INTRODUCTION AND BRIEF DESCRIPTION
Individuals cannot be convicted of a crime if they were following the laws enforced by those in de facto possession of the sovereign power in the area.
SECTION WORDING
15. No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.
EXPLANATION
The provision in Section 15 of the Criminal Code of Canada is known as the doctrine of de facto authority. It is a legal principle that shields individuals from criminal convictions for acts carried out in compliance with the laws made and enforced by those in de facto power within a specific region or territory. This provision becomes relevant in situations where legitimate authority has been undermined or questioned due to outside forces, such as a coup, or civil conflict. In such situations, individuals may be compelled to follow the laws enforced by the new de facto authorities to avoid reprisals or harm to themselves or loved ones. The section provides a defense to individuals who acted under compulsion or duress of the de facto authorities. It applies to all offenses under the Criminal Code, except for certain specific offenses such as torture, which are deemed to be too egregious to excuse under any circumstance. Section 15 is a reflection of the fundamental principle that criminal law should be equitable and just. It recognizes that when legitimate rules of law and authority are undermined by external forces, individuals may be forced to act in a way that may be criminal under ordinary circumstances. This section is also aimed at keeping the balance between obedience to illegitimate authority and the rule of law. Overall, Section 15 of the Criminal Code of Canada is a vital provision that recognizes and protects individuals from criminal liability when acting under duress or compulsion to adhere to de facto authorities.
COMMENTARY
Section 15 of the Criminal Code of Canada is a vital provision that recognizes the importance of obeying the laws enforced by the de facto government in power. This provision provides a legal defense to individuals who have committed an act or omission that would typically be deemed an offense but have done so in obedience to laws enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs. The provision ensures that individuals do not face criminal charges for acts that may be considered illegal under other circumstances but are permitted under de facto government laws. For example, during war, the de facto government may put in place measures that would normally be considered illegal, such as curfews or restrictions on certain freedoms, to protect citizens and maintain law and order. By obeying these laws, individuals cannot be convicted of an offense, even if the act or omission would ordinarily be considered a criminal offense. However, it is important to note that section 15 does not offer complete immunity from criminal charges. It applies only to acts or omissions that are in obedience to the laws of the de facto government in power. It also does not cover acts or omissions committed by individuals who are supporters of the de facto government, only those who are obeying its laws. The provision also serves as a reminder that the rule of law is paramount in any society. De facto governments often emerge in situations of political instability or conflict, and their laws may not conform to those of a recognized sovereign power. Still, individuals must obey these laws to maintain social order and avoid further chaos. Furthermore, section 15 helps to safeguard the rights of those who, while performing their duties under the direction of de facto governments, could otherwise become targets of prosecution under international humanitarian law. Civilian contractors, media personnel, and humanitarian workers operating in conflict zones and other politically unstable regions may be considered part of a de facto government's operations and could be at risk of facing criminal charges. Without Section 15, such individuals may be deterred from performing their essential work, and a chilling effect on reports of human rights abuses or atrocities can result. In conclusion, section 15 of the Criminal Code of Canada recognizes the importance of obeying the laws enforced by de facto governments while maintaining the framework of the rule of law. Although this provision provides a legal defense for individuals who have committed acts or omissions under such circumstances, it does not offer complete immunity from criminal charges. Its significance is evident in extraordinary times when de facto governments come to power in situations of political instability, conflict, or other exceptional circumstances, which require such recognition. The provision ensures that individuals are not held accountable for carrying out their lawful duties and reinforces the notion that compliance with the rule of law remains necessary, even under difficult circumstances.
STRATEGY
Section 15 of the Criminal Code of Canada is a crucial part of the criminal justice system in Canada. It protects individuals from being convicted of an offence for an act or omission done in obedience to the laws made and enforced by those in de facto possession of sovereign power over the area where the act is done or omission occurs. Strategic considerations when dealing with this section of the Criminal Code of Canada are numerous. One concern is ensuring that the act or omission truly falls within the purview of this section. The conduct being considered must be responsive to laws that are truly in effect, and those laws must be enforced by those who have de facto possession of sovereign power. If an act is committed in obedience to a law that is not in force, or if it is enforced by those who do not possess sovereign power in that place, then Section 15 does not apply. Another strategic consideration when dealing with Section 15 of the Criminal Code of Canada is to ensure that the act or omission being considered is a truly involuntary act. This is important because the act or omission must be done in obedience to the laws enforced by those who hold the sovereign power of the area. If the act or omission was voluntary, then Section 15 does not apply. Strategies that could be employed to ensure the act or omission is wholly involuntary include establishing that the individual was under duress, fear, or had no reasonable means of avoiding the act or omission. The prosecutor must bear the burden of proving beyond a reasonable doubt that the act or omission did not occur in obedience to the laws enforced by those who hold the sovereign power of the area. They must demonstrate that there was no lawful compulsion behind the act or omission. This is a high standard, and the accused's strategy to contest the prosecutor's case may involve challenging the prosecutor's ability to discharge this onus. Defendants accused of committing an offence under Section 15 of the Criminal Code can use the defence of obedience to an illegal order when the alleged crime was done under the instruction of a person with direct command over them. This defence is not automatic, and it only applies when the order given is illegal or contrary to international law. Furthermore, defendants under Section 15 can also seek to include other defences like duress, necessity, or self-defence, depending on the circumstances of their case. They may argue that they were compelled to commit an unlawful act by a third party, that it was to protect the welfare of an innocent third party from immediate harm, or they had to commit the criminal act to defend themselves from danger. In conclusion, strategic considerations are numerous when dealing with Section 15 of the Criminal Code of Canada. Defence counsel must ensure that the conduct being considered truly falls within this section and that it is a wholly involuntary act. Defeat of the prosecutor's case can be achieved by capturing the nuances of the issue of obedience to lawful authority, where there was a truly inchoate voluntary act reasonably avoidable. They can use defences such as obedience to an illegal order, duress, necessity, or self-defence where applicable. Ultimately, this section affords protections to individuals and commits the law enforcement agencies to prosecute the chain of command that mandated the voluntary but criminal act, as the one held accountable for the crime committed under Section 15.
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