an objective standard of fault—that of a reasonable person. The judge must "measur[e] the degree to which the accused's conduct departed from that of a reasonable person in the circumstances."

In select circumstances, the judge need only assess whether there is a '"marked" departure from the conduct of a reasonable person. While other more serious circumstances, such as when death is caused, there must be a "marked and substantial" departure.

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."

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." This is measured on a "modified objective standard of fault" from the perspective of a "reasonable person... in the circumstances". The question is whether the accused's conduct "departed from that of a reasonable person in the circumstances". where the charges criminal negligence causing death, the Crown must prove that there was a "marked and substantial" departure from the standard of care. The difference between "marked departure" and "marked and substantial departure" remains unsettled.

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

Alternate Charges

662
[omitted (1), (2), (3) and (4)]

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.
[omitted (6)]
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

---

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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]

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

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
s. 221	N/A
s. 220(b)	N/A

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.

Ranges

see also: Criminal Negligence (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 220(a), (b) or 221	For conviction under s. 220(a), (b), or 221, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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".

Assisted Dying Offences

This page was last substantively updated or reviewed January 2020. (Rev. # 79502)

• < Criminal Law/Sentencing
• < 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	(* only if Crown proceeds by Indictment)	(under 14 years max)
s. 241.4(1) [forgery in relation to medical request]	Hybrid Offence(s)	Yes	(* only if Crown proceeds by Indictment)	(under 14 years max)
s. 241.4(2) [destruction of documents]	Hybrid Offence(s)	Yes	(* only if Crown proceeds by Indictment)	(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]
s. 241.4(1) [forgery in relation to medical request]

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

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

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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

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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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) Proving Forgery in Relation to Assisted Dying under s. 241.4 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ 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; and

(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.

(d) [Repealed, 2021, c. 2, s. 1]

Exclusion

(2.1) For the purposes of paragraph (2)(a), a mental illness is not considered to be an illness, disease or disability.

Safeguards — natural death foreseeable

(3) Subject to subsection (3.2), before a medical practitioner or nurse practitioner provides medical assistance in dying to a person whose natural death is 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, 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);

(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), 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) — before an independent witness 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);

(f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are independent;

(g) 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; and

(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.

(i) [Repealed, 2021, c. 2, s. 1]

Safeguards — natural death not foreseeable

(3.1) Before a medical practitioner or nurse practitioner provides medical assistance in dying to a person whose natural death is not reasonably foreseeable, taking into account all of their medical circumstances, 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);

(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), 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) — before an independent witness who then also signed and dated the request;

(d) ensure that the person has been informed that the person 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);

(e.1) if neither they nor the other medical practitioner or nurse practitioner referred to in paragraph (e) has expertise in the condition that is causing the person’s suffering, ensure that they or the medical practitioner or nurse practitioner referred to in paragraph (e) consult with a medical practitioner or nurse practitioner who has that expertise and share the results of that consultation with the other practitioner;

(f) be satisfied that they and the medical practitioner or nurse practitioner referred to in paragraph (e) are independent;

(g) ensure that the person has been informed of the means available to relieve their suffering, including, where appropriate, counselling services, mental health and disability support services, community services and palliative care and has been offered consultations with relevant professionals who provide those services or that care;

(h) ensure that they and the medical practitioner or nurse practitioner referred to in paragraph (e) have discussed with the person the reasonable and available means to relieve the person’s suffering and they and the medical practitioner or nurse practitioner referred to in paragraph (e) agree with the person that the person has given serious consideration to those means;

(i) ensure that there are at least 90 clear days between the day on which the first assessment under this subsection of whether the person meets the criteria set out in subsection (1) begins and the day on which medical assistance in dying is provided to them or — if the assessments have been completed and they and the medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that the loss of the person’s capacity to provide consent to receive medical assistance in dying is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;

(j) 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; and

(k) 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.

