Disarming a Peace Officer (Offence): Difference between revisions

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[[fr:Désarmer un agent de la paix (infraction)]]
{{Currency2|January|2020}}
{{LevelZero}}{{HeaderOffences}}
{{LevelZero}}{{HeaderOffences}}
{{OffenceBox  
{{OffenceBox  
|OffenceTitle=Disarming a Peace Officer
|OffenceTitle=Disarming a Peace Officer
|OffencePage=Disarming a Peace Officer |Section=270.1
|OffencePage=Disarming a Peace Officer  
|Section=270.1
|Act={{OBCCC}}  
|Act={{OBCCC}}  
|CrownElection={{OBHybridElection}}  
|CrownElection={{OBHybridElection}}  
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==Overview==
==Overview==
{{seealso|Assault Peace Officer (Offence)}}
{{OverviewVIII|disarming a peace officer}}
{{OverviewVIII|disarming a peace officer}}


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; Release
; Release
{{ReleaseAllOptions|s. 270.1 {{DescrSec|270.1}} }}
{{ReleaseHeader}}
|s. 270.1 {{DescrSec|270.1}} || {{ReleaseProfile-Hybrid}}
|-
{{ReleaseEnd}}
 
{{ReleaseOptions-Hybrid|s. 270.1 {{DescrSec|270.1}}}}


:''<u>Reverse Onus Bail</u>''
:''<u>Reverse Onus Bail</u>''
{{ReverseOnusCirc}}
{{ReverseOnusCirc}}


:''Fingeprints and Photos''
:''Fingerprints and Photos''
{{IDCriminalAct|s. 270.1 {{DescrSec|270.1}} }}
{{IDCriminalAct|s. 270.1 {{DescrSec|270.1}} }}


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{{DesignationHeader}}
{{DesignationHeader}}
|-
|-
|s. 270.1 {{DescrSec|270.1}} || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{OKMark}} (varies) <!--SPIO--> || {{XMark}} <!--consent-->
|s. 270.1 {{DescrSec|270.1}} || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark-Under10}} <!--SPIO--> || {{XMark}} <!--consent--> || {{XMark-Under10}}
{{DesignationEnd}}
{{DesignationEnd}}
{{SeeBelowForAncillary}}
{{SeeBelowForAncillary}}


==Offence Wording==
==Offence Wording==
{{quotation|
{{quotation3|
; Disarming a peace officer
; Disarming a peace officer
270.1 (1) Every one commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in the possession of the peace officer when the peace officer is engaged in the execution of his or her duty.
270.1 (1) Every one commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in the possession of the peace officer when the peace officer is engaged in the execution of his or her duty.<br>
<br>...<br>
{{removed|(2)}}
; Punishment
; Punishment
(3) Every one who commits an offence under subsection (1) [''Disarming a peace officer''] is guilty of
(3) Every one who commits an offence under subsection (1) {{AnnSec2|270.1(1)}} is guilty of
:(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
:(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
:(b) an offence punishable on summary conviction.
:(b) an offence punishable on summary conviction.
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{{LegHistory10s|2019, c. 25}}, s. 96.
{{LegHistory10s|2019, c. 25}}, s. 96.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|270.1}} CCC]
|{{CCCSec2|270.1}}
|{{NoteUp|270.1|1|3}}
|{{terms-
|"peace officer" (s. 2)
|"weapon" (s. 270.1(2))
}}
}}
}}
===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
| 270.1
| disarm a peace officer
|"{{ellipsis1}}, did without the consent of Cst. [name], a peace officer engaged in the execution of their duty, attempt to take a weapon, to wit: [name the weapon], from their possession, contrary to section 270.1 of the ''Criminal Code''.
{{DraftEnd}}


==Proof of the Offence==
==Proof of the Offence==
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; Weapons
; Weapons
{{quotation|
{{quotation3|
270.1.<br>...<br>
270.1<br>
{{removed|(1)}}
; Definition of “weapon”
; Definition of “weapon”
(2) For the purpose of subsection (1), “weapon” means any thing that is designed to be used to cause injury or death to, or to temporarily incapacitate, a person.
(2) For the purpose of subsection (1) {{AnnSec2|270.1(1)}}, '''"weapon"''' means any thing that is designed to be used to cause injury or death to, or to temporarily incapacitate, a person.<br>
<br>...<br>
{{removed|(3)}}
{{LegHistory00s|2002, c. 13}}, s. 11.
{{LegHistory00s|2002, c. 13}}, s. 11;
|[{{CCCSec|270.1}} CCC]
{{LegHistory10s|2019, c. 25}}, s. 96.
{{Annotation}}
|{{CCCSec2|270.1}}
|{{NoteUp|270.1|2}}
|{{terms-
|"person" (s. 2)
}}
}}
}}


