Assault Peace Officer (S. 270) Charges In Canada: Offences, Defences, Punishments

What is “assault of a peace officer” in the Canadian criminal code?

Assault of a peace officer is criminalized under section 270 of the Canadian Criminal Code. The operative aspect of the offence (i.e., the act of “assault”) as defined by the Criminal Code under section 265(1) is no different than say in committing a “common assault” as criminalized under section 266 of the Criminal Code and outlined extensively in our “Common Assault” article here. However, the Code isolates certain acts under the “assault” umbrella with an appreciation for the special nature of a peace officer’s role in carrying out their duties. Assault of a peace officer can include any of the following acts:

• Assault of a peace officer in the line of duty
• Assault as a means to resist your own arrest or the arrest of another
• Assault as a means to prevent the execution of a duty (e.g., preventing the lawful seizure of an item)

The provision is a bit of a curious one considering the punishment for assault of a peace officer as legislated under s. 270 of the Code does not carry a potentially heftier sentence than one attached to common assault, however, these isolated acts of assault are still highlighted separately in the Code. Assault of a peace officer is a hybrid offence under the Criminal Code which means that the Crown is entitled to elect, based on the facts and circumstances surrounding your case, to proceed summarily (less serious category of criminal offences) or via indictment (more serious category of criminal offences). The prospective sentence will depend on the Crown’s election.

Examples

Some examples of assault of a peace officer may include:

• Inflicting force against a peace officer attempting to arrest you.
• Inflicting force against a peace officer who is lawfully detaining you, interviewing/interrogating you, or otherwise carrying out his or her duty in pursuit of an investigation.
• Inflicting force against someone (anyone, not only a peace officer) while attempting to evade arrest
• Inflicting force against someone (anyone, not only a peace officer) to aid another person in evading arrest
• Inflicting force against a person carrying out a lawful (i.e., warranted) search/seizure of say, personal items, your vehicle, your house, etc.

Remember that peace officers can include (but are not limited to):

• Municipal, provincial, or federal police officers (e.g., Calgary Police Officer, Ontario Provincial Police Officer, RCMP Officer)
• Military personnel or officers
• Court Bailiffs or officers
• Sheriffs
• Justices of the Peace
• Fish and Wildlife Officers
• Land Conservation Officers
• Customs Officers
• Mayors
• Pilots in operation of an aircraft

See section 2 of the Criminal Code for the full definition of “peace officer”.

Defences

A strong defence to a charge of assault of a peace officer will depend on the circumstances of one’s case.

However, some common defences against a charge of assault of a peace officer include:

• Lack of mens rea or intent
• Unlawful exercise of the officer’s duty
• Self-defence/Defence of another
• Defence of property
• Reflex Action
• Applicable Charter defences

Punishment

While serious, as noted above, the punishment for assault of a peace officer is actually no more serious than the legislated sentence for common assault. With that being said, the court is likely to consider that the victim, as a peace officer, is an aggravating factor at sentencing which can of course, have the effect of increasing the sentence in comparison to the same act of assault against say, a lay person (i.e., common assault).

As aforementioned, assault of a peace officer is a hybrid offence meaning that the Crown can proceed either summarily or via indictment.

There is no minimum sentence for assault of a peace officer, however, as per section 270(2) of the Criminal Code, the maximum penalties may be:

• For summary election – no more than 2 years less a day imprisonment
• For indictable election – not more than 5 years imprisonment

Note that non-custodial sentences are an option for this type of offence.

Overview of the Offence 

Assaulting a peace officer is covered under section 270(1) of the Criminal Code. It reads as follows:

As noted above, there are essentially three categories of assault of a peace officer as denoted by subsections a, b, and c:

• Assault of a peace officer in the line of duty
• Assault as a means to resisting your own arrest or the arrest of another
• Assault as a means to prevent the execution of a duty (e.g., preventing the lawful seizure of an item)

Assault is defined under section 265(1) of the Criminal Code:

To secure a conviction, the Crown must prove not only the elements of assault as embedded in section 265(1) of the Code but as well as the additional required elements of the section 270(1). These requisite elements are referred to in criminal law as the mens rea and the actus reus. The mens rea speaks to the requisite mental intent of the accused and the actus reus speaks to proof of the actual act or omission. These are fleshed out further directly below.

