Assisting Deserter Laws in Canada Explained

What is a charge of Assisting Deserter?

Assisting Deserter is covered under 54 of the Criminal Code of Canada. Assisting Deserter occurs when a person knowingly aids, assists, or conceals a person who is an absentee from the Canadian Armed Forces without authorized leave.

Assisting deserter is a summary conviction offence.

Examples

Some examples of a charge of Assisting Deserter may include the following:

• Concealing a person who is an absentee from the Canadian Armed Forces by harbouring them at their residence/ allowing them to stay with them in order to evade their obligations to the Armed Forces.
• Providing a person financial aid or assistance to facilitate the person to leave or become absent from their obligations to the Armed Forces.
• Providing food, shelter, or other goods to further or advance a person’s ability to remain absent from the Canadian Armed Forces without authorized leave.

Defences

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

However, some defences to a charge of Assisting Deserter may include:

• The accused was wrongly identified as the person who committed Assisting Deserter
• The accused did not intend to provide aid, assistance, or concealment to a deserter by providing food, shelter, or other goods
• The accused did not know the person they were providing aid or assistance to was a deserter.

Punishment

A charge of Assisting Deserter is a summary conviction offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding two (2) years less a day, and/or a $5000 fine, 

Punishments for Assisting Deserter is in accordance with the legislative framework for summary conviction offences. There are no mandatory minimum penalties for this offence, however, a fine cannot exceed a monetary amount of $5000, and a term of imprisonment cannot exceed two years less a day. Notably, consent of the Attorney General of Canada is required in order to proceed with the laying of this charge.

Overview of the Offence 

According to s. 54 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a charge of Assisting Deserter under s. 54 is established by proof, beyond a reasonable doubt, of the following: 

• The accused provided aid, assistance, or concealment to an absentee of the Canadian Armed Forces without leave

The Guilty Mind (Mens Rea)

The mens rea for a charge of Assisting Deserter under s. 54 includes proving, beyond a reasonable doubt, that:

• The accused, knowing the status of the Canadian Forces member, and that their actions would further the person’s absenteeism from the Canadian Armed Forces without leave, proceeded to assist, aid, or conceal the deserter.

Defences

How to Beat an Assisting Deserter 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 an Assisting Deserter charge:

Factual innocence

A strong defence against an Assisting Deserter charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you provided aid, assistance, or concealment to an absentee of the Canadian Armed Forces, 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 commit the offence of Assisting Deserter, and were merely providing charity in good faith without knowledge of the person’s circumstance and absenteeism from the Canadian Armed Forces, then this may be a defence for Assisting Deserter. For you to be convicted of Assisting Deserter, the crown must prove that you had knowledge that your actions would result in furthering the absenteeism of a member of the Canadian Armed Forces. If this cannot be proved this could be a suitable defence.

Identity

Depending on the circumstances of your case, a possible defence to an assisting deserter 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 2 years for those convicted of an Assisting Deserter charge.

Frequently Asked Questions  

What does Assisting Deserter mean?

It is. In order to be convicted of assisting deserter, the Crown prosecutor must prove that your actions constituted that which sought to provide aid, assistance, or concealment to an absentee of the Canadian Armed Forces without leave or proper authorization.

Is Assisting Deserter an indictable offence? 

No, assisting deserter is a summary offence. This means that the Crown prosecutor must proceed summarily when a person is charged with this offence.

Can you go to jail for Assisting Deserter?

If you are convicted of assisting deserter, you can go to jail. A charge of assisting deserter carries a maximum sentence of no more than two (2) years less a day. Therefore, there is a possibility that you can go to jail for an assisting deserter charge.

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