Final consent — waiver

(3.2) For the purposes of subsection (3), the medical practitioner or nurse practitioner may administer a substance to a person to cause their death without meeting the requirement set out in paragraph (3)(h) if

(a) before the person loses the capacity to consent to receiving medical assistance in dying,

(i) they met all of the criteria set out in subsection (1) and all other safeguards set out in subsection (3) were met,

(ii) they entered into an arrangement in writing with the medical practitioner or nurse practitioner that the medical practitioner or nurse practitioner would administer a substance to cause their death on a specified day,

(iii) they were informed by the medical practitioner or nurse practitioner of the risk of losing the capacity to consent to receiving medical assistance in dying prior to the day specified in the arrangement, and

(iv) in the written arrangement, they consented to the administration by the medical practitioner or nurse practitioner of a substance to cause their death on or before the day specified in the arrangement if they lost their capacity to consent to receiving medical assistance in dying prior to that day;

(b) the person has lost the capacity to consent to receiving medical assistance in dying;

(c) the person does not demonstrate, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration; and

(d) the substance is administered to the person in accordance with the terms of the arrangement.

For greater certainty

(3.3) For greater certainty, involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance for the purposes of paragraph (3.2)(c).

Advance consent invalidated

(3.4) Once a person demonstrates, by words, sounds or gestures, in accordance with subsection (3.2), refusal to have the substance administered or resistance to its administration, medical assistance in dying can no longer be provided to them on the basis of the consent given by them under subparagraph (3.2)(a)(iv).

Advance consent — self-administration

(3.5) In the case of a person who loses the capacity to consent to receiving medical assistance in dying after self-administering a substance, provided to them under this section, so as to cause their own death, a medical practitioner or nurse practitioner may administer a substance to cause the death of that person if

(a) before the person loses the capacity to consent to receiving medical assistance in dying, they and the medical practitioner or nurse practitioner entered into an arrangement in writing providing that the medical practitioner or nurse practitioner would

(i) be present at the time the person self-administered the first substance, and

(ii) administer a second substance to cause the person’s death if, after self-administering the first substance, the person lost the capacity to consent to receiving medical assistance in dying and did not die within a specified period;

(b) the person self-administers the first substance, does not die within the period specified in the arrangement and loses the capacity to consent to receiving medical assistance in dying; and

(c) the second substance is administered to the person in accordance with the terms of the arrangement.

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.

Exception

(5.1) Despite paragraphs (5)(c) and (d), a person who provides health care services or personal care as their primary occupation and who is paid to provide that care to the person requesting medical assistance in dying is permitted to act as an independent witness, except for

(a) the medical practitioner or nurse practitioner who will provide medical assistance in dying to the person; and

(b) the medical practitioner or nurse practitioner who provided an opinion under paragraph (3)(e) or (3.1)(e), as the case may be, in respect of the person.

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) or (3.1)(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; and

(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; 2021, c. 2, s. 1.
[annotation(s) added]

– CCC

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Failure to comply with safeguards

241.3 A medical practitioner or nurse practitioner who, in providing medical assistance in dying, knowingly fails to comply, subject to subsection 241.2(3.2), with all of the requirements set out in paragraphs 241.2(3)(b) to (h) or paragraphs 241.2(3.1)(b) to (k), as the case may be, and with subsection 241.2(8) 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, 2021, c. 2, s. 2

– CCC

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Filing information — practitioners

241.31 (1) Unless they are exempted under regulations made under subsection (3), a medical practitioner or nurse practitioner who carries out an assessment of whether a person meets the criteria set out in subsection 241.2(1) or who receives a written request for medical assistance in dying must, in accordance with those regulations, provide the information required by those regulations to the recipient designated in those regulations.

Filing information — responsible for preliminary assessments

(1.1) Unless they are exempted under regulations made under subsection (3), any person who has the responsibility to carry out preliminary assessments of whether a person meets the criteria set out in subsection 241.2(1) must, in accordance with those regulations, provide the information required by those regulations to the recipient designated in those regulations.

Filing information — pharmacist and pharmacy technicians

(2) Unless they are exempted under regulations made under subsection (3), a pharmacist who dispenses a substance in connection with the provision of medical assistance in dying, or the person permitted to act as a pharmacy technician under the laws of a province who dispenses a substance to aid a medical practitioner or nurse practitioner in providing a person with medical assistance in dying, must, in accordance with those regulations, provide the information required by those regulations to the recipient designated in those regulations.

