INTRODUCTION AND BRIEF DESCRIPTION
Section 146 of the Criminal Code of Canada outlines offences related to aiding or facilitating the escape of a prisoner.
SECTION WORDING
146 Every one who (a) permits a person whom he has in lawful custody to escape, by failing to perform a legal duty, (b) conveys or causes to be conveyed into a prison anything, with intent to facilitate the escape of a person imprisoned therein, or (c) directs or procures, under colour of pretended authority, the discharge of a prisoner who is not entitled to be discharged, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
EXPLANATION
Section 146 of the Criminal Code of Canada relates to offences surrounding the escape of a prisoner from custody. There are three different forms of conduct that are outlined within the section, all of which are considered to be an indictable offence. The punishments for these offences can include imprisonment for a term not exceeding two years. The first form of conduct covered by this section is the act of allowing a person who is lawfully in custody to escape by failing to perform their legal duty. This means that if a person who is responsible for keeping someone in custody does not perform their legal duty, and that person escapes, then they have committed an offence under this section. The second form of conduct is more direct and involves the act of conveying something into a prison with the intent of facilitating the escape of a prisoner imprisoned therein. This could include providing tools or other materials that would aid in an escape attempt. Finally, the third form of conduct involves directing or procuring, under the false pretense of authority, the discharge of a prisoner who is not entitled to be released. This could happen if someone uses their position of authority to falsely release a prisoner who was not meant to be released, putting them in danger as well as posing a threat to public safety. In conclusion, section 146 of the Criminal Code of Canada exists to prevent people from facilitating the escape of prisoners or endangering public safety in any way related to prison escapes. It is designed to hold those who fail to perform their legal duty or take deliberate actions to enable a prisoner's escape accountable for their actions.
COMMENTARY
Section 146 of the Criminal Code of Canada addresses three distinct offences that relate to aiding or facilitating the escape of a person who is lawfully in custody. These offences are serious and can lead to significant penalties, including imprisonment for up to two years. The first offence outlined in section 146(a) deals with a person who has lawful custody of an individual and permits that person to escape by failing to perform a legal duty. This offence is broad and can apply to a range of scenarios, from a police officer who neglects to properly secure a detainee to a prison guard who fails to notice a breach in the perimeter. The key requirement for this offence is that the person who allows the escape had a legal duty to prevent it. Offence (b) in section 146 deals with the act of conveying or causing to be conveyed anything into a prison with the intent to facilitate the escape of a person who is already imprisoned there. This offence can be committed through a variety of means, such as smuggling in tools or weapons that could aid in a prison break. The intent element is the key aspect here, as there must be a clear intention to facilitate an escape for this offence to be proven. Finally, offence (c) in section 146 concerns a person who directs or procures the discharge of a prisoner under false pretenses. This offence is distinct from the first two offences in that it does not involve an actual escape - rather, it focuses on attempts to secure the release of a person who should not be released. This could occur through bribery or forgery, for example. Overall, section 146 of the Criminal Code seeks to prevent individuals from aiding or facilitating escapes from lawful custody. The offences outlined in this section are serious and carry significant penalties. By highlighting the various ways in which one could commit such offences, this section serves as a strong deterrent against those who may be tempted to help a person escape from custody. It also underscores the importance of maintaining secure and effective systems for the management of individuals who are in lawful custody.
STRATEGY
Section 146 of the Criminal Code of Canada deals with offences related to facilitating the escape of a prisoner. Any individual who permits a person in lawful custody to escape, fails to perform a legal duty, conveys anything into prison with the intent to facilitate an escape, or directs a discharge of a prisoner who is not entitled to discharge, is guilty of an indictable offence. When dealing with this section of the Criminal Code, lawyers and paralegals should consider the following strategic considerations: 1. Understanding the Elements: To be charged and convicted of an offence under Section 146, the Crown must prove that the accused committed the offence intentionally. The specific elements of the offence must be carefully examined to determine if the Crown has met the burden of proof. A lawyer or paralegal may consider challenging the Crown's evidence on one or more of these elements. 2. Constructing a Defence: A defence strategy must be constructed as soon as possible after charges are laid. A strategically sound defence will require a detailed examination of the circumstances that led to the criminal charges, such as whether there were mistakes in the conduct of the investigation or prosecution. A criminal law lawyer will require access to all relevant pre-trial documents, statements, and police notes to build a robust defence. 3. Plea Negotiations: A plea negotiation is an agreement between the Crown prosecutor and the defence counsel to resolve the case without trial. A plea negotiation that results in the reduction or removal of charges can be advantageous for an accused person. A lawyer may seek to negotiate with the Crown for a reduction to a lesser charge or a reduced sentence. 4. Seeking a Withdrawal of Charges: A careful examination of the facts unique to a particular matter may demonstrate that there is insufficient evidence or that the offence charged was not committed. In such cases, a lawyer or paralegal may seek a withdrawal of charges before trial. 5. Trial Strategy: A trial of section 146 charges can be a complicated and lengthy process. A lawyer or paralegal must develop a comprehensive trial strategy that is tailored to their client's circumstances. The strategy may involve challenging the Crown's evidence on one or more fronts, such as the credibility of witnesses or approval of arrest and searches, and calling experts to testify about the technical aspects of the charges. 6. Sentencing Considerations: If the accused is found guilty of the charges, the court will impose a sentence. Generally, the sentence will depend on the individual circumstances of the case, including the offender's prior record, the degree of planning, and the offender's level of involvement. It is essential to have a sound sentencing strategy that presents mitigating circumstances or other factors to persuade the judge to impose a lenient sentence. In conclusion, strategic considerations when dealing with Section 146 of the Criminal Code of Canada include understanding the elements, constructing a defence, engaging in plea negotiations, seeking a withdrawal of charges, trial strategy, and sentencing considerations. A competent criminal lawyer or paralegal should carefully examine the facts to determine the best defence strategy and take a tactical approach to the charges.