Full Text:Volume 1.1D

From Criminal Law Notebook
Jump to navigation Jump to search
See also: Full Text:Volume 1.1

Contents

ADMINISTRATION OF JUSTICE OFFENCES

Breach of Public Trust


Breach of Public Trust
s. 122 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to breach of public trust are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 122 [breach of public trust] Hybrid Offence(s) OK Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)
s. 122 [breach of public trust]
Prior to September 19, 2019
Indictable Offence(s) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 122 [breach of public trust] 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. 122 [breach of public trust] (Prior to September 19, 2019) 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.

Release

When charged under s. 122 [breach of public trust] , 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
s. 122 [breach of public trust] OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 122 [breach of public trust] are designated offences eligible for wiretap under s. 183.

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 122 [breach of public trust]), 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)).

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

Offence Wording

Breach of trust by public officer

122 Every official who, in connection with the duties of their office, commits fraud or a breach of trust, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person, 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.

R.S., 1985, c. C-46, s. 122; 2019, c. 25, s. 35.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
122 breach of trust by public officer "..., being an official [describe position], did commit [fraud/breach of trust] in connection with the duties of his office by [describe breaching offence] contrary to section 122 of the Criminal Code." [1]

Proof of the Offence

Proving breach of public trust under s. 122 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused was an "official" (holds "office" or is "appointed or elected to discharge a public duty");
  5. the accused was acting in connection with the duties of his or her office;
  6. the accused's conduct represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
  7. the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.
  1. R v Boulanger, 2006 SCC 32 (CanLII), per McLachlin CJ, at para 58
    R v Yellow Old Woman, 2003 ABCA 342 (CanLII), per Berger JA
    R v Lippé, 1996 CanLII 5780 (QC CA), 111 CCC (3d) 187 (Que. C.A.), per Baudouin JA

Interpretation of the Offence

The purpose of this offence is to ensure that the public retains "the confidence of the public in those who exercise state power".[1]

The offence is a codification of the common law offence of "misconduct in office".[2]

The offence is an enumerated wiretap offence under s. 183.

  1. R v Boulanger, 2006 SCC 32 (CanLII), [2006] 2 SCR 49, per McLachlin CJ, at para 1
  2. Boulanger, ibid.
    R v Moodie and Vranich, 2010 ONSC 4847 (CanLII), per Ramsay J, at para 20

Actus Reus

A "breach of trust" can include "any breach of the appropriate standard of responsibility and conduct demanded of the accused by the nature of his office as a senior civil servant of the Crown."[1]

The prohibited act must cause a personal benefit to the accused and must be contrary to the duties imposed upon them.[2]

The breach does not need to be in respect of trust property.[3]

The offence does not capture mere nonfeasance or neglect of duties.[4]

There must be a marked departure from the standard expected from the official.[5]

Law Enforcement

There must be more than "neglect of official duty" to be crminal breach of trust. There must be an "improper purpose".[6]

  1. R v Campbell, 1967 CanLII 315 (ON CA), (1967), 3 CCC 250 (Ont. C.A.), per Wells JA aff'd (1967) 2 CRNS 403 (SCC)
  2. R v Perreault, 1992 CanLII 3282 (QC CA), [1992] R.J.Q. 1829, per Baudouin JA
  3. Campbell, supra at pp. 250, 255-7
  4. R v Boulanger, 2006 SCC 32 (CanLII), [2006] 2 SCR 49, per McLachlin CJ, at para 48
  5. see R v Cook, 2010 ONSC 4534 (CanLII), per Hill J, at para 29
    Boulanger, supra, at para 49
  6. R v Upjohn, 2018 ONCA 1059 (CanLII), per Rouleau JA, at para 15

Mens Rea

The mens rea requires a prohibited act that is done intentionally or recklessly, with the knowledge or wilfully blind to the facts making up the offence. There must also be a "subjective foresight of the consequences" (that their actions will result in a benefit).[1] There is no need for an intent to act dishonestly.[2]

The accused need not be aware that he was breaching trust, it only requires that a reasonable person would conclude that there was a breach of trust.[3]

  1. R v Pilarinos, 2002 BCSC 452 (CanLII), per Bennett J
    R v H(AD), 2013 SCC 28 (CanLII), per Cromwell J - requires knowledge of consequences flowing from act
  2. Pilarinos, supra
  3. R v Flamand, 1999 CanLII 13326 (QC CA), per Letarte JA leave refused
    Pilarinos, supra ("The official does not have to know that the act is a breach of their duty.")

Other Issues

Kienapple

The offence can be subject to Kienapple with the offence of municipal corruption under s. 123.[1]

Property offences such as theft are not subject to Kienapple.[2]

Constitutionality

Section 122 is not unconstitutionally void for vagueness.[3]

  1. R v Gyles, [2003] OJ No 3188 (S.C.J.), 2003 CanLII 53665 (ON SC), per Wein J aff’d [2005] OJ No 5513 (C.A.)
  2. e.g. see R v Cook, 2010 ONSC 4534 (CanLII), per Hill J
  3. R v Lippé, 1996 CanLII 5780 (QC CA), per Baudouin JA
    cf. R c McMorran, 1948 CanLII 105 (ON CA), (1948), 91 CCC 19 (ONCA), per Hogg J

"Government"

118.
...
"government" means

(a) the Government of Canada,
(b) the government of a province, or
(c) Her Majesty in right of Canada or a province;

...
R.S., 1985, c. C-46, s. 118; R.S., 1985, c. 27 (1st Supp.), ss. 15, 203; 2007, c. 13, s. 2.

CCC

"Office"

118.
...

“office” includes

(a) an office or appointment under the government,
(b) a civil or military commission, and
(c) a position or an employment in a public department;

...
R.S., 1985, c. C-46, s. 118; R.S., 1985, c. 27 (1st Supp.), ss. 15, 203; 2007, c. 13, s. 2.

CCC

An "office" can include any "position which involved such authority, responsibility and public trust"[1] The office does not have to be any provincial or federal office. It is any position of trust, duty, or authority, especially "those in the public service or in some corporation, society or the like", or where certain duties attach, such as those in a "place of trust, authority or service under constituted authority".[2]

  1. Belzberg v The Queen, 1961 CanLII 98 (SCC), [1962] SCR 254, per Ritchie J
    R v Sheets, 1971 CanLII 130 (SCC), [1971] SCR 614, per Fauteux CJ
    R v Moodie and Vranich, 2010 ONSC 4847 (CanLII), per Ramsay J - citing dictionary definitions
  2. R v Yellow Old Woman, 2003 ABCA 342 (CanLII), per Berger JA, at para 14
    Sheets, supra, at p. 620
    R v Campbell, 1967 CanLII 315 (ON CA), (1967), 3 CCC 250 (Ont. C.A.), per MacKay JA
    R v Cyr, (1985), 44 C.R. (3d) 87 (Que. S.C.) (*no CanLII links)

"Official"

118.
...
“official” means a person who

(a) holds an office, or
(b) is appointed or elected to discharge a public duty;


...
R.S., 1985, c. C-46, s. 118; R.S., 1985, c. 27 (1st Supp.), ss. 15, 203; 2007, c. 13, s. 2.

CCC

It does not matter whether the person is elected, hired, appointed or under contract.[1]

There is some suggestion that an oath of office would be expected for an appointment.[2]


An official does not include persons providing public services that are contracted out to private companies.[3]

An "official" has been found to include:

  • a municipal official or counselor[4]
  • mayor[5]
  • member of legislative counsel[6]
  • Chief of an Aboriginal Nation[7]
  • Health Director of an Aboriginal Nation[8]
  • director of public security[9]
  • ministers of the Crown[10]
  • provinical deputy ministers[11]
  • a military accountant [12]
  • a peace officer[13]
  • an air break inspector[14]
  • Passport Office Canada employee[15]
  • Canada Customs inspector[16]

An "official" has been found not to include:

  • paramedic contracted through a private company[17]
  1. R v Power, 1993 CanLII 3223 (NS CA), per Freeman JA
    R v Cyr, (1985), 44 C.R. (3d) 87 (Que. S.C.)(*no CanLII links)
  2. e.g. R v Bell, 2005 ONCJ 437 (CanLII), per Harris J, at paras 7 to 10
  3. R v Cosh, NSCA 76 (CanLII), per Beveridge JA
  4. Sheets
    R v Gyles, [2003] OJ No 3188 (S.C.J.) aff’d at 2005 CanLII 47588 (ON CA), [2005] OJ No 5513 (C.A.), per curiam - municipal counselor
  5. R v McKitka, 1982 CanLII 425 (BC CA), per curiam, at para 21
  6. Martineau c La Reine, 1965 CanLII 85 (CSC), [1966] RCS 103, per Fauteux J
  7. Yellow Old Woman, supra
  8. Yellow Old Woman, supra
  9. R v Boulanger, 2006 SCC 32 (CanLII), [2006] 2 SCR 49, per McLachlin CJ
  10. Sommers and Gray v The Queen, 1959 CanLII 43 (SCC), [1959] SCR 678, per Fauteux J
  11. R v MacEachern, 1999 CanLII 7062 (PE SCAD), (1999), 182 Nfld. & P.E.I.R. 219 (P.E.I.C.A.), per Mitchell JA - Deputy Minister of Agriculture
  12. Boulanger, supra, at para 12 citing the original UK common law offence
  13. R v Fisher, 2001 CanLII 24107 (ON CA), [2001] OJ No 116 (C.A.), per curiam
    R v Ryan, 2004 NSCA 115 (CanLII), per Saunders JA
  14. R v Singh, 2008 ABCA 79 (CanLII), per Berger JA
  15. R v Blanas, 2006 CanLII 2610 (ON CA), [2006] OJ No 364 (C.A.), per curiam
  16. R v Scott, 2001 CanLII 24184 (ON CA), (2001), 153 CCC (3d) 87 (Ont. C.A.), per curiam
  17. Cosh, supra

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 122 [breach of public trust] summary election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 122 [breach of public trust] indictable election 5 years incarceration
s. 122 [breach of public trust] N/A
Prior to Sept 19, 2019
5 years incarceration

Offences under s. 122 [breach of public trust] are straight indictable. The maximum penalty is 5 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. 122 [breach of public trust] N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Breach of Public Trust (Sentencing Cases)

In New Brunswick, it is suggested that a discharge will only be imposed in "exceptional circumstances" when it concerns a position such as a peace officer.[1]

  1. R v Leblanc, 2003 NBCA 75 (CanLII), per Drapeau CJ, at para 33 ("only the most exceptional circumstances can justify a discharge, absolute or conditional, for breach of trust by a police officer in the execution of his duties")

Ancillary Sentencing Orders

Offence-specific Offences
Order Conviction Description
DNA Orders s. 122 [breach of public trust]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 122 [breach of public trust] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

Related Offences
Pre-Trial and Trial Issues

Disobeying a Statute or Court Order


Disobeying a Statute or Court Order
s. 126 and 127 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.
Types of Release Release by Officer, Officer-in-charge, or Judge (*varies)
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 two 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
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to disobeying a statute or court order are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 126 [disobeying a statute] and
s. 127 [disobeying a court order]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 126 [disobeying a statute] and 127 [disobeying a court order] 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. 126 [disobeying a statute] and
s. 127 [disobeying a court order]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 126 [disobeying a statute] or 127 [disobeying a court order], 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)).
Fingeprints and Photos

A peace officer who charges a person under s. 126 or 127 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
s. 126 [disobeying a statute] and
127 [disobeying a court order]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Disobeying a statute

126 (1) Every person who, without lawful excuse, contravenes an Act of Parliament by intentionally doing anything that it forbids or by intentionally omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Attorney General of Canada may act

(2) Any proceedings in respect of a contravention of or conspiracy to contravene an Act mentioned in subsection (1) [disobeying a statute], other than this Act, may be instituted at the instance of the Government of Canada and conducted by or on behalf of that Government.

R.S., 1985, c. C-46, s. 126; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 2019, c. 25, s. 39.
[annotation(s) added]

CCC

Disobeying order of court

127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

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


...
R.S., 1985, c. C-46, s. 127; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 2005, c. 32, s. 1.

CCC

Draft Form of Charges

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

Prove of the Offence

Proving disobeying a statute under s. 126 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "contravenes an Act of Parliament" by act or omission;
  5. the conduct was done "wilfully";
  6. the culprit was without a "lawful excuse";
  7. the punishment is not otherwise "expressly provided by law";

Proving disobeying order of court under s. 127 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit 'disobeys a lawful order";
  5. the order is "made by a court of justice" or "by a person or body of persons authorized by any Act to make or give the order";
  6. the order is not "an order for the payment of money";
  7. the punishment "or other mode of proceeding" is not otherwise "expressly provided by law";
  8. the culprit was without a "lawful excuse";
  9. the culprit intended to disobey the order of the Court; and
  10. what the order required the accused to do.[1]
  1. R v Solar, 2012 SKQB 113 (CanLII), per Gabrielson J, at para 32

Interpretation of the Offence

The wording "provided by law" in s. 127 (1) is limited to "statute law" and not of the common law. [1]

Violating a common-law peace bond does not amount to "disobeying a court order".[2]

  1. R v Gibbons, 2010 ONCA 77 (CanLII), per Watt JA
  2. R v Mousseau, 2011 ONCJ 222 (CanLII), per Fairgrieve J

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 126 [disobeying a statute] summary election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 126 [disobeying a statute] indictable election 2 years incarceration
s. 127 [disobeying a court order] summary election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 127 [disobeying a court order] indictable election 2 years incarceration

Offences under s. 126 [disobeying a statute] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019). Offences under s. 127 [disobeying a court order] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two 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. 126 [disobeying a statute] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 127 [disobeying a court order] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Disobeying a Statute or Court Order (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 126 [disobeying a statute] or 127 [disobeying a court order] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

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

127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Attorney General of Canada may act

(2) Where the order referred to in subsection (1) was made in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government, any proceedings in respect of a contravention of or conspiracy to contravene that order may be instituted and conducted in like manner.
R.S., 1985, c. C-46, s. 127; R.S., 1985, c. 27 (1st Supp.), s. 185(F).

