Criminal Charges

Nudity

174(1) Everyone who, without lawful excuse, is nude in a public place, or is nude and exposed to public view while on private property, whether or not the property is his own, is guilty of an offence punishable on summary conviction. For the purposes of this section, a person is nude who is so clad as to offend against public decency or order.

Possible Defense:

• Nudity action is not sexual
• Not intended to harass or harm anyone.

Causing disturbance, indecent exhibition, loitering, etc.

175(1) Everyone who

• Not being in a dwelling-house, causes a disturbance in or near a public place,
  • By fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
  • By being drunk, or
  • By impeding or molesting other persons,
• Openly exposes or exhibits an indecent exhibition in a public place,
• Loiters in a public place and in any way obstructs persons who are in that place, or
• 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.

Elements to prove the offence under sub paragraph a:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The commission of one of the enumerated acts:
  • Fighting,
  • Screaming,
  • Shouting,
  • Swearing,
  • Singing,
  • Using insulting or obscene language,
  • Being drunk, or
  • Impeding or molesting other persons
• The act causes a disturbance
• The disturbance is in or near a public place.

Possible Defense:

• The place was not a public place or near a public place
• The act was not foreseeable
• The act didn’t create extreme disturbance as in case R v Lohnes

Elements to prove the offence under subparagraph b:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit “loiters” in a “public place” and
• In any way obstructs persons who are in that place

Possible Defence:

• Accused didn’t obstruct people
• Accused had a purpose by attending the place as explained in R. v. Gauvin

Disturbing religious worship or certain meetings contrary to S176

Everyone who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.

Idem

Everyone who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.

Elements to prove the offence:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit willfully disturbs or interrupts the meeting
• The meeting is held for religious purpose

Possible Defence:

• Accused had no Intention
• Meeting was not Religious

Trespassing at Night

Sec 177 Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.

Elements to prove the offence:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit “loitered” or “prowled”;
• The prohibited act was
  • “At night”;
  • “On the property of another person”; and
  • “Near” a “dwelling-house”; and
• There was no “lawful excuse” for the prohibited conduct (including permission from the owner).

Possible Defence

Consent can be given to you by both words and actions. For example, if someone tells you that you can enter their property, you can argue that you were given consent.

Impaired Operation contrary to section 320.14 (4)

Everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c).

Elements to prove the offence:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit’s drug concentration equals or exceeds the regulated amount.
• The culprit’s drug concentration is less than the amount set by regulation for an offence under s. 320.14(1)(c).
• The culprit operated a conveyance within two hours from the time that the measurement of drug concentration was taken.

Punishment

Everyone who commits an offence under subsection 320.14(4) is liable on summary conviction to a fine of not more than $1,000.

Challenging impaired driving charges

Defence of the accused in impaired driving cases in Ontario begins with gathering evidence at the site as well as establishing that all the charter issues have been strictly followed by the officer who has imposed the charges on the accused. These include s.9 (arbitrary detention), s.10 (a) (right to be informed of the reason why) and s.10 (b) (the right to counsel). In cases where the officer stops someone without warrant, then a defence may be raised based on (s.8) (unreasonable search and seizure).

Taking motor vehicle or vessel or found therein without consent

335(1) Subject to subsection (1.1), everyone who, without the consent of the owner, takes a motor vehicle or vessel with intent to drive, use, navigate or operate it or cause it to be driven, used, navigated, or operated, or is an occupant of a motor vehicle or vessel knowing that it was taken without the consent of the owner, is guilty of an offence punishable on summary conviction.

Exception

(1.1) Subsection (1) does not apply to an occupant of a motor vehicle or vessel who, on becoming aware that it was taken without the consent of the owner, attempted to leave the motor vehicle or vessel, to the extent that it was feasible to do so, or actually left the motor vehicle or vessel.

Punishment

• Fine no more than $5000
• Imprisonment of no more than 2 years as in accordance with s 787 Criminal code

Possible Defences to this charge could be consent, duress, A factual dispute, honest and reasonable mistake of belief, wrongful identification, lack of intent or necessity.

Fraudulently Obtaining Food

364(1) Everyone who fraudulently obtains food, a beverage or accommodation at any place that is in the business of providing those things is guilty of an offence punishable on summary conviction.

Punishment

• Fine no more than $5000
• Imprisonment of no more than 2 years as in accordance with s 787 Criminal code

Possible Defence: Challenging evidence that the accused obtained food in that place that is in the business of providing it and did not pay for it and (a) made a false or fictitious show or pretence of having baggage, (b) had any false or pretended baggage, (c) surreptitiously removed or attempted to remove his baggage or any material part of it.

