3.4 Common Criminal Code Offences & Indictable vs. Summary Classification

Common Criminal Code Offences and Offence Classification

Core Principle: A security guard's arrest power under Criminal Code s. 494(1)(a) turns on whether the offence being committed is indictable. That makes offence classification a practical, on-shift skill rather than a legal-theory topic. A guard who cannot say which offence they witnessed, and which class it belongs to, cannot articulate a lawful arrest — and articulation is what a court will test.

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The Three Classes of Offence

Canadian criminal offences fall into three classes:

Why Hybrid Offences Matter So Much to Guards

The great majority of offences a guard actually witnesses — shoplifting, common assault, graffiti, possession of stolen goods — are hybrid. Section 34(1)(a) of the federal Interpretation Act deems a hybrid offence to be indictable unless and until the Crown formally elects to proceed summarily in court. Because that election happens weeks later in a courtroom, the offence is legally indictable at the moment the guard sees it, and s. 494(1)(a) is available.

Exam Trap: The value of the stolen item does not decide the guard's arrest power. Even a $2 chocolate bar is theft under s. 334(b), a hybrid offence, deemed indictable at the time of the incident. Do not memorize "under $5,000 means summary" — that is the single most common error on this topic.

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Property Offences a Guard Meets Constantly

Theft — s. 322 (definition), s. 334 (punishment). A person commits theft who fraudulently and without colour of right takes or converts anything with intent to deprive the owner. Two elements matter operationally: intent to deprive and absence of colour of right (an honest belief in a legal claim to the item). Under s. 334(a) theft of property worth more than $5,000 is hybrid with a 10-year indictable maximum; under s. 334(b) theft of $5,000 or less is hybrid with a two-year indictable maximum. In retail, the offence is normally complete when the subject passes all points of sale with concealed merchandise and shows intent to leave without paying — the classic six-step loss-prevention sequence (select, conceal, continuous observation, pass all cash registers, exit, approach).

Possession of Property Obtained by Crime — s. 354, punished under s. 355. The subject possesses property knowing it was obtained by an indictable offence. Knowledge, not mere possession, is the contested element. Punishment mirrors theft: over $5,000 under s. 355(a), $5,000 or less under s. 355(b).

Fraud — s. 380. Deceit, falsehood, or other fraudulent means causing deprivation. Over $5,000 (or a testamentary instrument) is straight indictable with a 14-year maximum under s. 380(1)(a); $5,000 or less is hybrid under s. 380(1)(b). Counterfeit currency, stolen gift cards, and refund scams land here.

Mischief — s. 430. Wilfully destroying or damaging property, rendering it useless or inoperative, or obstructing, interrupting or interfering with the lawful use or enjoyment of property. That last branch is broader than most guards expect: chaining a gate shut, jamming a card reader, or blocking a loading bay can be mischief even with nothing broken. Section 430(1.1) extends mischief to computer data.

Break and Enter — s. 348. Breaking and entering a place with intent to commit an indictable offence there, or committing one after entry. Classification depends on the place: in relation to a dwelling-house it is straight indictable with a maximum of life under s. 348(1)(d); in relation to any other place — the warehouse, mall, or office building most guards protect — it falls under s. 348(1)(e).

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Offences Against the Person

Assault — s. 265 (definition). Assault is committed by (a) intentionally applying force without consent, (b) attempting or threatening by act or gesture to apply force where the person has or appears to have present ability, or (c) accosting or impeding a person while openly carrying a weapon. Branch (b) is critical: no contact is required. Punishment for simple assault is hybrid under s. 266 (five-year indictable maximum).

Assault with a Weapon or Causing Bodily Harm — s. 267. Hybrid, 10-year indictable maximum, covering assaults where the accused carries, uses, or threatens to use a weapon or an imitation, causes bodily harm, or chokes, suffocates or strangles the complainant.

Aggravated Assault — s. 268. Wounding, maiming, disfiguring, or endangering life. Straight indictable, 14-year maximum.

Criminal Harassment — s. 264. Without lawful authority, engaging in repeated following, repeated communication, besetting or watching a dwelling-house or workplace, or threatening conduct that causes the complainant reasonably to fear for their safety. Hybrid, 10-year indictable maximum. Persistent unwanted attention toward a tenant, a retail clerk, or a fellow guard is the usual security fact pattern, and the guard's dated notebook entries are what establish the repeated element.

Uttering Threats — s. 264.1. Knowingly uttering, conveying, or causing a person to receive a threat to cause death or bodily harm, to damage property, or to kill or injure an animal. Hybrid.

Robbery — s. 343. Theft accompanied by violence or threats of violence, or theft while armed. Straight indictable with a maximum of life under s. 344.

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Public Order and Authority Offences

• Causing a Disturbance — s. 175(1)(a). Summary conviction only. Requires a disturbance in or near a public place by fighting, screaming, shouting, swearing, singing, using insulting or obscene language, being drunk, or impeding or molesting other persons. Courts require an externally observable disturbance, not mere annoyance. Note the two traps: it does not apply in a dwelling-house, and being a summary-only offence it does not support a s. 494(1)(a) citizen's arrest.
• Trespassing at Night — s. 177. Loitering or prowling at night on another's property near a dwelling-house without lawful excuse. Summary conviction only.
• Obstructing a Peace Officer — s. 129. Resisting or wilfully obstructing a peace officer in the execution of duty. Hybrid. A guard is not a peace officer, so obstructing a guard is not a s. 129 offence.
• Personating a Peace Officer — s. 130. Falsely representing oneself to be a peace officer or using a badge or article of uniform in a way likely to cause belief that one is. Hybrid. This is the offence behind the PSISA's strict uniform, insignia, and title restrictions.
• Intimidation — s. 423. Using violence, threats, persistent following, or blocking a highway to compel someone to abstain from doing something they have a lawful right to do. Hybrid, and the provision that separates lawful picketing from criminal conduct.