escape lawful custody | unlawfully at large
A person who is arrested or serving a sentence for an offence is, for the purpose of the Criminal Code of Canada, “in lawful custody” of the State. In Canada, it is a criminal offence to escape “from lawful custody” or be “unlawfully at large” while serving a term of imprisonment. This clip of Boss Hogg and Rosco P. Coletrane from the 1980’s sitcom, Dukes of Hazzard, serves to illustrate escaping custody (though I am not sure it was actually lawful):
criminal code of canada
Section 145(1) of the Criminal Code reads as follows:
Every person who escapes from lawful custody or who is, before the expiration of a term of imprisonment to which they were sentenced, at large in or outside Canada without lawful excuse, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Section 145(2) of the Criminal Code reads:
Every person is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction who,
(a) is at large on a release order and who fails, without lawful excuse, to attend court in accordance with the release order;
(b) having appeared before a court, justice or judge, fails, without lawful excuse, to subsequently attend court as required by the court, justice or judge; or
(c) fails to surrender themselves in accordance with an order of the court, justice or judge, as the case may be.
section 145(1) and (2) explained
Escape from lawful custody contrary to section 145(1) generally occurs when a suspect has been “arrested” and escapes the police. Being “unlawfully at large” contrary to section 145(2) generally occurs when a person, who is serving a term of imprisonment, escapes lawful custody and is “at large” – or free – in the community. Unlawfully at large can also occur in situations where a person fails to return from a temporary pass from prison, fails to surrender him or herself in accordance with the terms of an intermittent sentence, is “at large” in breach of the terms of a conditional sentence order (prison sentence in the community) or fails to surrender in accordance with the terms of “bail pending appeal”.
you must be in "lawful custody"
In some cases, proving escape from lawful custody can be a challenge for the prosecution. For example, an unidentified suspect who escapes a lawful arrest may on re-capture have an “identification” defence. Of course, the Crown must also prove that the suspect who escaped was actually in “lawful” custody of the police at the time of his or her escape. Lawful custody means that the arrest and custody must be according to law. If the arrest was unlawful and the suspect escapes, an argument can be made that the accused was entitled to escape from his or her unlawful capture.
It is important to remember, that though police are cloaked with extensive powers, those powers are not without limitations. By way of example, if a police officer arrests a suspect without“reasonable and probable grounds” for arrest, the suspect who escaped was arguably not in lawful custody and thus an essential averment of the offence is not proven. In this example, the suspect may have been legally entitled to escape and flee from the police. In the Dukes of Hazard clip above, when Enus starts questioning what he saw, there is a serious question as to whether Boss Hogg was lawfully arrested.
Officer Enus: "I've been thinking".
Officer P. Coletrane: "Why that's your first mistake"
Failing to prove an essential element of a crime means that the accused must be found “not guilty”. Accordingly, the Crown must demonstrate beyond a reasonable that the accused was in lawful custody in order to sustain a conviction for “escaping lawful custody” pursuant to section 145(1) of the Criminal Code.
proving unlawfully "at large"
Proving unlawfully at large of requires the Crown to demonstrate beyond a reasonable doubt that the accused was, at the time of the offence, serving a term of imprisonment and that he or she was unlawfully outside the custody or control of the State at the material time. To prove beyond a reasonable doubt that the accused was serving a term of imprisonment, the Crown will usually attempt to introduce and exemplification into evidence. An “exemplification” is a sealed and certified court document that on its own can be introduced at trial as proof of the truth of its contents.
In an unlawfully at large case, the exemplification is tendered to show that the accused was sentenced to a term of imprisonment. Once this is proven, the Crown must then show that the accused was “unlawfully at large” during his or her prison sentence. For example, an offender sentence to weekend jail (an intermittent sentence) can be shown to be unlawfully at large if (1) the crown proves the intermittent sentence (usually by way of an exemplification) and (2) demonstrates beyond a reasonable doubt that the accused failed to surrender to his or her jailer in accordance with the terms of that Intermittent Sentence. In Calgary, this occurs when the offender fails to attend at the Calgary Corrections Centre or Remand Centre at the time designated for serving his or her time in prison.
dukes of hazzard example
In the Dukes of Hazzard clip above, Boss Hogg was clearly only under arrest, but not sentenced. This means that he could be liable to conviction for escaping lawful custody. If, however, he was in the jail cell while serving a sentence and escaped, he could be liable for both escape lawful custody and being unlawfully at large. In fact, when Rosco P. Coletrane and Enus pursue him, if they informed him by words that he was “under arrest” for escaping, he could also be charged with resisting a lawful arrest. At the end of the clip, Boss Hogg clearly makes more trouble for himself when he steals a police car.
If you have been charged with escaping lawful custody or being unlawfully at large there is a reasonable prospect that if convicted, you will be sentenced to a period of incarceration. Faced with this jeopardy, there is wisdom in taking advantage of a free consultation with an experienced Calgary criminal lawyer. There are several Calgary criminal lawyers who offer a free consultation service. You should always do your due diligence when hiring your criminal defence lawyer.