section 285

INTRODUCTION AND BRIEF DESCRIPTION

Section 285 provides a defense against charges related to the taking, concealing, or detaining of a young person if done to protect them from imminent harm or to escape from imminent harm.

SECTION WORDING

285 No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.

EXPLANATION

Section 280 to 283 of the Criminal Code of Canada deals with various offences related to the exploitation and abduction of young persons. However, section 285 provides an important exception to these offences: if the court deems that the taking, enticing away, concealing, detaining, receiving, or harbouring of a young person was necessary to protect them from danger or if the person charged was escaping from such danger, then the individual cannot be found guilty of the offence. This section recognizes that in some situations, individuals might take actions that would normally be considered illegal in order to protect a young person from immediate harm. For example, if a child is being abused in their home, someone might take them away without the parents' consent in order to ensure their safety. In such cases, section 285 allows the court to consider whether the individual's actions were necessary and appropriate given the circumstances. It is important to note that this provision only applies to situations where there is an imminent danger of harm. It cannot be used to justify actions taken for other reasons, such as a desire to possess a young person for personal gain or to control them in some way. Overall, section 285 of the Criminal Code of Canada reflects the importance of prioritizing the safety and well-being of young people, even if it means taking actions that might otherwise be viewed as illegal. It recognizes that the protection of children should be paramount, and provides a mechanism for the legal system to recognize and address situations where such protection is necessary.

COMMENTARY

Section 285 of the Criminal Code of Canada provides a defence for individuals charged with offences under sections 280 to 283, related to the taking, enticing away, concealing, detaining, receiving or harbouring of any young person. This defence allows individuals to avoid criminal charges and penalties if they can prove that their actions were necessary to protect the young person from danger of imminent harm or to escape from such harm themselves. This defence recognizes that there may be situations where individuals may have to take actions that would otherwise be considered criminal to protect themselves or others from harm. It is important to note that the defence is limited to situations where the harm is imminent, which means that it is likely to occur immediately or within a short period of time. The defence is not available to individuals who can foresee harm in the future, but instead, it only applies to situations where the harm is immediate and unavoidable. This is a critical distinction because it ensures that individuals do not misuse this defence as a way to justify actions that are not necessary for protecting themselves or others. This defence is particularly relevant in cases involving children who may be at risk of harm, abuse, or neglect. It acknowledges that individuals who take such children away from their parents, guardians or caregivers, may be doing so out of a genuine desire to protect them. Moreover, it acknowledges that such actions may be the only way to save these children from imminent harm. However, it is also important to note that this defence can be misused. Individuals may claim that they were protecting a child from imminent harm when, in fact, they were taking advantage of them or using them for illegal activities. Therefore, the courts must carefully consider the circumstances surrounding each case to determine whether the defence should apply. In conclusion, section 285 of the Criminal Code of Canada provides a necessary defence for individuals who may have to take actions that would be considered criminal to protect themselves or others from imminent harm. This defence is particularly relevant in cases involving children. However, it is important to ensure that this defence is not misused and that the courts carefully consider each case on its merits to determine whether the defence should apply.

STRATEGY

Section 285 of the Criminal Code of Canada provides a defence to certain offences related to the abduction or harbouring of a young person. This defence is available where the accused person can show that their actions were necessary to protect the young person from imminent harm, or that the accused person was escaping from imminent harm themselves. Due to the nature of the defence and the potential for it to excuse what would otherwise be criminal behaviour, a number of strategic considerations will come into play when dealing with this section of the Criminal Code. Here are some key points to consider: 1. Evidence of Imminent Harm: To successfully argue the defence under Section 285, the accused person will need to provide evidence that the harm they were seeking to protect against or escape from was imminent. This means that there must have been a real and immediate threat to the young person or the accused person, and that the person's actions were proportionate to the danger faced. Gather as much evidence as possible of the danger faced including any relevant documentation or statements from the young person. 2. The Age of the Young Person: The defence under Section 285 is only available for young persons, defined as individuals under the age of 16. It is important to establish the age of the young person involved and make sure that the defence is applicable before arguing the defence. 3. Credibility of Witnesses: In many cases, the success of the defence will depend on the credibility of witnesses, including the accused person themselves and any other individuals who may have been involved in the events leading up to the charge. Gather all evidence and talk to all witnesses to establish the credibility of each party involved. Be sure to make an assessment of each witness's credibility as this may assist in deciding whether the defence should be argued. 4. Potential Risks and Consequences: Consider the potential risks and consequences of arguing the defence. The defence may not be successful, and there may be negative consequences associated with attempting to argue it. Be sure to conduct a risk assessment before making a decision to argue the defence or attempting to plea bargain. 5. The burden of proof: It is important to consider the burden of proof in these cases. The accused person must satisfy the court that their actions were necessary to protect the young person or themselves from imminent harm, and this burden is on the accused person. It must be proven on a balance of probabilities. 6. Strategies to Employ: Strategies that could be employed when dealing with this section of the Criminal Code include assessing the credibility of witnesses, carrying out a risk assessment, gathering evidence of the danger faced by the young person, and exploring the potential for a plea bargain. A skilled criminal lawyer will be able to assess the strength of the defence and advise clients on what their best course of action is. In conclusion, it is important to note that section 285 of the Criminal Code of Canada provides an important defence in certain circumstances, and it is essential to consider the various strategic considerations and potential strategies when arguing the defence. Preparing a defence strategy holistically could result in a successful defence of the charge, but it is always best to seek legal advice.