Flight from a Peace Officer (Repealed Offence): Difference between revisions

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.
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	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;

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Latest revision as of 12:49, 13 May 2024

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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".

Repealed June 21, 2018 by 2018, c. 21

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 249.1(2) [flight from police without bodily harm]	Hybrid Offence(s)	Yes	(* only if Crown proceeds by Indictment)	(under 14 years max)
s. 249.1(3) [flight from police with bodily harm or death]	Indictable Offence(s)	N/A		(14 years max)

Offences under s. 249.1(2) [flight from police 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) [flight from police 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) [flight from police without bodily harm]
s. 249.1(3) [flight from police with bodily harm or death]

When charged under s. 249.1(3) [flight from police with bodily harm or death] , the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 249.1(2) [flight from police 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 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));

A peace officer who charges a person under s. 249.1 [flight from police] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

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

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 249.1 [flight from police]

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 (CanLII), (DOJ)

Note up: 249.1 (1), (2), (3), and (4)

Proof of the Offence

Proving flight from a peace officer under s. 249.1(1) should include:^[1] ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit operated a motor vehicle; the police pursued the vehicle in their own vehicle; the culprit knew a peace officer was pursing them; the culprit failed to stop as soon as reasonably possible in the circumstances; the absence of a reasonable excuse for failing to stop; the culprit failed to stop in order to evade the police; the speed of the chase; signs of dangerous driving and whether any other persons were at risk.	Proving flight causing bodily harm or death under s. 249.1(3) should include: the culprit caused the bodily harm or death of another person; the injury or death was by operating a motor vehicle in a manner described in paragraph 249(1)(a)" :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"; there was no "reasonable excuse"; and it was "in order to evade the police officer", to stop the vehicle as soon as is reasonable in the circumstances.

↑ R v Kulchisky, 2007 ABCA 110 (CanLII), AJ No 323, at para 4

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]

↑ R v Slessor, 1969 CanLII 248 (ON CA), [1969] OJ No 1514 (CA), per Gale CJ
↑ R v Armstrong, 2011 ONCA 709 (CanLII), 280 CCC (3d) 75, per Watt JA, at para 9
↑ R v Kulchisky, 2007 ABCA 110 (CanLII), AJ No 323, per Berger JA, at para 10
R v Fonseca, 2012 BCPC 13 (CanLII), per Dhillon J, at para 81
See also Reasonable Excuse

Causation

See Causation

Misc Definitions

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

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

Note up: 214

The definition of "aircraft", "operate" and "vessel" was repealed by 2018, c. 21, s. 13.

Participation of Third Parties

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

Testimonial Aids

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

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

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 249.1 [flight from police]

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	2 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 incarceration
s. 249.1 [with bodily harm]	N/A	14 years incarceration
s. 249.1 [with death]	N/A	life incarceration

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 2 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 incarceration [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
s. 249.1 with bodily harm or death	N/A

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]

↑ R v Roberts, 2005 ABCA 11 (CanLII), 192 CCC (3d) 462, per Côté JA
R v Mozylisky, 2009 SKCA 94 (CanLII), 331 Sask R 303, per Smith JA
R v Akapew, 2009 SKCA 137 (CanLII), 249 CCC (3d) 212, 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]

↑ see s. 255.1

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)	If an offence under s. 249.1(2) is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b). For conviction under s. 249.1(4), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
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 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*.