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ESCAPES AND RESCUES

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144. Prison breach - Every one who
(a)	by force or violence breaks a prison with intent to set at liberty himself or any other person confined therein, or
(b)	with intent to escape forcibly breaks out of, or makes any breach in, a cell or other place within a prison in which he is confined,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
R.S., c. C-34, s. 132; 1976-77, c. 53, s. 5.
145. (1) Escape and being at large without excuse - Every one who
(a)	escapes from lawful custody, or
(b)	is, before the expiration of a term of imprisonment to which he was sentenced, at large in or out of Canada without lawful excuse, the proof of which lies on him,
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.
(2) Failure to attend court - Every one who,
(a)	being at large on his undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court in accordance with the undertaking or recognizance, or
(b)	having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge,
or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, 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.
(3) Failure to comply with condition of undertaking or recognizance - Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance directed by a justice or judge, and every person who is bound to comply with a direction ordered under subsection 515(12) or 522(2.1), and who fails, without lawful excuse, the proof of which lies on that person, to comply with that condition or direction, is guilty of
(a)	an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b)	an offence punishable on summary conviction.
(4) Failure to appear or to comply with summons - Every one who is served with a summons and who fails, without lawful excuse, the proof of which lies on him, to appear at a time and place stated therein, if any, for the purposes of the Identification of Criminals Act or to attend court in accordance therewith, is guilty of
(a)	an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b)	an offence punishable on summary conviction.
(5) Failure to comply with appearance notice or promise to appear - Every person who is named in an appearance notice or promise to appear, or in a recognizance entered into before an officer in charge or another peace officer, that has been confirmed by a justice under section 508 and who fails, without lawful excuse, the proof of which lies on the person, to appear at the time and place stated therein, if any, for the purposes of the Identification of Criminals Act, or to attend court in accordance therewith, is guilty of
(a)	an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b)	is guilty of an offence punishable on summary conviction.
(5.1) Failure to comply with conditions of undertaking - Every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of an undertaking entered into pursuant to subsection 499(2) or 503(2.1)
(a)	is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b)	is guilty of an offence punishable on summary conviction.
(6) Idem - For the purposes of subsection (5), it is not a lawful excuse that an appearance notice, promise to appear or recognizance states defectively the substance of the alleged offence.
(7) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 20]
(8) Election of Crown under Contraventions Act - For the purposes of subsections (3) to (5), it is a lawful excuse to fail to comply with a condition of an undertaking or recognizance or to fail to appear at a time and place stated in a summons, an appearance notice, a promise to appear or a recognizance for the purposes of the Identification of Criminals Act if before the failure the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act.
(9) Proof of certain facts by certificate - In any proceedings under subsection (2), (4) or (5), a certificate of the clerk of the court or a judge of the court before which the accused is alleged to have failed to attend or of the person in charge of the place at which it is alleged the accused failed to attend for the purposes of the Identification of Criminals Act stating that,
(a)	in the case of proceedings under subsection (2), the accused gave or entered into an undertaking or recognizance before a justice or judge and failed to attend court in accordance therewith or, having attended court, failed to attend court thereafter as required by the court, justice or judge or to surrender in accordance with an order of the court, justice or judge, as the case may be,
(b)	in the case of proceedings under subsection (4), a summons was issued to and served on the accused and the accused failed to attend court in accordance therewith or failed to appear at the time and place stated therein for the purposes of the Identification of Criminals Act, as the case may be, and
(c)	in the case of proceedings under subsection (5), the accused was named in an appearance notice, a promise to appear or a recognizance entered into before an officer in charge or another peace officer, that was confirmed by a justice under section 508, and the accused failed to appear at the time and place stated therein for the purposes of the Identification of Criminals Act, failed to attend court in accordance therewith or, having attended court, failed to attend court thereafter as required by the court, justice or judge, as the case may be,
is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.
(10) Attendance and right to cross-examination - An accused against whom a certificate described in subsection (9) is produced may, with leave of the court, require the attendance of the person making the certificate for the purposes of cross-examination.
