High Treason (s. 61) Charges in Canada: Offences, Defences, Punishments

What is a charge of High Treason?

High Treason is covered under 61 of the Criminal Code of Canada. High treason occurs when a person commits an act that involves attempting to overthrow the government or encouraging others to do so, by use of force, violence, or unlawful means.

High treason is a straight indictable offence.

Examples

Some examples of a charge of high treason may include the following:

• Leaking or providing sensitive information regarding national security-related military operations to a foreign adversary.
• plotting to harm His Majesty the King (previously Her Majesty the Queen).
• aiding an enemy at war with Canada

Defences

The defences available to a charge of high treason are entirely dependent on the facts of your case.

However, some defences to a charge of high treason may include:

• The accused was wrongly identified as the person who committed high treason
• The accused was not intending to leak or disseminate sensitive information, and it was a technical error or a mistake
• The accused wrote a fictional or creative piece of literature which was mistaken for a plan or plot to commit violence against the government

Punishment

A charge of high treason is a straight indictable offence, which entails a maximum punishment as follows: 

• Imprisonment for a term of life imprisonment.

Whether you intend to plead guilty to a charge of high treason, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment. This depends on the unique circumstances of each matter and is determined on a case-by-case basis. Therefore, it is important to consult a lawyer.

Overview of the Offence 

According to s. 46(1), 47(1) of the Criminal Code:

The Guilty Act (Actus Reus)  

The actus reus for a charge of high treason under s. 46(1), 47(1) is established by proof, beyond a reasonable doubt, of the following:

• The accused killed or attempting to kill the Canadian monarch, levied war against Canada or engaged in any act that prepares for such an action, and aided an enemy at war with Canada or any country where Canadian armed forces are in conflict

The Guilty Mind (Mens Rea) 

The mens rea for a charge of sedition under s. 46(1), 47(1) includes proving, beyond a reasonable doubt, that:

• the accused know who the Canadian monarch was, and what their actions in aiding an enemy were likely to cause harm and/or impede the Canadian forces in conflict.

Defences

How to Beat a high treason Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a Sedition charge:

Factual innocence

A strong defence against a charge of high treason is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you did not commit the elements of the offence required for high treason, then you may have a defence that you were factually innocent.

Lack of Intent/Mistake

Depending on the context, if you can show that you were not seeking to disseminate confidential information in a manner that was deemed high treason, then this may be a defence for high treason based on lack of mens rea. For you to be convicted of high treason.

Identity

Depending on the circumstances of your case, a possible defence to a charge of high treason may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who committed the prohibited acts.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Punishments

The Criminal Code provides for a possible maximum term of life imprisonment for those convicted of a high treason charge.

Frequently Asked Questions  

What does High Treason mean?

High treason is a very serious matter. It is considered the crime of betraying one’s country.

Is high treason an indictable offence?

High treason is a straight indictable offence. This means that the Crown prosecutor cannot choose to prosecute someone charged with High Treason either summarily or by indictment. The crown prosecutor is required to proceed by indictment.

Can you go to jail for High Treason?

If you are convicted of high treason, you can go to jail. A charge of high treason carries a maximum sentence of life imprisonment. Therefore, it is considered a very serious offence, and it is a possibility that you can go to jail if convicted.

Published Decisions

The Queen v. Riel, 1885 CanLII 88 (MB KB)

(The Louis Riel Trial (1885))

Prime Minister John A. Macdonald ordered the historic charge of High Treason against Louis Riel, based on a British law dating to the year 1342. This law carried the death penalty whereas Canada’s treason law did not at that time.

Riel was the leader of a resistance movement against the federal government of Canada, and one of the main leaders of the Red River Rebellion. He was protesting the government’s treatment of Métis people, and addressed the court during his trial, listing the undemocratic treatment of Métis on the prairies and outlining his vision for a diverse society.

Riel was found guilty, and sentenced to the death penalty as a result.

You can read the full decision here.

The trial of Kanao Inouye (1947)

Inouye was a Canadian citizen of Japanese descent, convicted of high treason and war crimes for his actions during World War II. Inouye was known as the “Kamloops Kid”, and served as an interpreter and prison camp guard for the Imperial Japanese Army and the Kenpeitai political police.

Inouye was arrested and tried for war crimes by a British military court. In 1946, he was found guilty of torturing prisoners of war and civilians. Inouye had been accused of murdering four detainees but was acquitted of those charges. Under normal circumstances, the lesser verdict would have spared his life, since British war crimes courts did not condemn anyone to death if none of their victims had died. However, Inouye was sentenced to death on the grounds that his Canadian citizenship constituted a serious aggravating factor.

You can read more about the decision here.

The trial of David McLane (1979)

The historic conviction of McLane was the result of his undercover engagement of subversive activity in Lower Canada on behalf of a French (France) revolutionary. French officials in the United States were then planning to mount an invasion, to which McLane’s actions played a role.

You can read more about the decision here.

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