246

Overcoming resistance to commission of offence

246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence,

(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or

(b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing,

is guilty of an indictable offence and liable to imprisonment for life.

Annotations

• Part VIII

247

Traps likely to cause bodily harm

247 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who with intent to cause death or bodily harm to a person, whether ascertained or not,

(a) sets or places a trap, device or other thing that is likely to cause death or bodily harm to a person; or

(b) being in occupation or possession of a place, knowingly permits such a trap, device or other thing to remain in that place.

Bodily harm

(2) Every person who commits an offence under subsection (1), and by doing so causes bodily harm to any other person, is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Offence-related place

(3) Every person who commits an offence under subsection (1), in a place kept or used for the purpose of committing another indictable offence, is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Offence-related place — bodily harm

(4) Every one who commits an offence under subsection (1), in a place kept or used for the purpose of committing another indictable offence, and thereby causes bodily harm to a person is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years.

Death

(5) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.

Annotations

• Part VIII

248

Interfering with transportation facilities

248 Every one who, with intent to endanger the safety of any person, places anything on or does anything to any property that is used for or in connection with the transportation of persons or goods by land, water or air that is likely to cause death or bodily harm to persons is guilty of an indictable offence and liable to imprisonment for life.

Annotations

• Part VIII

249-261

[Repealed, 2018, c. 21, s. 14]

Annotations

• Part VIII

262

Impeding attempt to save life

262 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who

(a) prevents or impedes or attempts to prevent or impede any person who is attempting to save his own life, or

(b) without reasonable cause prevents or impedes or attempts to prevent or impede any person who is attempting to save the life of another person.

Annotations

• Part VIII

263

Duty to safeguard opening in ice

263 (1) Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.

Excavation on land

(2) Every one who leaves an excavation on land that he owns or of which he has charge or supervision is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the excavation exists.

Offences

(3) Every one who fails to perform a duty imposed by subsection (1) or (2) is guilty of

(a) manslaughter, if the death of any person results therefrom;

(b) an offence under section 269, if bodily harm to any person results therefrom; or

(c) an offence punishable on summary conviction.

Annotations

• Part VIII

264

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

(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 business or happens to be; or

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

Punishment

(3) 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.

Marginal note:Factors to be considered

(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened

(a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or

(b) the terms or conditions of any other order or recognizance, or of an undertaking, made or entered into under the common law, this Act or any other Act of Parliament or of a provincial legislature that is similar in effect to an order or recognizance referred to in paragraph (a).

Reasons

(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.

Annotations

• Part VIII

264.1

Uttering threats

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

(a) to cause death or bodily harm to any person;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.

Marginal note:Punishment

(2) Every one who commits an offence under paragraph (1)(a) is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

Idem

(3) Every one who commits an offence under paragraph (1)(b) or (c)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Annotations

• Part VIII

265

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.

Annotations 265(1)