(11) Notice of intention to produce - No certificate shall be received in evidence pursuant to subsection (9) unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3.
Judicial Consideration -
R v L W - (1980),53 CCC (2d) 411 (Man QB)
	- A juvenile committed to an approved industrial school pursuant to the provisions of the Juvenile Delinquents Act is not in "lawful custody" for the purposes of this section and therefore if he escapes from the industrial school he cannot be charged under this section with escaping from lawful custody. A delinquent committed under the Juvenile Delinquents Act is no longer under arrest nor is he under sentence or confined in a penal institution.
146. Permitting or assisting escape - Every one who
(a)	permits a person whom he has in lawful custody to escape, by failing to perform a legal duty,
(b)	conveys or causes to be conveyed into a prison anything, with intent to facilitate the escape of a person imprisoned therein, or
(c)	directs or procures, under colour of pretended authority, the discharge of a prisoner who is not entitled to be discharged,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
R.S., c. C-34, s. 134.
Judicial Consideration -
R v Lemaigre - Unreported, March 3, 1988, No. 3066 (Sask CA)
	- The appellant was handcuffed to another while being escorted to court. He slipped out of his handcuff and as soon as the police vehicle stopped, the other escaped. The appellant, however, remained behind. The appellant was charged with assisting the other to escape lawful custody and was convicted and sentenced to nine months imprisonment. The other, who was later captured, was to sentenced to a year in prison for having escaped. The court held that the sentence was too high and was beyond the usual range and was too heavy, having regard to what the accused in fact did. The court noted that the accused did not escape or even attempt to do so. The sentence had been made consecutive to another sentence which had since expired and consequently, the court reduced the sentence to time served.
147. Rescue or permitting escape - Every one who
(a)	rescues any person from lawful custody or assists any person in escaping or attempting to escape from lawful custody,
(b)	being a peace officer, wilfully permits a person in his lawful custody to escape, or
(c)	being an officer of or an employee in a prison, wilfully permits a person to escape from lawful custody therein,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 135.
148. Assisting prisoner of war to escape - Every one who knowingly and wilfully
(a)	assists a prisoner of war in Canada to escape from a place where he is detained, or
(b)	assists a prisoner of war, who is permitted to be at large on parole in Canada, to escape from the place where he is at large on parole,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 136.
149. (1) Service of term for escape - Notwithstanding section 743.1, a court that convicts a person for an escape committed while undergoing imprisonment may order that the term of imprisonment be served in a penitentiary, even if the time to be served is less than two years.
(2) Definition of "escape" - In this section, "escape" means breaking prison, escaping from lawful custody or, without lawful excuse, being at large before the expiration of a term of imprisonment to which a person has been sentenced.
R.S., 1985, c. C-46, s. 149; R.S., 1985, c. 27 (1st Supp.), s. 203; 1992, c. 20, s. 199; 1995, c. 22, s. 1.
Judicial Consideration -
Re Carr and The Queen - (1979),46 CCC (2d) 1 (BCCA)
	- When the sentencing Judge exercises his discretion under s137(1)(b)(ii) and orders that the sentence for escape must be served in a penitentiary, then that sentence and the previous remanent must all be served in the penitentiary. However, when the previous sentence includes an indeterminate portion, s659(6.1) of the Code extinguishes the indeterminate portion of the unserved remanent. The phrase "notwithstanding... section 659" in s137(1)(b)(ii) only acts as a limitation on where a sentence is to be served. The provisions of Section 659 itself are overridden by the powers given the sentencing Judge in s137. Section 659 only deals with the duration of sentence consequent upon a sentence. Further, an order that the sentence for the escape be consecutive does not avoid the effect of s659(6.1). The provisions of s14 of the Parole Act do not have the effect of converting the indeterminate sentence into a definite sentence.
Re Sowa and The Queen - (1980), 50 CCC (2d) 513 (Sask CA)
	- Section 137 of the Code as it read on October 15, 1977 is not retroactive and consequently a prisoner's sentence for escape prior to that date has his sentence calculated on the basis of s137 at is read at that time. Further, the provisions of this section must be read subject to s137 as it then read. Consequently, a prisoner is required to serve his sentence which commences as of the date of conviction for escape and not as of the date his original sentence prior to the escape commenced. However, once s137 has been applied to determine the sentence, then the remaining provisions of the Parole Act apply.
