Disobeying a Statute or Court Order (Offence)

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Disobeying a Statute or Court Order
s. 126 and 127 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.
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. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Contempt of Court (Offence)

Offences relating to disobeying a statute or court order are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 126 [disobeying a statute] and
s. 127 [disobeying a court order]
Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 126 [disobeying a statute] and 127 [disobeying a court order] 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. 126 [disobeying a statute] and
s. 127 [disobeying a court order]

When charged under s. 126 [disobeying a statute] or 127 [disobeying a court order], 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. 126 or 127 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. 126 [disobeying a statute] and
127 [disobeying a court order]

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

Offence Wording

Disobeying a statute

126 (1) Every person who, without lawful excuse, contravenes an Act of Parliament by intentionally doing anything that it forbids or by intentionally omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Attorney General of Canada may act

(2) Any proceedings in respect of a contravention of or conspiracy to contravene an Act mentioned in subsection (1) [disobeying a statute], other than this Act, may be instituted at the instance of the Government of Canada and conducted by or on behalf of that Government.

R.S., 1985, c. C-46, s. 126; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 2019, c. 25, s. 39.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 126(1) and (2)

Disobeying order of court

127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years;
(b) an offence punishable on summary conviction.

[omitted (2)]
R.S., 1985, c. C-46, s. 127; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 2005, c. 32, s. 1.

CCC (CanLII), (DOJ)


Note up: 127(1)

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
126 disobeying a statute "..., without a lawful excuse, did contravene [federal Act] by wilfully doing [conduct] or by wilfully omitting to [conduct], to wit: [particulars], contrary to section 126 of the Criminal Code."
127 disobeying an order of court "..., without lawful excuse, did disobey a lawful order made [date and place made, and judge who made it], to wit: [particulars], contrary to section 127 of the Criminal Code."

Prove of the Offence

Proving disobeying a statute under s. 126 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit "contravenes an Act of Parliament" by act or omission;
  5. the conduct was done "wilfully";
  6. the culprit was without a "lawful excuse";
  7. the punishment is not otherwise "expressly provided by law";

Proving disobeying order of court under s. 127 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit 'disobeys a lawful order";
  5. the order is "made by a court of justice" or "by a person or body of persons authorized by any Act to make or give the order";
  6. the order is not "an order for the payment of money";
  7. the punishment "or other mode of proceeding" is not otherwise "expressly provided by law";
  8. the culprit was without a "lawful excuse";
  9. the culprit intended to disobey the order of the Court; and
  10. what the order required the accused to do.[1]
  1. R v Solar, 2012 SKQB 113 (CanLII), 392 Sask R 167, per Gabrielson J, at para 32

Interpretation of the Offence

The wording "provided by law" in s. 127 (1) is limited to "statute law" and not of the common law. [1]

Violating a common-law peace bond does not amount to "disobeying a court order."[2]

  1. R v Gibbons, 2010 ONCA 77 (CanLII), 251 CCC (3d) 460, per Watt JA
  2. R v Mousseau, 2011 ONCJ 222 (CanLII), 273 CCC (3d) 109, per Fairgrieve J

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. 126 [disobeying a statute]
s. 127 [disobeying a court order]

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. 126 [disobeying a statute] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 126 [disobeying a statute] indictable election 2 years incarceration
s. 127 [disobeying a court order] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 127 [disobeying a court order] indictable election 2 years incarceration

Offences under s. 126 [disobeying a statute] are hybrid. If prosecuted by indictment, the maximum penalty is 2 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. 127 [disobeying a court order] are hybrid. If prosecuted by indictment, the maximum penalty is 2 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.

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. 126 [disobeying a statute] any
s. 127 [disobeying a court order] 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.

Principles

Ranges

see also: Disobeying a Statute or Court Order (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
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. 126 [disobeying a statute] or 127 [disobeying a court order] 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: List of Criminal Code Amendments and Table of Concordance (Criminal Code)
Disobeying order of court

127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Attorney General of Canada may act

(2) Where the order referred to in subsection (1) was made in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government, any proceedings in respect of a contravention of or conspiracy to contravene that order may be instituted and conducted in like manner.
R.S., 1985, c. C-46, s. 127; R.S., 1985, c. 27 (1st Supp.), s. 185(F).

CCC

See Also

References