CCC

See Also

References

Obstruction of a Peace Officer


Obstruction of a Peace Officer
s. 129 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.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 two 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
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to obstruction of a peace officer are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 129 [obstruction of a peace officer] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 129 [obstruction of a peace officer] 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. 129 [obstruction of a peace officer] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 129 [obstruction of a peace officer], 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)).
Fingeprints and Photos

A peace officer who charges a person under s. 129 [obstruction of a 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
s. 129 [obstruction of a peace officer] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

The Criminal Codes states:

Offences relating to public or peace officer

129. Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,

is guilty of

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

R.S., c. C-34, s. 118; 1972, c. 13, s. 7.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving obstruction of a peace officer in execution of duty under s. 129(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the complainant was a peace officer or public officer within the meaning of s. 2;
  5. the culprit knew that the complainant was a peace officer (e.g. could see the officer's uniform, utterance of officer);
  6. the culprit "resists or wilfully obstructs a public officer" or "any person lawfully acting in aid of such an officer";
  7. the peace officer was engaged in lawful duty at all relevant times[2]
    1. If the officer was undertaking an arrest, there were reasonable grounds to do so and that the arrest was properly made.[3]
  8. the obstruction was willful

Proving obstruction of a peace officer by failing to assist under s. 129(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the complainant was a peace officer or public officer within the meaning of s. 2;
  5. the culprit knew that the complainant was a peace officer (e.g. could see the officer's uniform, utterance of officer)
  6. the culprit "omits, without reasonable excuse, to assist a public officer or peace officer" who is "arresting a person" or "preserving the peace",
  7. the complainant gave the culprit "reasonable notice that [the culprit] is required to" assist;
  8. the peace officer was engaged in lawful duty at all relevant times;
    1. If the officer was undertaking an arrest, there were reasonable grounds to do so and that the arrest was properly made.[4]
  9. the obstruction was willful

Proving obstruction of any person executing process under s. 129(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "resists or wilfully obstructs any person"
  5. the person is "in the lawful execution of a process against lands or goods or in making a lawful distress or seizure"
  1. R v Quinones, 2012 BCCA 94 (CanLII), per Hinkson JA (3:0), at para 9
  2. R v Bowen-Courville, 2007 CanLII 736 (ONSC), per Hockins J
  3. e.g. See R v Chervinski, 2013 ABQB 29 (CanLII), per Hall J
  4. e.g. See Chervinski, supra

Interpretation of the Offence

Executing His Duties

An officer cannot be obstructed where he is not in execution of his duties. Where the officer is acting outside of his "lawful authority" he cannot be in execution of his duties.[1]

It is not necessary for the Crown to prove that the officer was engaged in the execution of a specific duty.[2]

An "off-duty" peace officer can still be in the execution of his duties, effectively becoming "on-duty", regardless of whether he is not in uniform or not "on-shift". It does not matter whether the officer believes he is on duty. It is whether the person is "acting in the course and scope of what should be [his] duties, or are [his] duties" then he meets the definition.[3]

  1. R v Wilhelm, 2014 ONSC 1637 (CanLII), per Hill J, at para 104
  2. R v Westlie, [1971] BCJ No. 643 (BCCA), 1971 CanLII 1166 (BC CA), per McFarlane JA, at para 2
  3. See R v Jones, 2002 BCPC 423 (CanLII), per Angelomatis J, at para 22

Obstruction

"Obstruct" means "to impede; to interpose impediments to the hindrance or frustration of some act or service; such as to obstruct an officer in the execution of his duty".[1]

There is no substantial difference between "resist" and "obstruct". They both involve the interference with the police officer engaged in his duty. They simply create two different means of committing the offence. The mens rea for both actions are the same.[2]

Obstruction must involve an act that "make[s] it more difficult for the police to carry out their duties".[3] But an act causing mere inconvenience is not enough.[4]

A false name corrected after 15 minutes was insufficient.[5]

The offence is not intended to capture acts that amount to a "lapse of judgment" that is "quickly corrected."[6]

The greatest determiner is whether the officer's investigations were interfered with.[7]

Notifying other people of the presence of the police can be a form of obstruction.[8]

Destroying or hiding evidence may be obstruction.[9]

Lack of Cooperation vs Obstruction

Mere uncooperativeness during an arrest is not enough to be an obstruction.[10] There must be some "active physical resistance" against the arrest.[11] This can include pulling away from the arresting officer while being restrained.[12]

"Passive resistance" where there is an "absence of any degree of physical resistance" is not obstruction.[13] Holding onto a steering wheel while police try to remove the person from a car is not passive resistance.[14]

Failure to Identify Oneself
See also: Warrantless Arrests

Absent a law to the contrary, there is no obligation to provide information, including a name, to the police.[15] Generally, a person cannot obstruct a peace officer by refusing to answer questions.[16]

A person must identify himself where the officer is in a position to arrest that person or issue a summons to him.[17]

A failure of a person to identify himself in circumstances such as an inquiry of a cyclist suspected of a provincial offence "causes a major inconvenience and obstruction of the police in carrying out their duties" and consequently obstructed the officer.[18] The giving of a false name is "even worse".[19]

  1. R v Soltys (1980), 1980 CanLII 332 (BC CA), 56 CCC (2d) 43 (BCCA), per MacDonald JA, at p. 45 citing Black's Law Dictionary
  2. R v Glowach, 2011 BCSC 241 (CanLII), per Arnold-Bailey J, at para 23
  3. R v Khan, 2013 ONCJ 194 (CanLII), per Knazan J
    R v Whalen, [1993] AJ No 618(*no CanLII links)
  4. R v McGregor, [2005] OJ No 5836(*no CanLII links) , at para 13 ("It goes on to say the officer was inconvenienced by the accused, but there must more than causing the officer fleeting or momentary diversion, or expenditure of effort.")
    R v Johnny, 2014 BCPC 97 (CanLII){, per Morgan J, at para 33 = brief inconvenience not enough
    R v Darlington, [2001] O.J. No.3410, 2001 ABPC 141 (CanLII), per Fraser J - required more than a fleeting or momentary diversion
  5. R v Cole, 2009 CanLII 72331 (ON SC), [2009] OJ No 5838, per Kiteley J
    see also Whalen, supra
  6. Cole, supra ("parliament did not intend the full weight of the law to be brought to bear on such an accused for such a lapse of judgment that was quickly corrected.")
  7. e.g. see Johnny, supra
  8. R v Westlie (1971) 2 CCC 315, 1971 CanLII 1166 (BC CA), per curiam
  9. R v Akrofi, 1997 CanLII 1851 (ON CA), (1997) 113 CCC (3d) 201 (Ont. C.A.), per Robins JA
  10. R v Kennedy, 2016 ONCA 879 (CanLII), per Benotto JA, at para 36
  11. Kennedy, ibid., at para 36
    R v Alaimo (1974), 27 CCC (2d) 491 (Ont. C.J.), 1974 CanLII 1552 (ON CJ), per Opper J
    R v Stortini (1978), 42 CCC (2d) 214 (Ont. C.J.), 1978 CanLII 2552 (ON CJ), per Greco J
    R v Bentley, [2003] Q.J. No. 16091 (C.S.), 2003 CanLII 55414 (QC CM)
  12. Kennedy, supra, at para 36
  13. Bentley, supra
    Kennedy, supra, at para 33
  14. Bentley, supra
  15. R v Pauli, 2014 SKQB 246 (CanLII), per Dawson J, at para 22 (" appears settled that in general, absent a law to the contrary, citizens are not obligated to provide information, even their name, to the police")
    R v Bonnycastle, [1969] 4 CCC 198 (BCCA), 1969 CanLII 948 (BC CA), per McFarlane JA, at para 5 ("The duty of a peace officer to make enquiries must not be confused with the right of a person to refuse to answer questions in circumstances where the law does not require him to answer.")
  16. R v Greaves, 2004 BCCA 484 (CanLII), per Lowry JA, at para 49
  17. R v Legault, 1998 CanLII 3877 (BC SC), [1998] BCJ No. 1309 (BCSC), per Lamperson J, at para 8 ("...absent some statutory provision to the contrary, a person must only identify himself or herself to a police officer if that police officer is in a position to arrest that person or to issue some form of summons to him.")
  18. R v Moore, 1978 CanLII 160 (SCC), [1979] 1 SCR 195, per Spence J
  19. Khan, supra

Kienapple

See also: Kienapple Principle

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

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

Misc Definitions

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 129 [obstruction of a peace officer] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 129 [obstruction of a peace officer] Indictment Election 2 years custody

Offences under s. 129 [obstruction of a peace officer] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two 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. 129 [obstruction of a peace officer] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Obstruction of a Peace Officer (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
Weapons Prohibition Orders s. 129 [obstruction of a peace officer]
  • Where there is a conviction under s. 129 [obstruction of a peace officer] 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))
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 129 [obstruction of a peace officer] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

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

See Also

References

Personating a Peace Officer


Personating a Peace Officer
s. 130 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.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 two 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 personating a peace officer are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 130 [personating a peace officer] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 130 [personating a peace officer] 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

When charged under s. 130 [personating a peace officer] , 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
s. 130 [personating a peace officer] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Personating peace officer

130. (1) Everyone commits an offence who

(a) falsely represents himself to be a peace officer or a public officer; or
(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.
Punishment

(2) Everyone who commits an offence under subsection (1) [personating peace officer]

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

R.S., 1985, c. C-46, s. 130; 2009, c. 28, s. 2.
[annotation(s) added]

CCC

Aggravating circumstance

130.1 If a person is convicted of an offence under section 130 [personating peace officer], the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the accused personated a peace officer or a public officer, as the case may be, for the purpose of facilitating the commission of another offence.
2014, c. 10, s. 1.
[annotation(s) added]

CCC

Draft Form of Charges

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

Proof of the Offence

Proving personating a peace officer under s. 130 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was not a "peace officer" or "public officer";
  5. the culprit knew or was willfully blind to not being a peace officer;
  6. the culprit either:
    1. represented himself as a "peace officer" or "public officer" or
    2. "uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer"; and
  7. the prohibited conduct was for "the purpose of facilitating the commission of another offence" (aggravating factor, not essential).

Interpretation

Definitions

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 130 [personating a peace officer] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 130 [personating a peace officer] Indictable Election 5 years custody

Offences under s. 130 [personating a peace officer] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two 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. 130 [personating a peace officer] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Personating a Peace Officer (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 130 [personating a peace officer]
Weapons Prohibition Orders s. 130 [personating a peace officer]
  • Where there is a conviction under s. 130 [personating a peace officer] 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))
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

Personating peace officer

130. Every one who

(a) falsely represents himself to be a peace officer or a public officer, or
(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be,

is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 119.

CCC

See Also

Disarming a Peace Officer


Disarming a Peace Officer
s. 270.1 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.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 disarming a peace officer 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. 270.1 [disarming a peace officer] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 270.1 [disarming a peace officer] 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

When charged under s. 270.1 [disarming a peace officer] , 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)).
Fingeprints and Photos

A peace officer who charges a person under s. 270.1 [disarming a 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
s. 270.1 [disarming a peace officer] X Mark Symbol.png X Mark Symbol.png OK Symbol.png (varies) X Mark Symbol.png

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

Offence Wording

Disarming a peace officer

270.1 (1) Every one commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in the possession of the peace officer when the peace officer is engaged in the execution of his or her duty.
...

Punishment

(3) Every one who commits an offence under subsection (1) [Disarming a peace officer] 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.

2002, c. 13, s. 11; 2019, c. 25, s. 96.
[annotation(s) added]

CCC

Draft Form of Charges

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

Proof of the Offence

Proving disarming a peace officer under s. 270.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the peace officer was in possession of an item;
  5. the item was a "weapon"
  6. the culprit took or attempted to take the item in the officer's possession;
  7. the peace officer was in the execution of his duty at the time;
  8. the peace officer did not give consent.

Interpretation of the Offence

Weapons

270.1.
...

Definition of “weapon”

(2) For the purpose of subsection (1) [Disarming a peace officer], “weapon” means any thing that is designed to be used to cause injury or death to, or to temporarily incapacitate, a person.
...
2002, c. 13, s. 11.
[annotation(s) added]

CCC

Misc Definitions

Section 2 defines "peace officer".

Participation of Third Parties

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

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

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

On Finding of Guilt

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 270.1 [disarming a peace officer]), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 270.1 [disarming a peace officer] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 270.1 [disarming a peace officer] Indictable Election 5 years incarceration

Offences under s. 270.1 [disarming a peace officer] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Dispositions Available
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. 270.1 [disarming a peace officer] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 270.1 [disarming a peace officer]
Weapons Prohibition Orders s. 270.1 [disarming a peace officer]
  • 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))
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

Related Offences
References

Breach of Undertaking, Recognizance, or Probation


Breach of Undertaking, Recognizance, or Probation
s. 145(4), (5) or 733.1 of the Crim. Code
Election / Plea
Crown Election varies
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction varies
Types of Release Release by Officer, Officer-in-charge, or Judge
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 fine / 6 or 18 months incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Failure to Attend Court or Appear (Offence)

The offences of breaching court orders such as undertakings or recognizance are found in Part IV of the Criminal Code relating to "Offences Against the Administration of Law and Justice". Offences relating to breaches of probation orders are found in Part XXIII of the Criminal Code relating to "Sentencing". Breaches of peace bonds are found in Part XXVII of the Criminal Code relating to "Summary Convictions".

It is an offence to violate supervisory orders that are imposed either pending disposition of a charge or after disposition. Undertaking and recognizances are supervisory orders limiting an accused's liberty while a charge is pending, probation is a form of supervisory order imposed as part of sentence.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
145(4) [failure to comply with undertaking] Hybrid Offence(s) OK Symbol.png X Mark Symbol.png (under 14 years max)
145(5) [failure to comply with release order] Hybrid Offence(s) OK Symbol.png X Mark Symbol.png (under 14 years max)
733.1 [breach of probation] Hybrid Offence(s) OK Symbol.png X Mark Symbol.png (under 14 years max)
811 [breach of peace bond] Hybrid Offence(s) OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 145(4) [failure to comply with undertaking] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 145(5) [failure to comply with release order] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 733.1 [breach of probation] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Offences under s. 811 [breach of peace bond] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 145(3) [failure to comply with undertaking],
145(5) [failure to comply with release order],
733.1 [breach of probation] and
811 [breach of peace bond]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 145(4) [failure to comply with undertaking], s. 145(5) [failure to comply with release order], s. 733.1 [breach of probation] and 811 [breach of peace bond] , 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)).

There will be a reverse onus for charges under s. 145(2) to (5) "that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of [Part XVI regarding compelling appearance for an accused] or s. 679, 680 or 816 [regarding release pending appeal or review of appeal]".

Fingeprints and Photos

A peace officer who charges a person under s. 145(4) [failure to comply with undertaking], (5) [failure to comply with release order], 733.1 [breach of probation], or 811 [breach of peace bond] 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.

Designations

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

Offence Wording

Failure to comply with Undertaking

145
...

Failure to comply with undertaking

(4) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or an offence punishable on summary conviction who,

(a) is at large on an undertaking and who fails, without lawful excuse, to comply with a condition of that undertaking; or
(b) is at large on an undertaking that has been confirmed by a justice under section 508 [justice to hear informant and witnesses] and who fails, without lawful excuse, to appear at the time and place stated in the undertaking for the purposes of the Identification of Criminals Act or to attend court in accordance with the undertaking.


...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.

CCC

Failure to comply with Undertaking

145
...

Failure to comply with order

(5) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years, or is guilty of an offence punishable on summary conviction, who

(a) is at large on a release order and who fails, without lawful excuse, to comply with a condition of that release order other than the condition to attend court; or
(b) is bound to comply with an order under subsection 515(12) [Order re no communication on detention], 516(2) [Detention pending bail hearing] or 522(2.1) [Order re no communication — s. 469 offences] and who fails, without lawful excuse, to comply with that order.

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.

CCC

Breach of Probation

Failure to comply with probation order

733.1 (1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
(b) an offence punishable on summary conviction.
Where accused may be tried and punished

(2) An accused who is charged with an offence under subsection (1) [Failure to comply with probation order] may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.
1995, c. 22, s. 6; 2015, c. 23, s. 18; 2019, c. 25, s. 298.