See also Re Lauzon and R (1981), 58 CCC (2d) 20 (Ont CA) and Re Macintyre and The Queen (1983),70 CCC (2d) 542 (FCA) -which distinguished Sowa (annotated under s14 of the Parole Act).
R v Quinn - Unreported, June 18, 1980, No. CC800649 (BCSC)
	- A prisoner escaped and was apprehended and when in confinement was sentenced to an additional term for other offences exceeding the sentence imposed for the escape together with the remainder of the term he was serving. It was held that the term "that resulted in his being in confinement" was the original term and confinement from which he escaped. The Court stated that this must be so in order to give effect to the meaning and intention of s14(1) of the Parole Act and s137(1) and (2) of the Code so that remission earned in respect of a term that resulted in the original confinement would be credited to an additional term imposed on an inmate in confinement and so that remission earned prior to an escape will be credited to the portion of the sentence of the inmate remaining to be served. If the purpose of the legislation is to be served, the prisoner must be credited with the remission earned from the date of the original term that resulted in his confinement. The Court disagreed with Sowa and said that the question is not whether a new sentence has been imposed, but rather what the term was that resulted in the inmate being in confinement. On the facts of this case the term resulted from a sentence imposed prior to the escape.
R v Westad - (1981),59 CCC (2d) 273 (Alta CA)
	- Following Lauzon, supra, the phrase, "consecutive to sentence now serving" contained in the warrant of committal refers to the remanent of the original sentences and not to the sentence imposed for escaping lawful custody that had been imposed on the same day. A subsequent conviction for escape was to be served in addition to the remanent including in that remanent the portion of the sentence for the earlier escape that was not yet served. A subsequent three-year sentence imposed would be served in addition to the last sentence for escape as that was the "sentences then being served" at that later date.
In Re MacDonald - (1981), 59 CCC (2d) 202 (Ont CA)
	- A prisoner was given a temporary absence pass and did not return. Some years later he was apprehended in Australia and returned to Canada. He was charged with being unlawfully at large and was acquitted because of the Crown's failure to prove that he was the person named in the Warrants of Committal. Subsequently, he applied for habeas corpus arguing that his sentence had continued to run while he was at large because he had not been convicted of escaping or being unlawfully at large and was therefore deemed to be lawfully at large or in custody and further, that the decision of the Provincial Court Judge acquitting him of being unlawfully at large was res judicata on this issue. The Ontario High Court dismissed the application for habeas corpus and the Ontario Court of Appeal dismissed a further appeal. The Court held that at common law the time during which an I escaped prisoner was unlawfully at large did not count towards the term of imprisonment that the prisoner had originally had imposed upon him and the Crown's failure to obtain a conviction for unlawfully at large for want of proof did not make the matter res judicata.
Editorial Note - The decision of Ex Parte McCaud (1975), 25 CCC (2d) 157, which was affirmed in the Ontario Court of Appeal and in the Supreme Court of Canada without written reasons provides authority that when a prisoner is unlawfully at large his sentence does not run and he will on apprehension be required to serve the full unexpired term of his sentence. This authority was noted by Galligan, J in the Ontario Supreme Court decision Re MacDonald (McDonald) (Unreported, November 10, 1980) as was the authority of Re Stanton and The Queen (1979), 49 CCC (2d) 177, where the prisoner was inadvertently released and both he and prison authorities thought he was entitled to be at large and when the mistake was discovered the prison authorities sought to have him serve his remaining sentence without credit for the period during which he was mistakenly at large. Linden, J of the Ontario Supreme Court held that Stanton was not required to serve the additional period of time equivalent to the time he had been at large. In this regard Galligan, J made the following observation:
	"In my opinion humanity dictates that in circumstances such as those in Stanton where the prisoner was released through no fraud or other wrongdoing on his part, the prisoner should not be required to serve in custody the time which he spent at large. However, in a case such as this, or McCaud, where the prisoner is at large through his own illegal conduct, it would, in my opinion, be an affront to common sense and an incitement to prison break if it were held that such a person served part of his sentence while at large."
