Full Text:Volume 1.1I

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Contents

REPEALED AND UNCONSTITUTIONAL OFFENCES

Repealed Offences

General Principles

A person can still be charged with a repealed offence as long as the offence is in existence at the time that the offence was committed.

List of Repealed Offences (1980 to present)

2019
2018
2014
1984 to 2000
Pre-1984


List of Repealed Offences (Pre-1980)

  • Attempted Carnal Knowledge of Girl Under Fourteen (s. 302/270): repealed around 1953
  • Abduction of Heiress (s.314/282): repealed around 1953
  • Conspiracy to Defile (s. 188/218): repealed around 1953
  • Seduction of Girls Under 16 (s. 181/211): repealed around 1919
  • Whipping (s. 668): 1972, c. 13, s. 59.
  • Capital Punishment (s. 669 to 681): 1974-75-76, c. 105, s. 21.

Other Repealed Laws

See Also

Indecent Assault

1970 Criminal Code

Indecent assault on female

149. (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped.

Consent by false representations

(2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act.
1953-54, c. 51, s. 141.

Indecent assault on male

156. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.
1953-54, c. 51, s. 148.

This was repealed in An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 8.

Interpretation

The term "indecent assault" was not defined in the Code. The case law defined it as "an assault that is committed in circumstances of indecency, or as sometimes described, an assault with acts of indecency".[1] What constitutes "indecent" is a question of fact and is determined on a case-by-case basis.[2] Determination "will depend upon an objective view of the facts and circumstances in relation to the actual assault, and not upon the mental state of the accused"[3]

  1. R v Swietlinski, 1980 CanLII 53 (SCC), [1980] 2 SCR 956 (SCC), per McIntyre J
  2. Swietlinski, ibid.
  3. Swietlinski, ibid., at para 17

Sexual Intercourse with Step-Daughter

Offence

Repealed in 1987

1953 Code

145. (1) Every male person who

(a) has illicit sexual intercourse with his step-daughter, foster daughter or female ward; or
(b) has illicit sexual intercourse with a female person of previously chaste character and under the age of twenty-one years who
(i) is in his employment,
(ii) is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction, or
(iii) receives her wages or salary directly or indirectly from him,

is guilty of an indictable offence and is liable to imprisonment for two years.

(2) Where an accused is charged with an offence under paragraph (b) of subsection (1), the court may find the accused not guilty if it is of opinion that the evidence does not show that, as between the accused and the female person, the accused is wholly or chiefly the blame.

1959 Amendment

145. (1) Every male person who

(a) has illicit sexual intercourse with his step-daughter, foster daughter or female ward; or
(b) has illicit sexual intercourse with a female person of previously chaste character and under the age of twenty-one years who
(i) is in his employment,
(ii) is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction, or
(iii) receives her wages or salary directly or indirectly from him,

is guilty of an indictable offence and is liable to imprisonment for two years.

(2) Where an accused is charged with an offence under paragraph (b) of subsection (1), the court may find the accused not guilty if it is of opinion that the evidence does not show that, as between the accused and the female person, the accused is more to blame than the female person.

1970 Code

153. (1) Every male person who

(a) has illicit sexual intercourse with his step-daughter, foster daughter or female ward, or
(b) has illicit sexual intercourse with a female person of previously chaste character and under the age of twenty-one years who
(i) is in his employment,
(ii) is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction, or
(iii) receives her wages or salary directly or indirectly from him,

is guilty of an indictable offence and is liable to imprisonment for two years.

(2) Where an accused is charged with an offence under paragraph (1)(b), the court may find the accused not guilty if it is of opinion that the evidence does not show that, as between the accused and the female person, the accused is more to blame than the female person.

1953-54, c. 51, s. 145; 1959, c. 41, s. 10.

1985 Code

158. (1) Every male person who

(a) has illicit sexual intercourse with his step-daughter, foster daughter or female ward, or
(b) has illicit sexual intercourse with a female person of previously chaste character and under the age of twenty-one years who
(i) is in his employment,
(ii) is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction, or
(iii) receives her wages or salary directly or indirectly from him,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Where an accused is charged with an offence under paragraph (1)(b), the court may find the accused not guilty if it is of opinion that the evidence does not show that, as between the accused and the female person, the accused is more to blame than the female person.

R.S., c. C-34, s. 153.

Gross Indecency


1985 Criminal Code

Acts of gross indecency

161. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 157.

Exception re acts in private between husband and wife or consenting adults

162. (1) Sections 160 and 161 do not apply to any act committed in private between

(a) a husband and his wife, or
(b) any two persons, each of whom is twenty-one years or more of age,

both of whom consent to the commission of the act.

Idem

(2) For the purposes of subsection (1),

(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and
(b) a person shall be deemed not to consent to the commission of an act
(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or
(ii) if that person is, and other party to the commission of the act knows or has good reason to believe that that person is, feeble-minded, insane or an idiot or imbecile.

R.S., c. C-34, s. 158.

The offence was repealed in 1987.

Gross Indecency

The term "gross indecency" was not defined within the Code.[1]

The "indecency" of an act depends on its context, including time, place and circumstances.[2] Similarly, "gross indecency" will depend on time, place, and circumstances.[3] However, certain acts are "inherently indecent" where the "circumstances surrounding the act is immaterial".[4]

Gross indecency has been described as "marked departure from decent conduct expected of the average Canadian in the circumstances that existed".[5] The standard is strictly objective and should not be considered subjectively.[6]

There is no requirement that gross indecency include "some actual physical contact between" the accused and victim.[7] It only needs to involve some "personal relation", "association" or "union", which can include commission of the act in the presence of the victim.[8] More specifically, this has been applied where the accused masturbated in the presence of the victim.[9] As well as fellatio.[10]

  1. R v G, 1982 CanLII 1304 (AB QB), per Moore ACJ
  2. G, ibid., at para 9
  3. G, ibid., at para 10
  4. G, ibid., at para 9
  5. R v Quesnel and Quesnel (1979), 51 CCC (2d) 270, 1979 CanLII 2883 (ON CA), per Brooke JA, at p. 280
    R v LeBeau, 1988 CanLII 3271 (ON CA), per curiam, at para 20
  6. LeBeau, ibid., at para 20
    Quesnel, supra
  7. G, ibid., at para 11 - Derived from UK law considering the use of the word "with"
  8. G, ibid., at para 13
  9. e.g. G, ibid.
    R v Pinard and Maltais (1982), 5 CCC (3d) 460, 1982 CanLII 3817 (QC CA), per Monet JA
  10. R v White (1975), 25 CCC (2d) 172, 1975 CanLII 1263 (ON CA), per Gale CJ

1970 Criminal Code

Acts of gross indecency

157. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.
1953-54, c. 51, s. 149.

Exception re acts in private between husband and wife or consenting adults

158. (1) Sections 155 and 157 do not apply to any act committed in private between

(a) a husband and his wife, or
(b) any two persons, each of whom is twenty-one years or more of age,

both of whom consent to the commission of the act.

Idem

(2) For the purposes of subsection (1),

(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and
(b) a person shall be deemed not to consent to the commission of an act
(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations as to the nature and quality of the act, or
(ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that that person is feeble-minded, insane, or an idiot or imbecile.

1968-69, c. 38, s. 7.

1953-1954 Criminal Code

141.(1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped...

=Abortion=

Overview

This offence was found to be unconstitutional, and is of no force or effect.
Section 287 was repealed on September 19, 2019 by Bill C-75.

Wording of Offence

Abortion
Procuring miscarriage

287. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life.

Woman procuring her own miscarriage

(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Definition of "means"

(3) In this section, "means" includes

(a) the administration of a drug or other noxious thing;
(b) the use of an instrument; and
(c) manipulation of any kind.
Exceptions

(4) Subsections (1) and (2) do not apply to

(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or
(b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means for the purpose of carrying out her intention to procure her own miscarriage,


if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of the female person has been reviewed,

(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of the female person would or would be likely to endanger her life or health, and
(d) has caused a copy of that certificate to be given to the qualified medical practitioner.
Information requirement

(5) The Minister of Health of a province may by order

(a) require a therapeutic abortion committee for any hospital in that province, or any member thereof, to furnish him with a copy of any certificate described in paragraph (4)(c) issued by that committee, together with such other information relating to the circumstances surrounding the issue of that certificate as he may require; or
(b) require a medical practitioner who, in that province, has procured the miscarriage of any female person named in a certificate described in paragraph (4)(c), to furnish him with a copy of that certificate, together with such other information relating to the procuring of the miscarriage as he may require.
Definitions

(6) For the purposes of subsections (4) and (5) and this subsection,
...
"accredited hospital" means a hospital accredited by the Canadian Council on Hospital Accreditation in which diagnostic services and medical, surgical and obstetrical treatment are provided;
...
"approved hospital" means a hospital in a province approved for the purposes of this section by the Minister of Health of that province;
...
"board" means the board of governors, management or directors, or the trustees, commission or other person or group of persons having the control and management of an accredited or approved hospital;
...
"Minister of Health" means

(a) in the Provinces of Ontario, Quebec, New Brunswick, Prince Edward Island, Manitoba and Newfoundland, the Minister of Health,
(b) in the Provinces of Nova Scotia and Saskatchewan, the Minister of Public Health, and
(c) in the Province of British Columbia, the Minister of Health Services and Hospital Insurance,
(d) in the Province of Alberta, the Minister of Hospitals and Medical Care,
(e) in Yukon, the Northwest Territories and Nunavut, the Minister of Health;

...
"qualified medical practitioner" means a person entitled to engage in the practice of medicine under the laws of the province in which the hospital referred to in subsection (4) is situated;
...
"therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practitioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital.

Requirement of consent not affected

(7) Nothing in subsection (4) shall be construed as making unnecessary the obtaining of any authorization or consent that is or may be required, otherwise than under this Act, before any means are used for the purpose of carrying out an intention to procure the miscarriage of a female person.
R.S., 1985, c. C-46, s. 287; 1993, c. 28, s. 78; 1996, c. 8, s. 32; 2002, c. 7, s. 141.

CCC

Interpretation

When Child Becomes Human

see Infanticide (Offence)

Interpretation

Constitutionality

This provision was found to be unconstitutional.[1]

  1. R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, per Dickson J and Beetz J

Anal Intercourse


Anal Intercourse
s. 159 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 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Note: Section 159 was found to be unconstitutional, see below for details.

The offences of anal intercourse were previously found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 159 [anal intercourse] 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. 159 [anal intercourse] 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. 159 [anal intercourse], 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. 159 [anal intercourse] 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. 159 [anal intercourse] 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 text of s. 159 was repealed September 19, 2019 with 2019, c. 25.[1]

Anal intercourse

159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Exception

(2) Subsection (1) does not apply to any act engaged in, in private, between

(a) husband and wife, or
(b) any two persons, each of whom is eighteen years of age or more,

both of whom consent to the act.

Idem

(3) For the purposes of subsection (2),

(a) an act shall be deemed not to have been engaged in in private if it is engaged in in a public place or if more than two persons take part or are present; and
(b) a person shall be deemed not to consent to an act
(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or
(ii) if the court is satisfied beyond a reasonable doubt that the person could not have consented to the act by reason of mental disability.

R.S., 1985, c. C-46, s. 159; R.S., 1985, c. 19 (3rd Supp.), s. 3.

CCC

Draft Form of Charges

See also: Draft Form of Charges

Proof of the Offence

Proving anal intercourse under s. 159 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 an act of anal intercourse" with another person;
  5. the other person is 18 years or older;
  6. the culprit is 18 years or older; and
  7. the culprit and other person are not married.

Interpretation of the Offence

Constitutionality

Section 159 was found to be unconstitutional for violating s. 15 of the Charter and was not saved by s. 1 of the Charter.[2]

  1. List of Criminal Code Amendments (2010 to 2019)
  2. R v CM, 1995 CanLII 8924 (ON CA), per Abella JA
    R c Roy, 1998 CanLII 12775 (QC CA), per curiam
    R v TCF, 2006 NSCA 42 (CanLII), per Cromwell JA

Evidence

Modification of Rules of Evidence

For offences under this section (s. 159):

Limitations on Admissibility of Evidence

For offences under this section (s. 159):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 159), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

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. 159), 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. 159 [anal intercourse] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 159 [anal intercourse] Indictable Election 10 years custody

Offences under s. 159 are hybrid. If prosecuted by indictment, the maximum penalty is 10 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. 159 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: Anal Intercourse (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary 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

Counselling or Aiding Suicide


Counselling or Aiding Suicide
s. 241 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 under s. 241 were found to be unconstitutional, see below for details

Offences relating to counselling or aiding suicide are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 241 [counselling or aiding suicide] Indictable Offence(s) N/A Yes

Offences under s. 241 [counselling or aiding suicide] are straight indictable. There is a Defence election of Court under s. 536(2).

Release

When charged under s. 241 [counselling or aiding suicide] , 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.

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. 241 [counselling or aiding suicide] X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 241 [counselling or aiding suicide] 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

Suicide
Counselling or aiding suicide

241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not,

(a) counsels a person to die by suicide or abets a person in dying by suicide; or
(b) aids a person to die by suicide.
Exemption for medical assistance in dying

(2) No medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) [aiding suicide – offence] if they provide a person with medical assistance in dying in accordance with section 241.2 [procedure relating to assisted dying].

Exemption for person aiding practitioner

(3) No person is a party to an offence under paragraph (1)(b) [aiding suicide – offence] if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2 [procedure relating to assisted dying].

Exemption for pharmacist

(4) No pharmacist who dispenses a substance to a person other than a medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) [aiding suicide – offence] if the pharmacist dispenses the substance further to a prescription that is written by such a practitioner in providing medical assistance in dying in accordance with section 241.2 [procedure relating to assisted dying].

Exemption for person aiding patient

(5) No person commits an offence under paragraph (1)(b) if they do anything, at another person’s explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assist­ance in dying in accordance with section 241.2 [procedure relating to assisted dying].

Clarification

(5.1) For greater certainty, no social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying.

Reasonable but mistaken belief

(6) For greater certainty, the exemption set out in any of subsections (2) to (5) [x] applies even if the person invoking the exemption has a reasonable but mistaken belief about any fact that is an element of the exemption.

Definitions

(7) In this section, medical assistance in dying, medical practitioner, nurse practitioner and pharmacist have the same meanings as in section 241.1 [definitions re assisted dying].
R.S., 1985, c. C-46, s. 241; R.S., 1985, c. 27 (1st Supp.), s. 7; 2016, c. 3, s. 3.
[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
241 "... contrary to section 241 of the Criminal Code."

Proof of the Offence

Proving counselling or aiding suicide under s. 241 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit counsels a person to commit suicide, or
  5. the culprit aids or abets a person to commit suicide

Interpretation of the Offence

A survivor of a suicide pact may be convicted under this section, however, may have a defence to a murder charge if the two parties formed a common and irrevocable intention to commit suicide, together, simultaniously where the risk is identical to each other. [1]

A successful suicide does not constitute a form of homicide.[2]

Constitutionality

Sections 241(b) and 14 were found to violate section 7 Charter protecting rights of the terminally ill and is not saved under s. 1 of the Charter.[3]

  1. R c Gagnon, 1993 CanLII 3973 (QC CA), per Gendreau JA - ("cela se réalisera lorsque deux personnes forment un véritable et authentique pacte de suicide, c'est-à-dire lorsque les partenaires se trouvent dans un état mental tel, qu'ils ont formé une intention commune et irrévocable de se suicider, ensemble, simultanément, dans le même événement et par un moyen unique où le risque de mort est identique et égal pour chacun")
  2. London Life Ins. Co. v Trustee of the Property of Lang Shirt Co. Ltd., 1928 CanLII 20 (SCC), [1929] SCR 117, per Mignault J
  3. Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), per curiam
    cf. Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519, per Sopinka J

Consent

Section 14 prohibits death by consent:

Consent to death

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.
R.S., c. C-34, s. 14.

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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 241 [counselling or aiding suicide] N/A 14 years custody

Offences under s. 241 are straight indictable. The maximum penalty is 14 years incarercation.

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. 241 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

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. 241
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

Procuring and Living on the Avails of Prostitution


Procuring and Living on the Avails of Prostitution
s. 212 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 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)*

(* varies)
Minimum 2 years incarceration (212(2))
5 years incarceration (212(2.1))
6 months incarceration (212(4))
Maximum 5 years incarceration (212(4))
10 years incarceration (212(1))
14 years incarceration (212(2), (2.1))
Reference
Offence Elements
Sentence Digests

Note: Section 212 and its header was entirely repealed by 2014, c. 25 on December 6th, 2014.

Overview

Section 212 describes several separate indictable offences related to facilitating prostitution and similar offences:

  1. procuring a person into prostitution (ss. 212(1)(a), (d), (e) and (g))
  2. entices, conceals or directs a person to a bawdy-house (ss. 212(b), (c), and (f))
  3. exercising control over a prostitute (s. 212(1)(h))
  4. intoxicating a person to enable illicit intercourse (s. 212(1)(i))
  5. living off the avails of prostitute (s. 212(1)(j))
  6. living off the avails of prostitute under the age of 18 (s. 212(2), (2.1))
  7. obtaining services of a minor (212(4))

The Fraser Committee (Pornography and Prostitution in Canada (1985)) and the Badgley Committee (Sexual Offences Against Children (1984)) describe the social problem created by prostitution, which were the drive behind amendments to s. 212.

Given the parasitic and coercive relationship between the pimp and prostitute, girls are often extremely reluctant to come forward and testify for the Crown.[1]

Pleadings

Offences under s. 212(1), (2), (2.1) and (4) are straight indictable. There is a Defence election of Court under s. 536(2).

Release

When charged under s. 212(1), (2), (2.1) or (4), 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 212 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Ban

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. xxx OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 212(2), (2.1), (4) are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 212(1), and (4) 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.

  1. see the Report of the Committee on Sexual Offences Against Children and Youths (the Badgley Committee), Sexual Offences Against Children (1984), vol. 2, at pp. 1057-58

Offence Wording

Procuring

212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Living on the avails of prostitution of person under eighteen

(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.

Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years

(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.

Presumption

(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).

Offence — prostitution of person under eighteen

(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
(5) [Repealed, 1999, c. 5, s. 8]
R.S., 1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1.

CCC

Proof of the Offence

Proving procuring a person into prostitution under s. 212(1)(a), (d), (e) and (g) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. either:
    1. procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada, (212(1)(a))
    2. procures or attempts to procure a person to become, whether in or out of Canada, a prostitute, (212(1)(d))
    3. procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada, (212(1)(e))
    4. procures a person to enter or leave Canada, for the purpose of prostitution, (212(1)(g))

Proving enticing, concealing or directing a person to a bawdy-house under s. 212(b), (c), and (f) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
    1. inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
    2. knowingly conceals a person in a common bawdy-house,
    3. on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,

Proving exercising control over a prostitute under s. 212(1)(h) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit exercises control, direction or influence over the movements of a person
  5. the actions were in a manner as to "show that he is aiding, abetting or compelling" that person to engage in or carry on prostitution
  6. the actions were for the purposes of gain

Proving intoxicating a person to enable illicit intercourse under s. 212(1)(i) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. either:
    1. the accused applies or administers to a person a substance; or,
    2. causes that person to take a substance
  5. the substance is any drug, intoxicating liquor, matter or thing
  6. the culprit does the act with intent to
    1. stupefy or overpower that person in order; and,
    2. enable any person to have illicit sexual intercourse with that person

Proving living on the avails of a prostitute under s. 212(1)(j) should include: [2]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit lives wholly or in part on the avails of prostitution of another person

Proving living off the available of a prostitute under the age of 18 under s. 212(2), (2.1) should include:

  1. The same elements as 212(1)(j);
  2. the person engaging in prostitution is under the age of 18 (212(2))
  3. the accused: (212(2.1))
    1. for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
    2. uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age

Proving obtaining services of a minor under s. 212(4) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. obtains for consideration the sexual services of a person, or
    2. communicates with anyone for the purpose of obtaining for consideration the sexual services of a person;
  5. the person is under the age of eighteen years; and
  6. the actions occur in any place
  1. R v Rodney, 1999 ABPC 12 (CanLII), per Fradsham J, at para 31
  2. Rodney, ibid., at para 22

Interpretation of the Offence

Under s. 197, a "prostitute" "means a person of either sex who engages in prostitution"[1]

Under s. 197, a "place" "includes any place, whether or not (a) it is covered or enclosed, (b) it is used permanently or temporarily, or (c) any person has an exclusive right of user with respect to it;"

Section 4(5) states that "For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted."

  1. Definition repealed by 2014, c. 25

Procuring

Procurement can be thought of as the act of persuasion.

"Procure" can have several meaning depending on the context. [1]

It is meant to be interpreted in its common sense meaning and is not a term of art. Interpreting the word as meaning "recruiting" can be valid. [2]

It can refer to "one who induces or causes a woman to have illicit sexual intercourse with another person".[3]

Procuring requires an active role by the accused. The actions should be a cause or inducement.[4]

There should be some "active persuasion" and not simply be a decision of the victim's own free will.[5]

The term "procure" is interpreted as meaning "to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged". It does not necessarily include “obtaining by care or effort” or “to bring about”.[6]

Objective must be completed

Actual intercourse must have occurred to make out procuring.[7]

Procuring into prostitution

In order to procure the woman must not already be a prostitute.[8]

It is no defence for the victim to have consented to engaging in prostitution.[9] It is further no defence to argue that the victim was a prostitute before they attempted to procure them.[10]

Serious Personal Injury Offence

Procuring a juvenile prostitute was found not to be a "serious personal injury offence".[11]

  1. R v Deutsch (1983), 5 CCC (3d) 41 (Ont.C.A.), 1983 CanLII 3484 (ON CA), per Martin JA, at pp. 48-49 aff'd (1986), 27 CCC (3d) 385 (SCC), 1986 CanLII 21 (SCC), [1986] 2 SCR 2, per Le Dain J
  2. Deutsch, ibid., at p. 403 (cited to SCC)
  3. Deutsch, ibid., at p. 48 (cited to ONCA)
  4. R v Barrie (1975), 25 CCC (2d) 216 (Ont. Co.Ct.) (*no CanLII links)
    R v Newman, 2009 NLCA 32 (CanLII), per Welsh JA, at paras 36 to 38
  5. R v Cline (1982), 65 CCC (2d) 214, 1982 ABCA 20 (CanLII), per Laycraft JA
  6. Newman, supra, at paras 35 to 39
  7. R v Gruba, [1969] 2 CCC 365 (BCCA), 1968 CanLII 808 (BC CA), per Bull JA
    R v Harder, 1980 ABCA 48 (CanLII), per Clement JA citing Gruba , at para 4
  8. Cline, supra
  9. R v Robinson, 1948 CanLII 79 (ON CA), (1948), 92 CCC 223 (Ont. C.A.), per Laidlaw JA
  10. R v B, 2004 CanLII 36124 (ON CA), per Moldaver JA, at para 51
    cf. Cline, supra
  11. R v Burton, 2013 ONSC 3021 (CanLII), per Trotter J

Exercising Control (212(1)(h))

The Crown must prove that the accused exercised control, direction or influence over the victim.[1]

The person being controlled must be left with little choice. For example, their movements controlled and they are subject to rules of behaviour.[2]

Direction does not mean that the person has no "latitude or leeway".[3]

Influence is a less coercive behaviour than control and direction. It includes "any act exercised over a person with a view to aiding, abetting, or forcing her to prostitute herself".[4]

Coercion is not a necessary element to the offence where direction and influence has been established.[5]

There must be some personal gain for the accused.[6]

"Compelling" means to "cause or bring about by force, threats, or overwhelming pressure”[7]

The presumption in s. 212(3) does not apply to an offence under s. 212(1)(h).[8]

  1. see R c Perreault, 1996 CanLII 5641 (QC CA), per curiam
  2. Perreault cited in Pointejour Salomon c R, 2011 QCCA 771 (CanLII), per Cournoyer JA, at para 55
  3. Pointejour Salomon, supra, at para 55
  4. Pointejour Salomon, supra, at para 55
  5. R v Martinez, 1994 CanLII 4480 (NL SCTD), [1994] N.J. No. 437, per Barry J ("offence is made out by exercising direction and influence in terms of where to go, how much to charge, and how much to collect")
  6. R v Richard (1935), 63 CCC 366 (NBCA) (*no CanLII links) - woman got money for herself, acquitted
    Perreault, supra
  7. R v DLW, 2013 BCSC 1327 (CanLII), per Romilly J, at para 325
  8. R v Nicolaou, 2008 BCCA 300 (CanLII), per Chiasson JA, at paras 55, 56

Living on Avails

Living on avails exists where the accused "must at least receive either in kind all or part of the female’s proceeds from prostituting herself or have those proceeds applied in some way to support his living".[1]

Indirect benefits from the practice of prostitution is not living on avails.[2]

"Living-on-the-avails" does not require the Crown to prove there was coercion.[3]

The Crown must prove that the accused "was in actual receipt of the proceeds to support his living". [4]

For a person to be "living on the avails" the accused must be doing so "parasitically".[5]

Merely receiving money from a prostitute does not amount to living on the avails. Otherwise, anyone giving a product or service to a prostitute is committing the offence.[6]

Section 212(1)(j) was found to be arbitrary, overbroad, and disproportionate to the provisions objectives and so violates s. 7 of the Charter.[7]

Living With Prostitute

Section 212(3) creates a presumption for those who are found to live in a common bawdy-house or lives with or is habitually in the company of a prostitute is living on the avails of prostitution. This section violates the presumption of innocence but is within a reasonable limit and is constitutionally valid.[8]

Where the accused is living with the prostitute, the crown must prove that "the living arrangement was other than a normal and legitimate one involving a sharing of expenses for mutual benefit, but rather one in which he was living parasitically."[9]

  1. R v Celebrity Enterprises Ltd. et. al. (1977), 41 CCC (2d) 540 (BCCA), 1977 CanLII 2109 (BC CA), per MacFarlane JA
  2. Celebrity Enterprises, ibid. ("Indirect benefits resulting to him from her practicing prostitution are not avails of her prostitution")
  3. R v Barrow, 2001 CanLII 8550 (ON CA), per Rosenberg JA, at para 31
  4. R v KRB, 2004 ABCA 307 (CanLII), per Berger JA, at para 7
  5. KRB, ibid., at para 55
    R v Bramwell, 1993 CanLII 1130 (BC CA), (1993), 86 CCC (3d) 418, per Prowse JA, at pp. 433-434
    R v Downey, 1992 CanLII 109 (SCC), (1992) 72 CCC (3d) 1 (SCC), per Cory J, at p. 15, (“the target of [s. 212(1)(j)] is the person who lives parasitically off a prostitute's earnings.”)
  6. KRB, supra, at para 61
    Bramwell, supra, at p. 432
  7. Canada (Attorney General) v Bedford, 2012 ONCA 186 (CanLII){{perONCA|Doherty, Rosenberg, and Feldman JJA aff'd at 2013 SCC 72 (CanLII), per McLachlin CJ
  8. R v Downey, 1992 CanLII 109 (SCC), [1992] 2 SCR 10, per Cory J
  9. KRB, supra, at para 7

Under-age Prostitutes

Soliciting under s.213 is not a lesser included offence to the offence under s. 212(4).[1]

It is not necessary that the prostitute solicited by the accused be a real person.[2]

  1. R v Amabile, 2000 BCCA 68 (CanLII), (2000), 143 CCC (3d) 270 (BCCA), per Newbury JA
  2. R v Kerster, 2001 BCSC 230 (CanLII), per Neilson J, at para 41 upheld at 2003 BCCA 246 (CanLII), per Finch CJ (note this concerned an earlier version of s. 212(4))

Illicit Sexual Intercourse

Under s. 4(5), "sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted."[1]

  1. see as well use of s. 4(5) in Incest (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

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

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 212(2), and (2.1)), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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

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

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties

Offences under s. 212. (1), (2), (2.1), and (4) are straight indictable. The maximum penalty is 10 years incarceration under s. 212(1), 5 years incarceration under s. 212(4), or 14 years incarceration under s. 212(2) or (2.1).

Minimum Penalties

For offences under under s. 212(4), minimum is 2 years and 5 years incarceration under s. 212(2.1) there is a mandatory minimum penalty of {{{2}}}.

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. 212(1) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 212(2.1), or (4) N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 212(2) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 212(2), (2.1) or (4) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For offences under s. 212(1), 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 offences recognize that street prostitution often involves exploitation and degradation of women. In a basic sense this offence amounts to a form of slavery.[1]

General and specific deterrence are generally paramount for these offences.[2]

The prohibition on juvenile prostitution under s.212(4) intends to protect young persons from predators. These young persons find themselves in "desperate circumstances without family or financial support". They are often abused and in many cases their involvement in prostitution leads to addictions and psychological harm. [3]

Categories of Living on Avails

Certain cases have adopted three categories of the offence of living on the avails that establish ranges of sentence:[4]

  1. 4 to 5 years: the accused coerced the female into becoming or remaining a prostitute and exercised significant control;
  2. 2 to 3 years: The element of coercion is lacking but the woman is the accused's main source of income;
  3. 12 to 18 months: The lowest category of offence includes conduct where the offender receives money, but the relationship is not exploitative
  1. R v Cole, 2004 CanLII 58282 (QC CM), per Discepola J, at para 25
    R v Downey, [1992] 2 SCR 10, 1992 CanLII 109 (SCC), per La Forest J (" In some ways the relationship is most closely analogous to slavery")
  2. R v Murray, 1995 ABCA 204 (CanLII), (1995) 165 A.R. 394 (Ont. C.A.), per Bracco JA
  3. R v Aldea, 2005 SKQB 461 (CanLII), per Zarzeczny J, at para 28
  4. R v Miller, (1997) OJ No 2911 (*no CanLII links)
    Cole, ibid., at para 28

Factors

Courts have considered factors relevant for procuring and prostitution-related offences:[1]

  1. The degree of control imposed;
  2. The amount of money received and the extent to which the prostitute is allowed to retain the earnings;
  3. The age of the prostitute and their numbers;
  4. Any special vulnerability of the prostitutes;
  5. The working conditions of the prostitutes;
  6. The degree of planning and sophistication;
  7. The size of the operation;
  8. The duration of the exploitative conduct;
  9. The degree of violence;
  10. The extent to which inducements such as drugs or alcohol were employed by the pimp;
  11. The effect on the prostitute of the exploitation, and
  12. The extent to which the pimp demanded sexual favours himself from the prostitutes.
  1. most enumerated from R v Tang, 1997 ABCA 174 (CanLII), [1997] AJ No 460 (C.A.), per curiam and R v Miller, [1997] OJ No 3911 (Gen. Div.) (*no CanLII links)
    see also R c Tynes, 2010 QCCQ 11298 (CanLII), per Labelle J
    R v McPherson, 2013 ONSC 1635 (CanLII), per Baltman J

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 212 (1)(i), (ii), (iii), or (iv)
SOIRA Orders s. 212 (1)(i), (2), (2.1), or (4)
  • On conviction under s. 212(1)(i), (2) or (2.1), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

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

  • On conviction under s. 212(4), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

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

Section 161 Orders s. 212
  • If convicted under s. 212, the judge may make discretionary 161 Order.
Delayed Parole Order s. 212(2), (2.1) or (4)
  • Periods of imprisonment of 2 years or more for convictions under s. 212(2) or (2.1) or (4) 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.

History

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

See Also

Related Offences
References

History of Procuring and Living on the Avails of Prostitution

History

See also: Procuring and Living on the Avails of Prostitution (Repealed Offence)

In January, 1988, Bill C-15 came into force adding s. 212(4).

In 1985, s. 212 was amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 9.

In 1983, s. 195 (as it was then) was amended by An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 13.

In 1972, s. 195 (as it was then) was amended in the Criminal Law Amendment Act, 1972, S.C. 1972, c. 13, s. 14.

2005 to 2014

On December 6th, 2014, s. 212 was repealed. In December, 2013, the Supreme Court of Canada struck down s. 212(1)(j).[1]

Procuring

212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Living on the avails of prostitution of person under eighteen
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.

Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years

(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.

Presumption

(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).

Offence — prostitution of person under eighteen

(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
(5) [Repealed, 1999, c. 5, s. 8]
R.S., 1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1.

CCC

Changes from 2005 are underlined.

  1. Canada (Attorney General) v Bedford, [2013] 3 SCR 1101, 2013 SCC 72 (CanLII) -- also struck down s. 210 and 213(1)(c)

1999 to 2005

Procuring

212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Idem

(2) Notwithstanding paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years

(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.

Presumption

(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).

Offence — prostitution of person under eighteen

(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(5) [Repealed, 1999, c. 5, s. 8]
R.S., 1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8.

CCC

1997 to 1999

1985 to 1997

Procuring

212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute or a person of known immoral character to a common bawdy-house or house of assignation for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house or house of assignation,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be direct or takes or causes that person to be taken, to a common bawdy-house or house of assignation,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Idem

(2) Notwithstanding paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Presumption

(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house or in a house of assignation is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsection (2).

Offence in relation to juvenile prostitution

(4) Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

1985 to 1985

Procuring

195. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute or a person of known immoral character to a common bawdy-house or house of assignation for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house or house of assignation,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house or house of assignation,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and is liable to imprisonment for ten years.

Presumption

(2) Evidence that a person lives with or is habitually in the company of prostitutes, or lives in a common bawdy-house or house of assignation is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution.

Corroboration

(3) No person shall be convicted of an offence under subsection (1), other than an offence under paragraph (j) of that subsection, upon the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.

Limitation

(4) No proceedings for an offence under this section shall be commenced more than one year after the time when the offence is alleged to have been committed.
1953-54, c. 51, s. 184; 1968-69, c. 38, s. 92.

Rape

Offence

"Rape" as an offence was repealed and replaced by Sexual Assault (Offence) in 1982.

1952 Code

135. A male person commits rape when he has sexual intercourse with a female person who is not his wife,

(a) without her consent, or
(b) with her consent if the consent
(i) is extorted by threats or fear of bodily harm
(ii) is obtained by personating her husband, or
(iii) is obtained by false and fraudulent representations as to the nature and quality of the act.

136. Every one who commits rape is guilty of an indictable offence and is liable to imprisonment for life and to be whipped.

137. Every one who attempts to commit rape is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.

1970 Code

143. A male person commits rape when he has sexual intercourse with a female person who is not his wife,

(a) without her consent, or
(b) with her consent if the consent
(i) is extorted by threats or fear of bodily harm,
(ii) is obtained by personating her husband, or
(iii) is obtained by false and fraudulent representations as to the nature and quality of the act.

1953-54, c. 51, s. 135.

144. Every one who commits rape is guilty of an indictable offence and is liable to imprisonment for life and to be whipped.
1953-54, c. 51, s. 136.
145. Every one who attempts to commit rape is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.
1953-54, c. 51, s. 137.

See Also

Keeping a Common Bawdy-house (Repealed Offence)

Repealed September 19, 2019 (Bill C-75)
Keeping a Common Bawdy-house
s. 210(1), (2) of the Crim. Code
Election / Plea
Crown Election Indictment (210(1)) Summary (210(2))
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court only (210(1), (2))
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum None
Maximum 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 keeping a common bawdy-house are found in Part VII of the Criminal Code relating to "Disorderly Houses, Gaming and Betting".

Offence Wording

Keeping common bawdy-house

210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Landlord, inmate, etc.

(2) Every one who

(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or
(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,

is guilty of an offence punishable on summary conviction.

Notice of conviction to be served on owner

(3) Where a person is convicted of an offence under subsection (1) , the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.

Duty of landlord on notice

(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
R.S., c. C-34, s. 193.
[annotation(s) added]

CCC

Transporting person to bawdy-house

211. Every one who knowingly takes, transports, directs, or offers to take, transport or direct, any other person to a common bawdy-house is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 194.

CCC

Proof of the Offence

Proving keeping a common bawdy house under s. 210(1) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit's conduct, by its nature, caused harm or presented a significant risk of harm to individuals or society
  5. the risk was in a way that undermined or threatened to undermine a value reflected in and formally endorsed by the Constitution or other fundamental laws by
    1. confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
    2. predisposing others to anti-social behaviour; or
    3. physically or psychologically harming persons involved in the conduct, and
  6. the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.

Proving transporting person to bawdy-house under s. 211 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "takes, transports, directs, or offers to take, transport or direct, any other person"
  5. the destination is a "common bawdy-house"
  6. the act was done "knowingly"
  1. R v Labaye, 2005 SCC 80 (CanLII), [2005] 3 SCR 728, per McLachlin CJ, at para 62

Interpretation of the Offence

The categories of harm is not a closed list.[1]

  1. R v Labaye, 2005 SCC 80 (CanLII), [2005] 3 SCR 728, per McLachlin CJ

Keeping

For there be "keeping", it must be: [1]

  1. that the accused have some degree of control over the care and management of the premises, and
  2. that the accused participate to some extent..., in the "illicit" activities of the common bawdy-house.

The accused does not need to participate in the sex acts, rather only participate in the use of the house as a bawdy-house.[2]

Providing accommodations necessarily amounts to "keeping". [3]

  1. R v Corbeil, 1991 CanLII 96 (SCC), [1991] 1 SCR 830, per Lamer CJ
  2. Corbeil, ibid.
  3. R v McLellan, 1980 CanLII 330 (BC CA), per Nemetz CJ ("The provisions of accommodation is the essence of keeping")

"Common Bawdy-house"

Section 197(1) defines "common bawdy-house" as:

197(1) In this Part,
... “common bawdy-house” means, for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons;
...
R.S., 1985, c. C-46, s. 197; R.S., 1985, c. 27 (1st Supp.), s. 29; 2014, c. 25, s. 12.
Repealed on September 19, 2019 with enactment of 2019, c. 25.

CCC

"Kept" refers to the "frequent or habitual activity". [1]

A common bawdy-house can include any fixed area where acts of prostitution occur. It can include parking lots.[2]

A massage parlour where the messages will include offers of masturbation may not be "houses of prostitution".[3]

  1. R v Rockert et al., 1978 CanLII 31 (SCC), [1978] 2 SCR 704, per Estey J
    R v Patterson, 1967 CanLII 22 (SCC), [1968] SCR 157, per Spence J
    R c Lahaie, 1990 CanLII 3271 (QC CA), per curiam
  2. R v Pierce, 1982 CanLII 2153 (ON CA) (1982), 66 CCC (2d) 388 (Ont. C.A.), per MacKinnon CJ
  3. R v Ponomarev, 2007 ONCJ 271 (CanLII), per Chisvin J

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences

Ranges

see also: Keeping a Common Bawdy-house (Sentencing Cases)

See Also

References

Impaired Driving, Over 80 and Refusal Causing Bodily Harm or Death (Repealed Offence)


Impaired Driving, Over 80 and Refusal Causing Bodily Harm or Death
s. 255 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)

(* varies)
Minimum $1,000 + 12 months Driving Prohib.(first)

30 days jail + 2 to 5 years Driving Prohib. (second)

120 days + 3 or more years Driving Prohib. (three or more)
Maximum 10 years incarceration (harm)
Life (death)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to impaired driving, over 80 and refusal causing bodily harm or death 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. 255 [impaired driving, over 80 and refusal causing bodily harm or death] Indictable Offence(s) N/A Yes {{{4}}}

Offences under s. 255 are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

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

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

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

s. 2 ID Crim. Act
s. 255 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 255, 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. 255 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. xxx OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 255 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

255.
...[(1)]...

Impaired driving causing bodily harm

(2) Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Blood alcohol level over legal limit — bodily harm

(2.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Failure or refusal to provide sample — bodily harm

(2.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Impaired driving causing death

(3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life.

Blood alcohol level over legal limit — death

(3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life.

Failure or refusal to provide sample — death

(3.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life.

Interpretation

(3.3) For greater certainty, everyone who is liable to the punishment described in any of subsections (2) to (3.2) is also liable to the minimum punishment described in paragraph (1)(a).
...[(4), (5)]...
R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.

CCC

Proof of Offences

Proving Impaired driving causing bodily harm under s. 255(2) should include:

  1. underlying offence under s. 253(1)(a)
  2. the offence caused bodily harm of another person

Proving Blood alcohol level over legal limit — bodily harm under s. 255(2.1) should include:

  1. underlying offence under s. 253(1)(b)
  2. in committing the underlying offence, caused an accident
  3. the accident involved bodily harm to another person

Proving Failure or refusal to provide sample — bodily harm under s. 255(2.2) should include:

  1. underlying offence under s. 254(5)
  2. the culprit knew or ought to have known that the operation or care and control of vehicle caused accident resulting in bodily harm

Proving Impaired driving causing death under s. 255(3) should include:

  1. underlying offence under s. 253(1)(a)
  2. causes the death of another person as a result

Proving Blood alcohol level over legal limit — death under s. 255(3.1) should include:

  1. underlying offence under s. 253(1)(b)
  2. causes an accident resulting in the death of another person

Proving Failure or refusal to provide sample — death under s. 255(3.2) should include:

  1. underlying offence under s. 254(5)
  2. the accused knew or ought to have known that the operation or care and control of vehicle caused accident resulting in death

Interpretation of the Offence

Available Defences

Participation of Third Parties

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

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

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

On Finding of Guilt

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

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

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

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 255(2), (2.1), or (2.2) [bodily harm] N/A 10 years custody
s. 255(3), (3.1), or (3.2) [death] N/A life in custody

Offences under s. 255 are straight indictable. The maximum penalty is 10 years incarceration [bodily harm] or life [death] .

Minimum Penalties

The mandatory minimums remain the same for s. 255(1). The minimum penalty is $1,000 with no prior convictions, 30 days jail with a single prior conviction, and 120 days for each subsequent conviction.

255
...

Interpretation

(3.3) For greater certainty, everyone who is liable to the punishment described in any of subsections (2) to (3.2) is also liable to the minimum punishment described in paragraph (1)(a).
...
R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.

CCC

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. 255
With Bodily Harm
N/A X Mark Symbol.png X Mark Symbol.png OK Symbol.png(*no priors) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 255
With Death
N/A X Mark Symbol.png X Mark Symbol.png OK Symbol.png(*no priors) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 255 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".

Section 731(1)(a) precludes the use of suspended sentences where there are mandatory minimums.[1]

Where there is one or more prior convictions, there are no stand-alone fines, or conditional sentences.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Previous Convictions
Punishment

255 (1)
...

Previous convictions

(4) A person who is convicted of an offence committed under section 253 or subsection 254(5) is, for the purposes of this Act, deemed to be convicted for a second or subsequent offence, as the case may be, if they have previously been convicted of

(a) an offence committed under either of those provisions;
(b) an offence under subsection (2) or (3); or
(c) an offence under section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.
  • [Note: In force in the provinces of Nova Scotia, New Brunswick, Manitoba, Prince Edward Island, Saskatchewan and Alberta and in the Yukon Territory, the Northwest Territories and the Nunavut Territory, see SI/85-211 and SI/88-24.]


R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.

CCC

Ranges

see also: Impaired Driving, Over 80 and Refusal Causing Bodily Harm or Death (Sentencing Cases)

Bodily Harm

In New Brunwsick, the range for impaired driving causing bodily harm it has been suggested the proper range is 3 to 18 months imprisonment.[2]

In Manitoba, the range for impaired driving bodily harm without a record previously had a range of between 3 to 18 months and has been increased to about 6 to 24 months.[3]

  1. R v Berner, 2013 BCCA 188 (CanLII), per curiam (3:0), at para 36
  2. R v Williams, 2009 NBPC 16 (CanLII), per Whalen J
  3. R v Smoke, 2014 MBCA 91 (CanLII), per Beard JA, at para 51
    R v Anderson, 2016 MBPC 28 (CanLII), per Martin J, at para 23

Death

Caution should be taken to "rigidly" apply a range of sentence in cases involving impaired driving causing death.[1]

In New Brunswick, the range of sentence on impaired driving causing death for a person with no record is between 2 to 5 years with a 3 to 10 year driving prohibition.[2], 9 months to 7 years jail (British Columbia).[3]

In Ontario, sentences of 4 to 6 years have been upheld for causing death.[4] But have gone upwards of 9 years when multiple death are involved.[5]

Prior Related Record

In New Brunswick, where there is a prior record the range is between 4 to 8 years with an 8 years to life driving prohibition.[6]

In Ontario, where there is a prior record the range is between 7.5 to 12 years.[7]

  1. R v Junkert, 2010 ONCA 549 (CanLII), per O'Connor ACJ, at para 40 ("I begin by noting that courts should be cautious in rigidly applying "a range" of sentences in cases such as this, involving impaired driving causing death")
  2. R v Ruizfuentes, 2010 MBCA 90 (CanLII), per Chartier JA
  3. R v Johnson (1996), 84 BCAC 261, 1996 CanLII 3148 (BC CA), per Ryan JA
    R v Casimir, 2001 BCCA 310 (CanLII), per McEachern CJ stating its range is 3 to 6 years
    R v Smith, 2013 BCCA 173 (CanLII), per Bennett JA (3:0) sets range of 18 months to 8 years
  4. See Ramage, supra
    R v Altiman, 2019 ONCA 511 (CanLII), per Brown JA, at paras 70 to 71 ("This review of the case law leads me to conclude that, since the turn of the decade, in this province sentences for impaired driving causing death typically have fallen in the four to six-year range, unless the offender has a prior criminal or driving offence record.")
    R v Niganobe, 2010 ONCA 508 (CanLII), per curiam
    R v Hall, 2007 ONCA 8 (CanLII), (2007), 83 O.R. (3d) 641, per LaForme JA
  5. R v Wood, 2005 CanLII 13779 (ONCA), per curiam - 9 year sentence for killing three and injuring one. Offender BAC was twice legal limit.
    R v Mascarenhas, 2002 CanLII 41625 (ONCA), per Abella JA - 9 year sentence for killing two pedestrians. Offender BAC was .339 and .353.
    R v Kummer, 2011 ONCA 39 (CanLII), per MacPherson JA (3:0) - 8 year sentence for killing three people and injuring one.
  6. Ruizfuentes, supra
  7. Altiman, supra, at paras 70 to 71 (where there is a prior record "lengthier sentences have been imposed, ranging from seven and one-half to twelve years.")

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 255(2), (2.1), (2.2), (3), (3.1), (3.2)
Driving Prohibition Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time)
Delayed Parole Order
  • Periods of imprisonment of 2 years or more for convictions under s. 255(2) and (3) 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".
Forfeiture of Vehicle
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)

2000 to 2008

Punishment

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than six hundred dollars,
(ii) for a second offence, to imprisonment for not less than fourteen days, and
(iii) for each subsequent offence, to imprisonment for not less than ninety days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months.
Impaired driving causing bodily harm

(2) Every one who commits an offence under paragraph 253(a) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Impaired driving causing death

(3) Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.

Previous convictions

(4) Where a person is convicted of an offence committed under paragraph 253(a) or (b) or subsection 254(5), that person shall, for the purposes of this Act, be deemed to be convicted for a second or subsequent offence, as the case may be, if the person has previously been convicted of

(a) an offence committed under any of those provisions;
(b) an offence under subsection (2) or (3); or
(c) an offence under section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.
Conditional discharge
  • (5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.


  • [Note: In force in the Provinces of Nova Scotia, New Brunswick, Manitoba, Prince Edward Island, Saskatchewan and Alberta and in the Yukon Territory and the Northwest Territories, see SI/85-211 and SI/88-24.]


R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2.

CCC

See Also

Offences
References

Importing or Exporting Drug Paraphernalia (Repealed Offence)

PART XII.1 of the Code, including this offence, was repealed by the Cannabis Act, 2018, c. 16 on October 16, 2018 and 2019, c. 25, s. 178.[1]


Importing or Exporting Drug Paraphernalia
s. 462.2 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. 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 $100,000 and 6 months incarceration (first ofrence) $300,000 and 1 year incarceration (subsequent offence)
Reference
Offence Elements
Sentence Digests

Overview

The offence of importing or exporting drug paraphernalia is a drug offence found in Part XII.1 of the Criminal Code.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 462.2 [importing or exporting drug paraphernalia] Summary Offence(s) N/A No

Offences under s. 462.2 [importing or exporting drug paraphernalia] 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. 462.2 [importing or exporting drug paraphernalia] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

When charged under s. 462.2 [importing or exporting drug paraphernalia], 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.


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. 462.2 [importing or exporting drug paraphernalia] 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

PART XII.1
INSTRUMENTS AND LITERATURE FOR ILLICIT DRUG USE

...

Offence and Punishment
Offence

462.2 Every one who knowingly imports into Canada, exports from Canada, manufactures, promotes or sells instruments or literature for illicit drug use is guilty of an offence and liable on summary conviction

(a) for a first offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both; or
(b) for a second or subsequent offence, to a fine not exceeding three hundred thousand dollars or to imprisonment for a term not exceeding one year or to both.

R.S., 1985, c. 50 (4th Supp.), s. 1.

CCC

Proof of the Offence

Proving importing or eporting drug paraphrenalia under s. 462.2 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit imports to Canada, exports from Canada, manufacture, promotes or sells a thing
  5. that thing is an instrument or literature for illicit drug
  6. the culprit knowingly does the prohibited act

Interpretation

Misc Definitions

Definitions

462.1 In this Part,
...
“consume” includes inhale, inject into the human body, masticate and smoke;
...
“illicit drug” means a controlled substance or precursor the import, export, production, sale or possession of which is prohibited or restricted pursuant to the Controlled Drugs and Substances Act;
...
“illicit drug use” means the importation, exportation, production, sale or possession of a controlled substance or precursor contrary to the Controlled Drugs and Substances Act or a regulation made under that Act;
...
“instrument for illicit drug use” means anything designed primarily or intended under the circumstances for consuming or to facilitate the consumption of an illicit drug, but does not include a “device” as that term is defined in section 2 of the Food and Drugs Act;
...
“literature for illicit drug use” means any printed matter or video describing or depicting, and designed primarily or intended under the circumstances to promote, encourage or advocate, the production, preparation or consumption of illicit drugs;
...
“sell” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration.
R.S., 1985, c. 50 (4th Supp.), s. 1; 1996, c. 19, s. 67.

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
Offence(s) Crown
Election
Maximum Penalty
s. 462.2 [importing or exporting drug paraphernalia] N/A $100,000 fine and/or 6 months jail
s. 462.2 [importing or exporting drug paraphernalia]
with prior conviction
N/A $300,000 fine and/or 1 year jail

Offences under s. 462.2 are straight summary conviction offences. The maximum penalty is $100,000 fine and/or 6 months jail or $300,000 fine and/or 1 year jail, with one or more prior convictions.

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. 462.2 [importing or exporting drug paraphernalia] 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

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.

See Also

Street Racing


Street Racing
s. 249.2 to 249.4 of the Crim. Code
Election / Plea
Crown Election Indictment (harm or death), 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 (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)*

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

(* varies)
Minimum None
Maximum 5 years incarceration (danger)
14 years incarceration (harm) or Life (death)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to street racing 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. 249.2, 249.3, and 249.4(3) and (4) Indictable Offence(s) N/A Yes {{{4}}}
s. 249.4(2) Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment {{{4}}}

Offences under s. 249.2, 249.3, and 249.4(3) and (4) are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 249.4(2) 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. 249.2, 249.3, and 249.4(3) and (4), the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

When charged under s. 249.4(2), 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. 249.2, 249.3, and 249.4(3) and (4) X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 249.2, 249.3, and 249.4(3) and (4) 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

Causing death by criminal negligence (street racing)

249.2 Everyone who by criminal negligence causes death to another person while street racing is guilty of an indictable offence and liable to imprisonment for life.
2006, c. 14, s. 2.

Causing bodily harm by criminal negligence (street racing)

249.3 Everyone who by criminal negligence causes bodily harm to another person while street racing is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
2006, c. 14, s. 2.

Dangerous operation of motor vehicle while street racing

249.4 (1) Everyone commits an offence who, while street racing, operates a motor vehicle in a manner described in paragraph 249(1)(a).

Punishment

(2) Everyone who commits an offence under subsection (1)

(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.
Dangerous operation causing bodily harm

(3) Everyone who commits an offence under subsection (1) and thereby causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Dangerous operation causing death

(4) Everyone who commits an offence under subsection (1) and thereby causes the death of another person is guilty of an indictable offence and liable to imprisonment for life.
2006, c. 14, s. 2.

CCC

Proof of Elements

Proving street racing, causing death under s. 249.2 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit does anything that amounts to "criminal negligence"
  5. the prohibited act "causes death to another person" and
  6. the prohibited act occurred "while street racing".

Proving street racing, causing bodily under s. 249.3 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit does anything that amounts to "criminal negligence"
  5. the prohibited act "causes bodily harm to another person" and
  6. the prohibited act occurred "while street racing".

Proving dangerous operation while street racing, causing bodily under s. 249.4(1), (2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "operates a motor vehicle";
  5. the operation is in a "manner described in paragraph 249(1)(a)"
  6. the prohibited act occurred "while street racing".

Proving dangerous operation while street racing, causing bodily under s. 249.4(3) should include:

  1. the underlying elements of s. 249.4(1);
  2. another person suffers bodily harm; and
  3. prohibited act causes the bodily harm.

Proving dangerous operation while street racing, causing bodily under s. 249.4(4) should include:

  1. the underlying elements of s. 249.4(1);
  2. another person dies; and
  3. prohibited act causes the death.

Interpretation of the Offence

Where there is no direct evidence of a race, the court can consider a number of factors indicative of racing. The factors include:[2]

  1. two vehicles travelling at excessive speeds;
  2. two vehicles being driven aggressively in tandem;
  3. two vehicles in close proximity to each other over a material distance;
  4. one vehicle tailgating the other or other vehicles;
  5. abrupt and unsafe lane changes;
  6. blocking;
  7. bold manoeuvres in and out of traffic;
  8. jockeying for position;
  9. high‑risk passing manoeuvres;
  10. acts or gestures between the drivers;
  11. "lay witness’ opinions that the drivers appeared to be racing although a conclusory statement that the drivers were racing is of minimal evidentiary value without the bases upon which the witness reached that conclusion. It would be akin to seeking to establish dangerous driving where the only evidence was a witness who said, “I was sitting on my porch and the accused drove his car down the road in a dangerous manner."

The absence of any number of factors is not determinative to the court's decision.

Misc Definitions

Section 2 defines "street racing":

2
...
street racing means operating a motor vehicle in a race with at least one other motor vehicle on a street, road, highway or other public place;
...
[This definition was repealed by SC 2018, c 21, s. 12]

CCC

Section 219 defines "criminal negligence".

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)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 249.4(2)), 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. 249.2 and
s. 249.4(4)
N/A life in custody
s. 249.3 and
s. 249.4(3)
N/A 14 years custody
s. 349.4(2) Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 349.4(2) Indictable Election 5 years custody

Offences under s. 249.2, 249.3, and 249.4(3) and (4) are straight indictable. The maximum penalty is life under s. 249.2 and 249.4(4) and 14 years incarceration under s. 249.3 and 249.4(3).

Offences under s. 249.4(2) 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. 249.4(2) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 249.2, 249.3, and 249.4(3) and (4) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 249.4(2), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 249.2, 249.3, and 249.4(3) and (4) 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. 249.2, 249.3, and 249.4(3) and (4) 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.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 249.1(4), 249.2, 249.3, 249.4(3) or 249.4(4)
Delayed Parole Order s. 249.1(3) and (4), 249.1, 249.2, 249.3 or 249.4
  • Periods of imprisonment of 2 years or more for convictions under s. 249.1(3) and (4), 249.1, 249.2, 249.3 or 249.4 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.

See Also

Operation While Impaired by Alcohol or Drug and Refusal (Repealed Offence)

REPEALED DECEMBER 2018
Impaired Driving, Over 80 and Refusal
s. 253, 254 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)

(* varies)
Minimum $1,000 + 12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days + 3 or more years Driving Prohib. (three or more)
Maximum 18 months incarceration or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum same as summary
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Section 253 describes two distinct but related offences. The offence of "impaired driving" prohibits the operation or care and control of a vehicle while the person's ability to operate it is impaired by drug or alcohol. The offence of "over 80" prohibits the operation or care and control of a vehicle while the person's blood alcohol concentration (BAC) is over 80mg per 100ml of blood.

These offences are some of the most heavily litigated of all criminal offences. The proof of impaired driving has basis largely on the observational evidence of eye-witnesses, usually the investigating officer. They can become complicated when involving drugs rather than alcohol as it requires a Drug Recognition Expert. The proof of the Over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence. There are several short cuts to proof that are available under s. 258.

Both offences have the common element of operation or care and control, which becomes most uncertain when examining whether there was care or control arising from the risk of the vehicle being put in motion. These offences also often engage Charter rights under s. 8 and 9, 10(b).

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 253 and 254 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. 253 and 254 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the statutory increased penalties can be applied for convictions under s. 253 and 254, notice of increased penalty under s. 727 must be given.

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. 253 or 254 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 253 or 254, 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. 253 or 254 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. 253 or 254 OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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

Offence Wording

Operation while impaired

253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
For greater certainty

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.

Operation while impaired — blood drug concentration

(3) Subject to subsection (4), everyone commits an offence who has within two hours after ceasing to operate a motor vehicle or vessel or after ceasing to operate or to assist in the operation of an aircraft or of railway equipment or after ceasing to have the care or control of a motor vehicle, vessel, aircraft or railway equipment

(a) a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation;
(b) a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (a); or
(c) a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
Exception

(4) No person commits an offence under subsection (3) if

(a) they consumed the drug or the alcohol or both after ceasing to operate a motor vehicle or vessel, or after ceasing to operate or assist in the operation of an aircraft or railway equipment or after ceasing to have the care or control of a motor vehicle, a vessel, an aircraft or railway equipment; and
(b) after ceasing the activities described in paragraph (a), they had no reasonable expectation that they would be required to provide a sample of a bodily substance.

R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59; 2008, c. 6, s. 18; 2018, c. 21, s. 1.

CCC

Failure or refusal to comply with demand

s. 254
...
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

Punishment

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

...
R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.

CCC

Proof of the Offences

Proving operating while impaired under s. 253(1)(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  5. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  6. there was any amount of impairment of the accused ability to drive at the time
  7. the impairment was by alcohol or drug at the time
  8. The accused voluntarily consumed the alcohol

Proving operating while BAC over 80 under s. 253(1)(b) should include:[2]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  5. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  6. The Accused's BAC was over 80 at the time
    1. each sample taken as soon as practicable after offence was committed
    2. first sample taken not later than two hours
    3. interval of at least 15 minutes between samples
    4. each sample received from suspect directly into instrument
    5. the instrument was an approved instrument
    6. the instrument was operated by a qualified technician
    7. the technician made an analysis of each sample

Proving refusal to give a sample under s. 254 should include:[3]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. A proper demand was given and understood;
  5. there was a refusal or failure to provide a proper sample; (actus reus)
  6. the culprit intended not to provide a proper sample; (mens rea) and
  7. there was no reasonable excuse for refusing.
  1. R v Andrews, 1996 ABCA 23 (CanLII), per Conrad JA (2:1), at para 31 discusses impairment
  2. Andrews, ibid., at para 31 discusses impairment
  3. R v Lewko, 2002 SKCA 121 (CanLII), per Bayda CJ, at para 9

Interpretation of the Offence

Generally, the "evil" that the offence seeks to address is the combination of alcohol and motor vehicles as it tends to "breed danger".[1]

The objective of the offence under s. 253(1)(b) is to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion".[2]

The police do not simply have the statutory authority to investigate driver sobriety, but also have a legal duty to investigate.[3]


  1. Saunders v The Queen, 1967 CanLII 56 (SCC), [1967] SCR 284, per Fauteux J (5:0)
  2. R v Whyte, 1988 CanLII 47 (SCC), [1988] 42 CCC (3d) 97, per Dickson CJ, at para 47
  3. R v Orbanski, 2005 SCC 37 (CanLII), per Charron J

Investigation

Section 254 creates a two-stage process whereby an officer may demand that a driver take a roadside screening test (s. 254(2)) where the officer has reasonable suspicion that the driver has alcohol in his body. The second step allows the officer to demand a breathalyzer test where the officer has reasonable grounds to believe that the driver committed an impaired driving offence.[1]

The roadside screening device is not necessary in all circumstances. Its purpose is only to assist in forming reasonable grounds, which can sometimes be obtained by other means.[2]

Investigation of Impairment/Over 80

  1. R v Flight, 2014 ABCA 185 (CanLII), per Veldhuis JA, at paras 31 to 33
  2. e.g. R v Fogarty, 2015 NSCA 6 (CanLII), per Fichaud JA - example of RPG formed without roadside screening

Mens Rea of Impaired Driving

The charge of impaired driving is a general intent offence.[1]

Part of the mens rea of the offence of impaired driving is made out by the accused's voluntary consumption of alcohol for the purpose of becoming intoxication or the accused "acting recklessly, aware that impairment could result, but persisting despite the risk". [2]

It is not necessary that the accused have actual knowledge of the effects of drugs or alcohol. Proof of recklessness is sufficient.[3]

Where the voluntary consumption of alcohol is proven, there is a rebuttable presumption the mens rea is made out. [4]

The intent to be impaired can be negated in certain circumstances where the accused's drink may have been drugged.[5]

  1. R v Charles, 2013 BCSC 23 (CanLII), per Sigurdson J, at para 40
  2. R v Mavin, 1997 CanLII 14625 (NL CA), (1997), 154 Nfld. & P.E.I.R. 242, per Marshall JA, at paras 37 to 39
    Charles, supra, at para 41
  3. R v Pomeroy, 2007 BCSC 142 (CanLII), per Romilly J
    R v Honish, 1993 CanLII 156 (SCC), [1993] 1 SCR 458, per Lamer CJ(7:0)
  4. R v King, 1962 CanLII 16 (SCC), [1962] SCR 746, per Ritchie J, at p. 763
  5. e.g. R v Sitarz, 2012 ONCJ 561 (CanLII), per Caldwell J

Motor Vehicle

Under s. 2, "motor vehicle" is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;" Certain vehicles, such as scooters, are powered by either pedal or motor, the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence.[1]

A vehicle that is inoperable, such as were it is out of gas, will still be a motor vehicle. It is not relevant whether the vehicle is functioning or operable.[2]

An e-bike that is not being pedaled will be a "motor vehicle" under s. 2.[3]

  1. see for example R v Rookes, 2012 SKPC 80 (CanLII), per Hinds J
  2. R v Lloyd, 1988 CanLII 5326 (SK CA), [1988] SJ No 216 (SKCA), per Wakeling JA
    R v Saunders, 1967 CanLII 56 (SCC), [1967] SCR 284, per Fauteux J, at p. 290
  3. R v Clifford, 2014 ONSC 2388 (CanLII), per Koke J
    R v Kulbacki, 2012 ONCJ 532 (CanLII), per Radley-Walters J
    cf. R v Rookes, 2012 SKPC 80 (CanLII), per Hinds J

Issues

Regulations Relating to Investigations

Regulations

253.1 The Governor in Council may make regulations

(a) prescribing the blood drug concentration for a drug for the purposes of paragraph 253(3)(a);
(b) prescribing the blood drug concentration for a drug for the purposes of paragraph 253(3)(b); and
(c) prescribing a blood alcohol concentration and a blood drug concentration for a drug for the purposes of paragraph 253(3)(c).

2018, c. 21, s. 2.

CCC

Approval — Attorney General of Canada

254.01 The Attorney General of Canada may, by order, approve

(a) a device that is designed to ascertain the presence of alcohol in a person’s blood;
(b) equipment that is designed to ascertain the presence of a drug in a person’s body;
(c) an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine their blood alcohol concentration; and
(d) a container that is designed to receive a sample of a person’s blood for analysis.

2018, c. 21, s. 4.

CCC

Regulations

254.1 (1) The Governor in Council may make regulations

(a) respecting the qualifications and training of evaluating officers;
(b) prescribing the physical coordination tests to be conducted under paragraph 254(2)(a); and
(c) prescribing the tests to be conducted and procedures to be followed during an evaluation under subsection 254(3.1).


Incorporated material

(2) A regulation may incorporate any material by reference either as it exists on a specified date or as amended from time to time.

Incorporated material is not a regulation

(3) For greater certainty, material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference.
2008, c. 6, s. 20.

CCC

Kienapple Principle

Kienapple does not prevent a conviction for dangerous driving causing death or bodily harm and impaired driving causing bodily harm or death. The first offence concerns the ability to operate a vehicle while the second offence focuses on the manner in which the vehicle was operated.[1]

The offence of impaired care and control of a motor vehicle is an included offence of impaired operation of a motor vehicle.[2]

Refusal

254
...

Only one determination of guilt

(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

  1. R v Ramage, 2010 ONCA 488 (CanLII), per Doherty JA (3:0), at paras 59 to 66
  2. R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA

Available Defences

Participation of Third Parties

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

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

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

On Finding of Guilt

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

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

Sentencing Principles and Ranges

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 255 Summary Election 18 months custody
s. 255 Indictable Election 5 years custody

Offences under s. 255 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months jail.

Minimum Penalties

For offences under s. 255, the minimum penalty is a $1,000 fine, 30 days jail with a prior conviction, or 120 days jail with two or more prior convictions.

There is some suggestion that a jail sentence can substitute for a fine, where there is no prior record.[1]

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. 255 any OK Symbol.png (**) X Mark Symbol.png OK Symbol.png (**) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

[2]

For offences under s. 255 without any prior convictions, discharges are not available.

For offences under s. 255 with a prior conviction, discharges, suspended sentences, stand-alone fines and conditional sentences are not available.

Despite any mandatory minimum penalties, the judge has discretion to substitute a mandatory sentence with a curative discharge for convictions under s. 253, which includes impaired driving and operating a vehicle with BAC level over 80mg/ml.[3]

Section 731(1)(a) precludes the use of suspended sentences where there are mandatory minimums.[4]

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

  1. R v Hatcher, 2000 NFCA 38 (CanLII), per Wells CJ, at para 19
  2. (**) Availability may vary
  3. Discharges are not available in British Columbia, Ontario, Quebec, or Newfoundland
  4. R v Berner, 2013 BCCA 188 (CanLII), per curiam (3:0), at para 36

Principles

Impaired driving causes "the most significant social loss to the country".[1] Every impaired driver is a "potential killer".[2]

The predominant objectives to be considered is general deterrence and denunciation.[3]

The lack of bodily harm or death is not necessarily eliminate the need to protect the public.[4] The Court can consider the risk of potential harm from the offender's conduct.[5]

Deterrence and denunciation are especially important objectives when bodily harm is caused to another person.[6]

255
...

Previous convictions

(4) A person who is convicted of an offence committed under section 253 or subsection 254(5) is, for the purposes of this Act, deemed to be convicted for a second or subsequent offence, as the case may be, if they have previously been convicted of

(a) an offence committed under either of those provisions;
(b) an offence under subsection (2) or (3); or
(c) an offence under section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.

R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; [[List of Criminal Code Amendments|2008, c. 6, s. 21, c. 18, ss. 7, 45.2.]]

CCC

  1. e.g. R v Beaudry, 2007 SCC 5 (CanLII), [2007] 1 SCR 190, per Charron J at 42
    R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, per Cory J ("a far greater impact on Canadian society than any other crime")
  2. R v Lahiry, 2011 ONSC 6780 (CanLII), per Code J, at para 89
  3. R v Clouthier, 2016 ONCA 197 (CanLII), per Watt JA (3:0), at para 54
    R v Squires, 1995 CanLII 9848 (NL CA), [1995] N.J. No. 157 (C.A.), per Gushue JA, at p. 5
    R v McVeigh, 1985 CanLII 115 (ON CA), per MacKinnon ACJ, at p. 150
  4. R v Riggs, 2011 NLTD 26 (CanLII), per Handrigan J, at para 37
    R v Jacobs, 1982 ABCA 204 (CanLII), (1982), 70 CCC (2d) 569 (Alta. C.A.), per Laycraft JA (3:0)
    R v Connolly, 2002 CanLII 41923 (NL PC), [2002] N.J. No. 40 (P.C.), per Gorman J, at para 18
    R v Alexson (1987), 1987 CanLII 4900 (SK CA), 7 M.V.R. (2d) 95 (Sask. C.A.), per Tallis JA
  5. R v Woodward, 1993 CanLII 8183 (NL CA), (1993), 108 Nfld. & P.E.I.R. 240 (N.L.C.A.), per Steele JA
  6. Clouthier, supra, at para 54 ("The predominant sentencing objectives in determining a fit sentence for alcohol-driving offences, especially those in which bodily harm is caused to a fellow human being, are general deterrence and denunciation")
    R v Junkert, 2010 ONCA 549 (CanLII), 103 O.R. (3d) 284, per O'Connor ACJ, at paras 42 and 47
    R v Biancofiore (1997), 1997 CanLII 3420 (ON CA), 35 O.R. (3d) 782 (C.A.), per Rosenberg JA (3:0), at pp. 790-92

Factors

Aggravating factors:

  • BAC reading, esp. if exceeding 160mg (s. 255.1)
  • other signs of a high degree of impairment
  • injuries to other persons
  • prior alcohol-related convictions, including dates

See also: R v Musseau, 2010 CanLII 2539 (NL PC), [2010] N.J. No. 25 (P.C.), per Gorman J

Aggravating circumstances for sentencing purposes

255.1 Without limiting the generality of section 718.2, where a court imposes a sentence for an offence committed under this Act by means of a motor vehicle, vessel or aircraft or of railway equipment, evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood shall be deemed to be aggravating circumstances relating to the offence that the court shall consider under paragraph 718.2(a).
1999, c. 32, s. 4(Preamble).

CCC

Ranges

see also: Impaired Driving, Over 80 and Refusal (Sentencing Cases)

Generally, a custodial sentence is required when bodily harm is caused.[1]

In Manitoba, impaired causing bodily harm will typically involve a range of sentence from 3 to 18 months.[2]

In Nova Scotia, the range of sentence for impaired driving causing death with no prior record is 2 to 5 years.[3]

Persistent or Repeat Offenders

The protection of the public is paramount in sentencing "offenders who persistently drive motor vehicles when they are impaired or disqualified."[4]

  1. R v Clouthier, 2016 ONCA 197 (CanLII), per Watt JA, at para 55
    R v Biancofiore (1997), 35 O.R. (3d) 782 (C.A.), 1997 CanLII 3420 (ON CA), per Rosenberg JA, at p. 791
  2. R v MacDonald, 1999 CanLII 5083 (MB CA), (1999), 139 CCC (3d) 524 (Man. C.A.), per Twaddle JA (2:1)
  3. R v Morine, 2011 NSSC 46 (CanLII), per Rosinski J, at para 79
  4. R v Clarke, 2013 SKCA 130 (CanLII), per Jackson JA (3:0), at para 10

Curative Discharges

The only exception to the mandatory minimums is where a curative discharge is ordered by the court (only available in certain provinces).

255
...

Conditional discharge

(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.
*[Note: In force in the Provinces of Nova Scotia, New Brunswick, Manitoba, Prince Edward Island, Saskatchewan and Alberta and in the Yukon Territory and the Northwest Territories, see SI/85-211 and SI/88-24.]
R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.