Regulations

(3) The Minister of Health must make regulations that he or she considers necessary

(a) respecting the provision and collection, for the purpose of monitoring medical assistance in dying, of information relating to requests for, and the provision of, medical assistance in dying, including

(i) the information to be provided, at various stages, by medical practitioners, nurse practitioners, persons referred to in subsection (1.1) who have the responsibility to carry out preliminary assessments, pharmacists and pharmacy technicians, or by a class of any of them, including

(A) the elements considered in the course of the assessments — preliminary or otherwise — of whether a person meets the criteria set out in subsection 241.2(1),

(B) information respecting the race or indigenous identity of a person who requests or receives medical assistance in dying, if the person consents to providing this information, and

(C) information — other than information that must be provided in relation to the assessment of eligibility to receive medical assistance in dying and the application of safeguards — respecting any disability, as defined in section 2 of the Accessible Canada Act, of a person who requests or receives medical assistance in dying, if the person consents to providing that information,

(ii) the form, manner and time in which the information must be provided,

(iii) the designation of a person as the recipient of the information, and

(iv) the collection of information from coroners and medical examiners;

(b) respecting the use, analysis and interpretation of that information, including for the purposes of determining the presence of any inequality — including systemic inequality — or disadvantage based on race, Indigenous identity, disability or other characteristics, in medical assistance in dying;

(b.1) respecting the protection, publication, and disclosure of that information;

(c) respecting the disposal of that information; and

(d) exempting, on any terms that may be specified, a class of persons from the requirements set out in subsections (1) to (2).

Guidelines — information on death certificates

(3.1) The Minister of Health, after consultation with representatives of the provincial governments responsible for health, must establish guidelines on the information to be included on death certificates in cases where medical assistance in dying has been provided, which may include the way in which to clearly identify medical assist­ance in dying as the manner of death, as well as the illness, disease or disability that prompted the request for medical assistance in dying.

Offence and punishment

(4) A medical practitioner or nurse practitioner who knowingly fails to comply with subsection (1), a person having the responsibility to carry out preliminary assessments who knowingly fails to comply with subsection (1.1) or a pharmacist or pharmacy technician who knowingly fails to comply with subsection (2),

(a) is guilty of an indictable offence and liable to a term of imprisonment of not more than two years; or

(b) is guilty of an offence punishable on summary conviction.

Offence and punishment

(5) Everyone who knowingly contravenes the regulations made under subsection (3)

(a) is guilty of an indictable offence and liable to a term of imprisonment of not more than two years; or

(b) is guilty of an offence punishable on summary conviction.

Consultation

(6) In performing his or her functions or duties under subsection (3), the Minister of Health must, when appropriate, consult with the minister responsible for the status of persons with disabilities.

2016, c. 3, s. 4; 2021, c. 2, s. 3.

– CCC

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Definitions

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

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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

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Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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

Maximum Penalties

Minimum Penalties

Available Dispositions

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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

• Pre-Trial and Trial Motions Checklist

Administering a Noxious Substance

This page was last substantively updated or reviewed January 2020. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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)			(14 years max)
s. 245(b) [administer noxious thing - intent to aggrieve or annoy]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(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]
s. 245(b) [administer noxious thing - intent to aggrieve or annoy]

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]
s. 245(b) [administer noxious thing - intent to aggrieve or annoy]			(under 10 years max)

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

---

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		"...did administer or cause to be administered to [victim's name] or caused [victim's name] to take a poison, destructive thing or noxious thing with intent to endanger life, cause bodily harm, grieve or annoy that person, to wit: [specifics], contrary to section 245 of the Criminal Code."

Proof of the Offence

Proving Administering a Noxious Substance under s. 245 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit administered a substance to the victim ☐ the substance was noxious ☐ the culprit intended to either ☐ aggrieve the victim or ☐ 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.

"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.

