Piracy (s. 74) Charges in Canada: Offences, Defences, Punishments

What is a piracy charge?

Piracy is covered under section 74, Part II of the Canadian Criminal Code. Part II covers “Offences Against Public Order”.

A piracy charge occurs where, by the law of nations, a person has committed an act considered piratical. Piratical acts are committed on navigable waters and the seas outside of all national jurisdictions. As this is by the law of nations, piracy is defined through the body of laws and treaties agreed upon and subscribed to by United Nations member states, who abide by the law of nations. Thus, this section applies to Canadian citizens who commit piracy even outside of Canadian jurisdiction,  anywhere in the world.

Piracy is an indictable offence in Canada as indicated in section 74(2) of the Criminal Code. These are the most serious types of offences, and can therefore result in severe penalties, such as longer maximum jail sentences and higher fees. Indictable offences generally give the accused the right to choose their type of trial: judge-alone or a jury trial, though there are certain exceptions, listed out in section 553 of the Criminal Code, and included within those, is the act of piracy. Thus, an accused charged with piracy does not have the right to choose their mode of trial as piracy is an exclusive jurisdiction offence.

Examples

Some examples of an act of piracy charge may include the following:

• Hijacking of vessels
• Kidnapping and/or detention of persons on a boat
• Theft of cargo and/or property

Defences

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

However, some defences to a piracy charge may include:

• Factual innocence
• Mistaken identity
• Duress

Punishment

A piracy charge is an indictable offence, which entails a maximum punishment as follows:

• Imprisonment for life.

As piracy is an indictable offence and as dictated by section 74(2) and section 745(d) of the Criminal Code, it carries an imprisonment for life sentence. There are no mandatory minimum penalties for the offence of piracy, although the individual charged with piracy is eligible for parole after a certain amount of time passes. As this is an imprisonment for life sentence, even in the case of parole, the offender would remain supervised by the Correctional Service of Canada. Moreover, a charge of piracy would affect employment opportunities, immigration status and more.

Overview of the Offence 

According to s. 74 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a piracy charge under section 74 is established by proof, beyond a reasonable doubt, of:

Piracy by law of nations (s. 74(1))

• The accused committed an act considered piracy by the law of nations.

The actus reus refers to the act or omission itself that constitutes the physical elements of a crime. Thus, the physical aspect of piracy would be constituted by any physical act or omission of an act of piracy. To take one example, in the case of a hijacking, the pure act of hijacking the vessel, would be considered the actus reus.

The Guilty Mind (Mens Rea)

The mens rea for a piracy charge under s. 74(1) includes proof, beyond a reasonable doubt, that:

• The accused knowingly committed an act of piracy;
• The accused had no excuse by law to commit an act of piracy.

Mens rea is defined as the knowledge or intention of committing the crime. In the same example of a hijacking, the intention to hijack, or knowledge that one is hijacking a vessel, constitutes mens rea.

Defences

How to Beat a Piracy Charge

As in every other case and all other charges, possible defences depend on the facts of your case. The circumstances of each case as well as the evidence available dictate the strength of each available defence. However, listed below are some common defences that may help fight a piracy charge.

Factual innocence

Factual innocence is a possible defence against piracy. If you can prove, using the evidence and the facts of your case, that you were not engaged in an act of piracy, or, that the evidence does not show that you were engaged in an act of piracy, then you may be able to defend yourself by stating you were factually innocent.

Duress

Another possible defence to a piracy charge is duress. Duress is proven when the five criteria listed below are met.

• That there was a threat of present/future death or physical harm,
• That the accused reasonably believes that the threat would be carried out,
• That the accused had no safe way to avoid the harm,
• That it is because of the threat, that the accused did what they did, and
• That the harm that the accused caused was not disproportionate to the harm that was threatened against the accused.

All five elements must be met for the defence of duress to be applicable. There is some debate as to how applicable the defence of duress is to the charge of piracy. In the Charter of Rights, section 17 explicitly notes that piracy is one of the offences excluded from the usage of the defence of duress. Duress therefore is inapplicable to a charge of piracy under this section. However, common law, such as R v Ruzic and R v Ryan notes that the list of excluded offences under section 17 is unconstitutional as that risks convicting morally innocent individuals. Section 17 is still valid, and as such it is generally up to the discretion of the judge on whether the defence of duress is applicable or not.

Identity

There may be a possible identity defence to a piracy charge. For this defence to be raised successfully, the accused would have to prove that they did not commit piracy.

Punishments

The Criminal Code provides for a possible maximum life imprisonment sentence if convicted of a piracy charge. A life imprisonment sentence is the most severe punishment that can be laid upon offenders, and as such, it is only dealt out to the most severe of crimes. Section 745 of the Criminal Code examines the terms of the sentence, and certain crimes, like piracy and manslaughter or mutiny, may also correlate to life imprisonment sentences.

Frequently Asked Questions  

What does an act of piracy mean?

An act of piracy is an act committed on national or international waters, as defined by the United Nations. The United Nations Convention on the Law of the Sea (UNCLOS) states that acts of piracy may include illegal acts of violence or plundering, committed by the crew of one private ship against another ship or aircraft.

Is piracy an indictable offence?

Piracy is an indictable offence. This means that the offender faces greater punishment, such as maximum prison sentences, as compared to summary or hybrid offences, in which the accused may be prosecuted either summarily or by indictment. Indictable offences tend to be more complicated in court and generally have heavier consequences on the offender.

Are piracy and e-piracy distinguishable in the Criminal Code?

Yes. Piracy as defined within the Criminal Code, and the subject of this article, only deals with the criminal offence as defined by the law of nations. Piracy of other people’s work for profit is dealt with by a series of legislation, both national and international.

Articles and Resources

Keeping Pirates at Bay: On Board With the Canadian Navy off the Coast of Nigeria

The Gulf of Guinea has maintained its place as a hotspot for piracy and attacks on commercial vessels for years and has earned its name as one of the most dangerous routes for seafarers. In this area, piracy ranges from small thefts to armed robberies and kidnappings of crew members. In response to this, The Royal Canadian Navy has been stationed there to train to prevent and fight against pirate attacks. In 2018, an eight-day anti-piracy and human trafficking exercise took place in the Gulf of Guinea and is only one example of this kind of exercise. Consisting of drills, and mock scenarios, these exercises aim to de-escalate incidents and inform the navies on what to do. The Royal Canadian Navy has in this vein also commenced a specialized unit for this issue, the Maritime Tactical Operations.

You can read the full article here.

Houthi Maritime Attacks Signal Alarming Rise in Piracy Sophistication, Require Urgent Global Response: James Stavridis

Recently, the Houthis, an Iranian group looking to control the south of the Arabian Peninsula and the waterways to and from the Gulf of Guinea, have reached a level of sophistication in their piratical methods, such as strategic placements of pirate teams, drones, helicopters and missiles, that has highlighted the need for new strategies to defend against pirates. Comparing this to ordinary pirate tactics and weapons, such as assault rifles and motorboats, the Houthis are certainly above par. Moreover, these pirates most likely have the support of the government of Iran.

You can read the full article here.

Pirates Board Danish-Owned Ship in Dreaded Gulf of Guinea

In early 2023, a Danish-owned, Liberian-flagged vessel was attacked by pirates just off the coast of the Republic of Congo’s Port Pointe Noire, located off the Gulf of Guinea. The vessel lost contact, and the crew took refuge from the pirates in an enclosed room. This incident has led to cooperation between several countries. Piracy has been on the decline as of 2021, due to the cooperation of countries in the area as well as others.

You can read the full article here.

You can find more articles about piracy here.

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