Intimidation of a Justice System Participant (Offence): Difference between revisions
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Revision as of 22:05, 13 January 2019
| Intimidation of a Justice System Participant | |
|---|---|
| s. 423.1 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Indictment |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Indictable Dispositions | |
| Avail. Disp. | Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 14 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
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".
Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
|---|
Offences under s. 423.1 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. 423.1 | Template:ReleaseProfileOnlyBail |
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. 423.1 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.
- 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. 423.1 |  |
 |
|
|
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.
Offence Wording
Intimidation of a justice system participant or a journalist
423.1 (1) No person shall, without lawful authority, engage in any conduct 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) [Repealed, 2015, c. 13, s. 12]
Punishment
(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; 2015, c. 13, s. 12.
– CCC
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.[1]
- ↑ R v Armstrong, 2008 BCSC 1683 (CanLII), per Dickson J
R v Chartrand, [1994] 2 SCR 864, 1994 CanLII 53 (SCC), per L'Heureux‑Dubé J
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.[1]
- ↑ R v Armstrong 2012 BCCA 248 (CanLII){perBCSC| Dickson J}}
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;
...
– CCC
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.
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
Sentencing Profile
Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| 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.
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. 423.1 | N/A | |
|
|
|
|
|
|
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.
Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
Ranges
Ancillary Sentencing Orders
Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 423.1 |
|
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. |
History
Prior to 2015, the section read:
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.
Prohibited conduct
(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.
...
Punishment
(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.
– CCC
See Also
| |||||
See Also
- Level One
- Criminal Law
- Sentencing
- Offences
- Wiretap Eligible Offences
- Serious Personal Injury Offences
- Notice of Settlement to Victim
- Offences Requiring Notice to Victim
- Straight Indictable Offences
- Offences with No Mandatory Minimum
- Primary Designated Offences for DNA Orders
- Offences with Maximum Penalty of 14 Years