Criminal Code of Canada

Deﬁnitions of Offence Classes
Indictable Offence
Summary Offence
Hybrid Class Offence
Protection of Persons Acting Under Authority
Excessive Force
Use of Force to Prevent Commission of Offence
Duty of Person Arresting
Self-Defense Against Unprovoked Assault
Preventing Assault
Defense of House or Real Property
Assault
Mischief
Arrest Without Warrant
Possession of Property Obtained by Crime
Criminal Harassment
Break and Enter

Definitions of Offence Classes

Indictable Offences

An indictable offence is more serious than a summary conviction offence. Conviction of an indictable offence exposes you to greater penalties.

If you are prosecuted by indictment, you are entitled to trial by jury for most offences. You do not have the right to trial by jury if you are tried by indictment for offences such as Drive Disqualiﬁed (i.e., driving while prohibited as a result of a conviction for impaired driving), Theft Under $5,000, Fraud Under $5,000, or Mischief Under $5,000.

Following conviction of an indictable offence, you must wait ﬁve years before pardon eligibility.

Summary Conviction Offences

Summary conviction offences encompass the most minor offences in the Criminal Code. Examples are “communicate for the purpose of obtaining the sexual services of a prostitute,” “cause disturbance,” and “harassing telephone calls.”

Unless a different penalty is speciﬁed, summary conviction offences are punishable by a ﬁne of up to $5,000 or six months’ jail or both.

Also, if you are convicted of a summary conviction offence as an adult, you are eligible for a pardon three years from the time you complete your sentence

Hybrid Offences

Many offences can be prosecuted either by summary conviction or indictment. The Crown chooses or elects the mode of prosecution. Such offences are referred to as “hybrid” (or “Crown option” or “dual procedure”). Hybrid offences include impaired driving, assault and theft under $5,000.00. Hybrid offences are considered indictable until the Crown makes its election.

Categories of some criminal offences

Section	Description	Conviction
66	Unlawful assembly	Summary
87	Weapon or imitation for dangerous purpose	Indictable
88	Weapon at public meeting	Summary
90(1)	Possession of prohibited weapon	Hybrid
140	Public mischief	Hybrid
173	Indecent acts	Summary
175	Disturbance, indecent exhibition, or loitering	Summary
176	Trespassing at night	Summary
252	Failure to stop at scene of accident	Hybrid
264	Criminal harassment	Hybrid
264.1(1)(a)	Threat to cause death or harm	Hybrid
266	Assault (common)	Hybrid

Section 494. Arrest Without Warrant: Security Guard’s Authority to Conduct Arrest

(1) Any one may arrest without warrant (a) a person whom he ﬁnds committing an indictable offence; or (b) a person who, on reasonable grounds, he believes (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Arrest by owner, etc., of property

(2) Anyone who is (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he ﬁnds committing a criminal offence on or in relation to that property.

Delivery to peace ofﬁcer

1. (3) Anyone other than a peace ofﬁcer who arrests a person without warrant shall forthwith deliver the person to a peace ofﬁcer. R.S., c. C-34, s. 449; R.S., c. 2(2nd Supp.), s. 5

Protection of Persons Acting Under Authority

25. (1) Everyone who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace ofﬁcer or public ofﬁcer,

(d) by virtue of his ofﬁce,

is, if he acts on reasonable grounds, justiﬁed in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Idem

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justiﬁed in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

When Not Protected

(3) Subject to subsection (4), a person is not justiﬁed for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless he believes on reasonable grounds that it is necessary for the purpose of preserving himself or anyone under his protection from death or grievous bodily harm.

When Protected

(4) A peace ofﬁcer who is proceeding lawfully to arrest, with or without warrant, any person for an offence for which that person may be arrested without warrant, and every one lawfully assisting the peace ofﬁcer, is justiﬁed, if the person to be arrested takes ﬂight to avoid arrest, in using as much force as is necessary to prevent the escape by ﬂight, unless the escape can be prevented by reasonable means in a less violent manner. R.S., c.C-34, s.25.

Excessive Force

26. Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess. R.S., c.C-34, s.26.

Use of Force to Prevent Commission of Offence

27. Everyone is justiﬁed in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of any one; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a). R.S., c.C-34, s.27.

Duty of Person Arresting

29.

(1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

(2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of

(a) the process or warrant under which he makes the arrest; or

(b) the reason for the arrest.

(3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from criminal responsibility. R.S., c.C-34, s.29.

Self-Defense Against Unprovoked Assault

34.

(1) Everyone who is unlawfully assaulted without having provoked the assault is justiﬁed in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justiﬁed if

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F).

Preventing Assault

37.

(1) Everyone is justiﬁed in using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

Extent of Justiﬁcation

(2) Nothing in this section shall be deemed to justify the willful inﬂiction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [R.S. c.C-34, s.37.]

Defense of House or Real Property

41. (1) Everyone who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justiﬁed in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

Assault by Trespasser

(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justiﬁcation or provocation. [R.S. c.C-34, s.41.]

Assault

265.

(1) A person commits an assault when

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of:

a) the application of force to the complainant or to a person other than the complainant;

b) threats or fear of the application of force to the complainant or to a person other than the complainant;

c) fraud; or

d) the exercise of authority.

Accused’s Belief as to Consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisﬁed that there is sufﬁcient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. R.S., c. C-34, s. 244; 1974-75- 76, c. 93, s. 21; 1980-81- 82-83, c. 125, s. 19.

Mischief

S. 430.

(1) Every one commits mischief who willfully:

a) destroys or damages property;

b) renders property dangerous, useless, inoperative or ineffective;

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

Mischief in relation to data

(1.1) Every one commits mischief who willfully:

a) destroys or alters data;

b) renders data meaningless, useless or ineffective;

c) obstructs, interrupts or interferes with the lawful use of data; or

d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.

Punishment

(2) Everyone who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.

Possession of Property Obtained by Crime

S. 354.

(1) Everyone commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from:

a) the commission in Canada of an offence punishable by indictment; or

b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

S. 355.

Everyone who commits an offence under

section 354:

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds ﬁve thousand dollars; or

b) is guilty

i. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

ii. of an offence punishable on summary conviction, where the value of the subject- matter of the offence does not exceed ﬁve thousand dollars. R.S., 1985, c. C-46, s. 355; R.S., 1985, c. 27 (1st Supp.), s. 49; 1994, c. 44, s. 21.

Breaking and Entering with Intent, Committing Offence or Breaking Out

S. 348.

(1) Everyone who:

a) breaks and enters a place with intent to commit an indictable offence therein,

b) breaks and enters a place and commits an indictable offence therein, or

c) breaks out of a place after

(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein, is guilty

d) if the offence is committed in relation to a dwelling- house, of an indictable offence and liable to imprisonment for life, and

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

Criminal Harassment

S. 264.

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonable, in all circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited conduct – The conduct mentioned in subsection (1) consists of

a) repeatedly following from place to place the other person or anyone known to them:

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on a business or happens to be;

d) engaging in threatening conduct directed at the other person or any member of their family.

(3) Punishment – Every person who contravenes this section is guilty of

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years;

or b) an offence punishable on summary conviction

Causing Disturbance, Indecent Exhibition, Loitering, etc. S. 175

(1) Everyone 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.