CCC

Breach of Peace Bond/Recognizance

Breach of recognizance

811 A person bound by a recognizance under any of sections 83.3 [terrorism recognizance] and 810 to 810.2 [peace bonds] who commits a breach of the recognizance is guilty of

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

R.S., 1985, c. C-46, s. 811; 1993, c. 45, s. 11; 1994, c. 44, s. 82; 1997, c. 17, s. 10, c. 23, ss. 20, 27; 2001, c. 41, s. 23 2015, c. 20, s. 27, c. 23, s. 19, c. 29, s. 12; 2019, c. 25, s. 322.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving failure to comply with release order under s. 145(5) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that the Crown must prove that the accused was bound by an undertaking or recognizance;
  5. that the accused committed an act which was prohibited by the undertaking or recognizance or that the accused failed to perform an act required to be performed by that undertaking or recognizance; and
  6. the accused knowingly (or recklessly) and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.[1]

Proving breach of probation under s. 733.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was previously convicted of an offence for which the sentence included a period of probation
  5. the culprit was bound by the probation order at the time
  6. that the accused committed an act which was prohibited by the probation order or that the accused failed to perform an act required to be performed by that probation order; and
  7. the culprit knowingly (or recklessly) and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.
  1. R v Custance, 2005 MBCA 23 (CanLII), per Steel JA (3:0), at para 10

Interpretation of the Offence

The condition to report to the door for compliance checks creates a duty on the accused. Failure of that duty is an offence.[1]

Mens rea, Breach of Recognizance

The offence's mens rea is on an objective fault standard.[2]

Mens Rea, Breach Probation

The Crown must prove that the accused intended to breach his probation conditions. This means the accused must have known that he was bound by the probation order as well as the terms of the order. The mens rea of the offence can be satisfied by an "objective recklessness".[3]

The use of the word "refusing" in a breach of a probation order, requires the accused "know what [he was] not complying with" and "deliberately flout them".[4]

Previously, breaches required wilful intent. This was inferred from the facts.[5]

Lawful Excuse

Once the crown establishes a prima facie case, the accused is responsible to "establish a lawful excuse for not complying" with the conditions on a balance of probabilities.[6]

Failure to Pay Fines

If the breach is for the failure to pay restitution, the failure to make the payments in and of itself is prima facie evidence that the accused intended not to pay.[7]

Breach of s. 810 Order vs Breach of Undertaking/Recognizance

A breach of an 810 beach bond does not amount to an offence under s. 145(3).[8]

Kienapple

The kienapple principle does not apply to a single action that violates both a recognizance and a probation order.[9] A conviction for a substantive offence that results in a breach charge does not prohibit a conviction for the breach.[10]

  1. R v Zora, 2019 BCCA 9 (CanLII) (5:0), per Stromberg-Stein JA (Fenlon JA concurring in results only)
  2. Zora, ibid., at para 2 ("the duty-based nature of s. 145(3), combined with the risk-based nature of bail provisions, support Parliament’s intention for the application of an objective fault standard. ")
  3. cf. R v DJM, 2010 BCSC 448 (CanLII), per Borrows J (seems to suggest recklessness not enough)
  4. Docherty, ibid., at para 14
  5. Docherty, ibid.
  6. R v Flores-Rivas, 2008 BCSC 1595 (CanLII), per Bennett J, at paras 15 to 16
    R v Ludlow, 1999 BCCA 365 (CanLII), (1999), 136 CCC (3d) 460, per Hall JA (2:1)
  7. R v Sugg, 1986 CanLII 124 (NSCA), per Macdonald JA (3:0)
  8. R c Simanek, [1993] 82 CCC (3d) 576 (CA Ont.), 1993 CanLII 14660 (ON CA), per curiam
  9. R v Poker, 2009 NLCA 33 (CanLII), per Rowe JA
    R v Furlong, 1993 CanLII 7747 (NL CA), [1993] N.J. No. 168, per Marshall JA
  10. Furlong, ibid.

Proving the Existence and Duration of Order

See also: Public and Judicial Documents

The crown is obliged to prove the existence of the recognizance at the relevant time. It cannot be assumed.[1]

The proof of the existence of the recognizance on the date of issue does not create a presumption that the accused was bound on the date of the offence. The Crown must also prove that the order was in place on the day of the offence.[2]

In proving the existence of a probation order, an original certified copy of the order may be submitted as an exhibit without notice at the common law.[3] This is likewise the case in proving an order of disqualification from driving.[4]

The court may use its own records as evidence. Ambiguities in the records can be clarified by calling the court clerk to give clarifying evidence.[5]

Any court records examined by the court must be done so in the presence of counsel and counsel must be invited to make submissions on their interpretation.[6]

The probation order must be in effect at the time of the breach. Accordingly, a call from jail to a prohibited person is not a breach under the associated probation order since the order does not commence until release.[7]

  1. R v Han, 2008 ONCJ 688 (CanLII), per Wakefield J
  2. R v Truong, 2008 BCSC 1151 (CanLII), per Smart J, at para 33
  3. R v Lebreux, [1993] N.W.T.J. No. 97 (*no CanLII links)
  4. R v Tatomir, 1989 ABCA 233 (CanLII), per Heatherington JA
  5. R v West, 2009 BCSC 1164 (CanLII), per N Brown J
  6. R v Poole, 2014 BCSC 102 (CanLII), per Butler J
  7. R v Fazekas, 2003 CanLII 48250 (ON CA), per curiam

Keep the Peace and be of Good Behaviour

The condition to "keep the peace and be of good behaviour" contemplates two different types of offences. The provision to "keep the peace" is separate from the condition to be of "good behaviour".[1]

Disorderly conduct that violates public peace will amount to a breach of the "peace".[2] This does not however include cursing or swearing at police.[3]

The term "be of good behaviour" means that the person must comply with federal, provincial, municipal statutes or regulatory provisions as well as court orders.[4]

There is some dispute over whether breaching "good behaviour" requires breach of law or regulation . There is a line of cases that says you must have a violation.[5] While others state that there in no such limitation.[6]

  1. R v SS, 1999 CanLII 18981 (NL CA), per Green JA, at para 6
  2. R v Badenoch, [1969] 1 CCC 78, 1968 CanLII 815 (BC CA), per Tysoe JA
    SS, supra
    R v Gosai [2002] OJ No 359 (S.C.J.)(*no CanLII links)
  3. R v Shea, 2010 NSPC 70 (CanLII), per Derrick J
  4. R v DR, 1999 CanLII 13903 (NL C.A.), per Green JA
    R v Grey (1993) 19 CR 4th 363 (Ont.) (*no CanLII links)
  5. DR, supra
    Grey, supra
    R v Barker (1967), 3 CRNS 58 (Y.F. Mag. Ct.) (*no CanLII links)
  6. R v M(SAM) [1994] SJ No 537 (SKPC) (*no CanLII links)
    R v Johnson (1993), 90 Man. R. (2d) 43 (*no CanLII links)
    SS, supra

Forgetfulness

Forgetfulness has been successful as a defence to the reporting condition for probation.[1]

  1. R v Bremmer, 2006 ABPC 93 (CanLII), per Fraser J

Contact/Communicate/Associate

"Contact"

"Contact" has a broader meaning than "communicate" and "associate".[1]

Non-Verbal Contact

Smirking and extending a middle finger was found to amount to contact with a complainant.[2]

Minimal Contact

"Contact" must be more than simply incidental or momentary physical proximity. There must be "an element of purposeful contact that is intrusive, disruptive or communicative".[3]

"Communication"

The term "communication" can take the ordinary dictionary meaning of the word and includes the transmission of information.[4] It does not need a "mutuality" between the recipient of the communication.[5]

Communication can include certain acts or gestures. [6]

Failed Attempt to Communicate

An act that may have amounted to an attempt to communicate is not sufficient to breach a communication provision.[7]

Irrelevant Considerations

Communication that is initiated by the party protected by the condition will still amount to an offence.[8]

The purpose of the communication has no bearing on the meaning of "communication" in the offence.[9]

Mens Rea

Since there must be intent when breaching a contact order, simply running into a person by accident will not be sufficient.[10] Nor will "mere carelessness or failure to take precautions that a reasonable person would take" be enough.[11]

  1. R v CAH, 2010 ABPC 375 (CanLII), [2010] AJ No 1354, per Redman J
  2. R v Dupuis, 2006 NSPC 66 (CanLII), per Crawford J
  3. R v Eyles, 2012 ONCJ 463 (CanLII), per Brophy J at 33
  4. R v Legere, 1995 CanLII 1551 (ON CA) ("communication... least connotes an imparting of information from one to another")
    see also Wiretaps for interpretation of "Communication"
  5. Legere, ibid. see also R v Davie (1980), 1980 CanLII 323 (BC CA), 54 CCC (2d) 216, 17 C.R. (3d) 72 (BCCA), per Hutcheon JA
  6. Legere, ibid. ("Communicating can occur by acts or gestures as well as by words, as the trial judge correctly observed")
  7. Legere, ibid., (" the appellant's act may have been an attempt to initiate communication (which was unsuccessful) but it was not an act of communicating as that word is used in the judicial interim release order")
  8. R v Fitzgerald, 1990 CanLII 6481 (NL CA), per Marshall JA
  9. R v F(J), [2001] OJ No 2054(*no CanLII links)
  10. R v Eyles, 2012 ONCJ 463 (CanLII), per Brophy J, at para 32
  11. Legere, supra

Possession of Weapons

An order that prohibits the possession of a firearm, including probation, recognizance or 109/110 Order, will apply whether or not the person is within Canada. They will be personally subject to the order no matter where they are. [1]

  1. R v Rattray, 2008 ONCA 74 (CanLII), per MacFarland JA (accused bought rifle while in Michigan, no evidence of possession within Canada)

Curfew

A de minimus argument may be available for a breach of cerfew.[1]

  1. e.g. R v Tan, 2010 ABPC 163 (CanLII), per Fradsham J (acquittal for breach of curfew; de minimus principle)
    see also De Minimus Non Curat Lex

Possession or Use of Drugs

See also: Proof of Bodily Substance in Condition Breach Prosecution

Proceeding Ex Parte

Adjournment

803. (1) The summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents.

Non-appearance of defendant

(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1) [summary offences – right to adjourn matters], the summary conviction court

(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or

...

Consent of Attorney General required

(3) If the summary conviction court proceeds in the manner described in paragraph (2)(a) [summary offences – conduct ex parte trial], no proceedings under section 145 arising out of the defendant’s failure to appear at the time and place appointed for the trial or for the resumption of the trial shall, without the consent of the Attorney General, be instituted or be proceeded with.
...
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s.112; 2008, c. 18, s. 45.
[annotation(s) added]

CCC

Lawful Excuse

145...

Not an excuse

(6) For the purposes of subsections (3) [failure to comply with appearance notice or summons] and (4) [failure to comply with undertaking], it is not a lawful excuse that an appearance notice or undertaking states defectively the substance of the alleged offence.

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC


Lawful Excuse Under the Contravensions Act

145...

Election of Crown under Contraventions Act

(8) For the purposes of paragraph (2)(a) [failure to attend court or surrender – at large on release order] and subsections (3) to (5) [provisions re failure to comply], it is a lawful excuse to fail to attend court in accordance with a summons, appearance notice, undertaking or release order, to comply with a condition of an undertaking or release order or to fail to appear at the time and place stated in a summons, an appearance notice or an undertaking for the purposes of the Identification of Criminals Act if — before the failure — the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act.
...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties

Offences under s. 145(4) [failure to comply with undertaking] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Offences under s. 145(5) [failure to comply with release order] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Offences under s. 733.1 [breach of probation] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration . If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Offences under s. 811 [breach of peace bond] are hybrid. If prosecuted by indictment, the maximum penalty is '4 years incarceration'. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Penalties
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. 145(4) [failure to comply with undertaking],
s. 145(5) [failure to comply with release order],
s. 733.1 [breach of probation], and
s. 811 [breach of peace bond]
any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

However, breaches of court orders "will generally be made consecutive to the other related offences."[1]

  1. R v Hutchings, 2012 NLCA 2 (CanLII), [2012] N.J. No. 12, (NLCA), at para 86

Principles

Gravity of Offence

It is "critical" that persons obey their conditions that they are bound by.[1]

The "administration of justice and the public's confidence in the administration of justice depends on compliance with such orders". When they are breached emphasis should be on general and specific deterrence.[2] The judge should consider "general and specific deterrence and the need to protect the public from high-risk offenders ... were paramount." As well as proportionality, gravity and seriousness of the offence.[3]

Where an intimate partner is the subject of alleged violence the complainant has a right to be left alone by the accused.[4]

The purpose of a s. 810 recognizance is to protect the public by preventing future criminal activity.[5]

A breach of condition by absconding from the jurisdiction is considered "more serious than most, if not all, the other breaches".[6]

Sentencing Objectives

The primary purpose for sentencing on a breach of recognizance is the "protection of the public". The main objectives then are specific and general deterrence.[7]

Sentencing for breaches of recognizances should focus on managing the offender’s risk to the community.[8]

Some suggest that a breach of a court order should always involve a jail sentence.[9]

Multiple Offences

Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.[10]

Offender Circumstances

A breach should "be examined in light of the potential for the reasonably foreseeable consequences" of the conduct giving rise to the breach. This includes the offender's history. [11]

Procedure

Under s. 524, when a release order is violated the judge shall cancel the order and then show cause of why the accused should be released.[12]

  1. R v Bates, 2000 CanLII 5759 (ON CA), per Moldaver and Feldman JJA
  2. R v Seaward, 2003 CanLII 43484 (NL PC), per Gorman J, at para 24
  3. R v Labbe, 2006 CanLII 36608 (ONCA), per curiam
  4. R v Denkers, 1994 CanLII 2660 (ON CA), (1994), 69 O.A.C. 391, per curiam, at p. 394
  5. R v Ballantyne, 2009 SKCA 27 (CanLII), 324 Sask R 71, per Lane JA, at para 5
  6. R v Wilson, 2017 ONCA 229 (CanLII), per Epstein JA, at para 27
    Romania v Iusein, 2014 ONSC 623 (CanLII), per Speyer J, at para 26
  7. R v Zimmerman, 2011 ABCA 276 (CanLII), per curiam
    R v Wilson, 2014 BCPC 193 (CanLII), per Brecknell J, at para 45
  8. Zimmerman, supra
    Wilson, supra, at para 45
  9. R v Murphy, 2011 NLCA 16 (CanLII), [2011] N.J. No. 43 (C.A.), per Welsh JA, at para 34
    R v Power, [2010] N.J. No. 331 (P.C.), 2010 CanLII 62214 (NL PC), per Pike J ( "for breaching court orders almost always involve incarceration to denounce this conduct and send a signal to those who would be so inclined.")
  10. Murphy, supra
  11. R v Helary, 2007 NLCA 47 (CanLII), 268 Nfld & PEIR 267, per Cameron JA, at para 16
  12. see Breach of Release Conditions

Ranges

see also: Breach of Undertaking, Recognizance, or Probation (Sentencing Cases)

In Nova Scotia, a repeat offender should expect to receive 1 to 3 months incarceration for a subsequent breach of s 145 on conditional release.[1]

In Newfoundland, a breach of probation will typically be for 1 to 3 months, unless the election is by indictment where the sentence may be as high as 6 months.[2]

  1. R v Gabriel, 2018 NSSC 252 (CanLII), per Rosinski J, at para 56
  2. R v Murphy, 2011 NLCA 16 (CanLII), per Welsh JA ("a sentence in the range of one to three months imprisonment, or up to six months where the Crown proceeds by way of indictment, is imposed for the breach of a probation order.")

