Episode 45 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 50 Assisting the Enemy and Failing to Prevent Treason

Section 50 continues our discussion of prohibited acts under the Part relating to offences against the public order. Section 50 contains two separate offences: assisting an enemy of Canada to leave the country without consent of the Crown and knowingly failing to advise a peace officer or a justice of the peace of an imminent act of treason. The full section reads as follows:

50(1) Every one commits an offence who

            (a) incites or wilfully assists a subject of

                        (i) a state that is at war with Canada, or

(ii) a state against whose forces Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the state whose forces they are,

to leave Canada without the consent of the Crown, unless the accused establishes that assistance to the state referred to in subparagraph (i) or the forces of the state referred to in subparagraph (ii), as the case may be, was not intended thereby; or

(b) knowing that a person is about to commit high treason or treason does not, with all reasonable dispatch, inform a justice of the peace or other peace officer thereof or make other reasonable efforts to prevent that person from committing high treason or treason.

These offences are indictable and pursuant to subsection 2 of the section, the maximum punishment is fourteen years incarceration. As is evident from the wording of the section, these offences are closely aligned to treason and treasonable acts. Indeed, the offence of failing to inform on a person about to commit treason is essentially an offence of being an accessory or party to the treason, either before the fact or after. Originally, this section in the 1892 Criminal Code was worded to that effect. The change came in the 1915 amendments, most likely as a result of World War One, when the offence of assisting an “alien enemy” was added immediately after the offence of accessory section. In 1927, the two offences were combined under one section. Finally, in the 1953-54 amendments to the Code, the specific reference to accessory was deleted and the section was re-enacted as it stands today.

Needless to say, I have been unable to find any reported decisions on this section other than a reference to the duty to report under s. 50(1)(b). In the 1990 Dersch case, the BCCA considered the seizure of blood samples in a case of suspected impaired driving where the accused was unconscious when the samples were taken for medical purposes. The issue of confidentiality of medical information was considered with the acknowledgement that such confidentiality was subject to exceptional circumstances such as a statutory duty to report. Section 50(1)(b) was cited as an example of such an exceptional situation.

The mens rea requirements for this section is of interest. It could be argued that both offences under this section require a high level of mens rea. In s. 50(1)(a) the use of the word “wilfully” suggests the requirement for a high level of subjective liability, which does not include recklessness. However, the term “willfully,” does not necessarily denote a high level of subjective mens rea as per the 1979 Ontario Court of Appeal case of Buzzanga and Durocher. The contra-argument would rely on the context of this offence, including its connection to treason and the severe punishment attached to conviction, as support for a high level of mens rea. But, s. 50(1)(a) reverses the onus of proof onto the accused by requiring the defence to “establish” that the assistance rendered was not intended. This reverse onus would certainly be subject to a Charter argument under s. 7 and s. 11(d). The mens rea requirement for s. 50(1)(b) is easier to discern as it requires the accused to have knowledge of the expected treason, which clearly requires proof of a high level of subjective liability by the Crown.

Although this section has been historically underused, considering the rise in alleged acts of terrorism, there is a possibility the section could be used in the future. There could be an argument that members of certain terrorist groups are in fact “at war” with Canada and a further argument that these groups in some ways constitute a “state” for purposes of the section. In fact, some of these groups do identify as such. However, in light of new legislation, both within the Code and through other federal statutes, relating to this area, it is more likely the government will prefer to lay charges under this newer legislation, which provides a broader basis for conviction. Probably the best indication of the viability of this section is whether or not it remains in the Criminal Code, in its present form, after the much anticipated government review of the Criminal Code.