• Section 265(1)(a)
• Sections 265(1)(a) and (b) do not create separate offences. Rather, these provisions define two ways of committing the same offence: R v MacKay, 2005 SCC 79 at para 4
• Assault as defined in s.265(1)(a) is a general intent offence and requires only that the perpetrator intended to apply force without consent: R v Senecal, 2017 QCCA 954 at para 23; R v Tatton, 2015 SCC 33 at para 35; R v Jobidon, 1991 CanLII 77 (SCC); R v AE, 2000 CanLII 16823 (Ont CA) at para 26; R v Paice, 2005 SCC 22; R v MD, 2010 BCCA 162 at paras 29-31.
• Notwithstanding that the application of force be without consent, a person cannot consent to bodily harm within the meaning of s.267(b): R v Jobidon, 1991 CanLII 77 (SCC); R v Zsombor, 2023 BCCA 37 at para 33.
• Similarly, consent in the context of a fight is vitiated where “one party employs tactics that change the nature of the consensual fight from an activity with some risk of serious bodily harm to one with a significant risk of such harm”: R v Zsombor, 2023 BCCA 37 at para. 33; R v Sullivan, 2011 NLCA 6 at paras 34-38.
• More precisely, the provisions of s.265 do not constitute the “entirety of limitation that may be placed on the defence of consent”: R v Jobidon, 1991 CanLII 77 (SCC); R v Welch, 1995 CanLII 282 (Ont CA) at para 25
• However, there is no need that the application of force be socially unacceptable, provided the other criteria in s.265(1)(a) are met: R v Prohaska, 2017 ONCA 684 at paras 7-8
• The force required for an assault need not be significant. In fact, “an assault may be no more than a touching of the person of the complainant in circumstances which interfere with the bodily integrity of the complainant.” There is no minimum amount of force required: R v AZ, 2000 CanLII16976 (Ont CA) at para 6; R v Burden, 1981 CanLII 355 (BCCA); R v MWC, 2002 NSCA at para 33.
• Courts have found that “even a minor touching may be an assault if it is done in anger or takes place in a rude, insolent or a vengeful manner”: R v Fensom, 2016 ONSC 868 at para 45
• By way of example an assault has been found to have occurred where:
• 1. the perpetrator put his hand on a woman’s thigh: R v Burden, 1981 CanLII 355 (BC CA)
• 2. the perpetrator shoved papers into the face of another person regardless of whether the perpetrator’s hand made contact with the other person: R v Jenkins, 2007 ONCJ 371
• Although these examples are at the lower end of the spectrum of seriousness such conduct is nonetheless a crime in Canada. The de minimus doctrine is one that seeks “to avoid the criminalization of harmless conduct by prevent the conviction of those who have not really done anything wrong. The application of the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm to any legitimate personal or societal interest.”: R v Carson, 2004 CanLII 21365 (ONCA) at para 24, leave to appeal dismissed 2004 SCCA No 260; R v Giglia, 2012 ONCJ 533 at para 70.
• Some courts have applied this doctrine to the offence of assault: R v Carson, 2004 CanLII 21365 (ONCA) at para 24, leave to appeal dismissed 2004 SCCA No 260; R v Wolfe, 1974 CanLII 1643 (Ont CA) at para 5.
• Other Courts have rejected its application, particularly in cases of intimate partner violence: R v Giglia, 2012 ONCJ 533 at para 73; R v Rumo, 2013 ONSC 1856 at para 15; R v Downey, 2002 NSSC 226 at para 38; R v Wojcik, 2015 ONSC 6851 at paras 54-57.
• The Crown does not need to prove that the accused intended to apply force to a particular or specific person: R v Senecal, 2017 QCCA 954 at para 23.
• This is so due to the doctrine of transferred intent. Where a perpetrator intends to assault one person, but instead assaults another, the doctrine of transferred intent holds the perpetrator responsible for committing the crime even though it was committed against someone other than the intended target: R v Gordon, 2009 ONCA 170 at para 43; R v Paibomsai, 2011 ONCJ 421 at para 29
• In other words, to be found “guilty of assault by way of the doctrine of transferred intent, there must be an intention to commit as assault against one person, and an intentional application of force against another”: R v Shammo, 2018 MBPC 38 at para 52
• Section 265(1)(b)
• Mere words will not constitute an assault under s.265(1)(b). Instead, the evidence must prove that the accused “attempted or threatened, by act or gesture, to apply force to another person, if he has the ‘present ability to effect his purpose’ or ‘if he…causes that other person to believe on reasonable grounds, that he has, present ability to effect his purpose’”: R v MD, 2010 BCCA 162 at para 30; R v Pelletier, 2018 SKQB 45 at paras 7-8; R v Tower, 2008 NSCA 3 at para 47
• The victim’s reasonable apprehension will only be relevant where an accused does not have the ability to carry out his purpose: R v MD, 2010 BCCA 162 at para 30.
• Section 265(1)(c)
• The actus reus of this offence requires proof that the accused “openly wore or carried a weapon or an imitation of a weapon and that while doing so, he or she accosted or impeded another person or begged”: R v Whitehorn, 2004 CanLII 6855 (NL PC) at para 66
• The essence of the actus reus is the “inherently threatening nature of such activity when it is committed by a person who is openly wearing or carrying a weapon” or imitation: R v Whitehorn, 2004 CanLII 6855 (NL PC) at para 66
• The mens rea of the offence “requires proof that the accused intended to openly wear or carry a weapon or an imitation of a weapon and that he or she intentionally committed the act which constitutes the accosting or impeding of another person”: R v Whitehorn, 2004 CanLII 6855 (NL PC) at para 67
• Convictions under this provision and s.85(1)(a) may both stand – the Kienapple principle does not require a stay of proceedings: R v Meszaros, 2013 ONCA 682 at para 43
• This conclusion follows in part from the observation that s.265(1)(c) requires that the accused be “openly wearing or carrying a weapon or imitation thereof” [emphasis added]. Weapon is defined in s.2 of the Code and includes, but is not limited to firearms: R v Meszaros, 2013 ONCA 682 at paras 48 and 55

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.

Annotations 265(2)

• As indicated, s.265 is applicable to all forms of assault including sexual assault: R v Cringle, 2010 ONCA 451 at para 14

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.