Fraudulently obtaining transportation

S 393 (3) Everyone who, by any false pretence or fraud, unlawfully obtains transportation by land, water or air is guilty of an offence punishable on summary conviction.

Possible Defence:

As in 364(1) above.

Falsifying Employment Record

398 Everyone who, with intent to deceive, falsifies an employment record by any means, including the punching of a time clock, is guilty of an offence punishable on summary conviction.

Everyone who contravenes an order made under paragraph (1)(a) is guilty of an offence punishable on summary conviction.

Punishment

• Fine no more than $5000
• Imprisonment of no more than 2 years as in accordance with s 787 Criminal code

Possible Defence:

• Proof that there was no intent to falsify
• Accused believed that the records were genuine.

Conspiracy

465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
(d) Everyone who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.

Elements to prove the offence:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction incl. region and province)
• The words communicated in the conspiracy
• There was an agreement made between the parties
• The parties had an intention to agree to put a “common design into effect” and did in fact agree
• The parties did not change their minds or intention to put common design into effect

Punishment

• Fine no more than $5000
• Imprisonment of no more than 2 years as in accordance with s 787 Criminal code

There are 4 possible defences for conspiracy: you or your counsel has the duty to prove that;

• You never Agreed to Participate with the Co-conspirator
• You withdrew your participation in the conspiracy
• You believe you were acting legally
• You or Your Co-Conspirator did not commit an Act furthering the crime

Identity Document

S 56.1(1) Every person commits an offence who, without lawful excuse, procures to be made, possesses, transfers, sells or offers for sale an identity document that relates or purports to relate, in whole or in part, to another person.

Punishment if prosecuted summarily

• Fine no more than $5000
• Imprisonment of no more than 2 years as in accordance with s 787 Criminal code

Possible Defence

• Possessing valid document
• Proof that you believed the document was valid
• Proof of no-intention to produce an invalid document

Disobeying order of Court

Section 127(1) Everyone 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
(b) An offence punishable on summary conviction.

Elements to prove the offence:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction incl. region and province)
• The culprit ‘disobeys a lawful order”;
• 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”;
• The order is not “an order for the payment of money”;
• The punishment “or other mode of proceeding” is not otherwise “expressly provided by law”;
• The culprit was without a “lawful excuse”;
• The culprit intended to disobey the order of the Court; and
• What the order required the accused to do.

Punishment if prosecuted summarily

• Fine no more than $5000
• Imprisonment of no more than 2 years as in accordance with s 787 Criminal code

Possible Defence:

Intent: Only intentional contact is prohibited under the order of protection; however, unintentional contact can be misconstrued and result in charges. Notwithstanding, the prosecutor must prove intent beyond a reasonable doubt at trial. This is often a difficult burden to meet and can result in acquittal.

Public Mischief

Section 140 (2) Public mischief under section 140(2) involves falsely reporting crimes to the police resulting in unnecessary investigations, wasted public resources, and sometimes criminal charges being laid against innocent third parties. Public mischief is a hybrid offence, which means that the crime can be prosecuted either summarily (less serious) or by indictment (more serious). Everyone who commits public mischief is:

• Guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
• Guilty of an offence punishable on summary conviction.

Elements to prove the offence:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction incl. region and province)
• The culprit conveyed information to a peace officer, directly or indirectly, by words, writing, or conduct
• The information conveyed was a “false statement”
• The culprit caused the “peace officer to enter or continue an investigation” by doing one of the following:
  • “Making a false statement that accuses some other person of having committed an offence”;
  • “Doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself”;
  • “Reporting that an offence has been committed when it has not been committed”; or
  • “Reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.”
• The culprit intended to mislead.

Punishment if prosecuted summarily

• Fine no more than $5000
• Imprisonment of no more than 2 years as in accordance with s 787 Criminal code

Possible defence: Colour of right.

Show that you thought you were legally permitted to destroy or interfere with the property by colour of right. This is a situation where you honestly and legitimately believed that a particular set of facts were true, when in fact they were not.

Indecent Acts

173(1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,
(a) Is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or
(b) Is guilty of an offence punishable on summary conviction.

Exposure

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years
(a) Is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or
(b) Is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

Proving indecent act in a public place under s. 173(1) should include:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit performs an indecent act;
• The culprit did the prohibited act wilfully;
• The location of the prohibited act is either:
  • A public place and is in the presence of one or more individuals, or
  • “In any place with intent to insult or offend any person”.