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 145(4) or (5)
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

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

Section 733.1

On September 19, 2019, Bill C-75 replaced s. 733.1(1). It changed the maximum penalty for summary election from 18 months to 2 years less a day.

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the maximum penalties for convictions under s. 733.1. On summary conviction, the maximum penalties increased from 18 months and/or $2,000 to 18 months and/or $5,000. On indictable election, the maximum penalties increased from 2 years to 4 years.

Prior to 2015, the section read:

Failure to comply with probation order

733.1 (1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order 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 and is liable to imprisonment for a term not exceeding eighteen months, or to a fine not exceeding two thousand dollars, or both.
Where accused may be tried and punished

(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.
1995, c. 22, s. 6.

CCC


Section 145

On 2008, c. 18, Bill C-13 came into force, amending s. 145(3). Previous to the amendment s. 145(3) read:

145.
...

Failure to comply with condition of undertaking or recognizance

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance directed by a justice or judge, and every person who is bound to comply with a direction ordered under subsection 515(12) or 522(2.1), and who fails, without lawful excuse, the proof of which lies on that person, to comply with that condition or direction, 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.

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3.

CCC

The most notable difference is that the 2008 amendment includes breaches of release under s. 516(2) and it also removes reference to "directed by a justice or judge".

See Also

References

Proof of Bodily Substance in Condition Breach Prosecution

General Principles

Proof of certificate of analyst

729 (1) In

(a) a prosecution for failure to comply with a condition in a probation order that the accused not have in possession or use drugs, or
(b) a hearing to determine whether the offender breached a condition of a conditional sentence order that the offender not have in possession or use drugs,

a certificate purporting to be signed by an analyst stating that the analyst has analyzed or examined a substance and stating the result of the analysis or examination is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate.

Definition of analyst

(2) In this section, analyst means a person designated as an analyst under the Controlled Drugs and Substances Act or the Cannabis Act.

Notice of intention to produce certificate

(3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

(4) and (5) [Repealed, 2008, c. 18, s. 36]

Requiring attendance of analyst

(6) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

R.S., 1985, c. C-46, s. 729; 1995, c. 22, s. 6; 1999, c. 31, s. 69; 2004, c. 12, s. 11(E); 2008, c. 18, s. 36; 2018, c. 16, s. 221.

CCC

Proof of certificate of analyst — bodily substance

729.1 (1) In a prosecution for failure to comply with a condition in a probation order that the accused not consume drugs, alcohol or any other intoxicating substance, or in a hearing to determine whether the offender breached such a condition of a conditional sentence order, a certificate purporting to be signed by an analyst that states that the analyst has analyzed a sample of a bodily substance and that states the result of the analysis is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person who appears to have signed the certificate.

Definition of analyst

(2) In this section, analyst has the same meaning as in section 320.11 [offences relating to conveyances – definitions].

Notice of intention to produce certificate

(3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

Requiring attendance of analyst

(4) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

2011, c. 7, s. 2; 2018, c. 21, s. 23.
[annotation(s) added]

CCC

Failure to Attend Court or Appear


Failure to Attend Court or Appear
s. 145(2) and (3) 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.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 two 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
Reference
Offence Elements
Sentence Digests

Overview

See also: Breach of Undertaking, Recognizance, or Probation (Offence)

Offences relating to failure to attend court or appear are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings

Offences under s. 145(2) [failure to attend court or surrender], (3) [Failure to comply with appearance notice or summons] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 145(2) [failure to attend court or surrender],
s. 145(3) [Failure to comply with appearance notice or summons]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 145(2) [failure to attend court or surrender], (3) [Failure to comply with appearance notice or summons] , 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)).

There will be a reverse onus for charges under s. 145(2) to (5) "that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of [Part XVI regarding compelling appearance for an accused] or s. 679, 680 or 816 [regarding release pending appeal or review of appeal]".

Fingeprints and Photos

A peace officer who charges a person under s. 145 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
s. 145(2) [failure to attend court or surrender],
s. 145(3) [Failure to comply with appearance notice or summons]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

145
...

Failure to attend court or surrender

(2) Every person is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction who,

(a) is at large on a release order and who fails, without lawful excuse, to attend court in accordance with the release order;
(b) having appeared before a court, justice or judge, fails, without lawful excuse, to subsequently attend court as required by the court, justice or judge; or
(c) fails to surrender themselves in accordance with an order of the court, justice or judge, as the case may be.
Failure to comply with appearance notice or summons

(3) Every person who is named in an appearance notice that has been confirmed by a justice under section 508 [justice to hear informant and witnesses] or who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in the notice or the summons, as the case may be, for the purposes of the Identification of Criminals Act, or to attend court in accordance with the notice or the summons, as the case may be, is guilty of

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

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC

Draft Form of Charges

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

Proof of the Offence

Proving failure to attend court under s. 145(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is subject to one of the following:
    1. an "undertaking or recognizance given to or entered into before a justice or judge", if he is at large;
    2. directed to attend court at a later time while appearing before a court, judge or justice;
  5. the culprit fails to attend court in accordance with the court order or as required by the court, justice or judge; and
  6. the culprit had no lawful excuse for the prohibited conduct.

Proving failure to appear on summons under s. 145(3) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was properly served with a summons;
  5. the summons is for the "purposes of the Identification of Criminals Act or to attend court";
  6. the culprit failed "to appear at a time and place stated" in the summons;
  7. having appeared in accordance with the summons, the culprit failed to appear thereafter as required by the court; and
  8. the culprit had no lawful excuse for the prohibited conduct.
  1. R v King, 2002 CanLII 40375 (NL PC), per Gorman J

Interpretation of the Offence

The offence of failing to appear in court is not an offence of strict liability.[1]

145(2) - Failure to Attend

The purpose of the offence under s. 145(2) is to "enable courts to control their own process".[2]

Section 145(2) creates a single offence that can be committed in three different ways:[3]

  1. being at large on an undertaking or recognizance and failing to attend court (a);
  2. having appeared before a court and failing to attend thereafter as required by the court (b); and
  3. having appeared before a court and failing to surrender in accordance with an order of the court.

The offence under s. 145 applies to criminal as well as non-criminal provincial offences.[4]

  1. R v Hammoud, 2012 ABQB 110 (CanLII), per Strekaf J
    R v Loutitt, 2011 ABQB 545 (CanLII), per Germain J
  2. R v Jerrett, 2017 NLCA 65 (CanLII), per Hoegg JA (3:0), at para 18 ("The purpose of section 145(2)(b) is to enable courts to control their own process. Failing to give effect to a judge’s order to a defendant to return for continuation of proceedings against him or her would undermine the judge’s authority to control the process of the court and render judges’ procedural orders ineffective and unenforceable, thereby impugning the integrity of the justice system.")
  3. R v Charles, 2006 ABCA 216 (CanLII), per Fruman JA, at para 8
  4. Jarrett, supra

145(3) - Failure to Comply with Appearance Notice or Summons

Section 145(3) does not simply apply to the first appearance in court. Rather it creates two offences. Firstly, of a failure to attend under the Identification or Criminals Act, and secondly, by missing any court appearance according to a promise to appear or appearance notice.[1]

Evidence of a name upon the original appearance notice provides at least some evidence of identity of the accused in court at trial for 145(3).[2]

  1. R v Hubek, 2011 ABCA 254 (CanLII), [2011] AJ No 990 (C.A.), per curiam
  2. R v St. Pierre, 2016 ONCA 173 (CanLII), per curiam, at para 10

Lawful Excuse

The burden is upon the accused to show a lawful excuse on a balance of probabilities.[1]

There is some debate on what constitutes the mens rea of failure to attend. Certain courts have stated that negligence is sufficient.[2] While others have stated that it requires an intent (either wilful blindness or recklessness).[3]

An honest mistake of the time and date of attendance[4] as well as forgetfulness [5] can serve to negate the mens rea of the offence. The accused must be able to show a due diligence.[6]

145...

Not an excuse

(6) For the purposes of subsections (3) [failure to comply with appearance notice or summons] and (4) [failure to comply with undertaking], it is not a lawful excuse that an appearance notice or undertaking states defectively the substance of the alleged offence.

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC

Lawful Excuse Under Contravensions Act

145...

Election of Crown under Contraventions Act

(8) For the purposes of paragraph (2)(a) [failure to attend court or surrender – at large on release order] and subsections (3) to (5) [provisions re failure to comply], it is a lawful excuse to fail to attend court in accordance with a summons, appearance notice, undertaking or release order, to comply with a condition of an undertaking or release order or to fail to appear at the time and place stated in a summons, an appearance notice or an undertaking for the purposes of the Identification of Criminals Act if — before the failure — the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act.
...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC

  1. see R v Ludlow, 1999 BCCA 365 (CanLII), (1999), 136 CCC (3d) 460 (BCCA), per Hall JA, at para 30
    R v Custance, 2005 MBCA 23 (CanLII), per Steel JA, at para 24
  2. R v Hammoud, 2012 ABQB 110 (CanLII), per Strekaf J
    R v Bremner, 2006 ABPC 93 (CanLII), per Fraser J
  3. R v Loutitt, 2011 ABQB 545 (CanLII), per Germain J
    R v Eby, 2007 ABPC 81 (CanLII), per Allen J
    R v Potts, 2012 ABPC 78 (CanLII), per Rosborough J
  4. R v Bender (1975), 30 CCC (2d) 496 (B.C.S.C.), 1976 CanLII 1439 (BC SC), per Munroe J
  5. R v Neal (1982), 67 CCC (2d) 92 (Ont. Co. Ct.), 1982 CanLII 3203 (ON SC), per Matlow J
    Loutitt, supra
  6. Ludlow, supra, at para 40

Evidence

Proof by Certificate

145...

Proof of certain facts by certificate

(9) In any proceedings under subsections (2) to (4) [provisions re failure to comply], a certificate of the clerk of the court or a judge of the court before which the accused is alleged to have failed to attend or of the person in charge of the place at which it is alleged the accused failed to attend for the purposes of the Identification of Criminals Act is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate if the certificate states that,

(a) in the case of proceedings under subsection (2) [failure to attend court or surrender], the accused failed to attend court as required by the release order or, having attended court, failed to subsequently attend court as required by the court, judge or justice or failed to surrender in accordance with an order of the court, judge or justice, as the case may be;
(b) in the case of proceedings under subsection (3) [failure to comply with appearance notice or summons], the accused was named in an appearance notice that was confirmed by a justice under section 508 [justice to hear informant and witnesses] and the accused failed to attend court in accordance with the notice or failed to appear at the time and place stated in the notice for the purposes of the Identification of Criminals Act, as the case may be;
(c) in the case of proceedings under subsection (3) [failure to comply with appearance notice or summons], a summons was issued to and served on the accused and the accused failed to attend court in accordance with the summons or failed to appear at the time and place stated in the summons for the purposes of the Identification of Criminals Act, as the case may be; and
(d) in the case of proceedings under subsection (4) [failure to comply with undertaking], the accused was at large on an undertaking that was confirmed by a justice under section 508 [justice to hear informant and witnesses], and the accused failed to attend court in accordance with the undertaking or failed to appear at the time and place stated in the undertaking for the purposes of the Identification of Criminals Act, as the case may be.
Attendance and right to cross-examination

(10) An accused against whom a certificate described in subsection (9) [proof of certain facts by certificate] is produced may, with leave of the court, require the attendance of the person making the certificate for the purposes of cross-examination.

Notice of intention to produce

(11) No certificate shall be received in evidence pursuant to subsection (9) [proof of certain facts by certificate] unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.

R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC

Under s.145(9), the endorsements on the certificate of the clerk or judge saying that the accused was not in attendance "is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate."[1]

The Court should take notice of its own records showing attendance of the accused in appearances.[2]

  1. see s. 145(9)
    R v Evaglok, 2010 NWTSC 35 (CanLII), per Charbonneau JA, at paras 27 to 29 - appeal dismissed at 2010 NWTCA 12 (CanLII), per Vertes JA
    see also Judicial Notice
  2. R v Tkachuk, 2009 BCSC 834 (CanLII), per Chamberlist J, at paras 13, 19

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties

Offences under s. 145(2) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration . If prosecuted by summary conviction, the maximum penalty is two 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. 145(2) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Failure to Attend Court or Appear (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 145(2) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons]

If convicted under s. 145(2) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons] , there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.

General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 145(2) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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 December 13, 2018, the offence read:

145
...

Failure to attend court

(2) Every one who,

(a) being at large on his undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court in accordance with the undertaking or recognizance, or
(b) having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge,

or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.
...

Failure to appear or to comply with summons

(4) Every one who is served with a summons and who fails, without lawful excuse, the proof of which lies on him, to appear at a time and place stated therein, if any, for the purposes of the Identification of Criminals Act or to attend court in accordance therewith, 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.
Failure to comply with appearance notice or promise to appear

(5) Every person who is named in an appearance notice or promise to appear, or in a recognizance entered into before an officer in charge or another peace officer, that has been confirmed by a justice under section 508 and who fails, without lawful excuse, the proof of which lies on the person, to appear at the time and place stated therein, if any, for the purposes of the Identification of Criminals Act, or to attend court in accordance therewith, 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.

...

Idem

(6) For the purposes of subsection (5), it is not a lawful excuse that an appearance notice, promise to appear or recognizance states defectively the substance of the alleged offence.
...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3.

CCC

See Also

References

Escape from Lawful Custody


Escape from Lawful Custody
s. 145(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.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 two 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
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to escape from lawful custody are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 145(1) [escape and being at large without excuse] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 145(1) [escape and being at large without excuse] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 145(1) [escape and being at large without excuse] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 145(1) [escape and being at large without excuse], 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)).

There will be a reverse onus for charges under s. 145(2) to (5) "that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of [Part XVI regarding compelling appearance for an accused] or s. 679, 680 or 816 [regarding release pending appeal or review of appeal]".

Fingeprints and Photos

A peace officer who charges a person under s. 145(1) [escape and being at large without excuse] 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 Designation
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 145(1) [escape and being at large without excuse] OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under 145(1) [escape and being at large without excuse] are designated offences eligible for wiretap under s. 183.

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

Offence Wording

Escape and being at large without excuse

145 (1) Every person who escapes from lawful custody or who is, before the expiration of a term of imprisonment to which they were sentenced, at large in or outside Canada without lawful excuse, is guilty of

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


...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3; 2018, c. 29, s. 9; 2019, c. 25, s. 47.