The Guilty Act (Actus Reus)

The actus reus of the assault component is discussed more thoroughly in our “Common Assault” article here.

However, the basic tenants include demonstrating that either:

1. The accused directly or indirectly applied force to another;
2. The accused attempted or threatened to apply force to another; or
3. The accused openly wore or carried a weapon and accosted or impeded the victim.

If one of the above acts can be demonstrated, the Crown can go on to prove a section 270(1) offence (assault of a peace officer) if the Crown shows, depending on the category of assault of a peace officer, other requisite actus reus elements.

For example, in the instance of a section 270(1)(a) offence, the Crown must prove the elements of the assault and then also prove that the victim was a “peace officer” or “public officer” or “acting in aid of” a “peace officer” or “public officer” and the officer was “engaged in the execution of his duty”.

Notable consideration has been dedicated to defining the phrase “execution of his duty”. Duties bestowed upon peace and public officers are assigned by both statutory law and the common law (judge-made law). For example, the Criminal Code and other statutes confer various specific powers on peace officers, including entry onto property, search and arrest, and set some limits upon the use of those powers.

In the instance of a section 270(1)(b) offence, the Crown must prove the elements of the assault, however, the assault in this section and 270(1)(c)(ii) (as discussed further below) do not require proof that the assault was inflicted against a peace officer. This section only requires that the Crown prove that the accused intended to resist arrest in addition to proof of the assault (however, intent to evade arrest is a mens rea element discussed here).

In the instance of a section 270(1)(c)(i) offence, the Crown must again, prove the elements of the assault and then also prove that the victim was “engaged in the execution of a process against lands or goods or in making a lawful distress or seizure”.

Similar to section 270(1)(b), section 270(c)(ii) requires proof of an assault and then also proof of intent to “rescue anything taken under lawful process, distress or seizure”. But again, this latter aspect is a mens rea element. The act does not need to be against a peace officer per se.

The Guilty Mind (Mens Rea)

To demonstrate the requisite mens rea element of an assault of a peace officer offence is to first, show the intent to commit assault and then secondly, depending on the category of assault against a peace officer, prove the correlating requisite intent attached to each strain of assault against a peace officer (e.g., intent to evade arrest or intent to rescue items being obtained in a lawful search/seizure). The Crown must prove these elements beyond a reasonable doubt.

For the assault aspect of the offence, the Crown must show that the accused intentionally applied force to the victim. To secure a conviction of an assault the Crown has to prove that you had the requisite intention to apply force to the complainant. This means that the Crown needs to show that you intentionally applied force to the complainant and any force that is applied unintentionally, due to carelessness or reflex, is not sufficient to satisfy the requisite mens rea element for an assault.

If the assault mens rea element is proven, then the Crown must go on to show:

For section 270(1)(a) offences:

• the mens rea element of the assault component (discussed directly above); and
• that the accused knew that the victim was a peace or public officer or was acting in aid of one.

For section 270(1)(b) offences:

• the mens rea element of the assault component (discussed directly above); and
• the culprit intended to “prevent the lawful arrest or detention of himself or another person”.

For section 270(1)(c)(i) offences:

• the mens rea element of the assault component (discussed directly above); and
• the requisite actus reus elements discussed in the section directly above.

For section 270(1)(c)(ii) offences:

• the mens rea element of the assault component (discussed directly above); and
• the culprit intended to “rescue anything taken under lawful process, distress or seizure”.

Depending on which specific section you are charged with, the elements listed under each section must be demonstrated alongside the actus reus elements discussed in the section directly above.