"Noxious Substance"

What constitutes "noxious" will depend on the factual context. It will be noxious if the thing, "in the light of all of the circumstances attendant upon its administration, it is capable of effecting, or in the normal course of events will effect, a consequence" that is enumerated in s. 245. Factors include "the inherent characteristics of the substance, the quantity administered and the manner in which it is administered."

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

The application of items such as hand sanitiser and lemon juice to the eyes may be used as a noxious substance.

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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]	(where SPIO, Crown must notify victims)
s. 245(b) [administer noxious thing - intent to aggrieve or annoy]

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

​

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
s. 245(b) [administer noxious thing - intent to aggrieve or annoy]	summary election
s. 245(b) [administer noxious thing - intent to aggrieve or annoy]	indictable election

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.

Ranges

see also: Administering a Noxious Substance (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 245(a) [administer noxious thing - intent to cause danger or harm]	For convictions under s. 245(a) [endanger life or causing bodily harm], as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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

• Overcoming Resistance (Offence)

Pre-Trial and Trial Issues

• Pre-Trial and Trial Motions Checklist

Overcoming Resistance

This page was last substantively updated or reviewed January 2014. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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		(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]

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]

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

---

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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit either: ☐ attempts "to choke, suffocate or strangle another person" or ☐ does anything "calculated to choke, suffocate or strangle" ☐ the culprit "attempts to render another person insensible, unconscious or incapable of resistance"; ☐ 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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit either: ☐ administers a substance; ☐ causes to be administered a substance, ☐ attempts to administer a substance, or ☐ causes or attempts to cause any person to take a substance; ☐ the substance is a "stupefying or overpowering drug, matter or thing" and ☐ the culprit did the prohibited act with the intent "to enable or assist himself or another person to commit an indictable offence".

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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

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

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.

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:

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.

Ranges

see also: Overcoming Resistance (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 246 [overcoming resistance and administering stupefying substance]	For convictions under s. 246, as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
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 the offender was subject to a SOIRA Order anytime prior to sentencing, 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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".

History

1985

Disabling or administering drugs with intent to commit an indictable offence

296 Every one is guilty of felony and liable to imprisonment for life and to be whipped, who, with intent thereby to enable himself or any other person to commit, or with intent thereby to assist any other person in committing any indictable offence,

(a) by any means whatsoever attempts to choke, suffocate or strangle any other person, or by any means calculated to choke, suffocate or strangle, attempts to render any other person insensible, unconscious or incapable of resistance; or

(b) unlawfully applies or administers to, or causes to be taken by, or attempts to apply or administer to, or attempts or causes to be administered to or taken by, any person, any chloroform, laudanum or other stupefying or overpowering drug, matter or thing.

–

Criminal Code, RSC 1985, c. C-46

Section 230 was renumbered to s. 246. One word "is" was removed.

Criminal Law Amendment Act, SC 1972, c. 13

Section 230 had the phrase "and to be whipped" removed.

Criminal Code, R.S.C. 1970, c. C-34

Section 218 renumbered as 230 unchanged.

Criminal Code, 1953-54, c. 51

Overcoming resistance to commission of offence

218 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 is liable to imprisonment for life and to be whipped.

–

Criminal Code, RSC 1927, c. 36

Section 276 was unchanged.

Criminal Code, RSC 1906, c. 146

Section 244 was renumbered as 276 unchanged.

Criminal Code, 1892, c. 29

Disabling or administering drugs with intent to commit an indictable offence

244 Every one is guilty of an indictable offence and liable to imprisonment for life and to be whipped, who with intent thereby to enable himself or any other person to commit, or with intent thereby to assist any other person in committing any indictable offence—

(a) by any means whatsoever, attempts to choke, suffocate or strangle any other person, or by any means calculated to choke, suffocate or strangle, attempts to render any other person insensible, unconscious or incapable of resistance; or

(b) unlawfully applies or administers to, or causes to be taken by, or attempts to apply or administer to, or attempts or causes to be administered to or taken by, any person, any chloroform, laudanum or other superfying or overpowering drug matter or thing.

–

See Also

Related Offences

• Administering a Noxious Substance (Offence)

References

• Pre-Trial and Trial Motions Checklist

Criminal Harassment

This page was last substantively updated or reviewed June 2021. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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	(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]

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]

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.

