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Offenders and Accused Persons - Offences

Offences Against the Person

Johanne is moving her belongings out of the apartment. She’s about to pack a computer into a box when Henry stops her, saying that the computer is his. An argument starts: they both claim to own the computer.

Things quickly get out of hand and the two start fighting over ownership of other things. Johanne loses her temper, spitting in Henry’s face, and slams the door. “If that’s the way it’s going to be, I’m going to make sure your precious car ends up in the shop,” she shouts. Does Johanne know she’s just committed two criminal offences?

Threatening someone's physical integrity is an "offence against the person". These offences include assault (including sexual assault), threats, harassment, intimidation, manslaughter, attempted murder, murder, kidnapping and forcible confinement.

In this Infosheet, Éducaloi explains these offences.

What is assault?

Assault is the use of force against a person without their consent. There are several kinds of assault, including simple assault, aggravated assault, assault with a weapon, assault causing bodily harm and different forms of sexual assault. Here are a few examples of behaviour that is considered an assault:

• grabbing someone’s wrist, pouring water on someone, pushing a person (simple assault);
  
• breaking someone’s tooth by kicking them (assault causing bodily harm);
  
• stabbing with a knife or hitting someone with a stick (assault with a weapon);
  
• forcibly kissing someone on the mouth (sexual assault).

If a person is convicted of this offence, she could face a maximum sentence of 5 years.

What is intimidation?

Intimidation is when a person, without having a right to do so,

• prevents someone from doing something that he has a right to do, or;
  
• forces someone to do something he is not obliged to do.

The offence can be committed in any of the following ways:

• by using threats or violence;
  
• by damaging the property of the person;
  
• by following the person persistently;
  
• by hiding his tools or clothing or by preventing him from using them;
  
• by surrounding or watching over the person;

Let’s take an example: Jenna is afraid of Axel. She tries to get out of the house, but Axel blocks her with his arm and prevents her from leaving. Jenna wants to call the police, but Axel threatens to hurt her if she does.

If convicted of intimidation, a person may face a maximum of 5 years in prison as a sentence.

What is harassment?

Criminal harassment is when a person acts in a way that makes another person fear for her own safety or for the safety of a loved one. The person doing the harassing should know that the actions make the victim feel harassed, or doesn’t care that she feels harassed.

Generally, harassment includes repeated acts that, taken together according to the context, are worrisome for the person who is their victim. The simple act of bothering or inconveniencing someone is not enough to be considered criminal harassment.

These behaviours are considered to be acts of harassment under the criminal law: following or watching a person, communicating with the person repeatedly.

For example, suppose Jeremy, Carl’s boss, fired Carl yesterday evening. Carl tried to call him to patch things up, but Jeremy hung up the phone at each call. Carl calls 25 times that night, yelling obscenities over the phone. He is furious and goes to Jeremy’s house. He rings the doorbell several times without an answer. He parks in the street and waits for Jeremy to come out. He does this every night for a week.

A person convicted of this offence could face a maximum sentence of 10 years in prison. Under the Criminal Code, the judge must forbid the convicted person from possessing any weapons for a period of 10 years.

What exactly are harassing phone calls?

This is the act of phoning a person repeatedly in order to bother or harass her.

For example: Cameron and Natasha have separated. Cameron refuses to talk to Natasha. Desperate, Natasha calls Cameron dozens of times in the same evening.

A person convicted of this offence may face a maximum sentence of 6 months in prison or a maximum fine of $2,000.

What is the offence of uttering threats?

When a person shows intent to harm another person, she commits the offence of uttering threats. But to be illegal, the threats must involve the acts of:

• causing death or bodily harm;
  
• burning, destroying or damaging moveable or immoveable property;
  
• killing, poisoning or hurting someone’s animal.

This offence requires evidence of an intent to intimidate the victim or to make him fear for his security. So, if the intent of the offender is to make the victim afraid, the act will be considered a threat, even if the offender has no intention of carrying out the threat.

This offence can be committed by threatening a person directly or by sending the threats through another person.

For example: Julie calls Paul and says, “Tell Peter I’m going to slash his tires.”

A person convicted of this offence could face a maximum sentence of 5 years in prison.

What are murder, manslaughter and attempted murder?

When a person causes the death of another person on purpose, we’re dealing with a case of murder. When he causes the death of another without intending to, he is committing an offence called manslaughter. Attempted murder occurs when someone tries to commit murder but fails - basically, the person had the will or specific intention to kill, but his plan just didn't work out.

Here are some examples:

• Victoria waits outside her old office for her ex-boss, who she never got along with. As soon as she sees her old boss, Victoria takes aim and shoots her. Victoria had planned this attack for quite some time. This is a murder because Victoria had the specific intention to kill.
  
