Misconduct by Officers Executing Process (s. 128) Charges in Canada: Offences, Defences, Punishments

What is a misconduct by officers executing process charge?

Misconduct by officers executing process is covered under s. 128 of the Criminal Code, found in Part IV. Part IV covers “Offences Against the Administration of Law and Justice.”

A misconduct by officers executing process charge occurs when a police officer or coroner intentionally engages in conduct that violates one or more of their professional duties. This charge can also occur when an officer or coroner submits work-related documents with misleading or incorrect information.

Misconduct by officers executing process is a hybrid offence with a Crown election. This means that depending on the circumstances of your case, the Crown can elect to proceed by indictment or summarily. If an accused is prosecuted by indictment, there is a Defence election of court under s. 536(2.1) of the Criminal Code.

Examples

Some examples of a misconduct by officers executing process charge may include the following:

• A police officer falsifies a warrant;
• A police officer uses excessive force during an arrest;
• A coroner changes the cause of death on an autopsy report; and
• A coroner destroys evidence found at a crime scene.

Defences

The defences available for a misconduct by officers executing process charge are entirely dependent on the facts of your case.

However, some defences to a misconduct by officers executing process charge may include:

• The accused’s charter rights were violated;
• The accused was wrongly identified;
• The accused was not executing process; and
• The accused was not engaging in misconduct.

Punishments

A misconduct by officers executing process charge is a hybrid offence which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 2 years.

Punishments for a misconduct by officers executing process charge depend on if the Crown elects to pursue the charge as an indictable offence or summarily. There are no mandatory minimum penalties for this offence. The maximum is no more than 2 years of incarceration if prosecuted by indictment. If prosecuted summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine.

A misconduct of officer executing process charge can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 128 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a misconduct by officers executing process charge under s.128 is established by proof, beyond a reasonable doubt, of the following:

• The accused is a police officer or coroner;
• The accused is entrusted with executing a job-related process; and
• The accused engages in misconduct when executing this process.

OR

• The accused is a police officer or coroner;
• The accused is entrusted with executing a job-related process; and
• The accused falsifies job-related documents related to this process.

The Guilty Mind (Mens Rea)

The mens rea for a misconduct by officer executing process charge include proving, beyond a reasonable doubt, that:

• The accused intentionally engaged in misconduct; and
• The accused had no lawful excuse for engaging in misconduct.

OR

• The accused intentionally falsified job-related documents; and
• The accused had no lawful excuse for falsifying documents.

Defences

How to Beat a Misconduct by Officers Executing Process Charge?

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a misconduct by officers executing process charge.

Not Engaging in Misconduct

For this to be a defence against a misconduct by officers executing process charge, you must be able to show that you were not engaging in misconduct at the time that the alleged offence took place. What qualifies as misconduct will vary jurisdiction to jurisdiction depending on the individual codes of conduct for different organizations. If you can prove you were not engaging in anything that qualifies as misconduct based on organizational standards, you could use this as a defence. For example, in R v Hok, the officer was arresting someone without the use of force, which did not qualify as misconduct based on the officer’s organizational standards.

Not Executing Process

If you can show that you were not executing process, then this can be used as a defence for a misconduct by officer executing process charge. Executing process is not completely defined, but Section 29 of the Criminal Code outlines various requirements for those executing a process. If one is not executing process, then they would not fall under this provision. For information on what it means to executing process, see R v Gagnon and Warman (Re).

Any Applicable Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights 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.

Identity

Depending on the circumstances of your case, a possible defence to a misconduct by officers executing process charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who engaged is misconduct.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 2 years for those convicted of misconduct by officers executing process when the Crown proceeds by indictment.

If the Crown proceeds summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine.

There is no mandatory minimum period of imprisonment for those convicted of misconduct of officers executing process.

Persons found guilty of misconduct of officers executing process are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or a conditional sentence order.

Frequently Asked Questions  

What is the punishment for misconduct by officers executing process?

If you are found guilty of a misconduct by officers executing process charge, your punishment will vary depending on whether the Crown proceeds summarily or by indictment. If the Crown proceeds by indictment, a misconduct by officers executing process charge carries a maximum sentence of no more than two years in jail. If the Crown proceeds summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine. No minimum punishment is outlined.

Can you go to jail for misconduct by officers executing process?

If you are found guilty of misconduct by officers executing process, you can go to jail. If the Crown proceeds by indictment, a misconduct by officers executing process charge carries a maximum sentence of no more than two years in jail. If prosecuted summarily, the maximum punishment is no more than 6 months of incarceration. There is no minimum jail sentence whether the Crown proceeds summarily or by indictment. Therefore, there is a possibility that you can go to jail for a misconduct by officers executing process charge, but it is not guaranteed.

What type of offence is misconduct by officers executing process?

Misconduct by officers executing process is a hybrid offence. This means that the Crown may decide to proceed summarily, or by indictment. If the Crown proceeds by indictment, a misconduct by officers executing process charge carries a maximum sentence of no more than two years in jail. If the Crown proceeds summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine.

Frequently Asked Questions

Warman (Re), 2000 ABPC 181

An ex parte hearing was held to determine if a Constable should be charged criminally for various offences, including misconduct by officer executing process. When considering whether or not to charge the officer, the court refers to various provisions set out in Section 29 of the Criminal Code, which outlines what it means for an officer to execute a process, including executing a document commanding a person to appear in court to answer a charge or the execution of an arrest or search warrant. Since the allegations against the officer did not fall under the definition of executing process, the Constable was not charged with misconduct by officer executing process.

You can read the full decision here.

R v Gagnon, 2007 QCCA 1632

An officer was charged with misconduct by officer executing process after being accused of issuing false tickets and reports for speeding. The accused was found guilty at trial and appealed his conviction at the Quebec Court of Appeal. The main issue was whether the false tickets qualified as executing process, as the accused argued that executing process referred specifically to court processes. The court concluded that process was given a wide definition, and thus could encompass both court processes, and processes outside of court including false speeding reports. The appeal was thus dismissed.

You can read the full decision here.

R v Hok, 2016 ABQB 335

The applicant sought judicial review of three decisions, one in which the court decided not to proceed with charging the accused under misconduct by officer executing process. The applicant had made several complaints to the police regarding ongoing conflict between herself and her neighbour, which ultimately resulted in both herself and her neighbour being charged. The applicant argued that she was a victim, and the officer who had charged her engaged in misconduct because of this. The court found that the officer engaged in permitted conduct, arresting and charging the applicant, based on evidence of an ongoing conflict. This does not fall under misconduct of executing process, and thus there was no basis for this charge. The applicants review was dismissed.

You can read the full decision here.

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