Justice Department study reviews possibly obsolete crimes in Canada

By The Canadian Press - Sunday, October 21, 2012 at 7:28 AM - 0 Comments

OTTAWA – God save our gracious Queen — from alarm.

A new study of Canada’s sprawling Criminal Code found not a single case of anyone prosecuted for “acts intended to alarm Her Majesty.”

The Justice Canada project was intended to determine whether the code has so many obscure, obsolete offences that it needs a major overhaul.

Section 49 refers to “every one who wilfully, in the presence of Her Majesty, does an act with intent to alarm Her Majesty,” on penalty of a maximum 14-year prison sentence.

The prohibition has been on the books since Confederation, and can be traced to Britain’s Treason Act of 1842, which specifies flogging and up to seven years in prison as punishment.

The 1842 law was prompted by an incident that year in which a British citizen pointed a gun at Queen Victoria but did not fire, though he did discharge the weapon without harm to her on a second occasion.

The Justice Department study found only four other Criminal Code sections with zero charges prosecuted in the decade ending 2006, drawing on court databases.

The little-known sections refer to assisting deserters from the Canadian Forces; applying or removing marks indicating something is publicly owned; selling “defective stores to Her Majesty;” and issuing trading stamps.

“With only five offence sections under which no charges have been processed over the 10-year period, the contention that the Criminal Code contains many unused sections is questionable,” the authors argue.

“Furthermore, even though there were no charges processed under these sections, this does not imply that people did not commit these offences during the study period.”

The encyclopedic Criminal Code, drawing together all of Canada’s criminal statutes, was created in 1892, then wholly revised and redrafted twice, in 1954 and 1985, or 27 years ago.

“Anecdotal reports have suggested that there remain many offence sections that have not been recently used, which would indicate the code may be out of date and may benefit from being revised in its entirety and being modernized,” says the Justice Department’s rationale for the research.

A copy of the March 2012 document was obtained by The Canadian Press under the Access to Information Act.

Authors Nicole Crutcher and Albert Brews further investigated whether there were sections with no charges laid in the five years to 2006. They found 11 more, including Section 69 which applies to peace officers who fail to take reasonable precautions to stop a riot.

Another obscure prohibition, Section 440, forbids the unauthorized removal of material protecting a harbour.

Further Justice Department research found 32 additional sections where only between one and 10 charges proceeded to court over the decade 1996-2006.

The authors argue that some of these 32 sections, including Section 52 referring to sabotage, may be genuinely rare crimes but not necessarily obsolete.

On the other hand, sending a telegram in a false name — forbidden by Section 371 — “may demonstrate a shift in technology that could render the section obsolete.” Only three such charges went to court over the 10 years.

The report finds no compelling reason to overhaul the code at present, but the authors say it should be subject to periodic review.

A popular paperback edition of the Criminal Code runs to more than 1,600 pages.

A spokeswoman for the Justice Department did not respond directly to questions about why the study was undertaken, about the source of anecdotal claims regarding the need to overhaul the Criminal Code, and about next steps.

“Justice Canada regularly conducts research/studies as part of its internal development process,” Carole Saindon said in a brief email.

“This particular study was solely intended to be informational.”

Toronto criminal lawyer Adam Goodman said in a 2010 blog that his informal survey of case law from 1981 to 2004 found no charges proceeding to court for the crime of “alarming Her Majesty.”

Few visits to Canada by the Queen appear to have offered any cause for alarm, with the possible exception of her appearance in Quebec City on Oct. 10, 1964. Anti-monarchists protested, leading to harsh police actions that triggered a riot, an event now known as “Truncheon Saturday,” or “Le Samedi de la Matraque.”

‘Dehumanizes an entire class of people’

By Aaron Wherry - Wednesday, August 29, 2012 at 4:15 PM - 0 Comments

Stephen Woodworth’s motion on the definition of life will receive its second hour of debate on September 21.