Re Morley and The Queen - (1981), 61 CCC (2d) 171 (Ont CA)
	- An appeal from the decision of Morse, J was dismissed.
Re Dozois and The Queen - (1981), 61 CCC (2d) 190 (Man CA)
	- Similarly, time spent by an accused in custody in the United States by reason of offences committed there while unlawfully at large from a Canadian prison, does not count against the unserved portion of the sentence in Canada notwithstanding that the accused later transfers to Canada to continue serving his U.S. sentence pursuant to the Transfer of Offenders Act in Canada. Under the Transfer of Offenders Act, the U.S. sentence is treated as if it had been imposed by a Canadian court solely for purposes of calculating various eligibility dates under the Parole Act. The U.S. sentence is not integrated into the outstanding unserved Canadian sentence and section 14 of the Parole Act does not have that effect.
In Re Law and R - (1982) 63 CCC (2d) 412,24 CR (3d) 332 (Ont CA)
	- A prisoner was granted habeas corpus it having been held that the period when he was at large due to premature release because of an administrative error did count towards his sentence. On appeal this decision was reversed. The Court said that the mere fact that a mistake may have been made in the administration of his sentence cannot be taken generally to justify premature release and protect the prisoner from having to serve the full sentence. Whether special circumstances exist must be decided in each case. There were no special circumstances here.
In Re Law (No.2) - Unreported, December 3rd, 1981 (Ont HC)
	- The prisoner was released on habeas corpus and remained at large pending appeal. The Court of Appeal, supra, reversed the decision to grant habeas corpus and the prisoner was returned to custody. He then sought to receive credit on his sentence for the time at large from the date of the habeas corpus was granted until the appeal was decided. The Court held that this time did not count towards his sentence by virtue of the provisions of section 649(3) of the Criminal Code pointing out that the applicant's sentence was "resumed" upon his arrest after the Court of Appeal decision.
Leschenko v Attorney General of Canada et al - (1982), 1 CCC (3d) 522 (FCA -Pratte, Ryan and Kerr JJ)
	- Following Re MacDonald, Re Dozois and Re Law, supra, it was held that because at common law the time during which a prisoner is unlawfully at large does not count as part of his term of imprisonment then even if part of that time was spent in custody in a foreign State the same principle applied since a Canadian sentence to imprisonment must be served in a Canadian prison. Section 137(1) of the Code, as it read from July 15, 1972 to October 15, 1977, did not apply because that section only applied to persons who had been convicted and sentenced for having escaped while undergoing imprisonment. Leschenko had neither been convicted nor sentenced for escape while this section was in force. Assuming the section applied to a person like the applicant who had escaped but not been convicted or sentenced then only the first part of s137(1), as it then read, could apply and the last part by its very terms could not affect him because he had not been sentenced for escape. In addition, the court agreed with the interpretation of the Federal Court Trial Division (Unreported, April 27, 1981 T -4879 FCTD -Jerome, ACJ) holding that the words "in custody" in s137(1) referred to custody in a Canadian penal institution.
	Furthermore, ss4 and 11 of the Transfer of Offenders Act did not affect the computation of the applicant's sentences as previously pronounced by Canadian courts. Following Dozois, supra, and the Judgment below in the Trial Division of Jerome, J those sections of the Transfer of Offenders Act provide that a Canadian offender may serve in Canada a sentence imposed by a court of a foreign country and the purpose of those sections is to determine the time that a Canadian offender who was transferred to Canada will have to spend in confinement in Canada as a result of the sentence imposed by the foreign court. Furthermore, s14 of the Parole Act did not apply to affect the computation of sentence following Dozois, supra.
