What is administering a noxious substance?
Administering a noxious substance is an offence under Section 245 of the Criminal Code of Canada. This section makes it a criminal offence for a person who administers, or causes to be administered to any other person, or causes any other person to consume poison or any other destructive/harmful substance.
Section 245 of the Criminal Code states that everyone who:
245 (1) Every person who administers or causes to be administered to any other person or causes any other person to take poison or any other destructive or noxious thing is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than 14 years, if they did so with the intent to endanger the life of or to cause bodily harm to that person; or
(b) of an indictable offence and liable to imprisonment for a term of not more than two years or of an offence punishable by summary conviction, if they did so with the intent to aggrieve or annoy that person.
Section 245 is a dual/hybrid offence, which means the crown prosecutor can proceed by summary or by indictable offence.
Examples of administering a noxious substance
Some examples of the offence of administering a noxious substance may include:
- A person “spiking” a person’s drink with GHB (commonly referred to as the date rape drug), therefore administering them a controlled substance which causes harm and intoxication. In some cases, related charges such as assault causing bodily harm may also be considered.
- A person serving food to another person, or people, with a poisonous or harmful ingredient, without advising them of what the ingredient contained therein.
- A person spraying someone with a known harmful, chemical substance which could cause adverse health effects and/or skin irritation, including substances like pepper spray
Defences:
A strong defence to a charge of administering a noxious substance will vary depending on the circumstances of what occurred. However, some defences may be:
- The accused made an honest mistake and mistakenly believed that administering the noxious substance would benefit the other person (thought they were giving tylenol in a bottle, etc.)
- The substance was not proven to be noxious in nature
- The identity of the accused, or date, time, or location was not established by the police
Punishment
The maximum penalty for a conviction under Section 245 is a term of imprisonment of up to 14 years if the crown proves the accused did so with the intent to endanger life or to cause bodily harm. Learn more about how jail sentences in Canada work.
The maximum penalty for a conviction under Section 245 is a term of imprisonment of up to two years if the crown proves the accused did so with the intent to aggrieve or annoy the victim.
Section 245 contains two avenues, one under section (a), and another under section (b). Section (a) is when the offence consists of a noxious substance which is intended to cause danger or harm. Section (b) is when the offence consists of a noxious substance which is intended to aggrieve or annoy.
Whether you intend to plead guilty to a charge under section 245, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment.
Overview of the Offence
Administering a noxious substance is an offence under section 245 of the Criminal Code of Canada.
The section defines the offence as the intentional administration of a substance that is noxious or likely to endanger life, which causes bodily harm to another person. The offence is often associated with the use of drugs or other substances in criminal activities, such as spiking drinks, food, or even injecting victims with dangerous substances. This section is designed to protect persons from being drugged.
In due course, section 245 has been updated to reflect changes in the types of substances used and the ways in which they are administered. For example, the definition of “noxious substance” was expanded to include gases and vapours, in addition to drugs and chemicals. For related offences involving solvents and inhalants, see Offensive Volatile Substances laws in Canada.
In order for a person to be convicted of administering a noxious substance in criminal court, the crown is required to prove their case beyond a reasonable doubt. The crown must also prove several elements of the offence, such as that the person the accused placed the substance, or caused the substance to be placed in a food, drink, or to be consumed by another person. Proving the offence should include confirming the accused’s identity, the date and time which the incident occurred, the jurisdiction, that the accused administered the substance, that the substance was noxious, and that the accused intended to aggrieve the victim, or cause bodily harm or endanger the life of the victim.
The Guilty Act (Actus Reus)
The actus reus for obstructing a peace officer is established by proof, beyond a reasonable doubt, of the following:
- The accused administered a noxious (harmful) substance for consumption by another person
The act of administering a noxious substance requires the crown to clearly prove that the actions of the accused included administering a noxious substance, which is a substance which is likely to hurt or injure, or to interfere with the health and comfort of the victim, as per the precedent established in R v Burkholder 1977 AltaSCAD 8.
The Guilty Mind (Mens Rea)
The mens rea for breach of trust is established by proof, beyond a reasonable doubt, of the following:
- The accused intentionally and knowingly, administered a substance they knew was noxious
and
- The accused knew that this could cause serious bodily harm to the victim, or endanger their life
or
- The accused knew that the noxious substance could aggrieve or annoy the victim
The act of administering a noxious substance, as supported by R v Clark 2008 ABCA 271, does not require something to be taken internally, and what is considered “noxious” will depend on the factual context.
In establishing actus reus and mens rea, as established in precedent by the courts in R v Burkholder 1977 Alta SCAD 8 if an accused person is charged with section 245(a), the crown must prove that the accused intended to cause bodily harm in administering a noxious substance.
Defences
How to beat a charge of administering a noxious substance:
Each circumstance is different, and the best defence available is contextual based on the details. However, the following are some common defences that may be used against a charge of administering a noxious substance:
Proving the substance is noxious:
There are several aspects to this defence, however, one may rely on whether there was evidence seized by the police, which was the substance administered to the victim, and whether the substance was tested by an accredited laboratory, and confirmed to be a noxious substance.
Lack of Knowledge/Honest Mistake/No Mens Rea or Mental Intent:
Lack of knowledge may also be raised as a defence if the accused can prove that they did not know that the substance was noxious or harmful. For example, if a component was added to a food, or beverage, or an injection was administered and the wrong medication/substance was administered as a result.
Punishments
The punishments include:
- The maximum penalty for a conviction under Section 245(a) is a term of imprisonment of up to 14 years.
- The maximum penalty for a conviction under Section 245(b), if the crown proceeds by indictment is a term of imprisonment of two years.
- The maximum penalty for a conviction under Section 245(b), if the crown proceeds summarily, is two years less a day and/or a $5000 fine.
Whether you intend to plead guilty to a charge under section 245, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment.