Episode 49 of the Ideablawg Podcasts on the Criminal Code of Canada: “Just Desserts?” The Offence of Assisting a Deserter Under Sections 54 & 56

In this episode, we will discuss two sections closely related to previous sections involving offences against the integrity of Canada’s security forces. Section 54 specifically relates to the armed forces. As with mutiny, the offence is also found in the National Defence Act but in much greater detail from section 88 (offence of desertion) to sections 90 to 91(absence without leave). The offence was in the 1892 Code (s. 73) and in the precursor to the Code, Burbidge’s Digest of the Criminal Law in Canada (Article 71).

Section 54, entitled “Assisting Deserter,” reads as follows:
54 Every one who aids, assists, harbours or conceals a person who he knows is a deserter or absentee without leave from the Canadian Forces is guilty of an offence punishable on summary conviction, but no proceedings shall be instituted under this section without the consent of the Attorney General of Canada.

Originally, in the 1892 Code, the offence was a hybrid or dual offence, permitting the Crown to prosecute either by indictment or summarily “before two justices of the peace.”  The maximum penalty by way of Indictment was a fine and imprisonment “in the discretion of the court.” If proceeding summarily, the maximum penalty was a two hundred dollar fine with six months imprisonment in default. The 1892 offence required that the accused person was not a member of the armed forces.

Section 56 specifically relates to the RCMP, our national police service, which has militaristic parallels in structure and purpose. This offence too had an equivalent in Burbidge’s Digest under Article 73 and was also in the 1892 Criminal Code under s. 75. Of course, at that time the reference was to the North-West Mounted Police. The current Royal Canadian Mounted Police Act, RSC, 1985, c. R-10 does not have a desertion section per se but does have a provision for terminating a member’s pay and allowances if absent from duty under s. 22. Under the RCMP regulation and pursuant to the Code of Conduct, a member must “remain on duty unless otherwise authorized” or be subject to discipline.

Section 56, entitled “Offences in relation to members of R.C.M.P.,” reads as follows:

56 Every one who wilfully

(a) persuades or counsels a member of the Royal Canadian Mounted Police to desert or absent himself without leave,

(b) aids, assists, harbours or conceals a member of the Royal Canadian Mounted Police who he knows is a deserter or absentee without leave, or

(c) aids or assists a member of the Royal Canadian Mounted Police to desert or absent himself without leave, knowing that the member is about to desert or absent himself without leave,

is guilty of an offence punishable on summary conviction.

The actus reus component of section 54 requires the accused person to “aid, assist, harbours or conceals” in committing the offence. Similar terminology is used under s. 56 in offences relating to RCMP officers. This phrase is also used under s. 299 of the National Defence Act to describe the offence of accessories to desertion or absence without leave under that Act. Section 23 of the Criminal Code, the offence of accessory after the fact, as discussed in a previous podcast (episode 27 and the text can be found here), uses slightly different terminology to describe the prohibited conduct, using the phrase “receives, comforts or assists.” The phrase “harbours or conceals” is found under section 83.23 of the Criminal Code, which is the offence of concealing a person who carried out or is likely to carry out terrorist activity. The offence of procuring, under s. 286.3, refers to “recruits, holds, conceals or harbours.” Similar language is found in the human trafficking section 279.011and 279.01 and in abduction sections 281 to 283. Of course, the party section 21 requires the accused person aids or abets under subsection 1 but under subsection 2, common intention, the act is assisting. It seems, therefore, that s. 54 is a combination of a party offence and an accessory after the fact offence.

It is difficult to contemplate when an act would be “aiding” rather than “assisting.” Dictionary meaning suggests the two words are effectively synonyms as “aid” means “to give assistance.” The term “harbour,” according to the dictionary, includes an aspect of “comfort” as it is defined as “a place of security and comfort” similar to a “refuge.” “Comfort,” is defined as “to give hope and strength to” or “to ease the grief or trouble of.” In the 2016 Ontario Superior Court of Justice decision considering the offence of human trafficking in R v D’Souza, Justice Conlan, in paragraph 146, defined “harbour” narrowly as simply providing shelter and “conceal” as “to hide or keep secret.”

It should be noted that the s. 54 offence cannot be prosecuted without the consent of the Attorney-General of Canada. This requirement suggests the prosecution of this offence requires special scrutiny, adding an additional layer of prosecutorial discretion. There are other offences in the Code requiring similar consent, for example, such as offences related to the Space Station and are committed by crew members of the Space Station pursuant to sections 7(2.3) and 7(2.31). This gives some idea of the delicacy of the offences and requirement for a second look by the federal government prior to prosecution.

The mens rea component for s. 54, as subjective mens rea, can be found in the knowledge requirement that the accused “know” the person so assisted is “a deserter or absentee without leave from the Canadian Forces” or from the RCMP. Again, section 54 must be read in light of the deserter and absentee without leave sections in the National Defence Act. Clearly, the Criminal Code section is to be used in an especially egregious case of accessory after the fact and is an offence in a range of offence-like sections found under the military legislation.  Section 56 also has a knowledge requirement under subsection b and c but the offence must also be committed “willfully.” As per Buzzanga and Durocher, 1979, ONCA, the word can suggest a requirement for a high level of intention or it can denote the general form of subjective mens rea, which includes recklessness. However, considering the additional knowledge requirement, an argument can be made that the accused must have a high level of intention in order to commit the offence.

I could not find any relevant case law on these two sections suggesting they are rarely used. No doubt the requirement for the consent of the Attorney General of Canada to prosecute the s. 54 offence contributes to this lack of use. It also suggests that these sections need to be reviewed in any Criminal Code reform and possibly repealed as historical offences no longer required in our criminal law.