Woodworth says he’s taken time over the summer to try to convince colleagues the Criminal Code “dehumanizes an entire class of people.” ”I hope that I’ve influenced people, not only within our caucus, but in other parties too,” he said … Woodworth says he believes opposition to his motion is based on the fear that even considering whether children are human beings before complete birth could “cause some people to have second thoughts about our abortion practices.”

See previously: How many MPs will support Motion #312?

Section 13: How the battle for free speech was won

By Charlie Gillis - Tuesday, June 19, 2012 at 5:00 AM - 0 Comments

Lorraine Hjalte / Calgary Herald

For all the passion it stirred, you’d think it would get a noisier send-off. An ovation, maybe. Or tears. Instead, Section 13 of the Canadian Human Rights Act slipped quietly beneath the waves last week during a night-time sitting of the House of Commons—victim of a private member’s bill and a trailer load of toxic publicity. Brian Storseth, Conservative MP for Westlock-St. Paul, had glanced anxiously around the chamber as his kill bill went through its third reading. “The benches weren’t full,” he recalls. “That always makes for a bit of extra heart pumping.”

Justice Minister Rob Nicholson had voiced support for the legislation. So had the Prime Minister. The result, then, was never in doubt: at 9:35 p.m. on June 6, by a vote of 153-136,  Parliament got Canada’s human rights bureaucrats out of the business of policing speech on the Internet. There was a scattering of applause, and handshakes for Storseth (the bill requires the rubber stamp of Senate approval). “To be honest, it’s all a blur,” says the three-term MP, laughing. But if the passage of Bill C-304 represents a fundamental shift in Canadian culture, you’d never have known it that night. Members dealt with a few housekeeping matters, then waded through a supply bill. Finally, one by one, they trickled out into the cool Ottawa night.

The effect of killing Section 13 will be debated for years among anti-racist groups and civil libertarians. But it is undoubtedly a turning point. Since 1999, Canadians who felt aggrieved by material transmitted online have been encouraged to seek redress under federal human rights law, which targeted material “likely to expose a person or persons to hatred or contempt” based on grounds of discrimination like race, religion or sexual orientation. Storseth’s bill repeals the provision outright, leaving the Criminal Code as the primary bulwark against the dissemination of hate propaganda by electronic means.

Continue…

‘I expect there is healthy debate about Motion 312 by all MPs’

By Aaron Wherry - Wednesday, June 6, 2012 at 11:33 AM - 0 Comments

I asked Stephen Woodworth if he had any comment on today’s reports. Here is his response.

As you know, caucus conversations are held in confidence.  I expect there is healthy debate about Motion 312 by all MPs.

Motion 312 does not force the PM to break his promise not to “reopen the debate on abortion” for several reasons. The PM at no time committed to restrain Private Member’s Business about abortion or about section 223.  That would have contradicted both Parliamentary practice and our Party’s policy.  Also, of course, the question of universal human rights raised by Motion 312 is much more fundamental than the issue of abortion.

I have a high regard for the PMs leadership, whether or not we agree about section 223.  It is possible to disagree respectfully while acknowledging the PMs leadership role.  That doesn’t reflect negatively on anyone.

All of our discussions to date in Parliament about Motion 312 have been a healthy and democratic  expression of Parliamentary debate.  Parliament is all about finding consensus amid passionate debate.  No one should feel there’s anything amiss about that.

I would also like to point out that Motion 312 isn’t about” when life begins,” but about evidence bearing on our 400 year old legal definition of when a child becomes a human being.  It is about whether basic human rights are universal or a gift of the state, subject to cancellation by a decree such as may be found in subsection 223(1).  It is about proposing a mere study of modern evidence about a 400 year old law.

As to the question of why he moved his motion back in the order of precedence, Mr. Woodworth explains that his mother has been very ill of late and he “very much needed to ease up a bit.”

