What is a prison breach charge?

Prison breach is covered under s.144 of the Criminal Code.

Offences relating to prison breach are found in Part IV of the Criminal Code concerning “Offences Against the Administration of Law and Justice”. Under s.144 there are two ways in which the offence of prison breach can be committed. However, regardless of which way the offence is committed, an offence under s.144 requires that you possess a specific or ulterior mental element.

Offences under s.144 of the Criminal Code are hybrid offences. This means that depending on the nature and the circumstances of your offence the Crown may elect to proceed summarily or by indictment. If you’re unsure about the difference between indictable and summary offences, learn more here.

Examples

Some examples of prison breach offences may include the following:

Defences

A strong defence depends entirely on the specific circumstances of your case and the evidence against you. For an overview of what happens after you are charged, see this guide.

However, some common defences to a public incitement of hatred charge may include the following:

  • Identity
  • Lack of intent; and
  • Any applicable Charter

Punishments

If you have been convicted of an offence under s.144 of the Criminal Code you may be subject to the following penalties:

  • Summary: 2 years less a day in jail and/or a $5,000.00 fine.
  • Indictment: up to 10 years in jail.

This means that depending on the circumstances of your case the crown can elect to proceed either summarily or by indictment. A prison breach offence is prosecuted harshly, and you could receive jail time if you are convicted. However, there are other dispositions available to you as well. You can learn how criminal sentencing works in Canada here.

Overview of the Offence 

Under s.144 of the Criminal Code:

Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who

(a) by force or violence breaks a prison with intent to set at liberty himself or any other person confined therein, or

(b) with intent to escape forcibly breaks out of, or makes any breach in, a cell or other place within a prison in which he is confined.

By virtue of subsections (a) and (b), s.144 describes the dual procedure offence of prison breach. The offence of prison breach may be committed in either or two ways. As such for the Crown to convict you of a prison breach offence it must prove, beyond a reasonable doubt, that you committed both the actus reus and mens rea of s.144(a) or (b).

Actus Reus (The Guilty Act)

The actus reus that the Crown must prove, beyond a reasonable doubt, in order to convict you of an offence under s.144(a) of the Criminal Code is that you:

  • By force of violence, break out of prison.

The actus reus that the Crown must prove, beyond a reasonable doubt, in order to convict you of an offence under s.144(b) of the Criminal Code is that you:

  • Forcibly break out of a cell or out another place within a prison you are confined to; or
  • You make a breach in a cell or other place within a prison to which you are confined to.

Under s.2 of the Criminal Code the term “prison” is defined to include “a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or another place in which persons who are charged with or convicted of offences are usually kept in custody;”

Mens Rea (The Guilty Mind)

The mens rea that the Crown must prove, beyond a reasonable doubt, in order to convict you of an offence under s.144(a) of the Criminal Code is that you:

  • Intended to cause the actus reus of the offence; and
  • You did so with the further or ulterior intent to set at liberty yourself or another person there confined.

The mens rea that the Crown must prove, beyond a reasonable doubt, in order to convict you of an offence under s.144(b) of the Criminal Code is that you:

  • You intended to cause the actus reus of the offence; and
  • You did so with the intent to escape

This means that if the Crown can prove that you possessed the requisite intent, then the men’s rea element of the offence of prison breach is met.

Prison breach Defences

A strong defence depends entirely on the specific circumstances of your case and the evidence against you. However, some common defences to a public incitement of hatred charge may include the following:

  • Identity
  • Lack of intent; and
  • Any applicable Charter

Identity

The Crown needs to prove identity beyond a reasonable doubt. This means that the Crown must prove that it was you who committed the offence. This can often be difficult if there are no witnesses if there were conditions present that prevented a witness from identifying you, or if the offence was captured by poor-quality surveillance footage. Sometimes mistakes do happen, the authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. Your defence lawyer may be able to argue that the Crown cannot definitively prove that it was you who committed the offence, resulting in an acquittal.

Lack of intent

It is a defence to the charge of prison breach if you did not possess the requisite intent. The Crown must prove, beyond a reasonable doubt, that both the actus reus and mens rea of a prison breach offence are met in order to secure a conviction. As such, if you did not possess the requisite to escape or set at liberty yourself or another, you cannot be convicted as the mens rea element would not be satisfied.

Applicable Charter defences

The Charter sets out your rights before and after arrest. In the event the police fail to abide by these rights, you may have an applicable Charter defence to your charge:

Common Charter breaches include:

  • Section 8- Right to be secure from search and seizure;
  • Section 9- Right not to be arbitrarily detained;
  • Section 10- Right to be informed of reasons for detention or arrest:
  • Section 11- General: legal rights apply to those “charged with an offence”
  • Section 12- Cruel and unusual treatment or punishment

If any of your charter rights have been violated, you may be in a position to have any evidence obtained during the breach excluded.

Prison Breach Punishments

Prison breach is a hybrid offence which means that the Crown may proceed by indictment or summarily, depending on the circumstances of your case. The following penalties may be applicable:

s.144 – Summary

If you are convicted of prison breach and the Crown elected to proceed summarily, you can face up to two years less a day in jail and/ or a $5,000.00 fine.

You will also have available to you a discharge, suspended sentence, stand-alone fine, and custody, intermittent sentence, fine, probation and intermittent sentence.

s.144 – Indictment

If you are convicted of prison breach and the Crown elected to proceed by indictment, you can face up to 10 years in jail.

You will also have available to you a discharge, suspended sentence, stand-alone fine, and custody, intermittent sentence, fine, probation and intermittent sentence.

Frequently Asked Questions

Under s.144 of the Criminal Code it is an offence for anyone:

  • by force or violence to break a prison with the intent to set at liberty yourself or any other person confined therein; or
  • with the intent to escape forcibly break out of, or make any breach in, a cell or other place within a prison in which you are confined in.

Prison breach is a serious offence and is prosecuted harshly. Prison breach is a hybrid offence which means that the Crown can elect to proceed either by indictment or summarily.

If you try to escape from jail, you may be charged with an offence under s.144 of the Criminal Code, for prison breach. You can receive up to 10 years in jail if the Crown elects to proceed by indictment.

Published Decisions

This case was an appeal by the accused from a sentence of 30 months imprisonment for a prison break. The accused was arrested and charged with unlawful confinement, assault, and aggravated assault and was ordered detained on those charges. On his 44th birthday, the accused broke out of the correctional centre by creating a fake medical emergency to distract the guards. He broke a window, climbed onto the roof and used bed sheets as a rope to reach the ground. At the time he broke out of prison, the accused was detained on other charges. Those charges remained outstanding when he pleaded guilty to the prison break charge. The sentencing judge declined to give the accused any credit for the 14 months he had been in custody after recapture and before sentencing. The accused pleaded guilty to the prison break charges. The appeal was dismissed. 

You can read the full decision here.

In this case, the accused applied for leave to appeal, and if leave is granted, wanted to appeal from a sentence of five years imprisonment consecutive to the sentence he was then serving. This sentence was imposed following his guilty plea to one count of prison break charged under s. 144(a) of the Criminal Code. The accused, during a period of general disturbance and destruction, made his way out of the common living area in the correctional facility by removing a venter cover that lead to a pipe shaft. The accused entered the elevator shaft and made his way to various floors of the building.

You can read the full decision here.

In this case, was an appeal by the accused for a conviction of 14 months imprisonment for breaking out of jail contrary to s.144 of the Criminal Code of Canada. The accused, along with a fellow prisoner, broke out of jail. The escape was effected by pushing out a metal window screen from its insecure fastenings.

You can read the full decision here.