[omitted (4) and (5)]
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

---

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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit has engaged in the conduct set out in s. 264(2)(a), (b), (c) or (d) of the Criminal Code; ☐ the complainant was harassed by the conduct; ☐ 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; ☐ the conduct caused the complainant to fear for their safety or the safety of anyone known to them; and ☐ the complainant’s fear was, in all the circumstances, reasonable.

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.

Harassed

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

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

Threatening Conduct

Threatening conduct is "a tool of intimidation which is designed to instil a sense of fear in the recipient." 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."

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."

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

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

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

"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."

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

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

Fear for Safety

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

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." But a mere fear for one's "financial well-being" is not enough.

"Reasonable fear" is determined on an objective standard.

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.

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

The harassment need not be foreseeable to the accused.

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

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

Circumstances of Offence

Lawful Authority

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

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

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

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
s. 264.1 [harassment]	indictable election

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."

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.

Factors

264
[omitted (1), (2) and (3)]

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 [sex offence peace bond] or 810.2 [serious personal injury peace bond]; 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

---

Ranges

see also: Criminal Harassment (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA order	s. 264 [harassment]	If convicted under s. 264 [harassment], there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.
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 the offender was subject to a SOIRA Order anytime prior to sentencing, 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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".

See Also

• Distribution of Intimate Images (Offence)
• handbook on criminal harassment

References

• Pre-Trial and Trial Motions Checklist

Uttering Threats

This page was last substantively updated or reviewed June 2021. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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)		(* only if Crown proceeds by Indictment)	(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]

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]			(under 10 years max)

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

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

Proving uttering threats (damage property or injure animals) under s. 264.1(1)(b), (c) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "utters, ... coveys or causes any person to receive" a communication; ☐ 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"; ☐ the communication were meant to be taken seriously as a threat; and ☐ any person received the threat.

Interpretation of the Offence

Actus Reus

The actus reus is made out where a "reasonable person aware of the circumstances would perceive the words as a threat of death or bodily harm".

Mens Rea

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

Purpose

The aim of s. 264.1(1)(a) is directed at words causing "fear" or "intimidation" and is intended to "protect the exercise of freedom of choice by preventing intimidation". It is not meant to capture "words spoken in jest".

Threatening Words

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

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

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."

Factors that are to be considered include:

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.

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

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.

Actual Receipt of Threat

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

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. There is no need that anyone be intimidated by the utterance.

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

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.

Reasonableness

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

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

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.

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

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.

Specific contexts

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

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

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

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."

Words Intended to be Taken Seriously

Uttering threats is a "specific intent" offence.

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

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”.

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.

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

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

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

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.

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.

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.

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

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

Threat to Property

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

Appellate Review

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

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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. 264.1 [uttering threats]

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

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

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".

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. However, for the most part when jail is ordered it is between one to six months.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 264.1 [uttering threats]	If convicted under s. 264.1 [uttering threats], there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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

• History of Uttering Threats (Offence)

See Also

References

• Pre-Trial and Trial Motions Checklist

Common Assault

This page was last substantively updated or reviewed January 2016. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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)		(* only if Crown proceeds by Indictment)	(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]

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]			(under 10 years max)		(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

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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

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

Proving assault by threat under s. 265(1)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit attempted or threatened to apply force to the victim ☐ the culprit meant the threat to be taken seriously ☐ 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 ☐ no intentional physical contact was made ☐ compare physical build between the accused and victim ☐ that the complainant did not consent (see also s. 265(3) and (4)) ☐ that the complainant did not assault, threaten or provoke the accused ☐ whether an alcohol was involved

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

Interpretation of the Offence

"Assault"

The term "assault" found in s. 266 is meant to include the common law terms of "assault" and "battery." Words alone cannot be an assault. It requires an "act or gesture", but there is no need for physical contact.

Force

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

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

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

Intention

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

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.

Force due to carelessness or reflex is not sufficient.