Law-making made easier

By Aaron Wherry - Friday, May 11, 2012 at 9:06 AM - 0 Comments

Tonda MacCharles notes the government’s recent enthusiasm for private member’s bills.

Sponsored by backbenchers, not ministers, private member’s bills can make significant changes in areas of federal public policy, yet because they are drafted with the help of Library of Parliament counsel they do not go through the usual justice department scrutiny. They are not subjected to the department’s analysis for constitutionality, regulatory impact or cost versus benefit. Nor are they subject of memoranda to cabinet for consideration by the full ministry — a process that may flag important regional, departmental or political concerns.

The Star has learned that although the government is publicly backing the bills, it does not allow Department of Justice lawyers to appear to publicly testify about the constitutionality of those bills.

Here is the Library of Parliament’s list of private member’s bills that have been passed by Parliament, 235 in all since 1910. Since 2006, there have been five amendments made to the Criminal Code via private member’s business and a related amendment to the Controlled Drugs and Substances Act. Three of those originated with Conservative backbenchers.

Twenty-seven private member’s bills passed during the last period of Liberal majority government (1994-2004). Only two of those were Criminal Code amendments. (Seven of them were for the purposes of renaming electoral ridings.)

Last year, Evan Sotiropoulos reviewed recent trends in private member’s business.

The conservative stance on abortion you didn’t know about

By From the editors - Friday, May 4, 2012 at 10:56 AM - 0 Comments

Sean Kilpatrick/CP

It was a moment of the kind Parliament is not supposed to provide anymore—not, at least, in the eyes of the endless drama critics who bemoan its fallen state. Conservative backbencher Stephen Woodworth had introduced a motion demanding that the House of Commons appoint a special committee to investigate the definition of a “human being” in the Criminal Code section concerning homicide:

“A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not it has breathed, it has an independent circulation, or the navel string is severed.”

This language has come down to us basically verbatim from the original Criminal Code of 1892. Woodworth finds the definition puzzling, given the scientific evidence gathered since. Perhaps he thinks that the Victorians, with their passion for anatomy and experimentation, did not know that a fetus, midway through its gestation, already possesses many of the incipient traits and physical characteristics of a human being. In any event, Woodworth’s private member’s motion called for a hearing of medical evidence concerning whether “a child is or is not a human being before the moment of complete birth.”

Continue…

The Commons: A debate about a debate about abortion

By Aaron Wherry - Thursday, April 26, 2012 at 7:39 PM - 0 Comments

Adrian Wyld/CP Images

Shortly before 5:30pm, Stephen Woodworth was on his feet from the back row. Close around him sat eight other Conservative MPs.

“Motion 312,” he said, “simply calls for a study of the evidence of when a child becomes a human being.”

He wondered aloud what opponents of his proposal had to fear. Staring directly at the dozen NDP MPs seated across the way he called on them to hear the evidence.

Fourteen spectators watched and listened from the south gallery. Four Liberals joined the New Democrats on the opposition side of the House. The Conservatives numbered somewhere in the neighbourhood of 24.

Mr. Woodworth spoke loudly and gesticulated dramatically, as if addressing the nation at a moment of great significance. He invoked rights and humanity and science and parliamentary duty and he damned a “dishonest law.” When he was done, a dozen Conservatives applauded. Continue…

Tory backbenchers want to talk abortion

By Aaron Wherry - Tuesday, February 28, 2012 at 10:00 AM - 0 Comments

Adrian Wyld/CP

For the benefit of the reporters seated in front of him and the audience beyond the television cameras, Stephen Woodworth repeated his mantra several times. “Don’t accept any law,” he said, “that says some human beings are not human beings.”

The Conservative backbencher’s particular concern was Section 223(1) of the Criminal Code, which effectively states that a child does not become a human being until it has “completely proceeded” from its mother’s body. Shortly before Christmas, Woodworth announced his desire for a national conversation on the acceptability of this standard. And here, at a news conference this month, he was announcing a motion that would establish a special committee of Parliament for the purposes of studying this statute. “I’ve concluded that modern medical science will inform us that children are in reality human beings at some point before the moment of complete birth,” he explained.

