It is common knowledge that all criminal offences are mens rea offences, however, if the provision isnÃ¢Â€Â™t constructed properly it is not a mens rea offence.
Section 253 is constructed as an absolute liability offence as it fails to include the mens rea triggering words; knowingly, maliciously, with intent, intentionally, willingly, etc.
Therefore, as a term of imprisonment is attached to the s. 253 offence the entire offence is unconstitutional as a term of imprisonment attached to an absolute liability offence violates s. 7 of the Charter and cannot be saved under s. 1.
A court could strike down the term of imprisonment, but it hasnÃ¢Â€Â™t done so thus far.
There is also no right to arrest under s. 253; therefore, there is no right to demand under s. 254 or to arrest for a refusal to blow.
Offences under ss. 253 and 254 are punishable under s. 255. Section 255 articulates that the person may be prosecuted by indictment Ã¢Â€ÂœORÃ¢Â€Â for which he is punishable on summary conviction offences.
Therefore a cop cannot at anytime arrest an accused under ss. 253 or 254 because the cop is barred from arresting without a warrant any offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, as articulated under 495(2)(b).
The cop can only issue an appearance notice under s. 496(b).
Sections 255, 495 and 496 expressly state:
255. (1) Ã¢Â€ÂœEvery oneÃ¢Â€Â who commits an offence under section Ã¢Â€Âœ253 or 254â€³ is guilty of an Ã¢Â€Âœindictable offence or an offence punishable on summary convictionÃ¢Â€Â and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.
Arrest without warrant by peace officer
495. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(2) A peace officer Ã¢Â€Âœshall not arrest a person without warrant for"
(b) Ã¢Â€Âœan offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction,Ã¢Â€Â or
Issue of appearance notice by peace officer
496. Where, by virtue of subsection Ã¢Â€Âœ495(2),Ã¢Â€Â a peace officer does not arrest a person, Ã¢Â€Âœhe may issue an appearance notice to the person if the offence isÃ¢Â€Â
(b) Ã¢Â€Âœan offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction;Ã¢Â€Â or
If you decide not to kick the snot out of them , then you can not only sue them but, under s. 494, you can arrest the cop and charge him with various offences.
If you are placed in the back seat of a cop car or placed in a cell at the station you can charge him with forcible confinement. The doors on the back seat of a police car do not open from the inside, thus you cannot get out of the car unless the cop opens the door from the outside.
If the cop takes you to the police station from the point he stopped you, you can charge him with kidnapping.
If your car was towed, you can charge them with theft, mischief and fraud.
If they resist arrest you can charge them with resisting arrest. Anyone who interferes with your lawful arrest of the criminal can also be charged with obstructing.
Protection of persons acting under authority
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
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.
26. Every one 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.
Use of force to prevent commission of offence
27. Every one 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 anyone; 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).
DEFENCE OF PERSON
Self-defence against unprovoked assault
34. (1) Every one 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.
Extent of justification
(2) Every one 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.
Self-defence in case of aggression
35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.
37. (1) Every one is justified in using force to defend himself or any one 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 wilful 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.
DEFENCE OF PROPERTY
Defence of personal property
38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified
(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,
if he does not strike or cause bodily harm to the trespasser.
Assault by trespasser
(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
Defence with claim of right
39. (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.
Defence without claim of right
(2) Every one who is in peaceable possession of personal property, but does not claim it as of right or does not act under the authority of a person who claims it as of right, is not justified or protected from criminal responsibility for defending his possession against a person who is entitled by law to possession of it.
Assaulting a peace officer
270. (1) Every one commits an offence who
(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
(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.
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 Ã¢Â€ÂœweaponÃ¢Â€Â
(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.
(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 and liable to imprisonment for a term of not more than eighteen months.
279. (1) Every person commits an offence who kidnaps a person with intent
(a) to cause the person to be confined or imprisoned against the personÃ¢Â€Â™s will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the personÃ¢Â€Â™s will; or
(c) to hold the person for ransom or to service against the personÃ¢Â€Â™s will.
(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
(a) an offence under subsection (1);
(b) an offence under subsection 85(1) or (2) or section 244; or
(c) an offence under section 220, 236, 239, 272, 273, 279.1, 344 or 346 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another 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 and liable to imprisonment for a term not exceeding eighteen months.
(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.
322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
Time when theft completed
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen 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.
430. (1) Every one commits mischief who wilfully
(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.