Attempts or Threatens

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

Consent

See Consent

Traditional Defences

• Consensual fight
• Self-Defence
• Defence of Another
• Defence of Property
• De Minimus
• Reflex
• Corrective Force

Participation of Third Parties

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

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

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.

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.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 266	If convicted under s. 266, there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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".

History of Common Assault

• History of Common Assault (Offence)

See Also

Related Offences

• Assault with a Weapon or Causing Bodily Harm (Offence)
• Aggravated Assault (Offence)
• Assault Peace Officer (Offence)

Trial-related Matters

• Assault-based Offences (Model Examinations)

• UK Sentencing Guidelines on Assault

Assault with a Weapon or Causing Bodily Harm

This page was last substantively updated or reviewed April 2020. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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)		(* only if Crown proceeds by Indictment)	(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)		(* only if Crown proceeds by Indictment)	(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]

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]		(primary)

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

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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)	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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim the culprit committed the assault either: ☐ while carrying a weapon; ☐ "use of a weapon" or ☐ threaten to use a weapon.

Proving assault causing bodily harm under s. 267(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim ☐ "bodily harm" was inflicted on the victim; ☐ the assault caused the bodily harm seriousness of injuries: ☐ a hurt or injury interfered with the victim's health or comfort and whether it was "more than merely transient or trifling in nature" ☐ treatment / duration of injuries

Interpretation of the Offence

Actus Reus

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.

Mens Rea

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

However, recklessness in the act is sufficient to convict.

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.

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

Intent

Assault causing bodily harm is a general intent offence.

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.

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.

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

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

Causing

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." This has also been stated by concluding that the action must be a "contributing" cause and not just a "minimal" or "insignificant" cause.

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." There is also a line of cases that conclude that merely the intent to apply force is sufficient.

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.

Consent

One cannot consent to being stabbed.

Cross-Referenced Terms

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

Kienapple

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. The same goes for the offence of assault with a weapon and aggravated assault.

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.

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

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

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.

Considered Defences

• Consensual fight
• Self-Defence
• Defence of Another
• Defence of Property
• Accident and Mistake
• De Minimus
• Reflex

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

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

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))	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

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."

Ranges

see also: Common Assault (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 267 [assault with a weapon or causing bodily harm]	For convictions under s. 267, as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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

• History of Assault with a Weapon or Causing Bodily Harm (Offence)

See Also

Related Offences

• Sexual Assault with a Weapon or Causing Bodily Harm (Offence)
• Aggravated Assault (Offence)

Motions

• Pre-Trial and Trial Motions Checklist

Aggravated Assault

This page was last substantively updated or reviewed March 2021. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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)			(14 years max)
s. 268 [aggravated assault] If related to IPV and with previous conviction for IPV (s. 718.3(8))	Indictable Offence(s)			(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]

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]		(Primary)	(enumerated in s. 752 definition (b))

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

---

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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ that an assault occurred (e.g. intentional application of force with no consent) ☐ injuries sustained the injuries amounted to the victim being: ☐ wounded, ☐ maimed, ☐ disfigured, or ☐ had life endangered ☐ a reasonable person would expect that bodily harm could result ☐ that there was no provocation

Draft Jury Decision Trees

• 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:

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

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." This same standard applies to assault causing bodily harm. Injury in the range of "minor bodily harm" will be insufficient to prove wounding, maiming or disfigurement.

"wound, maim or disfigure"

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

"Maiming" refers to "a hurt to the body that causes a person to be less able to fight" or otherwise function. This includes breaking of bones.

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

Examples of wound, maiming or disfigurement include:

• a rupture with retinal herniation resulting in permanent blindness in one eye
• a broken jaw
• broken nose and bruising

Certain injuries were excluded from the definitions:

• broken nose that healed without medcial intervention

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.

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.

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.

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."

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.

Discharging a Firearm

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

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.

Kienapple

A person convicted of aggravated assault cannot be convicted of a lesser form of assault for the same conduct.

Common assault and assault causing bodily harm are lesser included offences.

Common Defences

• Self-Defence
• Defence of Another
• Defence of Property
• Reflex

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

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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]	(where SPIO, Crown must notify victims)

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

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

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. General deterrence is the primary factor.