CCC

This provision came into force on December 18, 2019.

Draft Form of Charges

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

Proof of the Offence

Proving escape from lawful custody under s. 145(1) [escape and being at large without excuse] should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was in lawful custody at time
  5. circumstances of escape and
  6. time and date of capture.

Proving unlawfully at large under s. 145(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was "at large in or out of Canada";
  5. the culprit was sentenced to a term of imprisonment;
  6. the term of imprisonment had not expired at the time of the prohibited act; and
  7. the culprit had not "lawful excuse".

Interpretation of the Offence

Physical Restraint

To be in custody the officer must use words of arrest along with physical restraint or the accused’s submission to physical restraint. Without physical restraint of some sort, the offence cannot be made out.[1]

  1. R v Costain, 2011 ONCJ 559 (CanLII), per Horkins J

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 145(1) [escape and being at large without excuse] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 145(1) [escape and being at large without excuse] Indictable Election 2 years custody

Offences under s. 145(1) [escape and being at large without excuse] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two 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. 145(1) [escape and being at large without excuse] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Escape from Lawful Custody (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 145(1)(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 Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 145(1) [escape and being at large without excuse] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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 December 13, 2018, the offence read:

Escape and being at large without excuse

145 (1) Every one who

(a) escapes from lawful custody, or
(b) is, before the expiration of a term of imprisonment to which he was sentenced, at large in or out of Canada without lawful excuse, the proof of which lies on him,

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

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3.

See Also

References

Perjury


Perjury
s. 131 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.
Types of Release Judicial Release Only
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 perjury are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 131 [perjury] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 131 [perjury] 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. 131 [perjury] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 131 [perjury] , the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 131 [perjury] 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
s. 131 [perjury] OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 131 [perjury] are designated offences eligible for wiretap under s. 183.

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

Offence Wording

Perjury

131. (1) Subject to subsection (3) [perjury – application to statements], every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

Video links, etc.

(1.1) Subject to subsection (3) [perjury – application to statements], every person who gives evidence under subsection 46(2) [x] of the Canada Evidence Act, or gives evidence or a statement pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act, commits perjury who, with intent to mislead, makes a false statement knowing that it is false, whether or not the false statement was made under oath or solemn affirmation in accordance with subsection (1) [perjury – offence], so long as the false statement was made in accordance with any formalities required by the law of the place outside Canada in which the person is virtually present or heard.

Idem

(2) Subsection (1) [perjury – offence] applies, whether or not a statement referred to in that subsection is made in a judicial proceeding.

Application

(3) Subsections (1) [perjury – offence] and (1.1) [perjury – video links, etc.] do not apply to a statement referred to in either of those subsections that is made by a person who is not specially permitted, authorized or required by law to make that statement.

R.S., 1985, c. C-46, s. 131; R.S., 1985, c. 27 (1st Supp.), s. 17; 1999, c. 18, s. 92.
[annotation(s) added]

CCC

Punishment

132. Every one who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 132; R.S., 1985, c. 27 (1st Supp.), s. 17; 1998, c. 35, s. 119.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving perjury under s. 131 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. obtain evidence of prior hearings
    1. obtain transcript of prior hearings
    2. have transcript certified by presiding judge
    3. provide notice to culprit of intention to produce
  5. prove contents of hearings (through the clerk of the original trial)
    1. jurisdiction, date and time of prior hearing
    2. identity of culprit as a witness
    3. the clerk swore the culprit
    4. that the culprit gave testimony to a fact
      <have all documents filed with the court>
  6. there was a contradiction between the testimony in the prior hearing #1 and prior hearing #2
  7. the culprit knew that they were contradictory at the time
  8. the culprit intended to be contradictory at the time
  1. Calder v The Queen, 1960 CanLII 73 (SCC), [1960] SCR 892, per Judson J
    R v Akinyemi, 2014 ONCJ 213 (CanLII), per De Filippis J, at para 34

Tender Exhibits

  1. evidence of prior hearings:
    1. transcript of prior hearings
    2. subpoena clerk of original trial to bring all documents related to trial
    3. provide notice to accused of intention to produce
  2. any other documents in possession of the clerk of original trial related to it

Note that in certain jurisdictions the judge may certify the record, while others can be certified by a clerk or court reporter under provincial legislation.[1]

  1. e.g. Court Officials Act (NS)

Interpretation of the Offence

Perjury is an inchoate offence as it is an attempt to mislead through giving false evidence.[1]

Section 133 intends to prohibit the conviction of the accused on the basis of evidence from a single witness claiming the accused lied. However, where the case is entirely circumstantial, the crown does not need to corroborate the evidence.[2]

False evidence includes dishonest or deliberate loss of memory.[3]

  1. R v Akinyemi, 2014 ONCJ 213 (CanLII), per De Filippis J, at para 34
  2. R v Reyat, 2012 BCCA 311 (CanLII), per Finch J
  3. Wolf v The Queen, 1974 CanLII 161 (SCC), [1975] 2 SCR 107, per Laskin CJ

Form of Charge

Section 585 states:

Sufficiency of count charging perjury, etc.

585. No count that charges

(a) perjury,
(b) the making of a false oath or a false statement,
(c) fabricating evidence, or
(d) procuring the commission of an offence mentioned in paragraph (a), (b) or (c),

is insufficient by reason only that it does not state the nature of the authority of the tribunal before which the oath or statement was taken or made, or the subject of the inquiry, or the words used or the evidence fabricated, or that it does not expressly negative the truth of the words used.
R.S., 1985, c. C-46, s. 585; 1992, c. 1, s. 60(F).

CCC

Corroboration

Section 133 requires corroborative evidence in order to sustain a conviction for perjury under s. 131.

Corroboration

133. No person shall be convicted of an offence under section 132 [perjury – punishment] on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.
R.S., 1985, c. C-46, s. 133; R.S., 1985, c. 27 (1st Supp.), s. 17.
[annotation(s) added]

CCC

The purpose of s. 133 is to "protect an accused from false testimony of a single witness swearing against him". Two testimonies should not be pitted against each other in a contest of "oath against oath".[1]

The corroboration rule does not apply where the evidence is purely circumstantial.[2] Accordingly, a conviction can be made using business records without the need for corroboration.[3]

  1. R v Reyat, 2012 BCCA 311 (CanLII), per Finch J, at para 48
  2. Neveu c R 2004 CanLII 31404 (QC CA), (2004), 184 CCC (3d) 18 (Que. C.A.), per curiam, at para 19
    R v Wilson, 2011 ONSC 3385 (CanLII), per Code J, at paras 24, 27 & 28
    Reyat, supra, at paras 48 to 51
  3. e.g. see R v Akinyemi, 2014 ONCJ 213 (CanLII), per De Filippis J

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 131 [perjury] N/A 14 years incarceration

Offences under s. 131 [perjury] 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. 131 [perjury] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 131 [perjury] 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. 131 [perjury] 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

Primary Objectives in Sentencing

For charges of perjury or any other attempts to pervert the cause of justice, denunciation and deterrence must be emphasized.[1]

Anyone convicted of perjury should expect a "severe punishment".[2]

Degrees of Seriousness

Perjury is serious because "it strikes at the heart of the justice system and undermines the administration of justice".[3]

The offence is particularly grave given that it is easy to commit and hard to prove.[4]

Perjury can be broken down into three levels of gravity based primarily on the purpose or effect of the perjured evidence:[5]

  1. perjured evidence leads to the conviction of an innocent person;
  2. perjured evidence was given in hope of procuring the acquittal of a guilty party; and
  3. perjured evidence was given as self-protection or protection of others.
Factors

Factors that are relevant to sentencing include:[6]

  1. the relative seriousness of the offence with respect to which the perjured testimony was given;
  2. the effect, if any, on the outcome of the trial by reason of the perjured evidence;
  3. whether the testimony dealt with a vital part of the evidence;
  4. whether the perjured evidence led to the implication of an innocent person in a crime, which would ordinarily be a most aggravating factor;
  5. whether the perjury was planned and deliberate or the result of a sudden temptation in the course of giving evidence.

The second factor should also take into account not only the impact but also the outcome intended by the accused.[7]

The fourth factor should also consider whether it also caused "serious inconvenience" or embarrassment to the innocent party.[8]

  1. R v Adams, 2010 NSCA 42 (CanLII), per Bateman JA, at para 52
  2. R v Hansen, 2018 ONCA 46 (CanLII), per curiam, at para 5
  3. R v Hansen, 2016 ONSC 3583 (CanLII), per Braid J, at para 36 appealed to other issues at 2018 ONCA 46 (CanLII)
  4. Hansen, supra
  5. R v Reyat, 2014 BCCA 101 (CanLII), per Saunders JA, at para 28
    R v Kusnezoff, 1991 CanLII 1968 (BC CA), [1991] BCJ No. 421 (C.A.), per Lambert JA
  6. Reyat, supra
    R v Jordan, 1986 ABCA 168 (CanLII), (1986) 47 Alta. L.R. (2d) 85, per Laycraft JA at 87-88
    R v Van Straten, 1994 ABCA 340 (CanLII), per McDonald JA, at para 6 R v Hansen, 2016 ONSC 3583 (CanLII), per Braid J, at para 37
  7. Van Straten, supra, at p. 193 ("We would add a sub-factor to factor 2, namely that, even if the perjured evidence did not in the result have an effect on the outcome of the trial (or application, in this case), an important factor to be considered is the effect which the perjuring witness intended to have upon the outcome.")
  8. Van Straten, supra, at p. 194( "...we have here another instance in which an item in Laycraft, C.J.A.’s list should have a sub-factor added, namely ‘whether the perjured evidence led, if not to the implication of an innocent person in a crime, at least to serious inconvenience and even embarrassment on the part of an innocent person")

Ranges

see also: Perjury (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 131 [perjury]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 131 [perjury] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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

Giving Contradictory Evidence


Giving Contradictory Evidence
s. 136 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.
Types of Release Judicial Release Only
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 giving contradictory evidence are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 136 [giving contradictory evidence] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 136 [giving contradictory evidence] 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. 136 [giving contradictory evidence] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 136 [giving contradictory evidence] , the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 136 [giving contradictory evidence] 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
s. 136 [giving contradictory evidence] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png

Offences under s. 136 [giving contradictory evidence] require the consent of the Attorney General to prosecute.

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

Offence Wording

Witness giving contradictory evidence

136 (1) Every one who, being a witness in a judicial proceeding, gives evidence with respect to any matter of fact or knowledge and who subsequently, in a judicial proceeding, gives evidence that is contrary to his previous evidence is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, whether or not the prior or later evidence or either is true, but no person shall be convicted under this section unless the court, judge or provincial court judge, as the case may be, is satisfied beyond a reasonable doubt that the accused, in giving evidence in either of the judicial proceedings, intended to mislead.

Evidence in specific cases

(1.1) Evidence given under section 714.1 [audioconference and videoconference – witness in Canada], 714.2 [video links, etc. — witness outside Canada] or 714.3 [audio evidence — witness outside Canada] or under subsection 46(2) of the Canada Evidence Act or evidence or a statement given under an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act is deemed to be evidence given by a witness in a judicial proceeding for the purposes of subsection (1)[witness giving contradictory evidence].

Definition of “evidence”

(2) Notwithstanding the definition “evidence” in section 118 [offences against the administration of law and justice – definitions], “evidence”, for the purposes of this section, does not include evidence that is not material.

Proof of former trial

(2.1) Where a person is charged with an offence under this section, a certificate specifying with reasonable particularity the proceeding in which that person is alleged to have given the evidence in respect of which the offence is charged, is evidence that it was given in a judicial proceeding, without proof of the signature or official character of the person by whom the certificate purports to be signed if it purports to be signed by the clerk of the court or other official having the custody of the record of that proceeding or by his lawful deputy.

Consent required

(3) No proceedings shall be instituted under this section without the consent of the Attorney General.

R.S., 1985, c. C-46, s. 136; R.S., 1985, c. 27 (1st Supp.), ss. 18, 203; 1999, c. 18, s. 93; 2019, c. 25, s. 41.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving witness giving contradictory evidence under s. 136 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was a "witness in a judicial proceeding"
  5. the culprit "gives evidence with respect to any matter of fact or knowledge";
  6. the culprit "subsequently, in a judicial proceeding, gives evidence that is contrary to his previous evidence" and
  7. the culprit "intended to mislead"

Participation of Third Parties

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

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

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

On Finding of Guilt

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 136 [giving contradictory evidence]), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 136 [giving contradictory evidence] N/A 14 years incarceration

Offences under s. 136 [giving contradictory evidence] 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. 136 [giving contradictory evidence] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 136 [giving contradictory evidence] 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. 136 [giving contradictory evidence] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Giving Contradictory Evidence (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 136 [giving contradictory evidence]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 136 [giving contradictory evidence] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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

Fabricating Evidence


Fabricating Evidence
s. 137 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.
Types of Release Judicial Release Only
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 fabricating evidence are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 137 [fabricating evidence] Indictable Offence(s) N/A OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 137 [fabricating evidence] 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. 137 [fabricating evidence] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 137 [fabricating evidence], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 137 [fabricating evidence] 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
s. 137 [fabricating evidence] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Fabricating evidence

137. Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 125.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving fabricating evidence under s. 137 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit fabricated something;
  5. the thing was used as evidence in a judicial proceeding, existing or proposed;
  6. the culprit was aware of the use of the evidence;
  7. the culprit intended to mislead by any means other than perjury or incitement to perjury

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 137 [fabricating evidence] N/A 14 years incarceration

Offences under s. 137 [fabricating evidence] 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. 137 [fabricating evidence] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 137 [fabricating evidence] 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. 137 [fabricating evidence] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Fabricating Evidence (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 137 [fabricating evidence]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 137 [fabricating evidence] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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

Giving a False Sworn Statement


Giving a False Sworn Statement
s. 134 of the Crim. Code
Election / Plea
Crown Election Summary
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.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to giving a false sworn statement are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 134 [giving false sworn stmt] Summary Offence(s) X Mark Symbol.png X Mark Symbol.png

Offences under s. 134 [giving false sworn stmt] are straight summary conviction offence. The trial must be held in provincial court.

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. 134 [giving false sworn stmt] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

When charged under s. 134 [giving false sworn stmt], 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.

PublicationBan

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
s. 134 [giving false sworn stmt] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Idem

134. (1) Subject to subsection (2) [giving false sworn stmt – exemption], every one who, not being specially permitted, authorized or required by law to make a statement under oath or solemn affirmation, makes such a statement, by affidavit, solemn declaration or deposition or orally before a person who is authorized by law to permit it to be made before him, knowing that the statement is false, is guilty of an offence punishable on summary conviction.

