Intimidation (s. 423) Charges in Canada: Offences, Defences, Punishments

By Last Updated: January 19, 2023

What is Intimidation?

Intimidation Charges In CanadaIntimidation is an offence which is covered under s.423 of the Criminal Code.

Intimidation is a serious offence in Canada. Criminal intimidation, under s.423(1), is a hybrid offence, where depending on the circumstances of your case, the Crown can elect to proceed either summarily or by indictment.

Examples

Intimidation under s.423(1) is defined in the Criminal Code as “wrongfully and without lawful authority, compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing.”

Some common examples of criminal intimidation under s.423 (1) may include the following:

  • Using violence or threatening someone, their intimate partner or children, or injuring the person’s property;
  • Intimidates or attempts to intimidate someone;
  • Persistently following someone;
  • Hiding someone’s property, depriving someone of their property, or hindering someone from using their property;
  • Following someone in a disorderly manner on a highway;
  • Watching the place where someone resides, works, carries on business, or happens to be; or
  • Blocking or obstructing a highway.

Intimidation under s.423.1(1) states that “no person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear” in someone to impede the administration of criminal justice; to impede a justice system participant or military justice system participant in the performance of his or her duties; or impede a journalist in the transmission to the public of information in relation to a criminal organization.

Some examples of intimidation under s.423.1(1) may include:

  • Intimidating a lawyer, judge, police officer, or journalist by following them to and from their place of work.
  • Inappropriately approaching or inappropriately communicating with one of the above noted individuals

Intimidation under s.423.2 states that “every person commits an offence who engages in any conduct with the intent to provoke a state of fear in” a person in order to impede them from obtaining health services from a health professional and impedes a health professional and or those who assist health professionals from performing their duties.

Some examples of intimidation under s.423.2 may include:

  • Continuously engaging in conduct designed to prevent a paramedic or EMT from accessing the emergency doors of a hospital by provoking fear
  • Causing fear in a person trying to access medical services

Defences

A strong defence to an intimidation charge will depend on the circumstances of your case.

However, some defences might include:

  • Having a reasonable justification or excuse;
  • A mistake of fact; and
  • The elements are not made out (no actus reus, no mens rea)
  • An applicable Charter defence

Punishment

The Crown’s choice to proceed either by indictment or summarily will impact the severity of the punishment.

An intimidation charge is fact-specific, so punishment for the offence can range significantly because the offence encompasses many different actions or behaviours. There is no minimum sentence associated with intimidation, under s.423, however, the maximum is five years of incarceration.

The Code lists the maximum punishments as follows:

  • 423 (1)
    • Indictment: Up to five years imprisonment,
    • Summary: 2 years less a day imprisonment and a $5000.00 fine.
  • 423.1 (1)
    • Indictment: Up to fourteen years imprisonment
  • 423.2
    • Indictment: Up to ten years imprisonment

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Overview of the Offence

According to s.423 (1) of the Criminal Code:

423(1) Every one 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, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,

(a) uses violence or threats of violence to that person or their intimate partner or children, or injures the person’s property;

(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged;

(c) persistently follows that person;

(d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them;

(e) with one or more other persons, follows that person, in a disorderly manner, on a highway;

(f) besets or watches the place where that person resides, works, carries on business, or happens to be; or

(g) blocks or obstructs a highway.

Exception

(2) A person who attends at or near or approaches a dwelling-house or place, for the purpose only of obtaining or communicating information, does not watch or beset within the meaning of this section.

Under s.319 (2) of the Criminal Code:

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

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

(b) an offence punishable on summary conviction.

Under s.423.1(1) of the Criminal Code, intimidation of a person involved in participating in the justice system (potentially a witness, a judge, etc.) or a journalist is a separate offence. The Criminal Code states:

423.1 (1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in

(a) a group of persons or the general public in order to impede the administration of criminal justice;

(b) a justice system participant in order to impede him or her in the performance of his or her duties; or

(c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.

(2) The conduct referred to in subsection (1) consists of

(a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons;

(b) threatening to engage in conduct described in paragraph (a) in Canada or elsewhere;

(c) persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway;

(d) repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them; and

(e) besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be.

(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.

Section 2 of the Criminal Code states that a “justice system participant” is:

(a) a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council, and

(b) a person who plays a role in the administration of criminal justice, including

(i) the Minister of Public Safety and Emergency Preparedness and a Minister responsible for policing in a province,

(ii) a prosecutor, a lawyer, a member of the Chambre des notaires du Québec and an officer of a court,

(iii) a judge and a justice,

(iv) a juror and a person who is summoned as a juror,

(v) an informant, a prospective witness, a witness under subpoena and a witness who has testified,

(vi) a peace officer,

(vii) a civilian employee of a police force, (viii) a person employed in the administration of a court,

(ix) a public officer and a person acting at the direction of such an officer,

(x) an employee of the Canada Revenue Agency who is involved in the investigation of an offence under an Act of Parliament,

(xi) an employee of a federal or provincial correctional service, a parole supervisor and any other person who is involved in the administration of a sentence under the supervision of such a correctional service and a person who conducts disciplinary hearings under the Corrections and Conditional Release Act, and

(xii) an employee and a member of the National Parole Board and of a provincial parole board;

    • Furthermore, and as noted above, the Criminal Code lists a separate offence of intimidation by provoking fear in someone in regard to health services:

According to s. 423.2(1) of the Criminal Code Intimidation — health services:

423.2 (1) Every person commits an offence who engages in any conduct with the intent to provoke a state of fear in:

(a) a person in order to impede them from obtaining health services from a health professional;

(b) a health professional in order to impede them in the performance of their duties; or

(c) a person, whose functions are to assist a health professional in the performance of the health professional’s duties, in order to impede that person in the performance of those functions.

