Episode 43: Section 46 – It’s High Time To Talk About Treason – The Ideablawg Podcast on the Criminal Code of Canada

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We are now moving our discussion into Part II of the Criminal Code relating to Offences Against Public Order. This Part stretches from s. 46, the subject of this podcast on Treason, to s. 83 on Prize Fights. It is, as you can imagine, a Part dedicated to rambunctious and seditious behaviour, which may impact the community peace and tranquility. It is conduct that covers the high seas, as in s. 74 piracy, as well as the earthy depths, as in s. 70, unlawful drilling. In short, this Part is a panoply of misbehaviours, originating in our historical English common law past yet may still be relevant today albeit in a more modern guise.

So let’s start this podcast with the first three sections: 46, 47, and 48 as they all relate to the offence of treason. These sections are entitled “Treason and Other Offences Against the Queen’s Authority and Person.” A quick glance at the first section 46 tells us that it refers to two offences: high treason, in subsection 1, and treason, under subsection 2. Those sections read as follows:

S. 46(1) Every one commits high treason who, in Canada,

(a) kills or attempts to kill Her Majesty, or does her any bodily harm tending to death or destruction, maims or wounds her, or imprisons or restrains her;

(b) levies war against Canada or does any act preparatory thereto; or

(c) assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.

(2) Every one commits treason who, in Canada,

(a) uses force or violence for the purpose of overthrowing the government of Canada or a province;

(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;

(c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);

(d) forms an intention to do anything that is high treason or that is mentioned in paragraph (a) and manifests that intention by an overt act; or

(e) conspires with any person to do anything mentioned in paragraph (b) or forms an intention to do anything mentioned in paragraph (b) and manifests that intention by an overt act.

Just what the difference is between high treason and treason should be evident by reviewing the conduct captured by each subsection. The punishment section 46 also tells us that high treason is considered one of the most serious offences in the Code as as it is an indictable offence punishable by life. Treason, on the other hand, is considered on par with high treason in certain circumstances, such as in offences committed under s. 46(a)(c) and (d). If Canada is in “a state of war” against another country, then the offences under s. 46(b) and (e) are also punishable by life imprisonment. Otherwise those offences carry a maximum punishment of fourteen years incarceration. It appears then that in some respects, other than the type of conduct captured, treason and high treason are very similar.

Perhaps at this point, in order to better understand why the offences need to be labelled differently and why the section could not just refer to treason only, we should take a walk down memory lane and look at the historical antecedents of this crime. As with so many of the crimes in our Criminal Code, the crime of treason comes to us from the English common law. However, the concept of treason, or the betraying of one’s country, is very old indeed. The word “treason” can be traced from the Latin word tradere, which means “to hand over” or “surrender.” From this word came the Old French word “traison,” which means treason but is also connected to the Old French verb “trair” meaning to betray. Interestingly, the word “tradition” is also derived from the original Latin root. In essence, as explained in the 1947 article on the subject by S. C. Biggs entitled “Treason and the Trial of William Joyce,” treason is an act of betrayal against one’s country or a breach of allegiance. It is not, however, an act of disloyalty, as Biggs points out, as it is not a crime based on an omission to act. Treasonable conduct does not include a failure to sing the national anthem at a hockey game but does include “certain positive acts which strike at the foundation of the state.”

Treason, in its purest or “highest” form, was, at the time of the introduction of the Criminal Code in 1892, a most serious crime attracting the ultimate punishment of death. Indeed, one convicted of the most serious type of treason was “liable to suffer death.” Conversely, a person convicted of murder, which in the 1892 Code was also a capital crime, was merely “sentenced to death.” While someone convicted of piratical acts with intent to commit violence was also “liable to suffer death.” What import, if any, this difference in language suggested is open to interpretation. A quick look at the internet site of dictionary.com reveals that the term “suffer” can mean “to undergo a penalty, as of death” and the sentence example is “the traitor was made to suffer on the gallows.” How or why this is the example offered is perhaps, something for us to think about. At the very least it underlines the severity and ignominity connected to the crime of treason.