Assault of a Peace Officer Defences

The availability and strength of any defence depends entirely on the specific facts of one’s case. However, the following are some common defences that may be used when fighting an assault of a peace officer charge:

Lack of Mens Rea or Intent

As discussed directly above, to secure a conviction, the Crown must demonstrate the requisite mental elements of the offence or otherwise known as the mens rea of the offence. While the burden of proof rests on the Crown, you have the opportunity to produce evidence that rebuts this.

For example, a section 270(1)(a) offence can only be made out if you actually knew or had reason to believe the victim was a peace or public officer. This might happen in an instance where the officer never identified him or herself and you thought your person, your property or another person were threatened and you took defensive action. While the actual duties taken on by the officer might have been lawful; because you were unaware of the officer’s identity as an authority to carry out such duty, you could not be criminally responsible for such an act.

In say, a section 270(1)(b) offence, you may lack the requisite mens rea element whereas you didn’t actually know you were being placed under arrest. Maybe officers did not use handcuffs or any force when arresting you, maybe they didn’t read you your rights. If there was confusion or uncertainty around whether or not you were under arrest, the mens rea element may be vetoed. 

Unlawful Exercise of the Officer’s Duty

A defence to assault of a peace officer exists if the officer is acting beyond the scope of either his or her statutorily granted authority or his or her duties provided by the common law (judge-made law). In a case called R v Plamondon, 1997 CanLII 3175 (BCCA) the court noted that a peace officer who exceeds his or her powers is not “in the execution of his duty”. Furthermore, in Dedman v The Queen, 1985 CanLII 41 (SCC), [1985] 2 SCR 2, the court established that police officers only act lawfully when they exercise the powers conferred upon them by either statute or common law. It is also important to note that when resisting an unlawful arrest, the defendant is entitled to use reasonable force, but not excessive force (see: R v Phillips, 2006 NSCA 135 (CanLII))

Self-Defence / Defence of Another

It is acceptable to use force to respond to force, or a threat of force, so long as that force is reasonable. In these situations, you are said to have acted in self-defence. To successfully argue self-defence, it must be proven, on a balance of probabilities, that there is an “air of reality” to your claim, that you subjectively believed on reasonable grounds that force, or a force of threat, was being used against you, your conduct had a defensive purpose, and your conduct was objectively reasonable in the circumstances. If you successfully raise a defence of self-defence it will serve as a justification for your conduct, and you will be acquitted.

If you were in a situation where you responded to a force or the threat of force with force to defend someone else against an unlawful attack, provided there was no intent to cause death or grievous bodily harm, you may be able to rely on the defence of another. If raised successfully, this defence acts as a full defence which means that it serves as a justification for your conduct, and you will be acquitted.

Defence of Property

Under s.35 of the Criminal Code you may be able to rely on the defence of property defence against an assault charge. This defence typically arises when an individual’s peaceful possession of property is threatened, or someone is trying to take damage or trespass on your property. Given that the force that you used against the threat of force, or the force was reasonable, you may be able to successfully raise this defence. However, it is worth noting that this defence’s application is rare.

Often these defences are interrelated. For example, self-defence or defence of property would likely go hand-in-hand with the claim that a peace officer executed his duties unlawfully.

Reflex Action

Reflex actions are involuntary physical actions which result because of some external source. To be convicted of assault, the Crown needs to prove both the actus reus and the mens rea of the offence. An involuntary act, such as a reflexive action, would negate the requisite intent that would be required for a Crown to secure an assault conviction. To raise this defence successfully, it must be showcased that the accused’s act was an involuntary response over which the accused has no control and would be considered akin to an automatic response to nerve stimulation.

Applicable Charter Defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Assault of a Peace Officer Punishment

 The prospective sentence for an assault of a peace officer charge depends on whether or not the Crown elects to proceed by way of indictment (more serious category of criminal offences) or summarily (less serious category of criminal offences). Should the Crown proceed by way of indictment, the offender could be subject to up to 5 years imprisonment. There is no minimum sentence for assault of a peace officer. If the Crown proceeds with the charge summarily, the maximum punishment is two years less a day imprisonment. Whereas in both circumstances (indictable or summary), the sentencing court is given wide discretion, and all sentencing dispositions are available. Additionally, the court may consider ancillary sentencing orders. These are outlined below.