Proving exposes genitals to person under 16 under s. 173(2) should include:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction incl. region and province
• Exposes genital organs;
• Exposes for a sexual purpose;
• In presence of person under 16; and
• The culprit knew or was reckless that person was under 16.

Possible defence: you or your counsel will have to prove that:

• The Indecent act did not take place in public
• Did not intent to offend or harass someone
• Did not happen for any sexual intentions

Criminal Harassment

264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

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

• Repeatedly following from place to place the other person or anyone known to them;
• Repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
• Besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
• Engaging in threatening conduct directed at the other person or any member of their family.

Punishment (b) An offence punishable on summary conviction.
Punishment if charge is to be proceeded summarily:

• Fine of no more than $5000
• Imprisonment of no more than 2 years under section 787 Criminal Code

Element to prove offence:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit has engaged in the conduct set out in s. 264(2)(a), (b), (c) or (d) of the criminal code;
• The complainant was harassed by the conduct;
• The culprit, who engaged in such conduct, knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
• The conduct caused the complainant to fear for their safety or the safety of anyone known to them; and
• The complainant’s fear was, in all the circumstances, reasonable.

Uttering Threats

264.1(1) Everyone commits an offence who, in any manner, knowingly utters, conveys, or causes any person to receive a threat;

• To cause death or bodily harm to any person;
• To burn, destroy or damage real or personal property; or
• To kill, poison or injure an animal or bird that is the property of any person.
  • Every one who commits an offence under paragraph (1)(a) is guilty of
    • An indictable offence and liable to imprisonment for a term not exceeding five years; or
    • An offence punishable on summary conviction.
  • Every one who commits an offence under paragraph (1)(b) or (c)
    • Is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
    • Is guilty of an offence punishable on summary conviction.

Punishment if charge is to be proceeded summarily:

• Fine of no more than $5000
• Imprisonment of no more than 2 years under section 787 Criminal Code

Elements to prove the offence:
If threat is to cause death or bodily harm to any person

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit “utters, … coveys or causes any person to receive” a communication;
• That communication conveyed a threat to “cause death or bodily harm to any person”,
• The communication were meant to be taken seriously as a threat; and
• Any person received the threat.

If threat is to damage property or injure animals

• • Identity of accused as culprit
  • Date and time of incident
  • Jurisdiction (incl. region and province)
  • The culprit “utters, … coveys or causes any person to receive” a communication;
  • That communication conveyed a threat to “burn, destroy or damage real property” or “kill, poison, or injure an animal that is the property of any person”;
  • The communication meant to be taken seriously as a threat; and
  • Any person received the threat.

Defence: The most appropriate defence against an uttering threat charge will depend on the incident’s context. However, you need to demonstrate in court that: Your Words, Gesture, Or Message were not a real threat.

Assault S 265 and 266 b

265 (1) A person commits an assault when

• Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
• 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
• While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

S 266 Everyone who commits an assault is guilty of

• An indictable offence and is liable to imprisonment for a term not exceeding five years; or
• An offence punishable on summary conviction.

Proving assault by force under s. 265(1)(a) should include:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit applied force on the victim
• The culprit intended to apply force and it was not by reflex or carelessly
• The manner in which assault occurred (whether by fist, open hand, or object)
• Injuries, if any, that occurred
• Compare physical build between the accused and victim
• That the complainant did not consent (see also s. 265(3) and (4))
• That the complainant did not assault, threaten or provoke the accused
• Whether an alcohol was involved

Proving assault by threat under s. 265(1)(b) should include:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit attempted or threatened to apply force to the victim
• The culprit meant the threat to be taken seriously
• The culprit had the ability to give effect to his purpose or the victim reasonably believed he had the ability to give effect to his purpose
• No intentional physical contact was made
• Compare physical build between the accused and victim
• That the complainant did not consent (see also s. 265(3) and (4))
• That the complainant did not assault, threaten or provoke the accused
• Whether an alcohol was involved

Proving assault, carrying weapon under s. 265(1)(c) should include:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit was “openly wearing or carrying a weapon or imitation thereof”
• The culprit accosted or impeded the victim or begged
• Compare physical build between the accused and victim
• That the complainant did not consent (see also s. 265(3) and (4))
• That the complainant did not assault, threaten or provoke the accused
• Whether an alcohol was involved

Possible defence:

• Self-defense is probably the most common defense used in assault and battery cases.
• Consent
• Intention

Removal of child from Canada

273.3(1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is

• Under the age of 16 years, with the intention that an act be committed outside canada that if it were committed in canada would be an offence against section 151 or 152 or subsection 160(3) or 173(2) in respect of that person;
• 16 years of age or more but under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 153 in respect of that person;
• Under the age of 18 years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155, subsection 160(2) or section 170, 171, 267, 268, 269, 271, 272, 273 or 320.102 in respect of that person; or
• Under the age of 18 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.1 in respect of that person or under the age of 16 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.2 in respect of that person.