	In addition, the Court of Appeal allowed a cross appeal by the defendants and held, contrary to the Trial Division, that the applicant was not entitled to have his sentence for attempt to escape computed as if s137(1) of the Code as it stood in 1974 was applicable to his sentence. It was pointed out that s137(1) of the Code when enacted in 1972 had impliedly repealed s22(4) of the Penitentiary Act insofar as it applied to an inmate convicted of the offence of escape. Consequently, if a Judge on sentencing the applicant for attempt to escape in 1974 directed that s137(1) be applied to the computation of that sentence, then that direction was illegal and in excess of authority. Section 137(1) applied when a person who had escaped while undergoing imprisonment had been sentenced for that escape and did not apply to a person who merely attempted to escape and had been convicted and sentenced for that offence. Consequently, the applicant's conviction and sentence for attempted escape was governed by s22(4) of the Penitentiary Act rather than s 137(1) of the Code.
Milbury v The Queen - Unreported, February 15, 1983 (NSSC -Burchell, J)
	- This section only allows the escape sentence to be consecutive to the portion of the term which the prisoner was serving at the time of his escape which he had not served. It cannot be used to make a sentence consecutive to other sentences imposed alter the inmate actually escaped from prison.
Sinobert v R - Unreported, September 3, 1982 (Ont SC -Hollingworth, J)
	- This section only allows the escape sentence to be consecutive to the term which the prisoner was serving at the time he escaped and not to any sentence which was imposed alter the escape.
Re Naugle - (1985) 68 NSR (2d) 99 (SC)
	- The modifying words 'with the portion of the term of imprisonment that he was serving at the time of his escape that he had not served; apply with equal force both to the word 'concurrently' which appears before them and to the word 'consecutively' which appears alter them. The modifying words should be understood to follow the word 'consecutively' as they actually follow the word 'concurrently', When the sentence is read as a whole, 'concurrently' and 'consecutively' apply to the same situation, that of an unexpired term of imprisonment being served by the escapee. If the section is not as clear as it appears to be, and ambiguity exists, it is a penal statute which should be interpreted in the manner most favourable to the accused. Consequently, the word 'consecutively' applies to the unexpired term of imprisonment being served by the escapee because to find otherwise would increase his overall term of imprisonment. Consequently, a sentence that purported to be consecutive to all sentences the applicant was serving at the time of his conviction for escape were quashed because the judge exceeded his jurisdiction in relation to the sentence imposed for the escape under s137.
Re Frankum and The Queen - (1987) 29 CCC (3d) 447 (BCCA)
	- Section 14(1) of the Parole Actshould not be applied to affect the interpretation that should be given to s137 to make the sentence of escape follow immediately alter the remanet of the original sentence. The word 'consecutively' in s137(1), bearing in mind the French version, means not only 'following immediately afterward’ but the word applies to lengthy unexpired portion of the original sentence with the sentence for escaping lawful custody, so that the sentence for escaping lawful custody must follow immediately after the remanet of the original sentence. If s14(1)(a) is confined to situations where two sentences are imposed simultaneously, then neither para (a) nor para (b) apply,
	See also in support of this interpretation Re Naugle (1985) 68 NSR (2d) 99 at p102 (SC) per Rogers J; R v Gould -Unreported, February 19, 1985 (Ont HC) per Holland, J, June 11, 1985 (Ont CA); Re Macintyre and The Queen (1982) 70 CCC (2d) 542 at p553, [1983] 1 FC 603,44 NR 361 per Cowan, Dist Ct J; Bemier v The Queen- Unreported, May 16,1986 (Que CA) No. 500-10-000034-858.
R v Preddy - Unreported, May 19, 1987, No. CAO05542 (BCCA)
	- Where a clerk of the County Court purporting to act on behalf of a judge of the court signs an order under 5460 of the Criminal Code requiring the accused to be brought to the courthouse to fix a trial date on another charge and the accused bolts from the courtroom and runs out and is apprehended and charged with escaping lawful custody, the accused will be convicted. He was serving a sentence at the time the 5460 order was made and was brought to court and the sentencing judge had signed a warrant of committal. Consequently, he was in lawful custody pursuant to that warrant at the time of his escape.
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