Causing a Disturbance (Offence): Difference between revisions
m Text replacement - "{{ReleaseAllOptions|" to "{{ReleaseOptions-Hybrid|" |
|||
| Line 23: | Line 23: | ||
; Release | ; Release | ||
{{ReleaseHeader}} | {{ReleaseHeader}} | ||
|s. 175 {{DescrSec|175}}|| {{ | |s. 175 {{DescrSec|175}}|| {{ReleaseProfile-Summary}} | ||
|- | |- | ||
{{ReleaseEnd}} | {{ReleaseEnd}} | ||
| Line 35: | Line 35: | ||
{{DesignationHeader}} | {{DesignationHeader}} | ||
|- | |- | ||
|s. 175 {{DescrSec|175}}|| {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent--> | |s. 175 {{DescrSec|175}}|| {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent--> || {{XMark-Under10}} | ||
{{DesignationEnd}} | {{DesignationEnd}} | ||
Revision as of 07:15, 26 June 2020
| Causing a Disturbance | |
|---|---|
| s. 175 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Summary 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 | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
Offences relating to causing a disturbance are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
|---|---|---|---|
| s. 175 [causing a disturbance] | Summary Offence(s) | N/A | No |
Offences under s. 175 [causing a disturbance] are straight summary conviction offence. The trial must be held 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 |
|---|---|---|---|---|---|
| s. 175 [causing a disturbance] |  |
|
|
 |
(summary offence)
|
When charged under s. 175 [causing a disturbance], 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.
- 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. 175 [causing a disturbance] | |
|
|
|
(under 10 years max)
|
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Causing disturbance, indecent exhibition, loitering, etc.175 (1) Every one who
- (a) not being in a dwelling-house, causes a disturbance in or near a public place,
- (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
- (ii) by being drunk, or
- (iii) by impeding or molesting other persons,
- (b) openly exposes or exhibits an indecent exhibition in a public place,
- (c) loiters in a public place and in any way obstructs persons who are in that place, or
- (d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied,
is guilty of an offence punishable on summary conviction.
- Evidence of peace officer
- (2) In the absence of other evidence, or by way of corroboration of other evidence, a summary conviction court may infer from the evidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph (1)(a) or (d) or an obstruction described in paragraph (1)(c) [loitering] was caused or occurred.
R.S., 1985, c. C-46, s. 175; 1997, c. 18, s. 6.
[annotation(s) added]
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 |
| "..., contrary to section 175 of the Criminal Code. |
Proof of the Offence
|
Proving causing a disturbance under s. 175(a) should include:
|
Proving causing a disturbance under s. 175(b) should include:
|
- ↑ R v Lohnes, [1992] 1 SCR 167 1992 CanLII 112 (SCC), per McLachlin J
Interpretation of the Offence
A disturbance must be more than mere emotional upset or annoyance. The disturbance must be foreseeable as a consequence from the act. [1]
Disturbance can include any "interference with ordinary and customary conduct". It can be something as small as "being distracted from work, but … Must be present and must be extremely manifested."[2]
The actus reus of the offence involving obscene language requires that the obscene language cause an externally manifested disturbance.[3]
Shouting does not include amplification by a device such as a megaphone.[4]
Swearing includes the use of bad, obscene or offensive language.[5]
Disturbance requires more than merely an observing crowd or a crowd shouting anti-police sentiment as officers make arrests.[6]
An officer's belief that the accused's language directed at them was vulgar, aggressive and inappropriate alone is insufficient.[7]
Cursing and swearing at the police officer, in certain circumstances, will not amount to an offence of causing a disturbance nor will it amount to a breach of a condition to "keep the peace and be of good behavior".[8]
- Constitutionality
But if it's under section 175 violates section 2 (B) of the charter protecting freedom of expression, but is saved as a reasonable limit and is valid.[9]
- Terminology
"Loitering" must be an action or inaction without purpose. Simply standing around is not sufficient.[10]
"Public place" is defined in s. 150 as "includ[ing] any place to which the public have access as of right or by invitation, express or implied;"
"Access" means the "right or opportunity to reach or use or visit".[11]
A place that is only "exposed to the public view" and not accessible is not a "public place".[12]
- ↑ R v Lohnes, [1992] 1 SCR 167, 1992 CanLII 112 (SCC), per McLachlin J
- ↑ Lohnes, ibid.
- ↑ R v Swinkels, 2010 ONCA 742 (CanLII), per LaForme JA, at paras 10, 29, 32{{{3}}}
- ↑ R v Reed, 1992 CanLII 6005 (BC CA), (1992) 76 CCC 204 (BCCA), per Hutcheon JA
- ↑ R v Clothier, (1975) 13 NSR 141 (NSCA)(*no CanLII links)
- ↑
Swinkels, supra, at para 28
R v Osbourne, 2008 ONCJ 134 (CanLII), per Brewer J
- ↑
Swinkels, supra, at para 28
Osbourne, supra
- ↑ R v Shea, 2010 NSPC 70 (CanLII), per Derrick J
- ↑ R v Lawrence, 1992 CanLII 6136 (AB QB), (1992), 74 CCC (3d) 495, per Cooke J
- ↑
R v Munroe, Munroe, 1983 CanLII 1830 (ON CA), [1983] 148 DLR (3d) 166, per Cory JA
R v Hudson, 2007 SKQB 23 (CanLII), per Gabrielson J - ↑
R v Clark, [2005] 1 SCR 6, 2005 SCC 2 (CanLII), per Fish J, at para 13
- ↑ Clark, supra
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
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
- Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| s. 175 [causing a disturbance] | N/A | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Offences under s. 175 [causing a disturbance] are straight summary conviction offences. 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.
- 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. 175 [causing a disturbance] | 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
Ranges
- see also: Causing a Disturbance (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
- None
- General Sentencing Orders
| Order | Conviction | Description |
|---|---|---|
| Non-communication order under s. 743.21 | any | A discretionary order prohibiting the offender from communicating with named persons while he is in custody. |
| Restitution Orders | any | A discretionary Order on application under s. 738, 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 Weapons and 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. |
Record Suspensions and Pardons
Convictions under s. 175 [causing a disturbance] 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
- References