Annotations 265(3)

• Pursuant to s.265(3)(c), fraud can vitiate consent. In the context of sexual assault cases, concealing, or a failure to disclose one’s HIV-positive (or other disease) status may constitute fraud within the meaning of this provision: R v Cuerrier, 1998 CanLII 796 (SCC) at para 124; R v Hutchinson, 2014 SCC 19 at paras 13 and 94; R v Mabior, 2012 SCC 47 at para 2 • In this context, fraud requires both a dishonest act and a deprivation: R v Hutchinson, 2014 SCC 19 at para 91

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.

Annotations 265(4)

• This provision is applicable to all forms of assault including, but not limited to, sexual assault. It is a codification of the common law defence of mistake of fact: R v Osolin, 1993 CanLII 54 (SCC); R v Jobidon, 1991 CanLII 77 (SCC)

266

Assault

266 Every one who commits an assault is guilty of

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

(b) an offence punishable on summary conviction.

Annotations

• Part VIII

267

Assault with a weapon or causing bodily harm

267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof,

(b) causes bodily harm to the complainant, or

(c) chokes, suffocates or strangles the complainant.

Annotations

• Part VIII

268

Aggravated assault

268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Excision

(3) For greater certainty, in this section, “wounds” or “maims” includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or

(b) the person is at least eighteen years of age and there is no resulting bodily harm.

Consent

(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).

Annotations

• Part VIII

269

Unlawfully causing bodily harm

269 Every one who unlawfully causes bodily harm to any person is guilty of

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

(b) an offence punishable on summary conviction.

Annotations

• Part VIII

269.01

Aggravating circumstance — assault against a public transit operator

269.01 (1) When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(a) or any of sections 266 to 269, it shall consider as an aggravating circumstance the fact that the victim of the offence was, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty.

Definitions

(2) The following definitions apply in this section.

public transit operator means an individual who operates a vehicle used in the provision of passenger transportation services to the public, and includes an individual who operates a school bus. (conducteur de véhicule de transport en commun)

vehicle includes a bus, paratransit vehicle, licensed taxi cab, train, subway, tram and ferry. (véhicule)

Annotations

• Part VIII

269.1

Torture

269.1 (1) Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Definitions

(2) For the purposes of this section,

official means

(a) a peace officer,

(b) a public officer,

(c) a member of the Canadian Forces, or

(d) any person who may exercise powers, pursuant to a law in force in a foreign state, that would, in Canada, be exercised by a person referred to in paragraph (a), (b), or (c),

whether the person exercises powers in Canada or outside Canada; (fonctionnaire)

torture means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person

(a) for a purpose including

(i) obtaining from the person or from a third person information or a statement,

(ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and

(iii) intimidating or coercing the person or a third person, or

(b) for any reason based on discrimination of any kind,

but does not include any act or omission arising only from, inherent in or incidental to lawful sanctions. (torture)

No defence

(3) It is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency.

Evidence

(4) In any proceedings over which Parliament has jurisdiction, any statement obtained as a result of the commission of an offence under this section is inadmissible in evidence, except as evidence that the statement was so obtained.

Annotations

• Part VIII

270

Assaulting a peace officer

270 (1) Every one commits an offence who

(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;

(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or

(c) assaults a person

(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or

(ii) with intent to rescue anything taken under lawful process, distress or seizure.

Punishment

(2) Every one who commits an offence under subsection (1) is guilty of

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

(b) an offence punishable on summary conviction.

Annotations

• Part VIII

270.01

Assaulting peace officer with weapon or causing bodily harm

270.01 (1) Everyone commits an offence who, in committing an assault referred to in section 270,

(a) carries, uses or threatens to use a weapon or an imitation of one; or

(b) causes bodily harm to the complainant.

Punishment

(2) Everyone who commits an offence under subsection (1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Annotations

• Part VIII

270.02

Aggravated assault of peace officer

270.02 Everyone who, in committing an assault referred to in section 270, wounds, maims, disfigures or endangers the life of the complainant is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

Annotations

• Part VIII

270.03

Sentences to be served consecutively

270.03 A sentence imposed on a person for an offence under subsection 270(1) or 270.01(1) or section 270.02 committed against a law enforcement officer, as defined in subsection 445.01(4), shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events.

Annotations

• Part VIII

270.1

Disarming a peace officer

270.1 (1) Every one commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in the possession of the peace officer when the peace officer is engaged in the execution of his or her duty.

Definition of weapon

(2) For the purpose of subsection (1), weapon means any thing that is designed to be used to cause injury or death to, or to temporarily incapacitate, a person.

Punishment

(3) Every one who commits an offence under subsection (1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

Annotations

• Part VIII