Sentencing Dispositions Available to the Sentencing Judge

• Absolute or conditional discharge ( 730 of the Criminal Code). This literally means that you may be discharged from the conviction. A conditional discharge could be, for example, combined with a probation order.
• Probation ( 731(1)(a) of the Criminal Code).
• Stand-alone fine ( 731(1)(b) of the Criminal Code).
• Probation and custody ( 731(1)(b) of the Criminal Code).
• Fine and custody ( 734 of the Criminal Code).

This is not an exhaustive list but speaks to some of the more common sentences available to a court upon assault of a peace officer convictions. It is also worth mentioning that the Criminal Code, as per section 718.02 requires the court to place primary consideration on sentencing principles such as deterrence and denunciation when a peace officer is the victim of an assault. Furthermore, jail terms for assaults on peace officers and assaults resisting arrest must be served consecutively to jail terms imposed for other offences arising out of the same transaction (see: section 270.03 of the Criminal Code). 

Ancillary Sentencing Orders

In conjunction with any of the aforementioned sentencing dispositions, a court is also entitled to make the following sentencing orders:

• Discretionary firearms prohibition (s. 110 of the Criminal Code): if the court deems it fit and necessary given the circumstances of the offender and the offence, the court may order a firearms prohibition.
• Victim protection orders (ss. 21, 732.1(3)(a.1), 732.1(3)(h), 742.3(2)(a.3), 742.3(2)(f) of the Criminal Code). Victim protection orders include communication bans (e.g., not being allowed to speak with victims, witnesses, etc.) or bans on visiting certain sites or homes.
• Restitution (ss. 738 and 1(3)(h) of the Criminal Code). This is an order to pay money to a victim for damage to property, harm caused to the victim, etc.
• DNA order ( 487.04 of the Criminal Code). The court could request that a DNA sample be ordered and stored in the DNA databank. This is ONLY applicable to indictable charges for this type of offence.
• Victim surcharge fine ( 737 of the Criminal Code). Victim surcharge fines are court-ordered fines made out to a public victim fund which is then distributed to victims on an ad hoc basis.

Because of the capacity for assault to a peace officer to vary in degree of severity and the capacity for the circumstances of the assault to differ notably in nature, sentences for this type of offence have the potential to range greatly. One of our defence lawyers will be able to provide you with information on realistic sentencing dispositions given the circumstances of your specific case.

Frequently Asked Questions

What is the sentence for assaulting a police officer in Canada?

The sentence for assaulting a peace officer in Canada depends first on the circumstances of your particular case and secondly, on the Crown’s charge election. Because assault of a peace officer in Canada is a hybrid offence (meaning the Crown can proceed via indictment or via summary charge), the sentence can vary subject to this election. If the Crown opts to proceed by way of indictment, the maximum penalty for assaulting a peace officer is 5 years imprisonment. Conversely, if the Crown opts to proceed by summary charge, the maximum sentence is 2 years less a day imprisonment. For more details regarding sentencing an assault of a peace officer charge in Canada please refer to earlier in this article here.

What is an assault peace officer charge in the Canadian criminal code?

Essentially, assault of a peace officer in Canada involves three categories of offences as outlined in section 270(1) of the Criminal Code. The charge named “assaulting a peace officer” as legislated under section 270(1) of the Criminal Code does not always involve actual assault of a peace or public officer; it could include assault of another individual while say, evading arrest or attempting to rescue an item lawfully seized pursuant to an investigation or arrest.

The three categories of assault of a peace officer are as follows:

• Assault of a peace officer in the line of duty
• Assault as a means to resisting your own arrest or the arrest of another
• Assault as a means to prevent the execution of a duty (e.g., preventing the lawful seizure of an item)

For more details on this, please refer to our “Overview of the Offence” section here.