Elements to Prove Removal of child from Canada (under 14) under s. 273.3(1)(a)

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit did anything “for the purpose of removing a person from canada”
• The “person” is “ordinarily resident in Canada”;
• The “person” is under the age of 16 years;
• The intention of the action was to commit an offence under s. 151, 152, 160(3) or 173(2) with respect to the person;
• If the person is under 18 years, the intention of the action was to commit an offence under s. 155, 159, 160(2), 170, 171, 267, 268, 269, 271, 272 or 273 with respect to the person

Elements to prove Removal of child from Canada (14 to 17) under s. 273.3(1)(b)

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit did anything “for the purpose of removing a person from Canada
• The person is “ordinarily resident in canada”;
• The person is over the age of 16 years but under 18 years of age; and
• The intention of the action was to commit an offence under s. 153 with respect to the person.

Elements to prove Removal of child from Canada (14 to 17) under s. 273.3(1)(c)

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit did anything “for the purpose of removing a person from canada
• The person is “ordinarily resident in Canada”
• The person is under 18 years,
• The intention of the action was to commit an offence under s. 155, 159, 160(2), 170, 171, 267, 268, 269, 271, 272 or 273 with respect to the p

Elements to prove Removal of child from Canada (14 to 17) under s. 273.3(1)(d)

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit did anything “for the purpose of removing a person from Canada
• The person is “ordinarily resident in canada”
• Either
  • The person is under 16 years and the intention of the action was to commit an offence under s. 293.1 with respect to the person; or
  • The person is under 18 years and the intention of the action was to commit an offence under s. 293.2 with respect to the person; and
• The act was committed outside of canada.

Punishment

(2) Every person who contravenes this section is guilty of

• An indictable offence and is liable to imprisonment for a term not exceeding five years; or
• An offence punishable on summary conviction.

Punishment if charge is to be proceeded summarily:

• Fine of no more than $5000
• Imprisonment of no more than 2 years under section 787 Criminal Code

Abduction in contravention of custody or parenting order

282(1) Every one who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child is guilty of

• An indictable offence and is liable to imprisonment for a term not exceeding ten years; or
• An offence punishable on summary conviction.

Elements to Prove Parental Abduction Contrary to a Custody Order under s. 282:

• Identity of accused as culprit
• Date and time of incident
• Jurisdiction (incl. region and province)
• The culprit is a “parent, guardian or person having the lawful care or charge of” a young person;
• The accuse “takes, entices away, conceals, detains, receives or harbours” the young person;
• The act contravenes a custody provision of a custody order in relation to the young person;
• The custody order was made by a court anywhere in Canada;
• The act was done with “intent to deprive a parent or guardian, or any other person who has the lawful care or charge” of the young person, of possession of that young person; and
• The young person is under the age of 14.

Punishment if charge is to be proceeded summarily:

• Fine of no more than $5000
• Imprisonment of no more than 2 years under section 787 Criminal Code

Theft under $5000

334 Except where otherwise provided by law, everyone who commits theft

• (b)If the value of what is stolen is not more than $5,000, is guilty
  • Of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
  • Of an offence punishable on summary conviction.

Punishment if charge is to be proceeded summarily:

• Fine of no more than $5000
• Imprisonment of no more than 2 years under section 787 Criminal Code

Elements to prove theft under $5000

• Accused moved something, caused something to be moved, or began to move something that belonged to someone else;
• Accused moved the property with intent to steal it either temporarily or absolutely without the owner’s consent; and,
• The approximate value of the property accused tried to steal was less than $5000

General defences for theft

• Specific Intent. Every theft requires the defendant to have specific intent to commit the theft.
• Asportation. To constitute a completed theft, the property must be asported or carried away
• Claim of Right. If a person believes that he or she has a right to the property even if that belief is mistaken.
• Defendant Actually Owned Property.