Escape from Lawful Custody (s. 145(1)) Charges in Canada: Offences, Defences, Punishments

What is an escape from lawful custody charge?

Escape from lawful custody is covered under s. 145(1) of the Criminal Code found in Part IV. Part IV covers “Offences Against the Administration of Law and Justice.”

An escape from lawful custody charge occurs when a person escapes lawful custody, meaning they have escaped when they have been arrested in accordance with the law. The charge can also occur when a person is sentenced under a term of imprisonment and is at large inside or outside of Canada and does not have a lawful excuse.

Escape from lawful custody is a hybrid offence with a Crown election. This means that depending on the circumstances of your case the Crown can elect to proceed by indictment or summarily. If an accused is prosecuted by indictment, there is a Defence election of court under s. 536(2) of the Criminal Code.

Examples

Some examples of an escape from lawful custody charge may include the following:

• The accused was arrested and physically restrained by a police officer and escaped;
• The accused escaped a place where they were incarcerated and are at large;
• The accused was given a temporary pass from prison and failed to return; and
• Fleeing a community-based residential facility, also known as a halfway house.

Defences

The defences available to an escape from lawful custody charge are entirely dependent on the facts of your case.

However, some defences to an escape from lawful custody charge may include:

• The accused was wrongly identified as the person who escaped from lawful custody;
• The accused was not actually in “lawful” custody of the police at the time of escape;
• The accused was not arrested lawfully; and
• The accused was not unlawfully “at large”.

Punishment

An Escape from Lawful Custody charge is a hybrid offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 2 years.

Punishments for escape from lawful custody 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 2 years of incarceration if prosecuted by indictment. If prosecuted summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine.

An escape from lawful custody charge can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 145 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for an escape from lawful custody charge under s. 145(1) is established by proof, beyond a reasonable doubt, of the following:

Failure to attend court 145(2)

• The accused at a specified date and time, in the correct jurisdiction, was in lawful custody; and
• The accused escaped from lawful custody.

OR 

• The accused was sentenced to a term of imprisonment; and
• The accused was at large inside or outside of Canada

R v Costain held that “physical restraint, or submission to physical restraint, is the essence of arrest and this concept is virtually synonymous with detention’, custody’, or imprisonment” (para 9). This means that to be in lawful custody, a police officer is required to physically restrain an accused person. Without any form of physical restraint, the offence cannot be made out.

The above example of R v Costain differs only for impaired driving charges in certain provinces. This is because, in the impaired driving context, there are provincial statutory forms of detention created by legislation. These statutory forms put the accused “in custody” even when they haven’t been arrested (R v Williams and R v Radchenka at para 11 of R v Costain).

The Guilty Mind (Mens Rea) 

The mens rea for an escape from lawful custody charge under s. 145(1) include proving, beyond a reasonable doubt, that:  

• The accused knowing escaped lawful custody;
• The accused had no lawful excuse for escaping lawful custody.

OR

• The accused knowingly was at large in our outside of Canada;
• The accused had no lawful excuse for being at large.

R v McLean held that if an accused is breaching a temporary absence condition, to constitute being “at large”, there must be a wilful breach of a condition. This wilful breach must also show the accused intended to withdraw themselves from the control of correctional authorities. Additionally, R v Seymour held that where an accused is unwilfully intoxicated, they may not require the necessary mens rea for knowingly escaping lawful custody.

Escape from Lawful Custody Defences

How to Beat an Escape from Lawful Custody 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 escape from lawful custody charge:

Factual innocence

A strong defence against an escape from lawful custody charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you were in lawful custody, you were not lawfully arrested, or that you were not unlawfully at large. Then you may have a defence that you were factually innocent.

Lawful Excuse for being Unlawfully at Large

For this to be a defence against an escape from lawful custody charge, you must be able to show that you did not willfully intend to be “at large”. To show this, you must demonstrate that on a balance of probabilities, you took all reasonable steps to appear as you were required, or that lawful circumstances prevented you from appearing. You may also be able to show that you never intended to remove yourself from lawful custody such as in R v McLean.

