Personating a Peace Officer (Offence): Difference between revisions

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{{OffenceBox |OffenceTitle=Personating a Peace Officer |OffencePage=Personating a Peace Officer |Section=130 |Act={{OBCCC}} |CrownElection={{OBHybridElection}} |Jurisdiction={{OBJurisdictionAll}} |Bail={{OBBailAll}}|SummaryDisp= {{OBDispAll}} |SummaryMin= {{OBMinNone}} |SummaryMax= {{OBSConviction}} |IndictableDisp= {{OBDispSame}} |IndictableMin= {{OBMinNone}} |IndictableMax= {{OBTime|5 years}} }}
{{OffenceBox |OffenceTitle=Personating a Peace Officer  
|OffencePage=Personating a Peace Officer  
|Section=130  
|Act={{OBCCC}}
|CrownElection={{OBHybridElection}}  
|Jurisdiction={{OBJurisdictionAll-Under14}}  
|Bail={{OBBailAll}}
|SummaryDisp= {{OBDispAll}}  
|SummaryMin= {{OBMinNone}}  
|SummaryMax= {{OBSConviction}}  
|IndictableDisp= {{OBDispSame}}  
|IndictableMin= {{OBMinNone}}  
|IndictableMax= {{OBTime|5 years}} }}


==Overview==
==Overview==
{{OverviewIV|personating a peace officer}}
{{OverviewIV|personating a peace officer}}


'''Pleadings'''<br>
; Pleadings
{{PleadingsHeader}}
{{PleadingsHeader-N}}
{{PleadingsHybridList|s. 130 [personating a peace officer] | Yes | {{YesIfCrown}} }}
{{PleadingsHybridList-N|s. 130 {{DescrSec|130}} | {{Yes}} | {{Yes-IfCrown}} | {{No-Under14}} }}
{{PleadingsEnd}}
{{PleadingsEnd}}


{{PleadingsHybridElection|s. 130}}
{{PleadingsHybridElection-Under14|s. 130 {{DescrSec|130}} }}


'''Release'''<br>
; Release
{{ReleaseAllOptions|s. 130}}
{{ReleaseOptions-Hybrid|s. 130 {{DescrSec|130}} }}


:''<u>Reverse Onus Bail</u>''
{{ReverseOnusCirc}}
{{ReverseOnusCirc}}
; Publication Bans
; Publication Bans
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{{DesignationHeader}}
{{DesignationHeader}}
|-
|-
|s. xxx || {{OKMark}} <!--wire--> || {{OKMark}} <!--DO-->||{{OKMark}} <!--SPIO--> || {{XMark}} <!--consent-->
|s. 130 {{DescrSec|130}} || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark-Under10}} <!--SPIO--> || {{XMark}} <!--consent-->
{{DesignationEnd}}
{{DesignationEnd}}
{{SeeBelowForAncillary}}
{{SeeBelowForAncillary}}


==Offence Wording==
==Offence Wording==
{{quotation|
{{quotation2|
'''Personating peace officer'''<br>
; Personating peace officer
130. (1) Everyone commits an offence who
130 (1) Everyone commits an offence who
:(a) falsely represents himself to be a peace officer or a public officer; or
:(a) falsely represents himself to be a peace officer or a public officer; or
:(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.
:(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.


'''Punishment'''<br>
; Punishment
(2) Everyone who commits an offence under subsection (1)
(2) Everyone who commits an offence under subsection (1) {{AnnSec1|130(1)}}
:(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or
:(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or
:(b) is guilty of an offence punishable on summary conviction.
:(b) is guilty of an offence punishable on summary conviction.


R.S., 1985, c. C-46, s. 130; 2009, c. 28, s. 2.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 130;  
|[http://canlii.ca/t/7vf2#sec130 CCC]
{{LegHistory00s|2009, c. 28}}, s. 2.
{{Annotation}}
|[{{CCCSec|130}} CCC]
|{{NoteUp|130|1|2}}
}}
}}


{{quotation|
{{quotation2|
'''Aggravating circumstance'''<br>
; Aggravating circumstance
130.1 If a person is convicted of an offence under section 130, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the accused personated a peace officer or a public officer, as the case may be, for the purpose of facilitating the commission of another offence.
130.1 If a person is convicted of an offence under section 130 {{AnnSec1|130}}, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the accused personated a peace officer or a public officer, as the case may be, for the purpose of facilitating the commission of another offence.
<br>
<br>
2014, c. 10, s. 1.
{{LegHistory10s|2014, c. 10}}, s. 1.
|[http://canlii.ca/t/7vf2#sec130.1 CCC]
{{Annotation}}
|[{{CCCSec|130.1}} CCC]
|{{NoteUp|130.1}}
}}
}}
===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
|
|
|"..., contrary to section XXX of the ''Criminal Code''.
{{DraftEnd}}


==Proof of the Offence==
==Proof of the Offence==
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{{Proving|personating a peace officer|130}}
{{Proving|personating a peace officer|130}}
{{InitialElements}}
{{InitialElements}}
# the culprit was not a "peace officer" or "public officer";
# {{box}} the culprit was not a "peace officer" or "public officer";
# the culprit knew or was willfully blind to not being a peace officer;
# {{box}} the culprit knew or was willfully blind to not being a peace officer;
# the culprit either:
# the culprit either:
## represented himself as a "peace officer" or "public officer" ''or''  
## {{box}} represented himself as a "peace officer" or "public officer" ''or''  
## "uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer"; and
## {{box}} "uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer"; and
# the prohibited conduct was for "the purpose of facilitating the commission of another offence" (aggravating factor, not essential).
# {{box}} the prohibited conduct was for "the purpose of facilitating the commission of another offence" (aggravating factor, not essential).


