Under Section 351(2) of the Criminal Code of Canada, wearing a mask, balaclava, or any disguise with the intent to commit an indictable offence is a separate offence. This hybrid offence can be prosecuted as indictable or summary, and while sentences usually run concurrently to the primary offence, a judge retains discretion to impose consecutive sentences.
When an individual commits a crime in Canada, hiding their identity might seem like a logical way to avoid being caught on security cameras. However, the Canadian justice system heavily penalizes this exact behavior. Whether a person wears a ski mask during a bank robbery in Toronto, or covers their face with a bandana during a violent riot in Montreal, they trigger a completely separate federal charge known as “Disguise with Intent.”
Section 351(2) of the Criminal Code was designed to deter criminals from concealing their identities. It is a hybrid offence, meaning the Crown Prosecutor can choose to proceed by indictment for serious cases or by summary conviction for less severe ones. 🔍 The most crucial element of this law is that the Crown does not just have to prove you were wearing a mask; they must prove you wore it specifically to commit another indictable offence. This guide will explain how the courts handle this compounding charge and what your defence lawyer will do to protect you.
Step-by-Step Legal Process in Canada
Facing a dual charge-such as Armed Robbery plus Disguise with Intent-complicates the legal proceedings significantly. Here is the standard process in Canadian criminal courts.
Step 1: Arrest and Laying of Dual Charges
When the police arrest a suspect, they will lay multiple charges. If you are caught breaking into a commercial warehouse while wearing a balaclava, the police will charge you with Break and Enter, and then stack the Disguise with Intent charge on top. This “stacking” strategy gives the Crown Prosecutor massive leverage during early plea negotiations.
Step 2: The Bail Hearing (Show Cause Hearing)
Because Disguise with Intent is linked to an indictable offence (usually violent or property-related), securing bail is difficult. 👮 At the bail hearing, the Crown will argue that because you attempted to hide your identity, you are inherently deceitful and pose a flight risk. A skilled criminal defence lawyer must convince the judge that you will obey strict bail conditions if released back into the community.
Step 3: Crown Prosecution’s Burden of Proof
At trial, the Crown Prosecutor faces a heavy burden. They must prove two things beyond a reasonable doubt: first, that your face was masked or disguised, and second, that you had the specific intent to commit an indictable offence. If the Crown cannot prove that you actually intended to commit the underlying crime, the Disguise with Intent charge automatically collapses.
Step 4: Defending Against the “Intent” Element
This is where the defence strategy is built. Your lawyer will attack the element of intent. For example, if you were wearing a medical mask for health reasons, or a scarf because it was a freezing day in Calgary, wearing the item was lawful. 📄 Unless the Crown can conclusively link the face covering to a premeditated criminal plan, you cannot be convicted under Section 351(2).
How Much Does a Criminal Defence Cost?
Fighting serious indictable offences requires a substantial legal budget, as these cases frequently proceed to trial.
- Maximum Prison Sentence: A conviction for Disguise with Intent carries a maximum penalty of 10 years in prison.
- Concurrent vs. Consecutive Sentences: Canadian courts usually order the sentence for disguise to run concurrently (at the same time) with the sentence for the primary offence if both occurred during the same criminal transaction, though a judge retains the discretion to impose a consecutive sentence in unique circumstances.
- Law Firm Fees: Retaining a highly experienced criminal lawyer to defend against multiple indictable offences generally costs between $15,000 and $35,000 CAD, depending on the length and complexity of the trial.
| The Underlying Crime | Armed Robbery | Indictable Offence |
| The Face Covering | Wearing a Balaclava | Lawful (on its own) |
| Combined Action | Robbery while Masked | Separate Hybrid Offence (Up to 10 years if indictable) |
How Long Does the Process Take?
The criminal justice system moves slowly for severe charges. A bail hearing will occur within 24 to 48 hours of your arrest. However, gathering police disclosure, holding pre-trial conferences, and finally going to trial at the Superior Court of Justice can take anywhere from 18 to 30 months.
Frequently Asked Questions (FAQ)
What if I was wearing a medical mask for health reasons?
Wearing a medical mask or a religious face covering is completely legal. To convict you under Section 351(2), the Crown Prosecutor must prove that your specific reason for wearing the mask at that exact moment was to conceal your identity to commit a crime.
Can I be charged if I didn’t actually complete the crime?
Yes. The law penalizes the “intent” to commit an indictable offence. If the police catch you in an alleyway wearing a ski mask and carrying break-in tools, you can be charged with Disguise with Intent even if you never actually broke into the building.
Does this apply to summary conviction offences?
No. Section 351(2) specifically states that the intent must be to commit an “indictable offence.” If you wear a mask while committing a minor summary conviction offence (like causing a minor disturbance), this specific charge generally cannot be applied.
Will pleading guilty to the robbery drop the mask charge?
Often, yes. During pre-trial resolution discussions, a defence lawyer can frequently negotiate with the Crown Prosecutor to drop the Disguise with Intent charge in exchange for a guilty plea to the primary offence, resulting in a lighter overall sentence.
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