Not in Lawful Custody

If you can show that you were never in the lawful custody of the police, then this can be a defence for an escape from lawful custody charge. For you to be in lawful custody, the police must notify you of your arrest and physically restrain you. If this never happened, it may be the case that you never factually escaped from lawful custody.

Identity 

Depending on the circumstances of your case, a possible defence to an escape from lawful custody 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 was in custody.

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.

Escape from Lawful Custody Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 2 years for those convicted of an escape from lawful custody charge.

Persons found guilty of escaping from lawful custody are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or a conditional sentence order.

Beyond any immediate jail and/or probation sentence you receive, there is also a discretionary DNA Order.

This is authorized as a secondary offence listed under s. 487.04 (c), (d) or (e), and the DNA order can be authorized regardless of if the Crown proceeds summarily or by indictment.

Frequently Asked Questions

What does escape from lawful custody mean? 

Escape from lawful custody means the accused has escaped or attempted to escape from the police while arrested. Escape from lawful custody can also occur when someone has escaped a place where they were supposed to be, such as a halfway house, after being sentenced. Escape from lawful custody can also occur if the accused has escaped from an intensive correction order or youth detention centre. If an accused has escaped from lawful custody after receiving a sentence, they are considered to be unlawfully at large.

Is escape from lawful custody an indictable offence?

Escape from lawful custody is a hybrid offence. This means that the Crown prosecutor can choose to prosecute someone charged with escape from lawful custody either summarily or by indictment. If the Crown chooses to prosecute an accused by indictment, then if the accused is found guilty, they will be charged with an indictable offence.

Can you go to jail for escape from lawful custody?

If you escape from lawful custody under section 145(1), you can go to jail. If the Crown proceeds by indictment, an escape from lawful custody charge carries a maximum sentence of no more than two years in jail. If the Crown proceeds summarily, the maximum jail sentence is two years less a day. Therefore, there is a possibility that you can go to jail for an escape from lawful custody charge.

Published Decisions

R v Seymour, 1980 CanLII 2961 (ONCA)

The accused was charged with escaping from lawful custody as they unlawfully, before the expiration of a term of imprisonment to which they were sentenced, became at large in Canada with no lawful excuse. The accused had received a temporary absence permit from the institution where they were incarcerated. While on temporary absence, the accused became intoxicated and ran away from the building he was supposed to be in. Drinking was in violation of the accused’s temporary absence permit. The Ontario Court of Appeal held that the accused’s intoxication was not willful. Therefore, the breach of the temporary absence permit did not constitute a withdrawal from the custody of correctional authorities.

The accused was found not guilty of the charge of escaping from lawful custody.

You can read the full decision here.

R v McLean, 2015 BCCA 456 (CanLII)

The accused was convicted upon accepting a guilty plea for being unlawfully at large pursuant to s. 145(1)(b) of the Criminal Code. The accused was subject to a long-term supervision order and failed to return to a community facility by curfew.

The BCCA held that the accused “was not at large “before the expiration of a term of imprisonment to which he was sentenced” within the meaning of that phrase in s. 145(1)(b).” Therefore, the Court held that the accused’s acceptance of his guilty plea constituted a miscarriage of justice, and the conviction was set aside.

You can read the full decision here.

R v Whitfield, [1970] SCR 46 (CanLII)

A police officer who knew that a warrant for the accused’s arrest was outstanding saw the accused stopped at a red light. The police officer approached the accused’s vehicle and told the accused that they had a warrant for their arrest. The police officer reached through the accused’s window and grabbed their shirt, telling the accused that they were under arrest. The accused proceeded to accelerate and broke the officer’s hold on their shirt. At trial, the accused was convicted of escaping from lawful custody by jury. The Court of Appeal quashed the conviction and directed an acquittal be entered.

The Supreme Court of Canada held that the mere pronouncing of the words of an arrest does not constitute an arrest unless there is some form of physical detention. In this case, the SCC held that the accused was arrested as their body was touched with a view of detaining them. The police officer has a lawful right and duty to arrest the accused and the accused was under the legal obligation to submit to the lawful arrest.

You can read the full decision here.