Has Canada's Criminal Code Lost Its Way?
Laws have to be clear, consistent, and enforceable. Some of ours aren't.
I am neither a lawyer nor the son of a lawyer and, thankfully, I’ve never been dragged through the justice system as a participant. But that doesn’t mean I can’t have thoughts.
My recent post on auto theft conviction rates ended with a suggestion that the size and complexity of Canada’s Criminal Code might be contributing to systemic problems with our courts - including suffocating inefficiencies. I’d like to explore that idea a bit more here.
First of all though, complexity is not the driver of most criminal behavior. You don’t need a law degree to know that you shouldn’t steal someone’s car or break his nose in a barroom brawl. And anyone with a grade three education should realize that government program fraud isn’t exactly saintly behaviour.
But overly complex laws can be responsible for some serious problems. Consider how clarity is actually a cornerstone of justice. In Canada, for instance, the Void for Vagueness Doctrine holds that a law is invalid if it’s too vague for the average person to understand. That’s because such laws fail to provide “fair notice” of what’s prohibited and clear standards for enforcement.
Similarly, if accused criminals can demonstrate that the complexity or ambiguity of the statute led them to reasonably believe their conduct was lawful, those laws might fail the necessary mens rea requirement for certain offences.
Unfortunate illustrations of this problem make appearances in some recent Liberal government legislation:
Online Harms Act (Bill C-63) fails to provide a clear definition for “online harm”. This makes it impossible for citizens to anticipate how the new Digital Safety Commission will enforce the law.
Online Streaming Act (Bill C-11) appears to require streaming services (like YouTube) to regulate user-generated content using an undefined standard.
Online News Act (Bill C-18) could affect how news is shared and accessed online, potentially influencing the availability and distribution of Canadian news.
Of those, at least C-63 and C-11 - in their current form - could expose individuals to significant criminal and civil penalties without providing clarifying details.
Here’s another example. Section 423 of the Criminal Code prohibits intimidation:
423(1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing...blocks or obstructs a highway.
And Section 430 prohibits “mischief”, whose definition includes:
interfering with the lawful use, enjoyment, or operation of property.
Just playfully attaching a sticker to someone’s car could lead to charges even if there was no intent to cause harm (by, say, damaging the car’s paint).
The problem here is that both Sections 423 and 430 are, to put it mildly, inconsistently enforced. This is something I’ve already discussed in my Limits of Legal Protest post. Participants in recent pro-Hamas protests flagrantly blocked lawful access to roads, parks, and public buildings for weeks at a time in cities across the country. That’s a clear Section 423 and 430 violation. And yet, of the many hundreds of participants, only a handful were ever arrested and, to my knowledge, none was charged with mischief or intimidation.
Now I know exactly what you’re thinking: “Come on Clinton, what about 430(7)?”
No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.
Weren’t those protesters just there to communicate information (“from the river to the sea…”)? Well I’m actually not sure how much meaningful communication was happening at those gatherings. Dialog didn’t seem to be their primary focus. But the legal issue wasn’t where they chose to stand, it was the fact that they actively and intentionally prevented the lawful use, enjoyment, or operation of property - both private and public.
Now, in that context, is it reasonable to prosecute any acts of mischief or intimidation anywhere in Canada? Couldn’t a person reasonably argue that he was under the informed opinion that Canadian police largely ignored such offences?
As the Criminal Code grows, its internal complexity is bound to increase along with it. Comparing the PDF version of the June 15, 2011 version of the Code (1,025 pages) to the most recent version (1,349 pages) gives us a sense of the changes that are happening in both government and society as a whole. More than 226,000 words (in both French and English) were added over that time, a 31 percent increase. Revisions included updates concerning firearms and weapons, remote proceedings, indigenous rights, organized crime and terrorism, and palliative care.
All that’s not necessarily a bad thing. But when poorly-written legislation (like C-11) makes it into the books and perfectly fine legislation (like Section 430) is enforced unevenly, then we’re asking for trouble. A competent government should be able to do better than that.
For the greatest hits of The Audit’s first six months, check out: The Audit - Adventures in Canadian Policy: Data stories from the land that competence forgot:
Some various thoughts, but first, I have acquired (thank you, Mr. Amazon for delivering) your most recent book and I recommend it to everyone. The examples that you offer in that book are, well, horrifying but, more importantly, are very thought provoking. Of course, our worsers in Ottawer (definitely not our betters) definitely won't bother with those thoughts.
Now, to your column. In a round about way, of course.
I used to watch Law and Order (the original version) and I recall that the prosecutor, Michael Moriarty at that time, used to say that any competent prosecutor could convince a grand jury to indict a ham sandwich if he so chose.
I also have heard it said (well, often written) by such "luminaries" as Conrad Black but also by others that in the US the law is so voluminous and complex that pretty much everyone is guilty of SOMETHING and can be successfully prosecuted simply because of that complexity.
Which brings me to your column. When the law is unclear or, more particularly, is applied or misapplied to advantage or disadvantage some group for some (let me be overly kind) "social" reason (one wouldn't want to use the adjective "political" would one?) reason then, as the saying goes, the law is an ass. Therefore today, in Canada, frequently the law is proven to be a total ass.
If you have the "correct" skin tone or the "correct" social/religious grouping or the "correct" cause you can break almost any law, short of murder. And perhaps the gendarmerie won't try too hard to solve even that crime if you have the "correct" motivation (and I don't mean the exceptions prescribed by the Criminal Code.
What we absolutely do know is that if you have those particular attributes, you can block rail lines, burn churches, terrorize (yes, I use that word) Jews and supporters of Jews (I am a gentile so I can say that), stop legal commerce, prevent people from ..... ah, Hell, why go on?
Therefore, all this additional bumph that has been added to the Criminal Code, all in the name of "clarity" and "fairness" you can be sure, is highly "questionable" and simply leads to confusion of the public and generates "exclusions" that favor some folks, particularly those who have the "right" kinds of lawyers.
Question: is the use of quotation marks "appropriate" in conveying anything? Just wondering.
There seems to be considerable redundancy within our legal structure, as well. When you read about people found to be in possession of firearms, for example, the list of charges can be as long as your arm, and seems to cover off every possible nuance. I don’t have an example right in front of me, but it’s not unusual to see people charged with illegal possession of a firearm, possession of an illegal firearm, possession of a firearm without a licence, improper storage of a firearm, transporting a loaded firearm, possession of a firearm while committing another offence (or planning another offence), possession of a firearm despite being banned from doing so, etc.
Sure, when matters come to trial, they’ll probably plead guilty to one or two of these offences, and the other charges get dropped. Nonetheless, in theory the police have to round up evidence to support the various charges, the prosecutors have to be prepared to argue the various charges, the defence lawyers have to be prepared to refute the various charges, and the courts have to set aside adequate time to deal with multiple charges. Presumably, at some point, bureaucrats prepared and legislators debated all these overlapping laws.
While I understand that we don’t want people getting away with having and/or using guns for evil purposes, there should be a way to write a criminal code that’s straightforward and clear, without so much redundancy.