CCC

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 254(5), 255
Driving Prohibition Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time or more)
Forfeiture of Vehicle
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)

See Also

References

Dangerous Operation of a Motor Vehicle (Repealed Offence)


Dangerous Operation of a Motor Vehicle
s. 249, 249.1 to 249.4 of the Crim. Code
Election / Plea
Crown Election Indictment (harm or death)
Hybrid (no bodily harm or death)
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 (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)*

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

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

Overview

Offences relating to dangerous operation of a motor vehicle 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)
s. 249(2) and
s. 249.1(2) [no bodily harm or death]
Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment {{{4}}}
s. 249(3) or (4) or 249.4(3) or (4) [causes bodily harm or death] Indictable Offence(s) N/A Yes {{{4}}}

Offences under s. 249(2) and 249.1(2) [no bodily harm or death] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 249(3) or (4) or 249.4(3) or (4) [causes bodily harm or death] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

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

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

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

s. 2 ID Crim. Act
s. 249(2) or 249.4(2) OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 249(3) or (4), or 249.4(3) or (4) X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 249(2) or 249.4(2), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 249(3) or (4) or 249.4(3) or (4), 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.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 249(2), (3), (4), 249.1(2), 249.4(3) or (4) 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

Offences under s. 259(3) and (4) 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

Dangerous operation of motor vehicles, vessels and aircraft

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
(b) a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea;
(c) an aircraft in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; or
(d) railway equipment in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of the equipment or the place in or through which the equipment is operated.
Punishment

(2) Every one who commits an offence under subsection (1) [dangerous operation of motor vehicles, vessels and aircraft]

(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.
Dangerous operation causing bodily harm

(3) Every one who commits an offence under subsection (1) [dangerous operation of motor vehicles, vessels and aircraft] and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Dangerous operation causing death

(4) Every one who commits an offence under subsection (1) [dangerous operation of motor vehicles, vessels and aircraft] and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 249; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 57; 1994, c. 44, s. 11.

CCC

Dangerous operation of motor vehicle while street racing

249.4 (1) Everyone commits an offence who, while street racing, operates a motor vehicle in a manner described in paragraph 249(1)(a).

Punishment

(2) Everyone who commits an offence under subsection (1) [dangerous operation of motor vehicle while street racing]

(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.
Dangerous operation causing bodily harm

(3) Everyone who commits an offence under subsection (1) [dangerous operation of motor vehicle while street racing] and thereby causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Dangerous operation causing death

(4) Everyone who commits an offence under subsection (1) [dangerous operation of motor vehicle while street racing] and thereby causes the death of another person is guilty of an indictable offence and liable to imprisonment for life.
2006, c. 14, s. 2.

CCC

Proof of the Offence

Proving dangerous operation of a motor vehicle under s. 249(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit operated a motor vehicle
  5. the manner the accused operated the vehicle was dangerous to the public in the circumstances
    1. driving over the road lines / driving over curbs
    2. failure to obey road-signs, including stop signs, stop lights and speed limits
    3. driving in close proximity with other vehicles (i.e. "tailgating")
    4. collision with other car(s), bikers, pedestrians / collision with inanimate objects
    5. swerving while driving
  6. the culprit knew or ought to have known that the manner of driving was dangerous

Proving dangerous operation of a motor vehicle under s. 249(3) should include:

  1. same elements as s. 249(1);
  2. another person suffers bodily harm;
  3. the harm was "caused" by the alleged act;

Proving dangerous operation of a motor vehicle under s. 249(4) should include:

  1. same elements as s. 249(1);
  2. another person dies;
  3. the death was "caused" by the alleged act;

Proving dangerous operation of motor vehicle while street racing under s. 249.4(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit operated a motor vehicle;
  5. the manner of operation was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place"
  6. the culprit was "street racing" at the time of the alleged act;

Proving dangerous operation of motor vehicle while street racing under s. 249.4(3) should include:

  1. same elements as s. 249.4(1);
  2. another person suffers "bodily harm";
  3. the harm was caused by the alleged act;

Proving dangerous operation of motor vehicle while street racing under s. 249.4(4) should include:

  1. same elements as s. 249.4(1);
  2. another person dies;
  3. the death was caused by the alleged act;

Interpretation of the Offence

Proving the operation of the vehicle where there are no first-hand observers of the accused driving, can be determined through inference by the officer touching the hood of the car to detect recent operation of the vehicle and observing the accused in the vicinity.

Section 2 defines "motor vehicle", "bodily harm", and "railway equipment". Section 214 defines "aircraft", "vessel", and "operates".

The offence under s. 249(1)(a) does not violate s. 7 of the Charter for vagueness.[1]

  1. R v Demeyer, 1986 ABCA 104 (CanLII), per Laycraft CJ

Actus Reus

Actus reus of the offence:

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place."[1]

There must be a "marked departure" from the standard of a reasonable person[2]

The focus of analysis is upon the "risks created by the accused’s manner of driving, not the consequences".[3]

The judge must make "meaningful inquiry into the manner of driving".[4] This could include such considerations as: [5]

  • the traffic conditions at the time;
  • the accused's speed of travel;
  • nature of the road; and
  • the weather conditions.

Failure on the part of the judge to inquire into the manner of driving may result in a finding of an unreasonable verdict.[6]

Failure to do so may result

  1. R v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49, per Charron J, at paras 43, 46 and 49
    see also R v Settle, 2010 BCCA 426 (CanLII), per D Smith JA and Bennet JA, at paras 39 to 41 for history of law pre-Beatty
  2. R v MacGillivray, 1995 CanLII 139 (SCC), [1995] 1 SCR 890, per Cory J
  3. R v Roy, 2012 SCC 26 (CanLII), per Cromwell J, at para 34
  4. Roy, ibid., at para 34
  5. R v Zaba, 2016 ONCA 167 (CanLII), per Huscroft JA
  6. e.g. Zaba, ibid.

Mens Rea

The mens rea has been established is stated as follows:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.[1]
  1. Beatty, supra

Factors

Personal attributes such as age, experience driving and education are generally not relevant.[1] However, they may be relevant where the accused's personal attributes go to the accused's ability to appreciate or avoid risk.[2]

Falling asleep at wheel is not necessarily a criminal offence.[3] In fact, what the vehicle does after the accused falls asleep cannot be attributed as part of the dangerous driving but rather only as a consequence to the initial conscious driving.[4]

Depending on the circumstances, speed alone can amount to a "marked departure" from the standard of care of a reasonable person.[5]

  1. R v Beatty, 2008 SCC 5 (CanLII), per Charron J
  2. R v Roy, 2012 SCC 26 (CanLII), per Cromwell J
  3. R v Chan, 2009 ONCJ 598 (CanLII), per Hogan J
  4. e.g. R v Jiang, 2007 BCCA 270 (CanLII), per Smith JA
  5. R v BJC, 2008 ABCA 331 (CanLII), per Ritter JA
    R v Richards, 2003 CanLII 48437 (ON CA), per curiam

Other Issues

Sleeping Driver

A driver who is sleeping "is not driving of his or her own volition and acts committed while in that automatic state of mind cannot form the actus reus of dangerous driving".[1]

If the sleeping driver was consciously "embarking on driving or in continuing to drive in the face of a real risk of falling asleep" then the offence can be made out.[2] There must still be a marked departure from the standard of a reasonable person.[3]

Evidence of Alcohol Consumption

The Court may consider evidence of consumption of alcohol even where the accused was acquitted for impaired driving.[4]

  1. R v Jiang, 2007 BCCA 270 (CanLII), per Smith JA, at para 17
  2. Jiang, ibid.
  3. R v Roberts, 2009 BCSC 146 (CanLII), per Meiklem J
  4. R v Settle, 2010 BCCA 426 (CanLII), per D Smith JA and Bennett JA - denies claim of issue estoppel

Causes Bodily Harm or Death

See also: Causation

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)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 259(2)), 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. 249(2) and 249.4(2) Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 249(2) and 249.4(2) Indictable Election 5 years custody
s. 249(3) N/A 10 years custody
s. 249(4) or 249.4(3) N/A 14 years custody
s. 249.4(4) N/A life in custody

Offences under s. 249(2) and 249.4(2) 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) .

Offences under s. 249(3) or (4) and 249.4(3) or (4) are straight indictable. The maximum penalty is 10 years under s. 249(3), 14 years under s. 249(4) and 249.4(3), or life incarceration under s. 249.4(4).

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. 249(2) and 249.4(2) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 249(3) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 249(4), 249.4(3) and 249.4(4) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 249(2), 249(3) and 249.4(2), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 249(4), 249.4(3) and 249.4(4) 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. 249(4), 249.4(3) and 249.4(4) 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

The Court’s primary emphasis is placed on general deterrence.[1]

When an offender has a history of improper driving, specific deterrence will be emphasized.[2]

The Dangerous Operation offences are classified as more serious than impair driving and less than criminal negligence.[3]

The sentence must be proportionate to the nature of the harm inflicted. [4]

There must be an emphasis on denunciation and general deterrence, particularly where the consequences are devastating, in order to make clear that these are "true crimes" rather than mere accidents. [5]

In R v Grenke, 2012 ABQB 198 (CanLII), [2012] AJ No 323 (QB), per Germain J, a number of principles have been set out:

  1. while jail sentences of less than two years exist, appeals taken from these sentences often result in the sentence being increased to a three to four-year range;
  2. lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is any involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness;
  3. an early plea of guilt, as a sign of remorse, is often mentioned in lower sentences but I hasten to add that an accused should not be treated more harshly, than the appropriate range of sentence, for exercising their constitutional right to a fair trial;
  4. where an offender has a previous record that involves drinking and driving or other dangerous tendencies relating to the rules of the road, sentences tend to be harsher;
  5. where an offender is a youthful and less experienced driver, more emphasis may be placed on rehabilitation and less on punishment and deterrence; and
  6. where there are multiple convictions the courts should ensure that no one gets a free crime simply because one offence is eclipsed with a more serious one, but, in total and globally the sentence should not be excessive; the sentencing levers of consecutive and concurrent sentences may be used to ensure that, globally, the sentence is appropriate.
  1. R v Fox, 2001 ABCA 64 (CanLII), per curiam, at para 27 ("We agree that denunciation and deterrence are principal objectives in a case of this nature. However, the rehabilitation of the offender must also be considered.")
    R v Hindes, 2000 ABCA 197 (CanLII), per curiam, at para 43 (In reference to the law as it was then relating to conditional sentences: "While the offence is one which calls for deterrence and denunciation we do not exclude the consideration of a conditional sentence.")
    R v Reynolds, 2016 SKQB 21 (CanLII), per Acton J, at para 24 ("Members of the public must be deterred from driving dangerously, particularly in less than ideal conditions, which put other members of the public at danger of injury or death, even though they may be driving in a defensive and completely appropriate manner")
    R v Grenke, 2012 ABQB 198 (CanLII), per Germain J, at para 22 ("Repeatedly our Canadian courts including our Alberta Court of Appeal have emphasized that the crafting of a fit sentence for this type of motor vehicle offense [dangerous driving causing bodily harm] must focus on denunciation and deterrence")
  2. see R v Squires, 1995 CanLII 9848 (NL CA), [1995] N.J. No. 157 (C.A.), per Gushue JA
    R v Strickland, [1997] N.J. No. 398 (S.C.) (*no CanLII links)
  3. R v Woodward (1993), 1993 CanLII 8183 (NL CA), 109 Nfld & PEIR 240 (NLCA), per Steele JA at 30
  4. R v Rhyason, 2007 ABCA 119 (CanLII), [2007] AJ No. 372 (CA), per curiam, at para 29 ("[Proportionality] is the fundamental sentencing factor: [citation omitted]. A sentence is to reflect the gravity of the offence and the degree of responsibility of the respondent.")
    R v Christink, 2012 ONCA 141 (CanLII), [2012] OJ No 989 (CA), per curiam, at para 5
  5. R v Biancofiore, 1997 CanLII 3420 (ONCA), per Rosenberg JA ("condemnation of these types of offences must be clear and, where the offence has devastating consequences, it must be loud...")

Causing Bodily Harm or Death

Where bodily harm is involved, it is among the more serious of motor vehicle offences as it places the public, including completely innocent bystanders at risk of harm.[1]

Primacy is given to denunciation and deterrence .[2]

There is an inherent danger in an object such as a motor vehicle moving at high speed in areas where people frequent.[3]

The regular range for dangerous driving or impaired driving causing bodily harm is between a conditional sentence and two years less a day.[4]

  1. R v McMertry (1987), 21 O.A.C. 68(*no CanLII links) , at para 11
    R v Rawn, 2012 ONCA 487 (CanLII), [2012] O.J. No. 3096 (Ont. C.A.), per Epstein JA
  2. Rawn, ibid., at para 45
    R v Grenke, 2012 ABQB 198 (CanLII), per Germain J, at para 22 ("Repeatedly our Canadian courts including our Alberta Court of Appeal have emphasized that the crafting of a fit sentence for this type of motor vehicle offense [dangerous driving causing bodily harm] must focus on denunciation and deterrence")
  3. R v Field, 2011 ABCA 48 (CanLII), 499 A.R. 178, per Watson JA, at para 23 ( “[d]riving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid calamity cannot be treated as a youthful indiscretion”)
  4. R v Puyenbroek, 2007 ONCA 824 (CanLII), per Feldman JA, at paras 59 to 61

Factors

The aggravating factors to consider include:[1]

  1. the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a “motorised pub crawl”;
  2. greatly excessive speed; racing; competitive driving against another vehicle; “showing off'”;
  3. disregard of warnings from fellow passengers;
  4. a prolonged, persistent and deliberate course of very bad driving
  5. aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);
  6. driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held);
  7. driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills;
  8. driving when knowingly deprived of adequate sleep or rest;
  9. driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns;
  10. other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;
  11. previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving;
  12. more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);
  13. serious injury to one or more victims, in addition to the death(s);
  14. behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;
  15. causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;
  16. offence committed while the offender was on bail; and
  17. dangerous driving while in a residential area or in area where people frequent.

Potential mitigating factors include: [2]

  1. a good driving record;
  2. the absence of previous convictions;
  3. a timely plea of guilty;
  4. genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);
  5. the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
  6. the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.
  1. R v Bennett, 2007 CanLII 11290 (NL PC), per Gorman J citing R v Cooksley, [2004] 1 Cr App(S) 1, at para 15
  2. Cooksley, ibid., at para 15

Ranges

see also: Dangerous Operation of a Motor Vehicle (Sentencing Cases)

In Alberta, the period of incarceration for motor vehicle offence causing death or injury is usually between 3 to 4 years.[1]

  1. R v Grenke, 2012 ABQB 198 (CanLII), per Germain J, at para 22

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 249(2), (3), (4)
Driving Prohibition Orders s. 249(1), (2), (3), or (4)
  • if under 249(1), (2): Max 3 years / Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time)
  • if under 249(3), (4): Max 10 years
Delayed Parole Order s. 249(3) or (4)
  • Periods of imprisonment of 2 years or more for convictions under s. 249(3) and (4) 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".
Forfeiture of Vehicle
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

Failure to Stop or Remain at Scene of Accident (Repealed Offence)


Failure to Stop or Remain at Scene of Accident
s. 252(1.1) and (1.2) 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. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)*

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

(* varies)
Minimum None
Maximum 5 years incarceration
10 years incarceration (harm) or
Life (death)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to failure to stop or remain at scene of accident 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. 252(1.1) [failure to stop] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment {{{4}}}
s. 252(1.2) [failure to stop at accident involving bodily harm] and
s. 252(1.3) [failure to stop at accident involving death]
Indictable Offence(s) N/A Yes {{{4}}}

Offences under s. 252(1.1) [failure to stop at accident] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 252(1.2) [failure to stop at accident involving bodily harm] and 252(1.3) [failure to stop at accident involving death] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

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

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

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

s. 2 ID Crim. Act
s. 252(1.1) [failure to stop at accident] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 252(1.2) [failure to stop at accident involving bodily harm] or (1.3) [failure to stop at accident involving death] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 252(1.1) [failure to stop at accident], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 252(1.2) [failure to stop at accident involving bodily harm] or (1.3) [failure to stop at accident involving death], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 252 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. 252 [failure to stop at accident] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Failure to stop at scene of accident

252. (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

Punishment

(1.1) Every person who commits an offence under subsection (1) [failure to stop at scene of accident – offence] in a case not referred to in subsection (1.2) [failure to stop at scene of accident — bodily harm] or (1.3) [failure to stop at scene of accident — death] is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

Offence involving bodily harm

(1.2) Every person who commits an offence under subsection (1) [failure to stop at scene of accident – offence] knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Offence involving bodily harm or death

(1.3) Every person who commits an offence under subsection (1) [failure to stop at scene of accident – offence] is guilty of an indictable offence and liable to imprisonment for life if

(a) the person knows that another person involved in the accident is dead; or
(b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.


...
R.S., 1985, c. C-46, s. 252; R.S., 1985, c. 27 (1st Supp.), s. 36; 1994, c. 44, s. 12; 1999, c. 32, s. 1(Preamble).

CCC

Proof of the Offence

Proving Failure to Stop or Remain at Scene of Accident under s. 252(1), (1.1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused must be the operator of one of the vehicles
  5. the make and model of the vehicle driven by accused
  6. there must be an accident with a person, vehicle, or cattle
  7. the condition of the objects before and after a collision
  8. the culprit must be aware of the accident
  9. the accused did not stop, give his name/address or offer assistance to any injured persons
  10. the accused must flee for the purpose of escaping criminal or civil liability in relation to the accident (presumed under s. 252(2))

Proving Failure to Stop or Remain at Scene of Accident under s. 252(1.2) should include:

  1. underlying elements of s. 252(1), (1.1)
  2. the culprit knew that "bodily harm has been caused to another person involved in the accident"

Proving Failure to Stop or Remain at Scene of Accident under s. 252(1.3) should include:

  1. underlying elements of s. 252(1), (1.1)
  2. the culprit "knows that another person involved in the accident is dead" or "knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results".

Interpretation of the Offence

Duty

The offence imposes a duty upon all people to stop their vehicles, provide their name and address, and offer assistance to injured persons. A failure to do any of these duties will make out the mens rea of the offence.[1]

Mens Rea

Actual subjective knowledge of the accident is necessary.[2]

Circumstances of the Offence

It is not necessary for the Crown to prove that there was any damage or injury.[3]

Section 252(1)(a) can include a single vehicle accident where "another person" refers to the passenger of the vehicle.[4]

  1. R v Parks, 1979 ABCA 242 (CanLII), per Harradence JA, at paras 7 to 8
    R v Steere, (1972) 6 CCC (2d) 403 (BCCA), 1972 CanLII 1256 (BC CA), per MacFarlane JA
  2. R v Slessor, 1969 CanLII 248 (ON CA), [1970] 2 CCC 247 (Ont. C.A.), per Laskin JA, at pp. 260-61
    R v Faulkner (No. 2) (1977), 37 CCC (2d) 217 (N.S. Co. Ct.), 1977 CanLII 1976 (NS SC), per McLellan J
    R v MacDonald (1972), 8 CCC (2d) 16 (B.C.S.C.), 1972 CanLII 1286 (BC SC), per Berger J, at p. 18 - ("The test therefore is a subjective one. Did the accused know he had been involved in an accident?")
    see also R v Bartlett, 1994 CanLII 4427 (NL SCTD), per Barry J
  3. R v Chase, 2006 BCCA 275 (CanLII), per Rowles JA, at para 40
  4. R v McColl, 2008 ABCA 287 (CanLII), per Hunt JA, at para 28

Definitions

Section 214 defines "aircraft" and "vessel".

"Liability"

"Liability" refers to liability that flows from the accident, not simply any liability that may arise from unrelated acts.[1]

  1. R v Hofer, 1982 CanLII 2378 (SK CA), (1982), 2 CCC (3d) 236 (Sask. C.A.), per Hall JA - judge found sole reason for failing to stop was to avoid arrest due to outstanding warrants

Section 252 Presumption of Mens Rea

Section 252(2) creates a presumption where there is evidence of the accused failing to stop that is proof of intent to escape criminal or civil liability. This presumption can be negated by evidence of intoxication.[1] The presumption is rebutted by presenting evidence that raises a doubt.[2]

The effect of s. 252(2) is that once the full actus reus is proven then the mens rea is presumed until there is evidence to the contrary.[3]

252
...

Evidence

(2) In proceedings under subsection (1) [failure to stop at scene of accident – offence], evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.
R.S., 1985, c. C-46, s. 252; R.S., 1985, c. 27 (1st Supp.), s. 36; 1994, c. 44, s. 12; 1999, c. 32, s. 1(Preamble).

CCC

Section 252(2) requires an accused who is involved in an accident to:[4]

  1. stop
  2. give their name and address, and
  3. offer assistance if a person appears injured or in need of assistance.

A failure to do any of these steps will result in engaging the presumption under s. 252(2).[5]

Despite anything said in s. 252(2), the burden always remains on the Crown. This presumption "does not place any onus on the accused to establish his lack of intent".[6] It is only to be applied "only in the absence of any evidence to the contrary."[7] The accused need only raise a reasonable doubt that he did not have the necessary intent.[8]

The intent to escape liability must relate to liability arising from the accident at issue and not arising from other conduct that may result in liability.[9]

Evidence establishing that the accused escaped to avoid being arrested rather than avoid liability is not evidence to the contrary.[10]

  1. R v Nolet (1980), OJ No. 3027 (ONCA)(*no CanLII links)
  2. R v Kleberc, 2007 YKTC 61 (CanLII), per Luther J, at para 11
  3. R v Roche, 1983 CanLII 130 (SCC), [1983] 1 SCR 491, per Lamer J
  4. R v Seipp, 2017 BCCA 54 (CanLII), per Bennett JA, at para 30
  5. Seipp, ibid., at para 30
  6. Roche, supra, at para 23 ("The presumption provision does not place any onus on the accused to establish his lack of intent. The onus remains on the Crown to prove the case beyond a reasonable doubt. The presumption provision simply assists the Crown in achieving that standard of proof and is applicable only in the absence of any evidence to the contrary.")
  7. Roche, ibid., at para 23
    see also Evidence to the Contrary
  8. R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, per Pigeon J at 551
    Seipp, supra, at para 30
  9. R v Fournier (1979), 8 C.R. (3d) 248 (Q.C.C.A), 1979 CanLII 1619 (QC CA), per Dube JA
  10. Seipp, 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
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 252(1.1) [failure to stop] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 252(1.1) [failure to stop] Indictable Election 5 years custody
s. 252(1.2) [with bodily harm] N/A 10 years custody
s. 252(1.3) [with death] N/A life in custody

Offences under s. 252(1.1) 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) .

Offences under s. 252(1.2) and (1.3) are straight indictable. The maximum penalty is 10 years under s. 252(1.2) or life under s. 252(1.3).

Minimum Penalties

These offences have no mandatory minimum penalties.

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

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

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 252(1.1) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 252(1.2) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 252(1.3) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 252(1.1) or (1.2), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 252(1.3) 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. 252(1.3) 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: Failure to Stop or Remain at Scene of Accident (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 252
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

Flight from a Peace Officer (Repealed Offence)


Flight from a Peace Officer
s. 249.1 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

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

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

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)*

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

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

Overview

Offences relating to flight from 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. 249.1(2) [without bodily harm] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment, but no preliminary inquiry. {{{4}}}
s. 249.1(3) [with bodily harm or death] Indictable Offence(s) N/A Yes, with an option of a preliminary inquiry. {{{4}}}

Offences under s. 249.1(2) [without bodily harm] [without Bodily Harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2). Offences under s. 249.1(3) [with Bodily Harm or Death] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

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

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

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

s. 2 ID Crim. Act
s. 249.1(2) [without bodily harm] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 249.1(3) [with Bodily Harm or Death] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 249.1(3) [with Bodily Harm or Death], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

When charged under s. 249.1(2) [without bodily harm], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 249.1 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

Flight

249.1 (1) Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.

Punishment

(2) Every one who commits an offence under subsection (1) [flight from peace officer]

(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.
Flight causing bodily harm or death

(3) Every one commits an offence who causes bodily harm to or the death of another person by operating a motor vehicle in a manner described in paragraph 249(1)(a) [dangerous operation of motor vehicle], if the person operating the motor vehicle was being pursued by a peace officer operating a motor vehicle and failed, without reasonable excuse and in order to evade the police officer, to stop the vehicle as soon as is reasonable in the circumstances.

Punishment

(4) Every person who commits an offence under subsection (3) [flight from peace officer – causing harm or death]

(a) if bodily harm was caused, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years; and
(b) if death was caused, is guilty of an indictable offence and liable to imprisonment for life.

2000, c. 2, s. 1.

CCC

Proof of the Offence

Proving flight from a peace officer under s. 249.1(1) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit operated a motor vehicle;
  5. the police pursued the vehicle in their own vehicle;
  6. the culprit knew a peace officer was pursing them;
  7. the culprit failed to stop as soon as reasonably possible in the circumstances;
  8. the absence of a reasonable excuse for failing to stop;
  9. the culprit failed to stop in order to evade the police;
  10. the speed of the chase;
  11. signs of dangerous driving and whether any other persons were at risk.
  1. R v Kulchisky, 2007 ABCA 110 (CanLII), at para 4


Proving flight causing bodily harm or death under s. 249.1(3) should include:

  1. the culprit caused the bodily harm or death of another person;
  2. the injury or death was by operating a motor vehicle in a manner described in paragraph 249(1)(a)"
  3. :the person operating the motor vehicle was being pursued by a peace officer operating a motor vehicle and failed" to "stop the vehicle as soon as is reasonable in the circumstances";
  4. there was no "reasonable excuse"; and
  5. it was "in order to evade the police officer", to stop the vehicle as soon as is reasonable in the circumstances.

Interpretation of the Offence

The passenger can be liable along with the driver where the passenger had “the exercise of a directing authority”. [1]

A “reasonable excuse” for flee police provides a justification for the offence and does not negate any essential element of the offence itself. [2] For example, a desire to think things through goes to motive and still results in a conviction.[3]

Warrantless entry into a dwelling was not permitted when a possibly mentally ill individual reports people breaking into his house.[4]

  1. R v Slessor, 1969 CanLII 248 (ON CA), [1969] O.J. No. 1514 (C.A.), per Gale CJ
  2. R v Armstrong, 2011 ONCA 709 (CanLII), per Watt JA, at para 9
  3. R v Kulchisky, 2007 ABCA 110 (CanLII), per Berger JA, at para 10
    R v Fonseca, 2012 BCPC 13 (CanLII), per Dhillon J, at para 81
    See also Reasonable Excuse
  4. R v Larson, 2011 BCCA 454 (CanLII), per Groberman JA

Causation

See Causation

Misc Definitions

Section 2 defines "bodily harm", "motor vehicle", "peace officer".

s. 214
...
“operate”

(a) means, in respect of a motor vehicle, to drive the vehicle,
(b) means, in respect of railway equipment, to participate in the direct control of its motion, whether
(i) as a member of the crew of the equipment,
(ii) as a person who, by remote control, acts in lieu of such crew, or
(iii) as other than a member or person described in subparagraphs (i) and (ii), and
(c) includes, in respect of a vessel or an aircraft, to navigate the vessel or aircraft;

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

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
Offence(s) Crown
Election
Maximum Penalty
s. 249.1 [without bodily harm] Summary Conviction two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 249.1 [without bodily harm] Indictable Conviction 5 years custody
s. 249.1 [with bodily harm] N/A 14 years custody
s. 249.1 [with death] N/A life in custody

Offences under s. 249.1 [without bodily harm] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Offences under s. 249.1 [with bodily harm or death] are straight indictable. The maximum penalty is 14 years incarceration [bodily harm] or life [death].

Minimum Penalties

Offences under s. 249.1 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. 249.1
without bodily harm
any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 249.1
with bodily harm or death
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

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

This offence will often attract a sentence that will be consecutive to other convictions that arise out of the same interaction.[1]

  1. R v Roberts, 2005 ABCA 11 (CanLII), per Côté JA
    R v Mozylisky, 2009 SKCA 94 (CanLII), per Smith JA
    R v Akapew, 2009 SKCA 137 (CanLII), per Hunter JA

Factors

Offence-specific Factors
  • whether there were pedestrians or other vehicles on the road
  • condition of the road at the time
  • whether blood alcohol level above 0.16[1]

Ranges

see also: Flight from a Peace Officer (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 249.1(2), (4)
Driving Prohibition Orders (s. 259)


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

Driving While Disqualified (Repealed Offence)

REPEALED DECEMBER 2018
Driving While Disqualified
s. 259 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 driving while disqualified 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. 259 [driving while disqualified] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment)

Offences under s. 259 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. 259 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 259, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 259 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. 259 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

s. 259...