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.

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

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

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.

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” Further it has been stated as "18 months to six years" and "two years less a day to six years."

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.

Ontario

In Ontario, the ranges of sentence have been separated into three groups. 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.

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

"Baby shaking" cases of aggravated assault will usually be between 3 and 5 years.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 268 [aggravated assault]	For convictions under s. 268 [aggravated assault] , as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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 was proclaimed into force on January 4, 1983 and 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.

–

Prior to 1983, the only offence relating to aggravated assault was the offene of "wounding":"

Every one who, with intent

(a) to wound, maim or disfigure any person,

(b) to endanger the life of any person, or

(c) to prevent the arrest or detention of any person,

discharges a firearm, air gun or air pistol at or causes bodily harm in any way to any person, whether or not that person is the one mentioned in paragraph (a), (b) or (c), is guilty of an indictable offence and is liable to imprisonment for 14 years.

–

See Also

References

• Pre-Trial and Trial Motions Checklist

Assault Peace Officer

This page was last substantively updated or reviewed January 2020. (Rev. # 79502)

• < Criminal Law/Sentencing
• < Offences

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

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)		(* only if Crown proceeds by Indictment)	(under 14 years max)
s. 270.02 [aggravated assault peace officer]	Indictable Offence(s)	N/A		(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]
s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm]
s. 270.02 [aggravated assault peace officer]

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]			(under 10 years max)
s. 270.01 [assault peace officer with a weapon or assault peace officer causing bodily harm] s. 270.02 [aggravated assault peace officer]

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

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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

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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

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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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim ☐ the victim was a "peace officer" or "public officer"; ☐ the culprit knew the victim was a peace officer or public officer; ☐ the victim was "engaged in the execution of his duty"	Proving assault person aiding a peace officer under s. 270(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim ☐ the victim was "acting in aid of" a "peace officer" or "public officer"; ☐ the culprit knew the victim was aiding a peace officer or public officer; ☐ the officer was "engaged in the execution of his duty".
Proving assault to prevent arrest under s. 270(1)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim; ☐ 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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim; and ☐ 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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim; and ☐ 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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the requisite elements of assault peace officer offence under s. 270 either: ☐ at the time of the assault, the culprit "carries, uses or threatens to use" a thing; and ☐ the thing is "a weapon or an imitation of one"; or ☐ causes bodily harm to the victim.
Proving aggravated assault of peace officer under s. 270.02 should include: ☐ the requisite elements of assault peace officer offence under s. 270 ☐ the assault results in wounding, maiming, disfigurement or endangerment of life of the victim. ☐ 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

• see Arrest and Detention for details

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.

Kienapple

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

Common Defences

• Self-Defence and Defence of Another

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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]

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

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
s. 270.02 [aggravated assault peace officer]	N/A

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

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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

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

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

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.

Factors

Primary Factors

• spitting: degree of risk of communicating diseases

Ancillary Sentencing 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]	If convicted under s. 270, there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election. For convictions under s. 270.01 or 270.02, as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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".

History

• History of Assault Peace Officer

See Also

Related Offences

• Flight from a Peace Officer (Offence)

Kidnapping and Unlawful Confinement

• < Criminal Law/Sentencing
• < Offences

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)			(life max)
s. 279(2) [forcible confinement]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(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]
s. 279(2) [forcible confinement]

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]		(primary)
s. 279(2) [forcible confinement]

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) 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

---

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

Proving Forcible Confinement under s. 279(2) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "confines, imprisons or forcibly seizes" another person ☐ the other person did not consent to the confinement ☐ the culprit had no "lawful authority" to confine the complainant ☐ the culprit intended to confine the victim ☐ the culprit used force or threat of force

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. 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.

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

Kienapple

See Kienapple Principle

Confinement

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

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".

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

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

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

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

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

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

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

Actus Reus

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

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.

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

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.

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."

There is no need for physical application of bindings.

Mens Rea

Confinement is a general intent offence.

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

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.

Defences

• Consent
• Mistaken Belief of Consent
• Self-Defence or Defence of Another
• Defence of Property

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

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,