103.21 – DESERTION
(1) Section 88 of the National Defence Act provides:
"88. (1) Every person who deserts or attempts to desert is guilty of an offence and on conviction, if the person committed the offence on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.
(2) A person deserts who
(a) being on or having been warned for active service, duty during an emergency or other important service, is absent without authority with the intention of avoiding that service;
(b) having been warned that his vessel is under sailing orders, is absent without authority with the intention of missing that vessel;
(c) absents himself without authority from his place of duty with the intention of remaining absent from his place of duty;
(d) is absent without authority from his place of duty and at any time during such absence forms the intention of remaining absent from his place of duty; or
(e) while absent with authority from his place of duty, with the intention of remaining absent from his place of duty, does any act or omits to do anything the natural and probable consequence of which act or omission is to preclude the person from being at his place of duty at the time required.
(3) A person who has been absent without authority for a continuous period of six months or more shall, unless the contrary is proved, be presumed to have had the intention of remaining absent from his place of duty."
NOTES
(A) It is an essential ingredient of the offence of desertion that the accused have had a wrongful intent. The question as to whether an accused intended not to return, or did any act which showed that the accused had an intention of not returning, is in each case a question of fact to be decided by the service tribunal upon the evidence submitted in the course of the trial. Prolonged absence which the accused fails to explain may be taken into account by the service tribunal as one of the factors relevant to the issue of whether the accused intended not to return. Where, however, the absence has lasted for six months or more, subsection 88(3) of the National Defence Act applies. Evidence relating to the following questions may assist the court in determining whether the accused intended to return:
(i) Did the accused make any remarks indicating that he did not intend to return?
(ii) Were the circumstances in which the accused was living during the absence inconsistent with an intention of returning?
(iii) Did the accused change his name during his absence?
(iv) Was the state of the accused’s kit inconsistent with an intention of returning?
(B) In order to establish an offence of attempting to desert, the following two elements must be proven:
(i) an intent to commit the offence of desertion,
(ii) an act or omission towards the commission of the offence of desertion.
An intent to desert is not sufficient alone if nothing is done to carry it into effect. A distinction must, however, be drawn between acts or omissions toward the commission of an offence of desertion and those which are mere preparations. It is not possible to draw a clear line of distinction but, in general, preparation consists in devising or arranging the means for the commission of an offence while an act or omission sufficient to support a charge of attempting to desert must involve a direct movement towards the commission of the offence after the preparations have been made. For example, a person, having an intent to desert, might pack his kit. That fact would merely be a stage in his preparations and not such an act that would justify a charge of attempting to desert. An example of an act justifying a charge of attempting to desert would be the scaling of a fence surrounding the camp after preparations indicating an intent to desert.
(C) The offence of desertion is committed even though the accused person may have left his place of duty with the intention of joining another unit. It is not necessary to prove that he intended to leave Her Majesty’s service.
(D) The expression "without authority" in section 88 of the National Defence Act signifies that the accused was absent with neither the approval of a competent superior nor the sanction of law, practice or custom.
(E) See section 133 of the National Defence Act (article 103.62 – Conviction of Related or Less Serious Offences) under which a person charged with desertion may be found guilty of attempting to desert, or of being absent without leave, and a person charged with attempting to desert may be found guilty of being absent without leave. See also section 137 of the National Defence Act (article 103.63 – Conviction of Attempt to Commit Offence) under which a person may be convicted of an attempt to commit an offence although charged with actually committing that offence, or convicted of an attempt to commit an offence although the evidence shows the offence was committed.
(F) The expression "active service" refers to the situation that exists when the Governor in Council exercises its powers under section 31 of the National Defence Act to place the Canadian Forces, or any part thereof or any officer or non-commissioned member thereof, on active service.
