Based (loosely) on a recent event here in Ontario: https://www.thespec.com/news/crime/2020/08/18/do-not-approach-milton-prisoner-released-by-mistake-into-community.html

Sam has been correctly convicted of a serious criminal offence. He's been sentenced to 5 years, all appeals have been exhausted, and he's 12 months into his sentence.

So he's surprised when the Correctional Officers tell him, one morning, that he is to be released immediately. Sam knows of no reason that he should be released. He decides to just do as he's told, gathers his possessions from his cell and from storage, and is processed out the door, and walks away.

A few hours later it becomes clear that a different prisoner was supposed to be released. Much confusion ensues, and authorities explain that they are "actively looking" for Sam.

To be clear, Sam did not take the place of another prisoner that was to be released. He did not somehow arrange for an incorrect order to come to the prison. Because of some purely internal Corrections accidental paper-work foul-up, the prison received proper instructions to release Sam specifically, and they did.

So, assuming that Sam is located quickly, has he committed any additional offence? Should he have protested his release, and insisted on staying in prison?

1 Answer 1


There's only one crime that could be applicable in this case, section 145 (1) of the Criminal Code:

145 (1) Every person who escapes from lawful custody or who is, before the expiration of a term of imprisonment to which they were sentenced, at large in or outside Canada without lawful excuse, is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) an offence punishable on summary conviction.

While the term "lawful excuse" isn't well defined in Canadian law, and its interpretation varies from crime to crime, it certainly includes obeying what ultimately amounts to being an order to leave the prison. If there's any doubt about this being a valid excuse for the prisoner, the same doubt would apply to same excuse any prison guard would have for helping the prisoner to "escape".

A person has no right to be imprisoned, and so has no basis to insist remaining imprisoned or to protest their release. Being released early from prison isn't a crime, and can happen legitimately for a number of reasons. On the other hand, remaining in the prison after being ordered to leave would be trespassing at least.

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