{{ElementEnd}}
{{ElementEnd}}
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{{3rdPTestimonyAids}}
{{3rdPTestimonyAids}}


'''On Finding of Guilt'''<br>
; On Finding of Guilt  
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS -->  
|s. 130 {{DescrSec|130}} || || ||
|-
{{VictimEnd}}
 
<!--
<!--
{{606Notice5Y|XX}}
{{606Notice5Y|XX}}
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; Maximum Penalties
; Maximum Penalties
{{SProfileMaxHeader}}
{{SProfileMaxHeader}}
{{SProfileMax|s. 130 [personating a peace officer] | Summary Election | {{summaryconviction}} }}
{{SProfileMax|s. 130 {{DescrSec|130}} | {{Summary}} | {{summaryconviction}} }}
{{SProfileMax|s. 130 [personating a peace officer] | Indictable Election | 5 years custody }}
{{SProfileMax|s. 130 {{DescrSec|130}} | {{Indictment}} | {{Max5Years}} }}
{{SProfileEnd}}
{{SProfileEnd}}


{{MaxPenaltyHybrid|s. 130|'''5 years incarceration'''|'''{{summaryconviction}}'''}}
{{MaxPenaltyHybrid|s. 130 {{DescrSec|130}}|'''{{Max5Years}}'''|'''{{summaryconviction}}'''}}


; Minimum Penalties
; Minimum Penalties
Line 101: Line 134:
; Available Dispositions
; Available Dispositions
{{SProfileAvailHeader}}
{{SProfileAvailHeader}}
|s. 130 || any || {{SProfileAll}}
|s. 130 {{DescrSec|130}}|| any || {{SProfileAll}}
|-
|-
{{SProfileEnd}}
{{SProfileEnd}}
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{{seealso|Ancillary Orders}}
{{seealso|Ancillary Orders}}
'''Offence-specific Orders'''
; Offence-specific Orders
{{AOrderHeader}}
{{AOrderHeader}}
|-
|-
| [[DNA Orders]] ||s. 130 ||
| [[DNA Orders]] ||s. 130 {{DescrSec|130}}||
* {{SecondDNA(AorB)Hybrid|s. 130}}
* {{SecondDNA(AorB)Hybrid|s. 130 {{DescrSec|130}}}}
|-
|-
| [[Weapons Prohibition Orders]] || s. 130 ||
| [[Weapons Prohibition Orders]] || s. 130 {{DescrSec|130}}||
* {{Section110|s. 130}}
* {{Section110|s. 130 {{DescrSec|130}}}}
{{AOrderEnd}}
{{AOrderEnd}}


'''General Sentencing Orders'''
; General Sentencing Orders
{{GeneralSentencingOrders}}
{{GeneralSentencingOrders}}


'''General Forfeiture Orders'''
; General Forfeiture Orders
{{GeneralForfeitureOrders}}
{{GeneralForfeitureOrders}}
==Record Suspensions and Pardons==
{{RecordSuspension|s. 130 {{DescrSec|130}} }}


==History==
==History==
{{quotation|
{{quotation1|
'''Personating peace officer'''<br>
; Personating peace officer
130. Every one who
130. Every one who
:(a) falsely represents himself to be a peace officer or a public officer, or
:(a) falsely represents himself to be a peace officer or a public officer, or
Line 145: Line 180:
R.S., c. C-34, s. 119.
R.S., c. C-34, s. 119.
|[http://canlii.ca/t/hzbv#sec130 CCC]
|[http://canlii.ca/t/hzbv#sec130 CCC]
|{{NoteUp|}}
}}
}}
==See Also==
==See Also==
* [[Identity Fraud (Offence)]]
* [[Identity Fraud (Offence)]]
[[Category:Offences Punishable on Summary Conviction]]
[[Category:Offences with Maximum Penalty of 5 Years]]

Revision as of 22:57, 25 June 2020


Personating a Peace Officer
s. 130 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 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 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to personating a peace officer 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. 130 [personating a peace officer] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 130 [personating 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

When charged under s. 130 [personating 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));
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. 130 [personating a peace officer] (under 10 years max)

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

Offence Wording

Personating peace officer

130 (1) Everyone commits an offence who

(a) falsely represents himself to be a peace officer or a public officer; or
(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.
Punishment

(2) Everyone who commits an offence under subsection (1) [personating peace officer]

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

R.S., 1985, c. C-46, s. 130; 2009, c. 28, s. 2.
[annotation(s) added]

CCC


Note up: 130(1) and (2)

Aggravating circumstance

130.1 If a person is convicted of an offence under section 130 [personating peace officer], the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the accused personated a peace officer or a public officer, as the case may be, for the purpose of facilitating the commission of another offence.
2014, c. 10, s. 1.
[annotation(s) added]

CCC


Note up: 130.1

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
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving personating a peace officer under s. 130 should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit was not a "peace officer" or "public officer";
  5. the culprit knew or was willfully blind to not being a peace officer;
  6. the culprit either:
    1. represented himself as a "peace officer" or "public officer" or
    2. "uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer"; and
  7. the prohibited conduct was for "the purpose of facilitating the commission of another offence" (aggravating factor, not essential).

Interpretation

Definitions

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. 130 [personating a peace officer]

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. 130 [personating a peace officer] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 130 [personating a peace officer] indictable election 5 years incarceration

Offences under s. 130 [personating 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.

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. 130 [personating 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.

Principles

Ranges

see also: Personating a Peace Officer (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 130 [personating a peace officer]
Weapons Prohibition Orders s. 130 [personating a peace officer]
  • Where there is a conviction under s. 130 [personating a peace officer] 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. 130 [personating 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".

History

Personating peace officer

130. Every one who

(a) falsely represents himself to be a peace officer or a public officer, or
(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be,

is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 119.

CCC

See Also