Administering A Noxious Substance (s. 245) Laws in Canada

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 with causes harm and intoxication.
• 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

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.

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.

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.

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.

Frequently Asked Questions

Is administering a noxious substance an indictable offence?

Administering a noxious substance under section 245 is a hybrid offence. This means that the Crown prosecutor can choose to prosecute someone charged with administering a noxious substance intended to aggrieve or annoy, (section b) either summarily or by indictment. If the Crown chooses to prosecute an accused by indictment, then the accused is found guilty, they will be convicted of an indictable offence.

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. Section (a) is a straight indictable offence.

Could I go to jail if convicted of administering a noxious substance?

Yes. Regardless of whether the crown proceeds by indictment or summarily on a charge of section 245(b), the maximum penalty includes imprisonment. If you are charged under section 245 (a) and convicted, the penalty includes imprisonment.

Published Decisions

R v. Clark, 2008 ABCA 271 (CanLII)

In this decision, the accused was found guilty of administering a noxious substance under section 245(b), which was held on appeal. The accused poured/dumped motor oil, intended for use in automotive, over the victim’s face. Although it was not proved as to whether the victim swallowed any of the motor oil, the motor oil caused the victim’s eyes to sting and irritation to her skin, therefore meeting the threshold of aggrieved or annoying her. In addition, it is accepted that motor oil is not intended for human consumption due to its chemical components. Most motor oil containers are even likely to have warning labels. In this decision, the court’s ruling was that pouring the motor oil on the victim’s face/facial area, constituted the administration element of administering a noxious substance (it did not need to be swallowed, ingested, etc.)

You can read the full decision here.

 R v. Burkholder 1997 AltaSCAD 8

The accused was charged with administering a noxious thing (substance) after administering novocane, containing procane, to a woman by way of injection through a syringe. The accused was convicted by the trial judge, however, the conviction was overturned by the court of appeal. The court of appeal ruled the crown had not established that the accused intended to cause bodily harm to the victim. The accused was under the care of a dentist and had attended a local pharmacy recently and purchased the (noxious) substance. The key issue in the court of appeal overturning the trial judges ruling was contextual, based on the amount of the substance administered and the totality of the circumstances, that the accused intended to cause bodily harm to the victim by injecting her with procane.

You can read the full decision here.

R v. Carr, 2010 ONCA 290 (CanLII)

The accused pleaded guilty to administering a noxious substance with intent to cause bodily harm contrary to Section 245(a) of the Criminal Code of Canada. The accused sprayed Aciticide SPX Kathlon on the victim’s desk and other areas which caused skin burns and blistering. The noxious substance, Kathlon, is a chemical which causes severe itching, burning, and blistering upon contact with human skin. It has a cumulative effect, which means that with more contact with human skin, the worse the described symptoms will become. In the case of R v. Carr, this occurred over a four-year period.

You can read the full decision here.