Application

(2) Subsection (1) [giving false sworn stmt – offence] does not apply to a statement referred to in that subsection that is made in the course of a criminal investigation.
R.S., 1985, c. C-46, s. 134; R.S., 1985, c. 27 (1st Supp.), s. 17.
[annotation(s) added]

CCC

Draft Form of Charges

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

Proof of the Offence

Proving giving a false sworn statement under s. 134 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit made a formal statement;
  5. the statement was by:
    1. affidavit,
    2. solemn declaration,
    3. deposition, or
    4. orally before a person who is authorized by law to permit it to be made before him
  6. the statement was under oath or solemn affirmation;
  7. the culprit knew that the statement was false
  8. the culprit was not "specially permitted, authorized or required by law" to make the statement

Interpretation of the Offence

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 134 [giving false sworn stmt] N/A two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)

Offences under s. 134 [giving false sworn stmt] are straight summary conviction offences. The maximum penalty is two 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. 134 [giving false sworn stmt] N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Giving a False Sworn Statement (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order under s. 743.21 any A discretionary order prohibiting the offender from communicating with named persons while he is in custody.
Restitution Orders any A discretionary Order on application under s. 738, 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 Weapons and 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.

Record Suspensions and Pardons

Convictions under s. 134 [giving false sworn stmt] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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

Obstructing Justice


Obstructing Justice
s. 139(1) and (2) 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.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 two 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 or 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to obstructing justice are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 139(1) [obstructing justice relating to sureties]
s. 139(2) [obstructing justice]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 139(1) [obstructing justice relating to sureties] or s. 139(2) [obstructing justice] 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. 139(1) [obstructing justice relating to sureties]
s. 139(2) [obstructing justice]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

{{ReleaseAllOptions|s. 139(1) }

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 139(1) [obstructing justice relating to sureties] or (2) [obstructing justice] 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
s. 139(1) [obstructing justice relating to sureties]
s. 139 (2) [obstructing justice]
OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 139 are designated offences eligible for wiretap under s. 183.

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

Offence Wording

Obstructing justice

139 (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,

(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,
is guilty of
(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(d) an offence punishable on summary conviction.
Idem

(2) Every person who intentionally attempts in any manner other than a manner described in subsection (1) [obstructing justice – re surety] to obstruct, pervert or defeat the course of justice 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.
Idem

(3) Without restricting the generality of subsection (2) [obstructing justice – other conduct], every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.

R.S., 1985, c. C-46, s. 139; 2019, c. 25, s. 43.
[annotation(s) added]

CCC

Draft Form of Charges

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

Proof of the Offence

Proving obstructing justice, sureties under s. 139(1)(a) or (b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "wilfully attempts in any manner to obstruct, pervert or defeat the course of justice" by either:
    1. "indemnif[ies] or agree[s] to indemnify a surety" in any way; or
    2. "accept[s] or agree[s] to accept a fee or any form of indemnity" of a person released or to be released from custody; and
  5. the act is done in a "judicial proceeding".

Proving obstructs, perverts or defeats justice under s. 139(2), (3) should include:

  1. the culprit attempts "to obstruct, pervert or defeat the course of justice";
  2. the prohibited conduct was in any manner other than described in s. 139(1);
  3. where judicial proceedings are existing or proposed, the obstruction will be deemed if the culprit:
    1. "dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence";
    2. "influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror"; or
    3. "accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror."

Interpretation of the Offence

"the course of justice"

The meaning of the phrase "course of justice" includes conduct during the initial "investigative stage" into criminal and regulatory matters.[1]

The "course of justice" will include proposed or contemplated judicial proceedings.[2]

"judicial proceedings"

The types of proceedings are those that are before a decision-making body whose authority is "derived from statute", and is required to act "in a judicial manner".[3]

It will include:

  • all proceedings as defined in s. 118;[4]
  • law society disciplinary proceedings[5]
  • parole board proceedings[6]
Conduct

The actus reus of the offence of obstructing justice under s. 139 is the “act that has the tendency to defeat or obstruct the course of justice”.[7]

The acts include an attempt to affect a police investigation[8]

Consequence of Conduct

The accused need only have to create a risk that an injustice will occur.[9]

Mens rea

The mens rea of s. 139 requires a specific intent to do the act which would result in an obstruction of justice.[10] It is not enough to merely prove an intention to do the act resulting in the obstruction without the intent to do so.[11]

It is no defence that the actions were an error in judgment or a mistake.[12] However, error in judgement alone is not enough and there must be an specific intent to "obstruct, pervert or defeat" the course of justice.[13]

It is a valid defence to do the act for some other purpose.[14]

Success Not Necessary

The offence is made out even if the accused fails to succeed or fails to complete the attempt to commit the offence.[15]

Examples - Impaired Driving

Consuming alcohol post-accident in order to thwart an investigation into an impaired driving allegation has been found to amount to obstruction.[16]

Examples - Testimony and Witnesses

It is no defence for the accused to attempt to persuade the witness to change his testimony to what the accused honestly believes is the truth.[17]

Where there is a falsified statement to the police, it is essential that the Crown establish that the purpose of giving the statement was to obstruct the course of justice.[18]

An attempt by a family member to persuade a suspect to not take a voluntary polygraph test or voluntary interview, without some form of coercion, is not an offence under s. 139(2).[19]

Examples - Others

Inteference with by-law officers by removing or destroying tags placed on parked cars amounts to obstruction in the course of justice.[20]

  1. R v Wijesinha, [1995] 3 SCR 422, 1995 CanLII 67 (SCC), per Cory J, at para 27 ("The proceedings of a court, or indeed those of most administrative tribunals, will almost invariably commence with an investigation. Investigation is necessary to determine if a crime or wrong has been committed. It is the essential first step in any judicial or quasi‑judicial proceeding which may result in a prosecution. In the ordinary course of events, one who perverts the course of an investigation also perverts the course of justice."), at para 28
  2. R v Spezzano, 1977 CanLII 1371 (ON CA), per Martin JA
  3. Wijesinha, ibid., at para 46
  4. Wijesinha, ibid.
    see also Definition of Judicial Officers and Offices
  5. Wijesinha, ibid.
  6. R v Heater, 1996 CanLII 1265 (ON CA)
  7. R v Robinson, 2012 BCSC 430 (CanLII), per Dillon J, at para 21
  8. R v Spezzano, 1977 CanLII 1371 (ON CA), (1977), 34 CCC (2d) 87 (Ont. C.A.), per Martin JA
    R v Dosanjh, 2006 BCPC 449 (CanLII), [2006] BCJ No. 2637, per Ellan J, at para 59
    R v Watson, 2010 ONSC 6765 (CanLII), [2010] OJ No 5341, per Belobaba J, at para 15
  9. R v Graham, (1985), 20 CCC (3d) 210 (Ont. C.A.), 1985 CanLII 3644 (ON CA), per Howland CJ aff’d 1988 CanLII 94 (SCC), [1988] 1 SCR 214, per Estey J
  10. R v Hawkins, 2002 BCCA 3 (CanLII), per Hollinrake JA, at para 5
    cf. see R v Gunn, 1997 ABCA 35 (CanLII), (1997), 113 CCC (3d) 174, per Picard JA
  11. R v Yazelle, 2012 SKCA 91 (CanLII), per Caldwell JA
  12. Watson, supra, at para 17
  13. R v Beaudry, 2007 SCC 5 (CanLII) , [2007] 1 SCR 190, per Charron J
  14. R v Hearn, 1989 CanLII 3938 (NL CA), per Goodridge CJ aff'd 1989 CanLII 14 (SCC), [1989] 2 SCR 1180 (SCC), per Wilson J
  15. Hearn, supra
  16. eg. R v Soltys, 1980 CanLII 332 (BC CA), (1980), 56 CCC (2d) 43 (BCCA), per MacDonald JA
    R v Magagna, 2003 CanLII 655 (ON CA), (2003), 173 CCC (3d) 188 (Ont. C.A.), per curiam
    R v Robinson
  17. R v Pare, 2010 ONCA 563 (CanLII), per Rosenberg JA
  18. R v Hoggarth, 1956 CanLII 515 (BC CA), per Davey J("the purpose of the statement which formed the foundation of this charge was to obstruct the course of justice, and, of course, if the statement was not given for that specific purpose the Crown has failed to prove an essential ingredient of the offence.")
  19. R v Gosselin et al., 2011 ONCJ 314 (CanLII), per McKay J
  20. R v Zeck, 1980 CanLII 2849 (ON CA), per Howland CJ

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 139(1) [obstructing justice relating to sureties] summary election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 139(1) [obstructing justice relating to sureties] indictable election 2 years incarceration
s. 139(2) [obstructing justice] summary election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 139(2) [obstructing justice] indictable election 10 years incarceration


Offences under s. 139(1) [obstructing justice relating to sureties] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day incarceration and a $5,000 fine .

Offences under s. 139(1) [obstructing justice] 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 incarceration and a $5,000 fine .

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. 139(1) [obstructing justice relating to sureties] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 139(2) [obstructing justice] summary election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 139(2) [obstructing justice] indictable election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Obstructing Justice (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 139(2) [obstructing justice]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 139(2) [obstructing justice] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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

Public Mischief


Public Mischief
s. 140 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. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 two 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 public mischief are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 140 [public mischief] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 140 [public mischief] 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. 140 [public mischief] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 140 [public mischief], 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)).
Fingeprints and Photos

A peace officer who charges a person under s. 140 [public mischief] 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
s. 140 [public mischief] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Public mischief

140. (1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by

(a) making a false statement that accuses some other person of having committed an offence;
(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
(c) reporting that an offence has been committed when it has not been committed; or
(d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.
Punishment

(2) Every one who commits public mischief

(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. 140; R.S., 1985, c. 27 (1st Supp.), s. 19.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving public mischief under s. 140 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit conveyed information to a peace officer, directly or indirectly, by words, writing, or conduct
  5. the information conveyed was a "false statement"
  6. the culprit caused the "peace officer to enter or continue an investigation" by doing one of the following:
    1. "making a false statement that accuses some other person of having committed an offence";
    2. "doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself";
    3. "reporting that an offence has been committed when it has not been committed"; or
    4. "reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died."
  7. the culprit intended to mislead.

Interpretation of the Offence

Public mischief consists of causing a peace officer to begin or continue an investigation.

There are largely two "categories" of mischief under s. 140(1)(c). There is false accusations against an anonymous individual so as to evade liability and then there is false accusations against an identified individual for purposes of revenge or punishment.[2]

The report does not need to be made directly to police. Other agents of the state will likely suffice.[3]

Purpose

The purpose of the offence of public mischief is to "protect innocent persons 'from the grievous and fearful consequences that can flow from false accusations".[4]

Section 140(1)(b) intends to "protect the integrity and efficiency of police investigations into crime."[5]

Subject Matter of Diversion

Under s. 140(1)(b) it is not necessary to prove that the diversion was away from the accused himself. Any false statement will do.[6]

"Offence"

"Offence" can mean both Criminal Code offences as well as provincial offences of a penal nature. [7]

"Reporting"

"Reporting" is not restricted to reporting to police and can include others such as Children's Aid.[8]

Actual Investigation Not Needed

The accused can be convicted of attempted public mischief where the officer receiving the report does not undertake an investigation because the accused is not believed.[9]

Voluntariness Voir Dire Not Necessary

There is no need for a voluntariness voir dire to determine if a statement was made to a police officer in order to make out the offence.[10]

"Statement"

Section 118 defines "statement" as meaning "an assertion of fact, opinion, belief or knowledge, whether material or not and whether admissible or not".

Sufficiency of Charge

Section 585 states:

Sufficiency of count charging perjury, etc.

585. No count that charges

(a) perjury,
(b) the making of a false oath or a false statement,
(c) fabricating evidence, or
(d) procuring the commission of an offence mentioned in paragraph (a), (b) or (c),

is insufficient by reason only that it does not state the nature of the authority of the tribunal before which the oath or statement was taken or made, or the subject of the inquiry, or the words used or the evidence fabricated, or that it does not expressly negative the truth of the words used.
R.S., 1985, c. C-46, s. 585; 1992, c. 1, s. 60(F).

CCC

General Terms Defined

Section 2 defines peace officer.

  1. R v Kovac-Rail, 2000 BCSC 167 (CanLII), per Bouck J, at para 18
  2. R v Delacruz, [2010] OJ No 2425 (Ont. S.C.J.), 2010 ONSC 3060 (CanLII), per Baltman J - sentencing, not a pronouncement of an essential element (-ed.)
  3. R v Delacruz, (2009) 249 CCC (3d) 501 (ONSC), 2009 CanLII 72072 (ON SC), per Baltman J, aff'd at 2013 ONCA 61 (CanLII), per curiam, at para 28
  4. Delacruz, supra (ONSC), at para 11
    R v JJ, [1988] OJ No 1247, 1988 CanLII 7099 (ON CA), per Cory JA, at para 14
  5. R v Thompson, 2016 NSPC 75 (CanLII), per Derrick J, at para 32
  6. Thompson, ibid., at para 32
  7. R v Howard (1972), 7 CCC (2d) 211 (Ont.CA), 1971 CanLII 370 (ON CA), per Gale CJ
  8. R v Delacruz, 2013 ONCA 61 (CanLII), per curiam upholding (2009) 249 CCC (3d) 501 (ONSC), 2009 CanLII 72072 (ON SC), per Baltman J
  9. R v Whalen (1977), 34 CCC (2d) 557 (BCPC), 1977 CanLII 1953 (BC PC), per Barnett J
  10. R v Stapleton (1982), 66 CCC (2d) 231, 1982 CanLII 3331 (ON CA), per Martin JA

Participation of Third Parties

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

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

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

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 140 [public mischief] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 140 [public mischief] Indictable Election 5 years custody

Offences under s. 140 [public mischief] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two 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. 140 [public mischief] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

The primary purpose is not simply avoiding the police from "wast[ing] their time", but it is in the "danger that innocent persons might be prosecuted and lose their livelihoods".[1]

  1. R v Ambrose, 2000 ABCA 264 (CanLII), per Cote JA, at para 24

Ranges

see also: Public Mischief (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 140 [public mischief]

General Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 140 [public mischief] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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

Prison Breach


Prison Breach
s. 144 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable.
Types of Release Judicial Release Only
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

Offences relating to prison breach are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 144 [prison breach] Hybrid Offence(s) summary election X Mark Symbol.png X Mark Symbol.png (under 14 years max)
s. 144 [prison breach] Hybrid Offence(s) indictable election OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 144 [prison breach] 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. 144 [prison breach] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 144 [prison breach] , 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)).
Fingeprints and Photos

A peace officer who charges a person under s. 144 [prison breach] 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
s. 144 [prison breach] OK Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 144 are designated offences eligible for wiretap under s. 183.

Offences under s. 144 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

Prison breach

144 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

(a) by force or violence breaks a prison with intent to set at liberty himself or any other person confined therein, or
(b) with intent to escape forcibly breaks out of, or makes any breach in, a cell or other place within a prison in which he is confined.

R.S., 1985, c. C-46, s. 144; 2019, c. 25, s. 46.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving prison breach under s. 144(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "breaks a prison"
  5. the culprit used "force or violence"
  6. the culprit intended "to set himself or another person" free from prison

Proving cell breach under s. 144(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is confined in a "cell or another place" in prison
  5. the culprit uses force to break out of or make breaches in that place of confinement
  6. the culprit intended to escape

Interpretation of the Offence

Misc Definitions

Section 2 defines "prison" including "a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or other place in which persons who are charged with or convicted of offences are usually kept in custody;"

Participation of Third Parties

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

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

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

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 144 [prison breach] N/A 10 years custody

Offences under s. 144 [prison breach] are straight indictable. The maximum penalty is 10 year 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. 144 [prison breach] N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 144 [prison breach] 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.

Location of Incarceration

As an exception to the rule in s. 743.1 requiring sentences of less than 2 years be served in a provincial jail, s. 149 permits the Court to order that the sentence be served in a penitentiary regardless of the duration:

Service of term for escape

149. (1) Notwithstanding section 743.1 [penitentiary for sentences of 2 years or more], a court that convicts a person for an escape committed while undergoing imprisonment may order that the term of imprisonment be served in a penitentiary, even if the time to be served is less than two years.

Definition of “escape”

(2) In this section, “escape” means breaking prison, escaping from lawful custody or, without lawful excuse, being at large before the expiration of a term of imprisonment to which a person has been sentenced.
R.S., 1985, c. C-46, s. 149; R.S., 1985, c. 27 (1st Supp.), s. 203; 1992, c. 20, s. 199; 1995, c. 22, s. 1.
[annotation(s) added]

CCC

Principles

Ranges

see also: Prison Breach (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 144 [prison breach]
Delayed Parole Order s. 144 [prison breach]
  • Periods of imprisonment of 2 years or more for convictions under s. 144 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 144 [prison breach] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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

Intercept of Private Communications


Intercept of Private Communications
s. 184, 184.5, 191, 193, and 193.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 2 years incarceration or 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to intercept of private communications are found in Part VI of the Criminal Code relating to "Invasion of Privacy".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 184 [interception of private communication],
s. 184.5 [interception of radio-based telephone communications],
s. 191 [possession of interception devices],
s. 193 [disclosure of intercepted information], and
s. 193.1 [disclosure of information received from interception of radio-based telephone communications]
Hybrid Offence(s) N/A Yes X Mark Symbol.png (under 14 years max)

Offences under s. 184 [interception of private communication], 184.5 [interception of radio-based telephone communications], 191 [possession of interception devices], 193 [disclosure of intercepted information], and 193.1 [disclosure of information received from interception of radio-based telephone communications] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release

When charged under s. 184 [interception of private communication],
s. 184.5 [interception of radio-based telephone communications], s. 191 [possession of interception devices],
s. 193 [disclosure of intercepted information], and
s. 193.1 [disclosure of information received from interception of radio-based telephone communications], 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
s. 184 [interception of private communication] and
s. 191 [possession of interception devices]
OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 184.5 [interception of radio-based telephone communications],
s. 193 [disclosure of intercepted information], and
s. 193.1 [disclosure of information received from interception of radio-based telephone communications]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 184 and 191 are designated offences eligible for wiretap under s. 183.

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

Offence Wording

Interception

184. (1) Every person who, by means of any electro-magnetic, acoustic, mechanical or other device, knowingly intercepts a private communication 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.
Saving provision

(2)
...
R.S., 1985, c. C-46, s. 184; 1993, c. 40, s. 3; 2004, c. 12, s. 4; 2019, c. 25, s. 64.

CCC

Interception of radio-based telephone communications

184.5 (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication, if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, 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.
Other provisions to apply

(2) Section 183.1 [sufficiency of consent to interception], subsection 184(2) [interception of private communication – exception] and sections 184.1 to 190 [provisions re interception of communications] and 194 to 196 [provisions re accountability on wiretaps] apply, with such modifications as the circumstances require, to interceptions of radio-based telephone communications referred to in subsection (1) [interception of radio-based telephone communications – offence].
1993, c. 40, s. 4; 2019, c. 25, s. 65.

CCC

Possession, etc.

191 (1) Every person who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component of it knowing that its design renders it primarily useful for surreptitious interception of private communications is guilty of

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


...
R.S., 1985, c. C-46, s. 191; R.S., 1985, c. 27 (1st Supp.), s. 26; 2005, c. 10, s. 34; 2013, c. 8, s. 4; 2019, c. 25, s. 67.

CCC

Disclosure of information

193 (1) If a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator of that communication or of the person intended by the originator to receive it, every person commits an offence who, without the express consent of the originator of that communication or of the person intended to receive it, knowingly

(a) uses or discloses the private communication or any part of it or the substance, meaning or purpose of it or of any part of it, or
(b) discloses the existence of the private communication.
Punishment

(1.1) Every person who commits an offence under subsection (1) [disclosing intercepted communication – offence] is guilty of

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

...
R.S., 1985, c. C-46, s. 193; R.S., 1985, c. 30 (4th Supp.), s. 45; 1993, c. 40, s. 11; 2004, c. 12, s. 5; 2019, c. 25, s. 68.

CCC

Disclosure of information received from interception of radio-based telephone communications

193.1 (1) Every person who knowingly uses or discloses a radio-based telephone communication or who knowingly discloses the existence of such a communication is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction, if

(a) the originator of the communication or the person intended by the originator of the communication to receive it was in Canada when the communication was made;
(b) the communication was intercepted by means of an electromagnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator of the communication or of the person intended by the originator to receive the communication; and
(c) the person does not have the express or implied consent of the originator of the communication or of the person intended by the originator to receive the communication.
Other provisions to apply

(2) Subsections 193(2) [disclosing intercepted communication – exemptions] and (3) [disclosing intercepted communication – lawful publishing] apply, with such modifications as the circumstances require, to disclosures of radio-based telephone communications.
1993, c. 40, s. 12; 2019, c. 25, s. 69.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving interception under s. 184 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "intercepts" a communication
  5. the communication is "private" and
  6. the interception is "by means of any electro-magnetic, acoustic, mechanical or other device"

Proving interception radio-based telephone communications under s. 184.5 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "intercepts" a communication
  5. the interception is "by means of any electro-magnetic, acoustic, mechanical or other device"
  6. the communication is "radio-based telephone" communication
  7. the communication is "private"
  8. the interception was done "maliciously or for gain" and
  9. either the sender or receiver is in Canada.

Proving Possession of Intercept Device under s. 191 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "possesses, sells or purchases" a device;
  5. the device is an "electro-magnetic, acoustic, mechanical or other device" or a "component thereof";
  6. the device's "design ... renders it primarily useful for surreptitious interception of private communications"; and
  7. the culprit knew of the design.

Proving Disclosure of Information under s. 193 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. a "private communication" has been intercepted
  5. the interception was "by means of an electro-magnetic, acoustic, mechanical or other device"
  6. the interception was "without the consent"
  7. the culprit "uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof," or "discloses the existence thereof" and
  8. the culprit did not have consent of the sender or receiver
  9. none of the exemptions under s. 193(2) or (2) apply

Proving Disclosure of information received from interception of radio-based telephone communications under s. 193.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "uses or discloses a radio-based telephone communication" or "discloses the existence of such a communication";
  5. the culprit does the prohibited act "wilfully";
  6. the "the originator of the communication or the person intended by the originator of the communication to receive it was in Canada when the communication was made" ;
  7. the "the communication was intercepted by means of an electromagnetic, acoustic, mechanical or other device";
  8. the interception was "without the consent, express or implied, of the originator of the communication or of the person intended by the originator to receive the communication"
  9. the culprit "does not have the express or implied consent of the originator of the communication or of the person intended by the originator to receive the communication."

Interpretation

Exceptions for s. 184

Exceptions are made for:

  • interceptions with "the consent to intercept, express or implied, of the originator of the communication or the person intended to by the originator to receive it;" (184(2)(a)). This would appear to include consent of the party recording the communication if they were a party the original communication.
  • intercepts with authorization under 184.4 or where there is good faith belief to be acting under such authorization. (184(2)(b))
  • intercepted by certain persons who are maintaining the communication service (184(2)(c), (d), or (e))

184
...

Saving provision

(2) Subsection (1) [interception of private communication – exception] does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4 [immediate interception — imminent harm]
(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
(i) if the interception is necessary for the purpose of providing the service,
(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
(iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;
(d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission; or
(e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2) [unauthorized use of computer – definitions], who intercepts a private communication originating from, directed to or transmitting through that computer system, if the interception is reasonably necessary for
(i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or
(ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) [unauthorized use of computer – form of offences] or 430(1.1) [mischief to data].
Use or retention

(3) A private communication intercepted by a person referred to in paragraph (2)(e) [interception of private communication – exception for quality of service] can be used or retained only if

(a) it is essential to identify, isolate or prevent harm to the computer system; or
(b) it is to be disclosed in circumstances referred to in subsection 193(2) [disclosing intercepted communication – exemptions].

R.S., 1985, c. C-46, s. 184; 1993, c. 40, s. 3; 2004, c. 12, s. 4.

CCC

Exceptions for s. 191

191
...

Exemptions

(2) Subsection (1) does not apply to

(a) a police officer in possession of a device or component described in subsection (1) [possession of interception devices – offence] in the course of his employment;
(b) a person in possession of such a device or component for the purpose of using it in an interception made or to be made in accordance with an authorization;
(b.1) a person in possession of such a device or component under the direction of a police officer in order to assist that officer in the course of his duties as a police officer;
(c) an officer or a servant of Her Majesty in right of Canada or a member of the Canadian Forces in possession of such a device or component in the course of his duties as such an officer, servant or member, as the case may be; and
(d) any other person in possession of such a device or component under the authority of a licence issued by the Minister of Public Safety and Emergency Preparedness.
Terms and conditions of licence

(3) A licence issued for the purpose of paragraph (2)(d) [possession of interception devices – exemption for authorized persons] may contain such terms and conditions relating to the possession, sale or purchase of a device or component described in subsection (1) [possession of interception devices – offence] as the Minister of Public Safety and Emergency Preparedness may prescribe.
R.S., 1985, c. C-46, s. 191; R.S., 1985, c. 27 (1st Supp.), s. 26; 2005, c. 10, s. 34; 2013, c. 8, s. 4.

CCC

Exemptions are made for:

  • police officer when in the course of their employment (191(2)(a))
  • anyone possessing it the purpose of an authorized interception (191(2)(b))
  • anyone who is at the direction of a police officer in the course of his duties (191(2)(b.1))
  • a "servant" to Her Majesty or member of the Canadian Forces while in the course of their duties (191(2)(c))
  • a person licenced by the Minister of Public Safety and Emergency Preparedness (191(2)(d))

It is also an offence to possess equipment that may intercept private communications:

Possession, etc.

191. (1) Every one who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
...
R.S., 1985, c. C-46, s. 191; R.S., 1985, c. 27 (1st Supp.), s. 26; 2005, c. 10, s. 34; 2013, c. 8, s. 4.

CCC

Exceptions for s. 193

193
...

Exemptions

(2) Subsection (1) [disclosing intercepted communication – exemptions] does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication

(a) in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath;
(b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted;
(c) in giving notice under section 189 or furnishing further particulars pursuant to an order under section 190;
(d) in the course of the operation of
(i) a telephone, telegraph or other communication service to the public,
(ii) a department or an agency of the Government of Canada, or
(iii) services relating to the management or protection of a computer system, as defined in subsection 342.1(2) [unauthorized use of computer – definitions],

if the disclosure is necessarily incidental to an interception described in paragraph 184(2)(c), (d) or (e);

(e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or
(f) where the disclosure is made to the Director of the Canadian Security Intelligence Service or to an employee of the Service for the purpose of enabling the Service to perform its duties and functions under section 12 of the Canadian Security Intelligence Service Act.
Publishing of prior lawful disclosure

(3) Subsection (1) [disclosing intercepted communication – offence] does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication where that which is disclosed by him was, prior to the disclosure, lawfully disclosed in the course of or for the purpose of giving evidence in proceedings referred to in paragraph (2)(a) [disclosing intercepted communication – exemptions – giving evidence].
R.S., 1985, c. C-46, s. 193; R.S., 1985, c. 30 (4th Supp.), s. 45; 1993, c. 40, s. 11; 2004, c. 12, s. 5.

CCC

"Private Communications", "Interception", and "Telecommunication"

Possession of Intercept Device

A dual function device, such as a recorder that also takes pictures, can be a device that is "primarily useful for surreptitious interception".[1]

  1. R v Alexander (2005) 206 CCC (3d) 233 (ONCA), 2005 CanLII 32566 (ON CA), per Doherty JA appeal refused to SCC

Participation of Third Parties

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

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

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

On Finding of Guilt
Offence(s) Victim Notice
of agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 184 [interception of private communication]

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 184 [interception of private communication],
s. 184.5 [interception of radio-based telephone communications]
N/A 5 years incarceration
s. 191 [possession of interception devices],
s. 193 [disclosure of intercepted information],
and
s. 193.1 [disclosure of information received from interception of radio-based telephone communications]
N/A 2 years incarceration

Offences under s. 184 [interception of private communication] and 184.5 [interception of radio-based telephone communications] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is {{{3}}}.

Offences under s. 191 [possession of interception devices], 193 [disclosure of intercepted information], and 193.1 [disclosure of information received from interception of radio-based telephone communications] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is {{{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. 184 [interception of private communication],
s. 184.5 [interception of radio-based telephone communications],
s. 191 [possession of interception devices],
s. 193 [disclosure of intercepted information], and
s. 193.1 [disclosure of information received from interception of radio-based telephone communications]
N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Damages

Damages

194. (1) Subject to subsection (2) [no damages where civil proceedings commenced], a court that convicts an accused of an offence under section 184 [interception of private communication], 184.5 [interception of radio-based telephone communications], 193 [disclosure of intercepted information] or 193.1 [disclosure of information received from interception of radio-based telephone communications] may, on the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount not exceeding five thousand dollars as punitive damages.

No damages where civil proceedings commenced

(2) No amount shall be ordered to be paid under subsection (1) [damages] to a person who has commenced an action under Part II of the Crown Liability Act.

Judgment may be registered

(3) Where an amount that is ordered to be paid under subsection (1) [damages] is not paid forthwith, the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.

Moneys in possession of accused may be taken

(4) All or any part of an amount that is ordered to be paid under subsection (1) [damages] may be taken out of moneys found in the possession of the accused at the time of his arrest, except where there is a dispute respecting ownership of or right of possession to those moneys by claimants other than the accused.

R.S., 1985, c. C-46, s. 194; 1993, c. 40, s. 13.

CCC

Principles

Ranges

see also: Intercept of Private Communications (Sentencing Cases)

Sentencing Ancillary Orders

Forfeiture

Section 192 permits a judge or justice to order the forfeiture of a wiretap device used in the commission of an offence under s. 184 or 191.

Forfeiture

192. (1) Where a person is convicted of an offence under section 184 [interception of private communication] or 191 [possession of interception devices], any electro-magnetic, acoustic, mechanical or other device by means of which the offence was committed or the possession of which constituted the offence, on the conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty whereupon it may be disposed of as the Attorney General directs.

Limitation

(2) No order for forfeiture shall be made under subsection (1) [forfeiture devices upon conviction under s. 184 or 191] in respect of telephone, telegraph or other communication facilities or equipment owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of that person by means of which an offence under section 184 has been committed if that person was not a party to the offence.
1973-74, c. 50, s. 2.
[annotation(s) added]

CCC

Section 183 defines "electro-magnetic, acoustic, mechanical or other device".

