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.

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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: