Breach of Preservation and Production Obligations (Offence)
| THIS TEXT IS IN ROUGH DRAFT STATE. NOTHING HERE WILL BE OF USE TO READERS. |
| Breach of Preservation and Production Obligations | |
|---|---|
| s. 487.0197, 487.0198 and 487.0199 of the Crim. Code | |
| Election / Plea | |
| Crown Election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) summary proceedings must initiate within 12 months of the offence (786(2)) |
| Jurisdiction | Prov. Court only |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 6 months incarceration or $5,000 fine - $250,000 fine (financial records) |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
Offences relating to Breach of Preservation and Production Obligations are found in Part XIV of the Criminal Code relating to "Jurisdiction".
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
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| s. 487.0197 [preservation demand – offence] | Summary Offence(s) |  |
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| s. 487.0198 [preservation or production order – offence] | Summary Offence(s) | |
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| s. 487.0199 [destruction of preserved data – offence] | Summary Offence(s) | |
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Offences under s. 487.0197 [preservation demand – offence], s. 487.0198 [preservation or production order – offence] or s. 487.0199 [destruction of preserved data – offence] are summary do not have a Crown election. It must be tried 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 |
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| s. 487.0197 [preservation demand – offence], s. 487.0198 [preservation or production order – offence] and s. 487.0199 [destruction of preserved data – offence] |
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(summary offence)
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When charged under s. 487.0197 [preservation demand – offence], s. 487.0198 [preservation or production order – offence], and s. 487.0199 [destruction of preserved data – offence], 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 weapon, being 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)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 487.0197 [preservation demand – offence], s. 487.0198 [preservation or production order – offence], and s. 487.0199 [destruction of preserved data – offence] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
| Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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| s. 487.0197 [preservation demand – offence], s. 487.0198 [preservation or production order – offence] and s. 487.0199 [destruction of preserved data – offence] |
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Offence — preservation demand
487.0197 A person who contravenes a preservation demand made under section 487.012 [preservation demand] without lawful excuse is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $5,000.
2014, c. 31, s. 20.
[annotation(s) added]
- Offence — preservation or production order
487.0198 A person, financial institution or entity that contravenes an order made under any of sections 487.013 to 487.018 [provisions on production orders] without lawful excuse is guilty of an offence punishable on summary conviction and liable to a fine of not more than $250,000 or to imprisonment for a term of not more than two years less a day, or to both.
2014, c. 31, s. 20; 2019, c. 25, s. 194.
[annotation(s) added]
- Offence — destruction of preserved data
487.0199 A person who contravenes section 487.0194 [preservation and production of computer data and documents] without lawful excuse is guilty of an offence punishable on summary conviction.
2014, c. 31, s. 20.
Draft Form of Charges
| Pre-ambles | ||
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| "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 |
| 487.0197 | "..., did without lawful excuse contravene a preservation demand made under s. 487.012 or 487.013, to wit: [conduct], contrary to section 487.0197 of the Criminal Code." | |
| 487.0198 | "..., did without lawful excuse contravene a preservation or production order made under s. 487.03 to 487.018, to wit: [conduct], contrary to section 487.0198 of the Criminal Code." | |
| 487.0199 | "..., contrary to section 487.0199 of the Criminal Code." |
Proof of Offences
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Proving breaking with intent under s. 348(1)(a) should include:
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Interpretation of the Offence
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
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
Principles
Factors
Ranges
Ancillary Sentencing Orders
- Offence-specific Orders
- General Sentencing Orders
| Order | Conviction | Description |
|---|---|---|
| Non-communication order while offender in custody (s. 743.21) | any | The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them. |
| Restitution Orders (s. 738) | any | A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403. |
| Victim Fine Surcharge (s. 737) | any | A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100). |
- General Forfeiture Orders
| Forfeiture | Conviction | Description |
|---|---|---|
| Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) | any | Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| Fine in Lieu of Forfeiture (s. 462.37(3)) | any | Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration. |
| Forfeiture of Weapons or Firearms (s. 491) | any | Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner. |
| Forfeiture of Offence-related Property (s. 490.1) | any | Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences. |
Record Suspensions and Pardons
Convictions under s. 487.0197 and 487.0198 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
History
See Also
- References