  
• Victoria is admiring her brother-in-law’s new hunting rifle. She's never handled a firearm before. Knowing full well that it is loaded and that there is a risk that she could hurt someone, she carelessly shoots in the direction of a cedar hedge. The neighbour who was standing behind the hedge dies instantly. This is manslaughter because Victoria had no intention of killing her neighbour, but she is clearly guilty of criminal negligence.
  
  
• Victoria waits for her ex-boss outside her house with the intention of killing her. She can’t handle the fact that she was laid off the week before. Finally, her ex-boss comes out of the house and Victoria shoots her in the knee. She missed her target! This is attempted murder because Victoria had the specific intention of killing, but she didn’t achieve her goal.

Any person found guilty of murder, attempted murder or manslaughter is liable to face a life sentence.

What are first degree and second degree murder?

A first degree murder is one that is “planned and deliberate.” A murder is planned (or “premeditated”) even if the plan was hatched just a few minutes beforehand. To be deliberate, the murderer must have the intelligence and capacity to understand the acts he commits, and must have taken the time to reflect upon the consequences of his actions. To be murder in the first degree, both these elements must be present.

However, there are exceptions to this in the Criminal Code in that some murders are considered to be in the first degree even if they aren’t planned and deliberate.

A murder is in the second degree if it isn’t in the first degree.

A few examples:

• Victoria doesn’t get along at all well with her neighbour and has had it with his dog’s constant barking. That’s it, she wants to get rid of her neighbour while he sleeps. She draws up a plan and executes it. She’s thought long and hard about it by the time she goes into the house and kills her neighbour. This is first degree murder. It was planned and deliberate.
  
  
• Victoria is stopped by the police for speeding. She goes crazy with rage, pulls out her gun and shoots the police officer. This is first degree murder. Even if the murder wasn’t planned and deliberate, it is considered to in the first degree because it falls under an exception in the Criminal Code that says that murdering a police officer who is carrying out his duties is murder in the first degree.
  
  
• Victoria goes to see her ex-boss to try to get hired back. It doesn’t go very well for her and an argument breaks out. Victoria strangles her ex-boss. This is second degree murder because it was not planned in advance.

The distinction between first and second degree murder becomes important when the appropriate sentence is being determined. Normally a judge would hand out a more severe sentence to someone who has committed first degree murder. However, it’s important to take other factors into consideration, like the individual’s prior record.

What are kidnapping and forcible confinement?

Kidnapping happens when the offender takes a person with the intent to imprison that person against their will, or to detain the person for a ransom or service.

Example: in the middle of the night Boris goes into Anastasia’s house. He grabs her, takes her with him to a house in the country and tries to convince her to have sexual relations with him.

The maximum sentence for the offence of kidnapping is life imprisonment. If a firearm was used during the offence, the minimum sentence is 4 years in prison.

For forcible confinement, the evidence must show that the accused kept someone in a place against their will.

Example: Boris enters Anastasia’s house. Boris is aggressive and shouts loudly. Anastasia wants to leave the house to find shelter somewhere else, but Boris keeps her from leaving by threatening her with violence. This lasts all night.

The maximum sentence for forcible confinement is 10 years in prison.

In principle, the fact that the victim of one of these offences didn’t resist the attacker is no defence to criminal charges. This absence of resistence can help acquit the accused only if he can prove that it wasn’t just the result of his violent, aggressive or threatening behaviour.

What if the person kidnapped is under 16 years old?

A separate offence is committed when a person kidnaps or has someone else kidnap a person who is under 16 without the authorization and against the will of the father or mother of the child, the child’s tutor or the person who has legal custody of the child.

Example: Nora and James separated a week ago. They have a son named Cody, who is three years old. The court hasn’t decided yet on the custody of the child, but the parents have agreed that Cody will live with James. Nora decides to pick Cody up after daycare and bring him to her place. James comes to pick his child up later—and realizing that he is absent, calls the police.

The sentence for this kind of offence is imprisonment for a maximum of 5 years.

Can a parent be found guilty of kidnapping his own child?

Yes. A parent, tutor or another person who has legal custody of a child under 14 who kidnaps, keeps, hides or harbours this child commits an offence, whether a judgment has been made in Canadian family court about the child or not. The evidence has to show that the person who took the child had the intent to deprive the parent, tutor or any other person who had custody or possession of the child.

The accused cannot be convicted if the other parent agreed to let the child stay with her. The fact that the child wanted to leave with his parent is no defence to the accused.

For example, Peng and Chang are separated. They have a little girl, Liu. The family court decided on joint custody between the parents: each parent will have Liu every second week. Peng takes the child the first week. At the end of this week, Peng hides the child at his aunt’s home to prevent Chang from coming and taking her. Peng has just committed an offence.

A person found guilty of this offence could face a prison sentence of maximum 10 years.