Obstruction or interference with access

(2) Every person commits an offence who, without lawful authority, intentionally obstructs or interferes with another person’s lawful access to a place at which health services are provided by a health professional.

The Guilty Act (Actus Reus)

The actus reus for intimidation under 423(1) is established by proof, beyond a reasonable doubt, of the following:

The accused person compelled “another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,” by doing one or more of the following things:

  • The accused person used violence or threats of violence to that person or his or her spouse or partner or children, or injures his or her property;
  • intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged;
  • persistently follows that person;
  • hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them;
  • with one or more other persons, follows that person, in a disorderly manner, on a highway;
  • besets or watches the place where that person resides, works, carries on business or happens to be;
  • or blocks or obstructs a highway; and
  • The accused did not have authority to do that; and

The mens rea for intimidation under 423(1) is established by proof, beyond a reasonable doubt, of the following:

  • That the accused person’s conduct was deliberate and intentional.

The actus reus for intimidation under 423.1(1) is established by proof, beyond a reasonable doubt, of the following:

  • The accused person provoked fear in any justice system participants or a journalist.

The mens rea for intimidation under 423.1(1) is established by proof, beyond a reasonable doubt, of the following:

  • That the accused person’s conduct was deliberate and intentional.

The actus reus for intimidation under 423.2 is established by proof, beyond a reasonable doubt, of the following:

  • The accused person provoked fear in any person attempting to access health services or any person working in the health care industry.

The mens rea for intimidation under 423.2 is established by proof, beyond a reasonable doubt, of the following:

  • That the accused person’s conduct was deliberate and intentional.

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Defences

How to Beat an Intimidation Charge

As previously mentioned, each case is different and may have very different outcomes. The above-noted defences cannot be used in all scenarios and may not even be applicable to your case.

Some defences for intimidation are:

Having a reasonable justification or excuse

If you were peacefully protesting somewhere that another person frequents (example: a healthcare clinic) and you receive an intimidation charge, your justification that you were peacefully protesting may be a defence.

A mistake of fact

R v Manuel, 2008, BCCA 143, states that the mistake of fact defence may be available when you believed you claim to have acted under fact and law. Your case may turn on very different facts, but generally, mistake of law can be made out when the accused person is mistaken about the state of a law; that law, if it existed, would provide legal justification or excuse; and the mistaken belief must be honestly held.

The elements are not made out (no actus reus, no mens rea)

This defence is connected to having reasonable justification. You do not have mens rea made out for the offence of intimidation if you did not intend to cause fear or intimidation in someone. For example, you were peacefully protesting at a health clinic, you did not intend someone to fear attending work at that clinic or services at that clinic, but you receive a charge for intimidation. Are the elements made out for the offence?

An applicable Charter defence

The Canadian Charter of Rights and Freedoms (the Charter). protects the rights of all Canadians. This includes rights that are engaged when you encounter law enforcement. For this offence, the burden of proof is high and the elements for this offence are difficult to prove. In addition to that, an experienced defence lawyer can raise Charter issues at and before trial that may help you secure a withdrawal or acquittal.

Punishment

Criminal intimidation carries a broad range of penalties, depending on what type of intimidation charge you are facing and what type of facts are present in your case. If you are charged with criminal intimidation 423(1) the Crown may elect by indictment (more severe punishment ceiling) or summarily (less severe punishment ceiling). As noted above, if the Crown chooses to proceed by indictment, the maximum penalty for intimidation 423(1) is 5 years imprisonment. If the Crown chooses to elect summarily, then the maximum penalty is two years less a day and a $5000.00 fine.

Criminal intimidation under 423.1(1) is an indictable offence and carries with it a maximum penalty of fourteen years imprisonment.

Criminal intimidation under 423.2 is a newer offence and it is an indictable offence that carries with it a maximum penalty of ten years imprisonment.

Frequently Asked Questions

Is intimidation a criminal offence in Canada?

Yes, criminal intimidation is a serious offence in Canada. As this article has touched on, criminal intimidation may look like very different things, because it is a very fact specific offence. For example, criminal intimidation may involve following someone on a public highway with the intent to obstruct that person from driving in a normal fashion. Another example of criminal intimidation may be causing fear in a person attempting to seek access to a hospital. As you can see from these two examples, criminal intimidation has a broad range of definitions.

How do you prove criminal intimidation?

The elements for criminal intimidation vary for the specific offence, but generally, the Crown must prove that you either indented to cause a person to be intimidated or you intended to cause a person to be fearful.

Can you go to jail for intimidation?

Yes, you can go to jail for criminal intimidation, even if it is your first offence. Even if the Crown elects the lowest sentence available for criminal intimidation, you may still face a term of imprisonment.

Published Decisions

R v Fensom, 2014 ABQB 238 (CanLII)

The accused was found guilty of intimidation (s.423.1) of a witness to a murder case and sentenced to one-year imprisonment for this offence.

You can read the full decision here.

R v Bellusci, 2012 SCC 44 (CanLll)

The accused person was charged with intimidating a justice system participant (s. 423.1(1)). Specifically, the accused person was charged with intimidating a prison guard while he was being transported to court from the prison. The accused person’s counsel was able to advance a successful Charter argument and the accused person was acquitted at the trial level.

You can read the full decision here.

R v Manuel, 2008 BCCA 143

The accused person was a participant in a roadblock. The accused was convicted of one count of s.423(1) of the Criminal Code, for obstructing a highway. The accused appealed and brought the defence of mistake of fact. The accused stated that they were mistaken in fact because they had an honest but mistaken belief that they had a right to block the road. The case went to the British Columbia Court of Appeal and that Court dismissed the appeal.

You can read the full decision here.

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