A question for Canadian lawyers*. Under Canadian law,
Does that mean that I, a citizen of the United States, could be prosecuted for high treason against Canada if I were to be captured while serving in the armed forces of the United States, while waging war against Canada (stipulating that I am in uniform and that this is a duly declared war and everything–that whole Machias Seal Island dispute finally comes to a head, plus they start drafting 38-year-olds because all the 19-year-olds are still busy off in Afghanistan or someplace–and that my unit has successfully invaded some part of Canadian soil)? And if not, why not? Note that, by contrast with Canadian law, under United States law:
(Emphasis added.) Similarly, it appears that under New Zealand law, one cannot be guilty of treason against New Zealand unless one is a person “owing allegiance to Her Majesty the Queen in right of New Zealand”.
*None of y’all are my lawyer, I am not your client, I am not actually a member of the armed forces of the United States or any other country, the United States and Canada are not at war with each other, etc. Non-lawyers and non-Canadians are also free to weigh in.
A great many people have waged war against Canada through two World Wars and numerous less major conflicts, and not a few of them have fallen into the hands of Canadian forces. A grand total of two people have been convicted of treason in Canada - Louis Riel, the Metis leader who was hanged following the Rebellion of 1885, and Kanao Inouye, a Japanese-Canadian who served in the Japanese Army during WWII and who was involved in the torture and murder of Canadian POWs following the fall of Hong Kong. I suspect it is unlikely that Inouye would have even been tried for treason except that he had gotten a war crimes conviction overturned based on his Canadian citizenship.
Just to nitpick, but only two people have been convicted of treason in Canada after Confederation. There had been treason convictions after the “Patriots War”/Rebellion of 1837, with a bunch of the rebel leaders being transported to Bermuda or Australia, and a few (Peter Matthews, Samuel Lount, and Joshua Doan, for instance) being executed.
I think there was a case or two following the War of 1812, as well, but as these all predate Canadian law I’m not sure they’re of any real relevance to the discussion.
When Canada was still a collection of colonies, there were quite a few high treason convictions in Upper Canada of persons who went over to the Americans. The Bloody Assize of Ancaster, 1814:
Note that the convictions were not againt US Regulars, but instead were against residents of Canada (of whatever nationality) who helped the Americans in the war. This suggests to me that a US Army soldier without any prior connection to Canada would not be up on a treason charge, but if he had a connection to Canada, then he might end up on a treason charge. Just how close a connection I couldn’t say, but based on what went on in Upper Canada, it looks like simply being a land owner / settler would be enough.
I don’t see why not. All of the other parts of the law (killing the Queen, and so forth) would work perfectly well as crimes with which one could charge a foreign national in Canada. Nor do I see why a country would declare it perfectly legal for a foreign invader to levy war on that country.
I imagine that that portion of the law would be superseded by any international treaties regarding the legal status of enemy combatants to which Canada is a party. I also imagine that, if Canada ever were to be invaded, both during and after the fact the government would have more to worry about than attempting to have the police arrest foreign soldiers for treason. But I don’t see why the government wouldn’t want to keep its options open in that regard (e.g. prosecuting any high-ranking enemy officers it happened to come into custody of, presumably after the war).
I believe that the requirement of some form of allegiance to the Crown is implicit in the offence of treason under s. 46. I don’t have a cite for that, since there’s only been the one conviction under the offence as currently set out in the Criminal Code. However, the Criminal Code is not a true code - some aspects of certain offences still are defined in part by their common law and statutory predecessors (see for example the offence of sedition, which is not defined by the Code).
Allegiance of some sort to the Crown has been implicit in the offence of treason as defined by the Statute of Treason, 1351, even though the Statute does not explicitly refer to allegiance as an aspect of the offence. That Statute was the predecessor to the treason offence under the Criminal Code - Louis Riel was tried under the Statute, for example. Because some aspect of allegiance was integral to the offence prior to the enactment of the Code, I would expect that the choice of the word “Treason” to describe the offence in the Code carries forward that aspect of the offence.
I don’t think that’s altered by either sub-sections (2) or (3) - the significance of those provisions is that they expand the offence of treason to include acts done outside of Canada.