Can you go to jail for assaulting a police officer?

The simple answer to this is, yes. Imprisonment is an available sentence for a charge of assaulting a peace officer. With that being said, it is not a minimum or mandatory sentence. The court is permitted to consider other non-custodial sentences and will evaluate the suitability of this option based on the circumstances of the offence and the offender. For more information on sentencing for section 270(1) charges, please see our “Punishment” section here.

Published Decisions

 R v Landry, 1986 CanLII 48 (SCC), [1986] 1 SCR 145

The accused, Mr. Landry was a youth at the time of the offence. A transit officer witnessed him and a friend rifling through a vehicle in the parking lot of a transit station. It appeared as though they were attempting to either steal items from the vehicle, or steal the vehicle itself. The transit officer called the local police and informed the police that he witnessed the two youths flee and enter an identified apartment building. The police officer arrived and spotted the two youths, matching the transit officer’s description in one of the units of the apartment through a window. The police officer proceeded inside and confronted Landry at his front door. He placed Landry under arrest but Landry resisted stating he did not commit the crime he was accused of and did not want to accompany the officer to the station. Upon this resistance, the officer entered the accused’s home and took a hold of his sleeve to gain control of Landry. Landry used force in retaliation and was subsequently charged with assaulting a peace officer. Landry became a landmark case in identifying the common law test for arrest without a warrant when in ‘hot pursuit’. The case addressed whether entering an accused’s dwelling is permitted in warrantless, ‘hot pursuit’ arrests. Ultimately, the officer’s actions were found to be unlawful, and a new trial was ordered for Mr. Landry.

You can read the Supreme Court of Canada’s full decision here.

Gamracy v R, 1973 CanLII25 (SCC), [1974] SCR 640

In this case, the arresting officer had been notified about the existence of a warrant for Mr. Gamracy’s arrest. The officer was unaware of the contents of the warrant (besides knowing it existed and prescribed the accused’s arrest) and did not have the warrant on his person. The officer watched Gamracy about to enter his home and called out to him. Mr. Gamracy ignored him. The officer caught up to Mr. Gamracy as he was about to enter his home and the officer announced to Mr. Gamracy that he was under arrest because a warrant was out for his arrest. Mr. Gamracy became confrontational and resisted arrest. A physical altercation ensued and Mr. Gamracy pushed the officer down a set of stairs. Mr. Gamracy was subsequently charged with assaulting a peace officer. Mr. Gamracy challenged the charges on the grounds that his arrest was unlawful given that there was no producible warrant, and the officer couldn’t articulate the contents of the warrant or reason for arrest. Ultimately the Supreme Court of Canada decided that notification of an existence of a warrant is sufficient for a warranted arrest. This case is also a staple case at the Supreme Court of Canada where it has aided in a common law understanding of arresting without a producible warrant.

You can read the full case here.

R v Stenning, 1970 CanLII 12 (SCC), [1970] SCR 631

Officers were called to investigate a disturbance outside of an automobile dealership and found a man intoxicated and badly beaten. The officers were informed that a firearm had been discharged, and they subsequently discovered that the beaten man had fired the shot. In the meantime, however, they saw a light on in the building and entered the premises. The two officers then entered an inner room, found traces of blood and two persons there under questionable circumstances, pretending to be asleep, and thereupon began to question them. One suddenly jumped up during the course of questioning, apparently provoked by a threat of arrest, and struck one constable in the face, breaking his nose and injuring his eye. A charge of assaulting a police officer was dismissed, and an appeal was dismissed. Further appeal to the court of appeal was allowed. The court of appeal maintained that while the officer might technically have been a trespasser on the premises, he was there to investigate a disturbance and was obligated to preserve the peace, prevent robberies, and apprehend offenders. He was therefore, at the time of the assault, “engaged in the execution of his duty”.

You can read the full case here.