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{{reflist|2}}
{{reflist|2}}
==Participation of Third Parties==
==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}
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{{3rdPTestimonyAids}}
{{3rdPTestimonyAids}}


; On Finding of Guilt
; On Finding of Guilt  
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS -->
|s. 270.1 {{DescrSec|270.1}} || {{No}} || {{Yes-Indictable}} || ||
|-
{{VictimEnd}}
 
{{606Notice5Y|s. 270.1 {{DescrSec|270.1}}}}
{{606Notice5Y|s. 270.1 {{DescrSec|270.1}}}}


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; Maximum Penalties
; Maximum Penalties
{{SProfileMaxHeader}}
{{SProfileMaxHeader}}
{{SProfileMax|s. 270.1 {{DescrSec|270.1}} | Summary Election | {{summaryconvicton}} }}
{{SProfileMax|s. 270.1 {{DescrSec|270.1}} | {{Summary}} | {{summaryconviction}} }}
{{SProfileMax|s. 270.1 {{DescrSec|270.1}} | Indictable Election | {{Max5Years}} }}
{{SProfileMax|s. 270.1 {{DescrSec|270.1}} | {{Indictment}} | {{Max5Years}} }}
{{SProfileEnd}}
{{SProfileEnd}}
{{MaxPenaltyHybrid|s. 270.1 {{DescrSec|270.1}}|'''{{Max5Years}}'''|'''{{summaryconviction}}'''}}
{{MaxPenaltyHybrid|s. 270.1 {{DescrSec|270.1}}|'''{{Max5Years}}'''|'''{{summaryconviction}}'''}}
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; General Forfeiture Orders
; General Forfeiture Orders
{{GeneralForfeitureOrders}}
{{GeneralForfeitureOrders}}
==Record Suspensions and Pardons==
{{RecordSuspension|s. 270.1 {{DescrSec|270.1}}  }}


==See Also==
==See Also==

Latest revision as of 19:57, 5 September 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 96389)
Disarming a Peace Officer
s. 270.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)

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

Conditional Sentence (742.1)
Minimum None
Maximum 18 months incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Assault Peace Officer (Offence)

Offences relating to disarming a peace officer are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 270.1 [disarming a peace officer] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 270.1 [disarming a peace officer] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
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. 270.1 [disarming a peace officer]

When charged under s. 270.1 [disarming a peace officer], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a 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. 270.1 [disarming a peace officer] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

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

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 270.1 [disarming a peace officer] (under 10 years max) (under 10 years max)

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

Offence Wording

Disarming a peace officer

270.1 (1) Every one commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in the possession of the peace officer when the peace officer is engaged in the execution of his or her duty.
[omitted (2)]

Punishment

(3) Every one who commits an offence under subsection (1) [disarming a peace officer] is guilty of

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

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

CCC (CanLII), (DOJ)


Note up: 270.1(1) and (3)


Defined terms: "peace officer" (s. 2) and "weapon" (s. 270.1(2))

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
270.1 disarm a peace officer "..., did without the consent of Cst. [name], a peace officer engaged in the execution of their duty, attempt to take a weapon, to wit: [name the weapon], from their possession, contrary to section 270.1 of the Criminal Code.

Proof of the Offence

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

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

Interpretation of the Offence

Weapons

270.1
[omitted (1)]

Definition of “weapon”

(2) For the purpose of subsection (1) [disarming a peace officer], "weapon" means any thing that is designed to be used to cause injury or death to, or to temporarily incapacitate, a person.
[omitted (3)]
2002, c. 13, s. 11; 2019, c. 25, s. 96.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 270.1(2)


Defined terms: "person" (s. 2)

Misc Definitions

Section 2 defines "peace officer".

Participation of Third Parties

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

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

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

On Finding of Guilt
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. 270.1 [disarming a peace officer] (* only if Crown proceeds by Indictment)

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

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

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

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 270.1 [disarming a peace officer] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 270.1 [disarming a peace officer] indictable election 5 years incarceration

Offences under s. 270.1 [disarming a peace officer] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

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

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

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 270.1 [disarming a peace officer] any

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

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 270.1 [disarming a peace officer]
Weapons Prohibition Orders s. 270.1 [disarming a peace officer]
  • Where there is a conviction under s. 110 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to 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. 270.1 [disarming a peace officer] 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".

See Also

Related Offences
References