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

What is a charge of Sedition?

Sedition is covered under 61 of the Criminal Code of Canada. Sedition 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.

Sedition is a straight indictable offence.

Examples

Some examples of a charge of Sedition may include the following:

• Publishing written material that outlines a plan or plot which incites others to commit violence against the government.
• Verbally communicating to others, through either a captioned video, by telephone, or in-person, a plan or plot which is likely to incite others to commit violence against the government.
• Attending a protest or rally and seeking to incite violence against the government

Defences 

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

However, some defences to a charge of Sedition may include:

• The accused was wrongly identified as the person who committed sedition
• The accused was not actively participating in a protest or plan to incite violence, and had a lawful reason (such as employment) for being at the location where it occurred
• 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 Sedition is a straight indictable offence, which entails a maximum punishment as follows: 

• Imprisonment for a term not exceeding 14 years. 

Punishments for Sedition depend on if the Crown elects to pursue the charge as an indictable offence or summarily. There are no mandatory minimum penalties for this offence. The maximum is no more than 14 years of incarceration. A charge of Sedition can also entail severe consequences for current and future employment opportunities.

Overview of the Offence 

According to s. 61 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a charge of sedition under s. 61 is established by proof, beyond a reasonable doubt, of the following: 

• The accused communicated in writing, verbally, or otherwise to other persons, a plan to cause contempt and/or incite violence against the government.

The Guilty Mind (Mens Rea)

The mens rea for a charge of sedition under s. 61 includes proving, beyond a reasonable doubt, that:

• The accused, knowing that their actions were likely to incite, cause contempt, or violence against the government.

Defences

How to Beat a Sedition 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 Sedition charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you sought to incite violence, you were not engaged in a protest in-person, or that you did not communicate with. Then you may have a defence that you were factually innocent.

Lack of Intent/Mistake

If you can show that you were never seeking to incite violence, and were merely reporting or commenting on government accountability or activity, then this may be a defence for sedition. For you to be convicted of sedition, the crown must prove that you had knowledge that your actions would incite violence against the government. If this cannot be proved this could be a suitable defence.

Identity

Depending on the circumstances of your case, a possible defence to a sedition charge 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 imprisonment of no more than 14 years for those convicted of a Sedition charge.

Frequently Asked Questions  

What does Sedition mean? 

Sedition is a very serious matter. It is any prohibited act that is legislated to safeguard the democratically elected government by criminalizing activity which seeks to cause violence against the government. It is any act that seeks to incite or cause violence against the government. To be convicted of Sedition, the Crown prosecutor must prove that your actions constituted that which sought to incite acts of violence against the government, or others to overthrow the government.

Is sedition an indictable offence?

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

Can you go to jail for Sedition?

If you are convicted of sedition, you can go to jail. A charge of sedition carries a maximum sentence of no more than fourteen years in jail. Therefore, there is a possibility that you can go to jail for a sedition charge.

Published Decisions

Boucher v. The King 1949 CanLii 334 (CanLII)

The accused was convicted by a jury, the decision was held by the court of appeal, however was later reversed by the high courts, where the conviction was quashed and verdict of acquittal entered.  The accused was charged after distributing seditious libel contrary to (then) section 133 of the Criminal Code. The accused was a member of a religious organization (Jehovah’s Witness) and distributed pamphlets with the title “Quebec’s burning hate for God and Christ and Freedom, is the shame of all Canada”.The publishers were the “Watch Tower Bible and Tract Society of Toronto”, and over 1,500,000 copies were printed. The crown contended that statements made within the publication calculated to disturb the tranquillity of the state (provincial government of Quebec), the publication was that, after describing alleged injustices committed by the Quebec government and Catholic church, and at trial it was argued that the distribution of the pamphlet, or of a harmful, injurious writing which may provoke hate and discord amongst the different classes. However, the high courts ultimately ruled the accused, even if what he was distributing was false information, was protected as good faith and his right to practice religion freely should not be interfered with, as his conduct was deemed consistent with acting in good faith.

You can read the full decision here.

R v. Wallace-Johnson 1939 CanLii 509 (UK JCPC)

The court of appeal dismissed an appeal by the accused. The courts ruled that the incitement of violence is not a necessary ingredient to commit the crime of sedition, and that what the legislature of the time defined as “seditious words” did not require proof of the seditious words used to have violence (specifically) as the intended result.

You can read the full decision here.

Rex v. Manshrick 1916 CanLii 791 (MB CA)

The accused was convicted of uttering seditious words and the decision held by the court of appeal, after engaging in a conversation regarding the deployment of Canadian soldiers, when another person suggested many of the soldiers may not return, implying fatal injuries resulting from combat, the accused replied “I hope to God none of them comes back.” And moreover, had made comments implying support for German soldiers/ the military action of Germany. The courts examined the difference between disloyalty to one’s country and seditious words in this decision. The accused was ultimately convicted, and sentenced to a fine of $500.

You can read the full decision here.

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