So, I would think that the treason statute would not apply to a member of a foreign armed force operating in Canada in accordance with the laws of war.
Well, I think it would run afoul of the Geneva Conventions to have all of your P.O.W.s drawn and quartered (or even be imprisoned for life) once the war is over. You might, post-Nuremburg, prosecute the leadership of the enemy nation for waging a war of aggression or crimes against the peace; but there is an expectation that ordinary soldiers are not prosecuted unless they do something like looting and pillaing, fighting without being in uniform, or of course unless they’re your own people who have gone over to the other side. Otherwise, once the war is over you let the regular soldiers go back home (even if your side has won the war).
So in the Canadian context , whats the difference between High Treason and Generic Treason.
Something along the lines of a cabinet minister doing something would be High treason and an ordinary shmuck helping japanese infiltrators would be simple treason ?
England’s Treason Act of 1351 has been tinkered with over the centuries, but none of the changes are relevant to the discussion at hand. The clauses relevant to our discussion are: “. . . si home leve leve de guerre contre nostre dit Seigneur le Roi en son Roialme, ou soit aherdant as enemys nostre nostre Seigneur le Roi & le Roialme, donant a eux eid ou confort en son Roialme, ou per aillours . . . .” Treason Act 1351
When you read through the entire statute, there is nothing to suggest it was only intended to apply to citizens, but rather it applies to anyone with some marginal connection or marginal allegiance to the state messing with the state. In fact, aliens have been convicted of treason: 1911encyclopedia.org
This left Upper Canada prosecuting for treason using English statute law as interpreted by centuries of English court decisions, which as set out above, did not differentiate on nationality, and only required a minimal degree of allegiance, but by the same token did not go after genuine enemy combatents who had no connection with the realm that could even be remotely construed as local allegiance. That is why in 1814 regular US soldiers were not prosecuted for treason, but people from Canada (regardless of nationality) who helped them were prosecuted for treason.
Both English law and Canadian law have since changed with respect to treason, but the basic elements relevant to this discussion (harming the Crown, making war, or helping make war) have not changed, so I expect that if a person has any connection with Canada at all, then due to having such local allegiance that person would not be exempt from our treason law.
In short, if a private in the US Army was sent in under orders to pitch my Uncle Gordie off the island, he would not be prosecuted for treason unless he had some local allegiance to Canada.
concur with Miuffin - it doesn’t take much to establish local allegiance - Riel being the prime example in Canadian law. At the time of the 1885 rebellion, Riel was an American citizen, but since he had entered the country from the US as a private citizen, during time of peace, he was under a duty of local allegiance. This point was so clear under the established case-law under the Statute of Treason that his lawyers didn’t even try to challenge it on appeal, to the Manitoba Queen’s Bench and later to the Privy Council.
The relevant date for the reception of English statutes law in the NWT was July 15, 1870 - date set out in the relevant NWT Act. However, the 1351 Act hadn’t been tinkered much in the intervening 80 years, so the law on treason was reasonably uniform across the country. Riel was tried under the 1351 Act.
Sorry for the hijack, but I’m curious about something: as the Queen is very rarely in Canada, and all her political duties are now invested in the Governor General of Canada, is killing the Governor General considered to be equivalent to killing the Queen for the purposes of the Criminal Code? That is, would killing the Governor General get you charged with High Treason? What about a Lieutenant Governor?
I would say anyone who has entered a country with permission of that country’s government owes allegiance to the laws of that government with the exception of diplomats and similar representatives of foreign governments.
I would even say that people who have entered the country illegally, without permission, as private citizens, still owe allegiance to the laws of the country. That is why illegal aliens in the USA are required by law to pay taxes and to register with Selective Service.
A soldier part of a military invading force clearly owes no allegiance to the invaded country but to his own country.
A spy or saboteur who enters secretly as an agent of a foreign government… hmmm… I am not sure on what grounds they were traditionally executed.
I’d qualify that to note that there must not be any pre-existing allegiance (for example, if the person had been resident in Canada and then went back to the USA and signed on with an American army that invaded Canada, but I’m not certain about this.
