Criminal Code of Canada - section 490.031(2)

section 490.031(2)

INTRODUCTION AND BRIEF DESCRIPTION

A person subject to the Code of Service Discipline may have a reasonable excuse for not complying with an order or obligation due to a lawful command.

SECTION WORDING

490.031(2) For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse if, at the time, the person is subject to the Code of Service Discipline within the meaning of subsection 2(1) of the National Defence Act.

EXPLANATION

Section 490.031(2) of the Criminal Code of Canada deals with the concept of a lawful command being a reasonable excuse for non-compliance with an order or obligation, but only under certain circumstances. Specifically, this provision applies to individuals who are subject to the Code of Service Discipline as outlined in subsection 2(1) of the National Defence Act. This provision acknowledges that there may be instances where a military member is unable to comply with an order or obligation due to a lawful command. In such cases, the military member would not be considered in breach of their duty or obligation, as long as the command was lawful and within the scope of their duties. Lawful commands may include orders to engage in military action, to remain in a particular location, or to perform certain duties related to military service. In these situations, the military member would not be able to fulfill their obligations to civilian authorities, but would not be held liable under the Criminal Code if the command was deemed lawful. The inclusion of this provision recognizes the unique nature of military service and its associated obligations. The National Defence Act outlines the Code of Service Discipline, which sets out rules and regulations governing military members and their conduct. This provision within the Criminal Code is intended to ensure that military members are not subject to criminal sanctions for actions taken in the line of duty or in compliance with a lawful command.

COMMENTARY

Section 490.031(2) of the Criminal Code of Canada is an essential provision of the code that pertains to the lawful commands which prevent an individual from complying with an order or obligation. In essence, this section provides that a lawful command can serve as a reasonable excuse if the person is under the Code of Service Discipline of the National Defence Act. The section ensures that defense personnel are not unfairly penalized or punished when they are subjected to a lawful command due to their obligations under the Code of Service Discipline. The Code of Service Discipline is an important part of the National Defence Act that defines and outlines the legal discipline and rules governing the Canadian armed forces. The primary objective of the Code of Service Discipline is to maintain and promote the conduct of the armed forces to provide national security and defence of the country. Soldiers and personnel in the armed forces are governed by a separate set of rules to ensure they accomplish their duties in a manner consistent with the Constitution and laws of Canada. This act may often require that authorized individuals, such as commanding officers, issue lawful commands to personnel under their authority to meet operational or administrative requirements. However, in some cases, a lawful command can interfere with an individual's rights or obligations under the Criminal Code of Canada. For example, a soldier may be required to carry out orders that result in the violation of an individual's rights or obligations, such as using excessive force against unarmed or non-combative individuals. In such cases, the section helps shield the individual from legal liabilities and protects them from facing penalties under the Criminal Code of Canada for complying with a lawful command. The section also ensures that the criminal justice system treats individuals under the Code of Service Discipline with parity and equity. The Code of Service Discipline and the Criminal Code of Canada both form part of the Canadian legal framework and strive to achieve the same goals of promoting public safety, welfare, and justice. This provision provides that the superior orders received under the Code of Service Discipline that are lawful are, in essence, a mitigating factor in determining an individual's obligation to respond to another order or obligation under the Criminal Code of Canada. This ensures that members of the Canadian Armed Forces are not held to higher standards of conduct as compared to other citizens under the Criminal Code of Canada. In conclusion, the provisions of section 490.031(2) of the Criminal Code of Canada play a vital role in providing legal protections to military personnel in the Canadian Armed Forces. The section exists to prevent unfair punishments or legal liabilities for individuals under the Code of Service Discipline who comply with lawful orders that may interfere with their rights or obligations under the Criminal Code of Canada. The provision also ensures that the criminal justice system treats members of the Canadian Armed Forces with the same degree of equity and parity in the eyes of the law as it would treat other citizens within the country.

STRATEGY

Section 490.031(2) of the Criminal Code of Canada provides legal protection to persons who are subject to the Code of Service Discipline within the meaning of subsection 2(1) of the National Defence Act. The provision states that a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse for non-compliance. This means that if a person who is subject to the Code of Service Discipline receives a lawful command that conflicts with their order or obligation, they would not be held criminally liable for failing to comply with the order or obligation. However, there are some strategic considerations that need to be taken into account when dealing with this provision. Firstly, it is important to understand the definition of the Code of Service Discipline and the scope of subsection 2(1) of the National Defence Act. The Code of Service Discipline is a set of military laws that governs the behaviour of members of the Canadian Armed Forces (CAF). Subsection 2(1) of the National Defence Act defines who is subject to the Code of Service Discipline. This includes members of the CAF, cadets at military colleges, civilian employees of the Department of National Defence who are accompanying military personnel, and other persons who are attached to or serving with the CAF. If a person is subject to the Code of Service Discipline, they have certain obligations and responsibilities under the Code. These obligations may include complying with orders from superiors, following military protocols, and upholding the values of the CAF. However, if a lawful command conflicts with their obligations under the Code, they may use section 490.031(2) as a defence for non-compliance. One strategic consideration is the scope of a lawful command. A lawful command is an order or directive that is given by a superior officer who has the authority to give such orders. The command must be lawful, meaning that it must be consistent with the Code of Service Discipline and any other applicable laws and regulations. If a command is not lawful, then section 490.031(2) would not apply. Therefore, it is vital for a person who is subject to the Code of Service Discipline to carefully examine the command and determine its legality. Another strategic consideration is the use of the defence in court. If a person is charged with a criminal offence for failing to comply with an order or obligation, they may use section 490.031(2) as a defence. However, in order to be successful, they must demonstrate that the command was lawful and that it prevented them from complying with their obligations under the Code. They must also show that they acted reasonably in not complying with the order. In other words, they must show that they had no other choice but to disobey. One strategy that could be employed is to consult with a legal advisor. Members of the CAF have access to legal advisors who can provide advice and guidance on issues related to military law. A legal advisor can help to examine the legality of a command and provide guidance on how to use section 490.031(2) as a defence. Additionally, legal advisors can provide advice on how to prepare for a court appearance and how to present the defence in court. In conclusion, section 490.031(2) of the criminal code of Canada provides legal protection to persons who are subject to the Code of Service Discipline within the meaning of subsection 2(1) of the National Defence Act. However, there are several strategic considerations that need to be taken into account when dealing with this provision. The scope of a lawful command, the use of the defence in court, and consultation with a legal advisor are some strategies that could be employed. It is important for members of the CAF to understand their obligations and responsibilities under the Code and to seek legal advice when necessary.