Intimidation of a Justice System Participant (Offence)
|Intimidation of a Justice System Participant|
|s. 423.1 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Types of Release||Judicial Release Only|
|Maximum||14 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 See Also
- 9 See Also
Offences relating to intimidation of a justice system participant are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".
|Crown Election|| Defence Election|
|s. 423.1 [intimidation of justice system participants]||Indictable Offence(s)||N/A||Yes|
When charged under s. 423.1, the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth 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)).
For all offences 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.
Offences under s. 423.1 are designated offences eligible for wiretap under s. 183.
Offences under s. 423.1 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.
Intimidation of a justice system participant or a journalist
423.1 (1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in
- (a) a group of persons or the general public in order to impede the administration of criminal justice;
- (b) a justice system participant in order to impede him or her in the performance of his or her duties; or
- (c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.
(2) The conduct referred to in subsection (1) consists of
- (a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons;
- (b) threatening to engage in conduct described in paragraph (a) in Canada or elsewhere;
- (c) persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway;
- (d) repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them; and
- (e) besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be.
(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.
2001, c. 32, s. 11.
Proof of the Offence
Proving intimidation of justice system participants under s. 423.1(1) should include:
Interpretation of the Offence
An accused need only foresee that, by conveying a threat of violence to a justice system participant, a form of intimidation was likely to result sufficient to impede the official in the general performance of his or her duties.
Threatening to Engage
The crown must prove that the accused could foresee that by conveying a threat of violence, intimidation sufficient to impede the person's performance in their duties would result.
- R v Armstrong 2012 BCCA 248 (CanLII)
Justice System Participant
s. 2 ...
“justice system participant” means
- (a) a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council, and
- (b) a person who plays a role in the administration of criminal justice, including
- (i) the Minister of Public Safety and Emergency Preparedness and a Minister responsible for policing in a province,
- (ii) a prosecutor, a lawyer, a member of the Chambre des notaires du Québec and an officer of a court,
- (iii) a judge and a justice,
- (iv) a juror and a person who is summoned as a juror,
- (v) an informant, a prospective witness, a witness under subpoena and a witness who has testified,
- (vi) a peace officer within the meaning of any of paragraphs (b), (c), (d), (e) and (g) of the definition “peace officer”,
- (vii) a civilian employee of a police force,
- (viii) a person employed in the administration of a court,
- (viii.1) a public officer within the meaning of subsection 25.1(1) and a person acting at the direction of such an officer,
- (ix) an employee of the Canada Revenue Agency who is involved in the investigation of an offence under an Act of Parliament,
- (ix.1) an employee of the Canada Border Services Agency who is involved in the investigation of an offence under an Act of Parliament,
- (x) an employee of a federal or provincial correctional service, a parole supervisor and any other person who is involved in the administration of a sentence under the supervision of such a correctional service and a person who conducts disciplinary hearings under the Corrections and Conditional Release Act, and
- (xi) an employee and a member of the National Parole Board and of a provincial parole board;
- (c) a person who plays a role in respect of proceedings involving
- (i) security information,
- (ii) criminal intelligence information,
- (iii) information that would endanger the safety of any person if it were disclosed,
- (iv) information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization, or
- (v) potentially injurious information or sensitive information as those terms are defined in section 38 of the Canada Evidence Act;
Participation of Third Parties
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
|s. 423.1 [intimidation of justice system participants]||N/A||14 years custody|
Offences under s. 423.1 are straight indictable. The maximum penalty is 14 years incarceration.
These offences have no mandatory minimum penalties.
s. 718.3, 787
| Custody and
| Custody and
| Conditional |
If convicted under s. 423.1 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life". Offences under s. 423.1 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.
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
|DNA Orders||s. 423.1||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has 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 mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).|
General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) 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.|