Operation while disqualified

(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

(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.
Definition of “disqualification”

(5) For the purposes of this section, “disqualification” means

(a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or
(b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle, vessel or aircraft imposed
(i) in the case of a motor vehicle, under the law of a province, or
(ii) in the case of a vessel or an aircraft, under an Act of Parliament,

in respect of a conviction or discharge under section 730 of any offence referred to in any of subsections (1), (2) and (3.1) to (3.4).
...
R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2, s. 2; 2001, c. 37, s. 1; 2006, c. 14, s. 3; 2008, c. 6, s. 26, c. 18, s. 8.

CCC

Proof of the Offence

Proving driving while disqualified under s. 259(4) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit operated a vehicle
  5. that the vehicle was a "motor vehicle"
  6. operation occurred on a "street, road, highway or other public place"
  7. the culprit's licence was suspended by a court order at the time (use certificate of suspension)
  8. time and date of the prohibition
  9. that a copy of the order was given to the culprit (or mailed to him)
  10. that the order was read to the culprit
  11. The culprit was not registered in the alcohol ignition interlock device program, or was not in compliance with the conditions of the program

Interpretation of the Offence

Once the Crown makes out the essential elements of the case, the accused should be convicted unless there is evidence showing a lack of knowledge of the suspension.[1]

There has been mixed views on whether the prosecution must prove that the accused was not registered in the provincial interlock program.[2]

The Criminal Code cannot impose criminal penalties for breaches of provincial disqualification or prohibition from driving. The penalty must arise from a criminal offence.[3]

One of the essential elements of the offence includes proof that the acute was not "registered in an alcohol ignition interlock device program" or if registered, was not in compliance with the conditions of the program.[4]

  1. R v Gale, [1995] A.J. No. 295(*no CanLII links)
    R v Lock, 1974 CanLII 517 (ON CA), [1974] O.J. No. 1938 (ONCA), per Martin JA
  2. R v Liptak, 2009 ABPC 342 (CanLII), per Fradsham J (acquitted)
    R v Whatmore, 2011 ABPC 320 (CanLII), per Rosborough J (convicted)
    R v Johnston, 2011 MBPC 64, per Carlson J (convicted)
  3. R v Boggs, 1981 CanLII 39 (SCC), [1981] 1 SCR 49, per Estey J
  4. R v Liptak, 2009 ABPC 342 (CanLII), per Fradsham J

Available Defences

Participation of Third Parties

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

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

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

On Finding of Guilt

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. 259 [driving while disqualified] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 259 [driving while disqualified] Indictable Election 5 years custody

Offences under s. 259(4) 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. 259(4) 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

Drivers who "continuously ignore driving prohibitions imposed in the context of drinking and driving offences must be deterred by the imposition of a significant custodial term."[1] In these cases the focus is on denunciation and deterrence.[2]

  1. R v Bighead, 2013 SKCA 63 (CanLII), per Herauf JA, at para 6
  2. Bighead, ibid., at para 6

Ranges

see also: Driving While Disqualified (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 259(4)
Driving Prohibition - Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time)
Forfeiture of Vehicle
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)

See Also

References

Miscellaneous Repealed Offences


Alarming Her Majesty

Repealed December 13, 2018 in 2018, c. 29.

Acts intended to alarm Her Majesty or break public peace

49. Every one who wilfully, in the presence of Her Majesty,

(a) does an act with intent to alarm Her Majesty or to break the public peace, or
(b) does an act that is intended or is likely to cause bodily harm to Her Majesty,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

R.S., c. C-34, s. 49.

CCC

Dueling

Duels
Duelling

71. Every one who

(a) challenges or attempts by any means to provoke another person to fight a duel,
(b) attempts to provoke a person to challenge another person to fight a duel, or
(c) accepts a challenge to fight a duel,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

R.S., c. C-34, s. 72.

CCC

Advertising Reward

Advertising reward and immunity

143. Every one who

(a) publicly advertises a reward for the return of anything that has been stolen or lost, and in the advertisement uses words to indicate that no questions will be asked if it is returned,
(b) uses words in a public advertisement to indicate that a reward will be given or paid for anything that has been stolen or lost, without interference with or inquiry about the person who produces it,
(c) promises or offers in a public advertisement to return to a person who has advanced money by way of loan on, or has bought, anything that has been stolen or lost, the money so advanced or paid, or any other sum of money for the return of that thing, or
(d) prints or publishes any advertisement referred to in paragraph (a), (b) or (c),

is guilty of an offence punishable on summary conviction.

R.S., c. C-34, s. 131.

CCC


Tied Sale

Tied sale

165. Every one commits an offence who refuses to sell or supply to any other person copies of any publication for the reason only that the other person refuses to purchase or acquire from him copies of any other publication that the other person is apprehensive may be obscene or a crime comic.

R.S., c. C-34, s. 161.

CCC


Volatile Substance

Offensive volatile substance

178. Every one other than a peace officer engaged in the discharge of his duty who has in his possession in a public place or who deposits, throws or injects or causes to be deposited, thrown or injected in, into or near any place,

(a) an offensive volatile substance that is likely to alarm, inconvenience, discommode or cause discomfort to any person or to cause damage to property, or
(b) a stink or stench bomb or device from which any substance mentioned in paragraph (a) is or is capable of being liberated,

is guilty of an offence punishable on summary conviction.

R.S., c. C-34, s. 174.

CCC

Repealed December 13, 2018 (See List of Criminal Code Amendments)

Failure to keep watch on person towed

Failure to keep watch on person towed

250. (1) Every one who operates a vessel while towing a person on any water skis, surf-board, water sled or other object, when there is not on board such vessel another responsible person keeping watch on the person being towed, is guilty of an offence punishable on summary conviction.

Towing of person after dark

(2) Every one who operates a vessel while towing a person on any water skis, surf-board, water sled or other object during the period from one hour after sunset to sunrise is guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 250; R.S., 1985, c. 27 (1st Supp.), s. 36.

CCC

Unseaworthy vessel and unsafe aircraft

Unseaworthy vessel and unsafe aircraft

251. (1) Every one who knowingly

(a) sends or being the master takes a vessel that is registered or licensed, or for which an identification number has been issued, pursuant to any Act of Parliament and that is unseaworthy
(i) on a voyage from a place in Canada to any other place in or out of Canada, or
(ii) on a voyage from a place on the inland waters of the United States to a place in Canada,
(b) sends an aircraft on a flight or operates an aircraft that is not fit and safe for flight, or
(c) sends for operation or operates railway equipment that is not fit and safe for operation

and thereby endangers the life of any person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Defences

(2) An accused shall not be convicted of an offence under this section where the accused establishes that,

(a) in the case of an offence under paragraph (1)(a),
(i) the accused used all reasonable means to ensure that the vessel was seaworthy, or
(ii) to send or take the vessel while it was unseaworthy was, under the circumstances, reasonable and justifiable;
(b) in the case of an offence under paragraph (1)(b),
(i) the accused used all reasonable means to ensure that the aircraft was fit and safe for flight, or
(ii) to send or operate the aircraft while it was not fit and safe for flight was, under the circumstances, reasonable and justifiable; and
(c) in the case of an offence under paragraph (1)(c),
(i) the accused used all reasonable means to ensure that the railway equipment was fit and safe for operation, or
(ii) to send the railway equipment for operation or to operate it while it was not fit and safe for operation was, under the circumstances, reasonable and justifiable.
Consent of Attorney General

(3) No proceedings shall be instituted under this section in respect of a vessel or aircraft, or in respect of railway equipment sent for operation or operated on a line of railway that is within the legislative authority of Parliament, without the consent in writing of the Attorney General of Canada.

R.S., 1985, c. C-46, s. 251; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 58.

CCC

Unauthorized Use of Bodily Sample

Unauthorized use of bodily substance

258.1 (1) Subject to subsection (3) and subsections 258(4) and (5), no person shall use a bodily substance taken under paragraph 254(2)(b) or (c), subsection 254(3), (3.1), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer or medical samples that are provided by consent and subsequently seized under a warrant, except for the purpose of an analysis that is referred to in that provision or for which the consent is given.

Unauthorized use or disclosure of results

(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), the results of an evaluation under paragraph 254(3.1)(a), the results of the analysis of a bodily substance taken under paragraph 254(2)(b) or (c), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under a warrant, except

(a) in the course of an investigation of, or in a proceeding for, an offence under any of sections 220, 221, 236 and 249 to 255, an offence under Part I of the Aeronautics Act, or an offence under the Railway Safety Act in respect of a contravention of a rule or regulation made under that Act respecting the use of alcohol or a drug; or
(b) for the purpose of the administration or enforcement of the law of a province.
Exception

(3) Subsections (1) and (2) do not apply to persons who for medical purposes use samples or use or disclose the results of tests, taken for medical purposes, that are subsequently seized under a warrant.

Exception

(4) The results of physical coordination tests, an evaluation or an analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or other research purposes.

Offence

(5) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.
2008, c. 6, s. 25; 2018, c. 21, s. 8.

CCC

Purpose

The clear purpose of s. 258.1 is to "protect the privacy of individuals who undergo testing procedures and evaluations described in ss. 254 and 256".[1]

  1. R v Stipo, 2017 ONSC 5208 (CanLII), per Schreck J, at para 41

Supplying Noxious Things

Supplying noxious things

288 Every one who unlawfully supplies or procures a drug or other noxious thing or an instrument or thing, knowing that it is intended to be used or employed to procure the miscarriage of a female person, whether or not she is pregnant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. R.S., c. C-34, s. 252.

CCC


Blasphemous Libel

Blasphemous Libel
Offence

296. (1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Question of fact

(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.

Saving

(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.

R.S., c. C-34, s. 260.

CCC

Refusing to Deliver Property

Public servant refusing to deliver property

337. Every one who, being or having been employed in the service of Her Majesty in right of Canada or a province, or in the service of a municipality, and entrusted by virtue of that employment with the receipt, custody, management or control of anything, refuses or fails to deliver it to a person who is authorized to demand it and does demand it is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 297.

CCC

Section 337 was legislated in order to "prevent theft by public employees of their monies, documents, or other chattel" possessed through employment.[1] The party requesting the thing must be a person in authority in an employee/employer relationship.[2]

  1. Ambrosi v British Columbia (Attorney General), 2014 BCCA 123 (CanLII), per Bennett JA (3:0), at para 54
  2. Ambrosi, ibid., at para 56

Pretending to Practise Witchcraft

Repealed December 13, 2018 (see List of Criminal Code Amendments).

Pretending to practise witchcraft, etc.

365 Every one who fraudulently

(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found,

is guilty of an offence punishable on summary conviction.

R.S., c. C-34, s. 323.

CCC

Counterfeit Proclamation

Counterfeit proclamation, etc.

370. Every one who knowingly

(a) prints any proclamation, order, regulation or appointment, or notice thereof, and causes it falsely to purport to have been printed by the Queen’s Printer for Canada or the Queen’s Printer for a province, or
(b) tenders in evidence a copy of any proclamation, order, regulation or appointment that falsely purports to have been printed by the Queen’s Printer for Canada or the Queen’s Printer for a province,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

R.S., c. C-34, s. 328.

CCC

Message in a False Name

Message in false name

371 Everyone who, with intent to defraud, causes a message to be sent as if it were sent under the authority of another person, knowing that it is not sent under that authority and with intent that it should be acted on as if it were, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.
R.S., 1985, c. C-46, s. 371; 2014, c. 31, s. 18.

CCC


Trader failing to keep accounts

Trader failing to keep accounts

402. (1) Every one who, being a trader or in business,

(a) is indebted in an amount exceeding one thousand dollars,
(b) is unable to pay his creditors in full, and
(c) has not kept books of account that, in the ordinary course of the trade or business in which he is engaged, are necessary to exhibit or explain his transactions,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Saving

(2) No person shall be convicted of an offence under this section

(a) where, to the satisfaction of the court or judge, he
(i) accounts for his losses, and
(ii) shows that his failure to keep books was not intended to defraud his creditors; or
(b) where his failure to keep books occurred at a time more than five years prior to the day on which he was unable to pay his creditors in full.

R.S., c. C-34, s. 360.

CCC

Personation in Examination

Personation at examination

404. Every one who falsely, with intent to gain advantage for himself or some other person, personates a candidate at a competitive or qualifying examination held under the authority of law or in connection with a university, college or school or who knowingly avails himself of the results of such personation is guilty of an offence punishable on summary conviction.

R.S., c. C-34, s. 362.

CCC

Falsely Claiming Royal Warrant

Falsely claiming royal warrant

413. Every one who falsely represents that goods are made by a person holding a royal warrant, or for the service of Her Majesty, a member of the Royal Family or a public department is guilty of an offence punishable on summary conviction.

R.S., c. C-34, s. 371.

CCC

Issuing Trade stamps

Trading Stamps
Issuing trading stamps

427. (1) Every one who, by himself or his employee or agent, directly or indirectly issues, gives, sells or otherwise disposes of, or offers to issue, give, sell or otherwise dispose of trading stamps to a merchant or dealer in goods for use in his business is guilty of an offence punishable on summary conviction.

Giving to purchaser of goods

(2) Every one who, being a merchant or dealer in goods, by himself or his employee or agent, directly or indirectly gives or in any way disposes of, or offers to give or in any way dispose of, trading stamps to a person who purchases goods from him is guilty of an offence punishable on summary conviction.

R.S., c. C-34, s. 384.

CCC

Criminal Negligence (Street Racing)

The passing of 2018, c. 21 repealed the following offences:

Causing death by criminal negligence (street racing)

249.2 Everyone who by criminal negligence causes death to another person while street racing is guilty of an indictable offence and liable to imprisonment for life.
[[List of Criminal Code Amendments (2000 to 2009)|2006, c. 14, s. 2]] [[Category:2006, c. 14, s. 2]].

CCC

Causing bodily harm by criminal negligence (street racing)

249.3 Everyone who by criminal negligence causes bodily harm to another person while street racing is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
[[List of Criminal Code Amendments (2000 to 2009)|2006, c. 14, s. 2]] [[Category:2006, c. 14, s. 2]].

CCC