Returning to the 1892 version of treason as found under the then sections 65 to 69, there is a distinction between treason and treasonable acts, which are viewed as less serious and punishable therefore by life. The distinction we now have, between high treason and treason, was effected in the 1974 Code amendments. However, “high” treason was a 12th century concept, an act of betrayal against the king, as opposed to “petit” treason, which was an act of betrayal against a person of lesser stature but still deserving of obedience. These “petty” treasons consisted of breaches against the social order, as in the murder of a lord by his servant or even a murder committed by a wife against her husband. Although the most recent iteration of the offence retains the “high” treason concept, thankfully the petty treason is no longer a valid label. However, the question still remains whether or not even today’s concept of high treason or even treason, is a valid response to acts of public betrayal, particularly in an environment where we now have in the Criminal Code offences of “terrorism.” Another overarching question we must ask is why we need so many differing offences for acts, which may be better understood as coming under the umbrella of more general offences such as counselling and conspiracy to commit murder.

Leaving the public policy and law reform issues aside for another day, I would like to look at the offence as a charge before the courts. A quick search of Westlaw reveals only a few criminal cases involving the offence of treason. One of the most famous cases is, of course, Louis Riel and specifically the 1885 Privy Council decision refusing leave for Riel to appeal the conviction for treason and the sentence of death. But along side this case are others involving lesser personalities. Most involving wartime actions, such as Israel Schaefer, convicted of treason as a result of enabling people to travel to Austria-Hungary, “a public enemy,” during World War I and assist that country in their war effort. In that 1919 case, the Supreme Court of Canada, refused Schaefer the right to appeal as the decision convicting him was “so clearly right that an appeal from it would be hopeless.” In fact, most reported cases of treason tend to be those prosecuted during that time period.

It must be noted that with the advent of terrorism offences in the Code, there is a renewed prosecution for offences, which involve an aspect of treason or betrayal against the person’s home country. For example, in the 2014 Alizadeh case, Justice McKinnon of the Ontario Superior Court commented, in sentencing the offender to 24 years imprisonment for terrorist acts involving the possession of explosive materials, that Alizadeh “betrayed the trust of your government and your fellow citizens” and had “effectively been convicted of treason, an act that invites universal condemnation among sovereign states throughout the world.” In this modern concept of treason, the act of “war” is diffused as it becomes any act or omission, as defined by s. 83.01 of the Criminal Code, which compels a government to do or refrain from doing an act.

Before I end this podcast I do want to mention other aspects of the crime of treason, which is peculiar to that particular offence. Section 46(3) makes treason by a Canadian citizen or “a person who owes his allegiance to Her Majesty in Right of Canada” a crime even if it is committed outside of Canada. Similar wording is used in the Security of Information Act to deem certain persons having committed an offence in Canada even if the acts or omission occurred outside of it.

Section 46(4) declares that an act of conspiracy to commit treason is an “overt act” of treason. That subsection is in answer to 46(2), which requires an overt act in furtherance of the treason. This requirement is not always needed for conspiracy in Canada but can be an evidentiary requirement in American conspiracy jurisprudence – see United States v. Skillman, 442 F. 2d 542 (1971). The section clarifies that treasonable conspiracy is an overt act for the purposes of the section. This nomenclature is consistent with treason from the English common law and with the offence of treason in the 1892 Code.

Section 47(3) suggests one cannot be convicted of treason based on the evidence of one witness alone unless the witness is corroborated “in a material particular” by other evidence in the proceeding. Corroboration is also a common law requirement carried into our Criminal Code and is a concept, which recently has fallen away, such in the case of a child witness (see s. 659) or in a sexual assault (see s. 274). However, corroboration is still required for a perjury offence (see s. 133) and for procuring a feigned marriage (see s. 292).

Another unusual requirement is the limitation periods under section 48. Proceedings for treason under 46(2)(a), which is the using of force or violence to overthrow the government, must be commenced within three years from the time when the offence is alleged to be committed. Originally, this limitation applied to all treasonable conduct other than treason where there was an attempt to kill or injure her Majesty or the person did kill or injure the sovereign. The final limitation is from the original Code version requiring that “No proceedings shall be commenced under section 47 in respect of an overt act of treason expressed or declared by open and considered speech” unless an information setting out the overt act and words is laid within 6 days after the alleged words were spoken and a warrant for the accused’s arrest is issued within 10 days after the laying of the information.

These “oddities” are in place to highlight the uniqueness and rarity of the offence. The fact treason is not viewed as a “modern” crime, raises the question of law reform and a removal of the offence from the Criminal Code as those acts underlying the crime could be dealt with through other more general charges in the Code. This argument will have more weight considering the advent of the terrorism offences and the sweeping applicability of those offences when viewed in contrast to the treason sections. Whether this fact will be used in any future Charter argument will remain to be seen but as it stands, treason is a part of our history and a part of our present as found in our Criminal Code.