Damages

Damages

194 (1) Subject to subsection (2) [no damages where civil proceedings commenced], a court that convicts an accused of an offence under section 184 [interception of private communication], 184.5 [interception of radio-based telephone communications], 193 [disclosure of intercepted information] or 193.1 [disclosure of information received from interception of radio-based telephone communications] may, on the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount not exceeding five thousand dollars as punitive damages.

No damages where civil proceedings commenced

(2) No amount shall be ordered to be paid under subsection (1) [damages] to a person who has commenced an action under Part II of the Crown Liability Act.

Judgment may be registered

(3) Where an amount that is ordered to be paid under subsection (1) [damages] is not paid forthwith, the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.

Moneys in possession of accused may be taken

(4) All or any part of an amount that is ordered to be paid under subsection (1) [damages] may be taken out of moneys found in the possession of the accused at the time of his arrest, except where there is a dispute respecting ownership of or right of possession to those moneys by claimants other than the accused.
R.S., 1985, c. C-46, s. 194; 1993, c. 40, s. 13.
[annotation(s) added]

CCC

Orders

Offence-specific Orders
Order Conviction Description
DNA Orders s. 184 or 184.5
Device Forfeiture Order (s. 192) s. 184 or 191
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

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

1993 to 2004

Interception

184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Saving provision

(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;
(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
(i) if the interception is necessary for the purpose of providing the service,
(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
(iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service; or
(d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission.

(3) [Repealed, 1993, c. 40, s. 3]
R.S., 1985, c. C-46, s. 184; 1993, c. 40, s. 3.

CCC

See Also

Breach of Trust


Breach of Trust
s. 336 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.
Types of Release Judicial Release Only
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 breach of trust are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 336 [breach of trust] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 336 [breach of trust] 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. 336 [breach of trust] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 336 [breach of trust], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 336 [breach of trust] 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
s. 336 [breach of trust] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Criminal breach of trust

336. Every one who, being a trustee of anything for the use or benefit, whether in whole or in part, of another person, or for a public or charitable purpose, converts, with intent to defraud and in contravention of his trust, that thing or any part of it to a use that is not authorized by the trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 296.

CCC

Draft Form of Charges

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

Proof of the Offence

Proving breach of trust under s. 336 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was a trustee of some thing;
  5. the trustee relationship was:
    1. "for the use or benefit ... of another person" or
    2. "for a public or charitable purpose";
  6. the culprit converted the thing to a specific use;
  7. the convertion was done with the intent to defraud; and
  8. the specific use of thing was "not authorized by the trust".
  1. R v Solar, 2012 SKQB 113 (CanLII), per Gabrielson J, at para 10

Interpretation of the Offence

Deprivation is proven "deprivation involved in breach of trust is satisfied on proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim."[1]

  1. R v Hammerling, [1982] 2 SCR 905, 1982 CanLII 223 (SCC), (McIntyre J dissenting)

"trustee"

It is essential to prove that the accused was a trustee or was a party to the offence committed by a trustee.[1]

Section 2 defines “trustee” as "a person who is declared by any Act to be a trustee or is, by the law of a province, a trustee, and, without restricting the generality of the foregoing, includes a trustee on an express trust created by deed, will or instrument in writing, or by parol;"[2]

  1. R v Rosen, 1985 CanLII 58 (SCC) , [1985] 1 SCR 83, per curiam - accused was charged as a trustee himself but alleged to have only aided a trustee.
  2. section 2

Participation of Third Parties

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

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

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

On Finding of Guilt

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 336 [breach of trust]), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Property and Fraud Offences (Sentencing)
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 336 [breach of trust] N/A 14 years custody

Offences under s. 336 [breach of trust] 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. 336 [breach of trust] N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

If convicted under s. 336 [breach of trust] 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. 336 [breach of trust] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Breach of Trust (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 336 [breach of trust]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 336 [breach of trust] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

Related Offences
Pre-Trial and Trial Issues

Intimidation of a Justice System Participant


Intimidation of a Justice System Participant
s. 423.1 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
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

See also: Intimidation (Offence)

Offences relating to intimidation of a justice system participant are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 423.1 [intimidation of justice system participants] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 423.1 [intimidation of justice system participants] 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. 423.1 [intimidation of justice system participants] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 423.1 [intimidation of justice system participants], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 423.1 [intimidation of justice system participants] 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
s. 423.1 [intimidation of justice system participants] OK Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 423.1 [intimidation of justice system participants] are designated offences eligible for wiretap under s. 183.

Offences under s. 423.1 [intimidation of justice system participants] 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

Intimidation of a justice system participant or a journalist

423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in

(a) a group of persons or the general public in order to impede the administration of criminal justice;
(b) a justice system participant in order to impede him or her in the performance of his or her duties; or
(c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.

(2) [Repealed, 2015, c. 13, s. 12]

Punishment

(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.
2001, c. 32, s. 11; 2015, c. 13, s. 12.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
423.1 Intimidation of a justice system participant or a journalist "...did commit ... contrary to section 423.1 of the Criminal Code."

Proof of the Offence

Proving intimidation of justice system participants under s. 423.1(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit engages in prohibited conduct (does not need to be successful in objective) consisting of any of the following:
    1. "using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons;"
    2. "threatening to engage in conduct described in paragraph (a) in Canada or elsewhere;"
    3. "persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway;"
    4. "repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them;" and
    5. "besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be."
  5. the culprit knew the victim was of the prohibited class of people consisting of:
    1. a group of persons or the general public in order to impede the administration of criminal justice;
    2. a justice system participant in order to impede him or her in the performance of his or her duties;
    3. a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization;
  6. the prohibited conduct was intended to provoke a state of fear in the prohibited group in order to impede them in some aspect of their conduct or the result was likely foreseeable; and
  7. the culprit had no lawful authority.

Draft Form of Charges

See also: Draft Form of Charges

Interpretation of the Offence

An accused need only foresee that, by conveying a threat of violence to a justice system participant, a form of intimidation was likely to result sufficient to impede the official in the general performance of his or her duties.[1]

  1. R v Armstrong, 2008 BCSC 1683 (CanLII), per Dickson J
    R v Chartrand, [1994] 2 SCR 864, 1994 CanLII 53 (SCC), per L'Heureux‑Dubé J

Threatening to Engage

The crown must prove that the accused could foresee that by conveying a threat of violence, intimidation sufficient to impede the person's performance in their duties would result.[1]

  1. R v Armstrong, 2012 BCCA 248 (CanLII){perBCSC| Dickson J}}

Justice System Participant

s. 2 ...
“justice system participant” means

(a) a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council, and
(b) a person who plays a role in the administration of criminal justice, including
(i) the Minister of Public Safety and Emergency Preparedness and a Minister responsible for policing in a province,
(ii) a prosecutor, a lawyer, a member of the Chambre des notaires du Québec and an officer of a court,
(iii) a judge and a justice,
(iv) a juror and a person who is summoned as a juror,
(v) an informant, a prospective witness, a witness under subpoena and a witness who has testified,
(vi) a peace officer within the meaning of any of paragraphs (b), (c), (d), (e) and (g) of the definition “peace officer”,
(vii) a civilian employee of a police force,
(viii) a person employed in the administration of a court,
(viii.1) a public officer within the meaning of subsection 25.1(1) [protection of law enforcement – definitions] and a person acting at the direction of such an officer,
(ix) an employee of the Canada Revenue Agency who is involved in the investigation of an offence under an Act of Parliament,
(ix.1) an employee of the Canada Border Services Agency who is involved in the investigation of an offence under an Act of Parliament,
(x) an employee of a federal or provincial correctional service, a parole supervisor and any other person who is involved in the administration of a sentence under the supervision of such a correctional service and a person who conducts disciplinary hearings under the Corrections and Conditional Release Act, and
(xi) an employee and a member of the National Parole Board and of a provincial parole board;
(c) a person who plays a role in respect of proceedings involving
(i) security information,
(ii) criminal intelligence information,
(iii) information that would endanger the safety of any person if it were disclosed,
(iv) information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization, or
(v) potentially injurious information or sensitive information as those terms are defined in section 38 of the Canada Evidence Act;

...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.

CCC

Participation of Third Parties

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

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

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

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 423.1 [intimidation of justice system participants] N/A 14 years incarceration

Offences under s. 423.1 [intimidation of justice system participants] 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. 423.1 [intimidation of justice system participants] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 423.1 [intimidation of justice system participants] 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. 423.1 [intimidation of justice system participants] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Intimidation of a Justice System Participant (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 423.1 [intimidation of justice system participants]
  • For offences under s. 423.1 [intimidation of justice system participants], as listed under s. 487.04(a.1) to (c.01), (c.03) or (d), a DNA Order is a presumptive mandatory order as a primary designated offence under s. 487.051(2), but the judge may exempt the offender if it is established that "the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders."
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 423.1 [intimidation of justice system participants] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be 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 2015, the section read:

Intimidation of a justice system participant or a journalist

423.1 (1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in

(a) a group of persons or the general public in order to impede the administration of criminal justice;
(b) a justice system participant in order to impede him or her in the performance of his or her duties; or
(c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.
Prohibited conduct

(2) The conduct referred to in subsection (1) consists of

(a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons;
(b) threatening to engage in conduct described in paragraph (a) in Canada or elsewhere;
(c) persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway;
(d) repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them; and
(e) besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be.

...

Punishment

(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.
2001, c. 32, s. 11.

CCC

See Also

Breach of Publication and Access Bans

Overview

This offence was found to be unconstitutional

Offences relating to failure to comply with a publication bans are found in Part XV of the Criminal Code relating to "Special Procedure and Powers".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 486.6 [breach of order under s. 486.4 or 486.5] Summary Offence(s) N/A No No
s. 138 YCJA [breach of youth order] Hybrid Offence(s) Yes No No

Offence Wording

Offence

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) [order restricting publication – sexual offences] or subsection 486.5(1) or (2) [x] is guilty of an offence punishable on summary conviction.

Application of order

(2) For greater certainty, an order referred to in subsection (1) [x] applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

2005, c. 32, s. 15; 2019, c. 13, s. 151.
[annotation(s) added]

CCC

Publication prohibited

278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3 [application to produce for sexual offences];
(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) [in camera hearing for application to produce] or 278.6(2) [review of hearing to produce — who appears]; or
(c) the determination of the judge pursuant to subsection 278.5(1) [judge may order production of record for review] or 278.7(1) [judge may order production of record to accused] and the reasons provided pursuant to section 278.8 [reasons for decision to produce], unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.
Offence

(2) Every person who contravenes subsection (1) [publication prohibited on production hearing] is guilty of an offence punishable on summary conviction.
1997, c. 30, s. 1; 2005, c. 32, s. 14.
[annotation(s) added]

CCC

Restriction on publication

487.2 If a search warrant is issued under section 487 [territorial search warrants] or 487.1 [telewarrants] or a search is made under such a warrant, every one who publishes in any document, or broadcasts or transmits in any way, any information with respect to

(a) the location of the place searched or to be searched, or
(b) the identity of any person who is or appears to occupy or be in possession or control of that place or who is suspected of being involved in any offence in relation to which the warrant was issued,

without the consent of every person referred to in paragraph (b) is, unless a charge has been laid in respect of any offence in relation to which the warrant was issued, guilty of an offence punishable on summary conviction.*[unconstitutional]
R.S., 1985, c. 27 (1st Supp.), s. 69; 2005, c. 32, s. 16.

[annotation(s) added]

CCC

Order directing matters not to be published for specified period

517 (1) If the prosecutor or the accused intends to show cause under section 515 [judicial interim release provisions], he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
Failure to comply

(2) Every person who fails, without lawful excuse, to comply with an order made under subsection (1) [order directing matters not to be published for specified period] is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17; 2018, c. 29, s. 62.

CCC

Order restricting publication of evidence taken at preliminary inquiry

539 (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.

...

Failure to comply with order

(3) Every one who fails to comply with an order made pursuant to subsection (1) [publication ban of preliminary inquiry evidence] is guilty of an offence punishable on summary conviction.
(4) [Repealed, 2005, c. 32, s. 18]
R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

CCC

Restriction on publication

648 (1) After permission to separate is given to members of a jury under subsection 647(1) [jurors may separate until deliberation], no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Offence

(2) Every one who fails to comply with subsection (1) [restriction on publication of trial proceedings without jury present] is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 21]
R.S., 1985, c. C-46, s. 648; 2005, c. 32, s. 21.
[annotation(s) added]

CCC

Offences

138 (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(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.
Provincial court judge has absolute jurisdiction on indictment

(2) The jurisdiction of a provincial court judge to try an adult charged with an offence under paragraph (1)(a) is absolute and does not depend on the consent of the accused.

YCJA

Draft Form of Charges

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

Proof of the Offence

Interpretation of the Offence

Constitutionality

Section 487.2 was found to be unconstitutional and of no force or effect as it violated the right to freedom of expression s. 2(b) of the Charter.[1]

  1. Canadian Newspapers Co. LTd. v. A.-G. Canada, 1986 CanLII 3911 (MB QB), per Barkman J - re s. 443.2 (as it was)
    Canadian Newspapers Co. Ltd. v. Attorney-General of Canada and two other actions, 1986 CanLII 2675 (ON SC), per Osler J
    Girard c. Demers, 2001 CanLII 39738 (QC CA), per Fish JA

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Factors

Ranges

Ancillary Sentencing Orders

Offence-specific Orders
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

References

Breach of Preservation and Production Obligations

THIS TEXT IS IN ROUGH DRAFT STATE. NOTHING HERE WILL BE OF USE TO READERS.


Breach of Preservation and Production Obligations
s. 487.0197, 487.0198 and 487.0199 of the Crim. Code
Election / Plea
Crown Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court only
Types of Release Release by Officer, Officer-in-charge, or Judge
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 months incarceration or $5,000 fine - $250,000 fine (financial records)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to Breach of Preservation and Production Obligations are found in Part XIV of the Criminal Code relating to "Jurisdiction".

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

Offence Wording

Offence — preservation demand

487.0197 A person who contravenes a preservation demand made under section 487.012 [preservation demand] without lawful excuse is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $5,000.
2014, c. 31, s. 20.

[annotation(s) added]

CCC

Offence — preservation or production order

487.0198 A person, financial institution or entity that contravenes an order made under any of sections 487.013 to 487.018 [provisions on production orders] without lawful excuse is guilty of an offence punishable on summary conviction and liable to a fine of not more than $250,000 or to imprisonment for a term of not more than two years less a day, or to both.

2014, c. 31, s. 20; 2019, c. 25, s. 194.
[annotation(s) added]

CCC


Offence — destruction of preserved data

487.0199 A person who contravenes section 487.0194 [preservation and production of computer data and documents] without lawful excuse is guilty of an offence punishable on summary conviction.
2014, c. 31, s. 20.

CCC

Draft Form of Charges

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

Proof of Offences

Proving breaking with intent under s. 348(1)(a) should include:

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

Interpretation of the Offence

Participation of Third Parties

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

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

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