Woodworth was loath to get ahead of himself—sticking mostly to the principle and the law in question—but one implication was fairly clear. If the law defining a human being is up for discussion, a conversation about abortion is almost certain to follow.

Continue…

‘Don’t accept any law that says some human beings are not human beings’

By Aaron Wherry - Monday, February 6, 2012 at 12:37 PM - 0 Comments

In keeping with his campaign to start a national discussion, Conservative MP Stephen Woodworth has tabled a motion that would see a special committee of Parliament created to study Section 223(1) of the Criminal Code, which defines when a human being becomes a human being. Justice Minister Rob Nicholson has already responded with a two-sentence statement.

“Private Members motions are considered in accordance with the rules of Parliament. The Prime Minister has been very clear, our Government will not reopen this debate.”

Below, the prepared text of Mr. Woodworth’s remarks this morning to reporters. Continue…

The case for Marlene Jennings’ concern

By Aaron Wherry - Tuesday, June 21, 2011 at 8:24 PM - 0 Comments

When Marlene Jennings wrote to the director of public prosecutions in April—the letter is available here—she laid out her case as follows.

I base this concern on a possible misappropriation of funds granted to the Crown by the House of Commons through Appropriation Act No. 2, 2009-2010 and Appropriation Act No. 4, 2009-2010. Based on the accompanying Estimates tabled in Parliament by the Government, Parliament approved the use of funds for the Border Infrastructure Fund. However, recent revelations make it clear that the monies approved by Parliament for that specific purpose were instead used to subsidize infrastructure projects in the Muskoka region that have no bearing on international border services. I believe that the stated intent presented to Parliament for the use of these funds cannot be reconciled with their actual use, and may constitute an intentional subversion of Parliament’s authority for the appropriation of public funds. If so, this appears on its face to be a potential violation of s. 26 of the Financial Administration Act, and therefore a willful contravention of an Act of Parliament.

Section 26 of the Financial Administration Act states that “Subject to the Constitution Acts, 1867 to 1982, no payments shall be made out of the Consolidated Revenue Fund without the authority of Parliament.” And on that note, Ms. Jennings points to Section 126 (1) of the Criminal Code. Continue…

Beverley McLachlin in conversation

By John Geddes, Kate Lunau - Monday, November 29, 2010 at 10:30 AM - 11 Comments

Photograph by Blair Gable

It’s 10 years and counting since Beverley McLachlin was sworn in as chief justice of Canada, the first female in the role. Born in the town of Pincher Creek, Alta., and first appointed to Canada’s Supreme Court over 20 years ago, today she is the most powerful woman in the country. An outspoken advocate of making the courts more accessible to Canadians, McLachlin spoke to Maclean’s last week in Ottawa.

Q: A hallmark of your court has been its openness—you’ve started webcasting appeals proceedings, you give many speeches. What’s your aim with all this?
A: The courts belong to the people. As such, I think people are entitled to know what goes on in the court. This is a very ancient principle of justice, that the courts always be open. As you’ve noted, we have webcasts now. People tune in, and they say, “who are those strange people sitting in their robes?” and they learn a little about the court, and the civilized dialogue that goes on there.

Q: Do you ever worry about the aura of the court being eroded?
A: I agree that the court should be somewhat removed. But I also think the people of Canada are entitled to know who’s on their courts, and how they work. And there’s greater danger in mystery, seeing the court as this oracle up there that all of a sudden, out of the blue, pronounces.

Continue…

Hookers, hacks, and Himel

By Colby Cosh - Thursday, October 7, 2010 at 2:20 PM - 0 Comments

The Citizen‘s Dan Gardner is impatient with the columnists cawing against Justice Susan Himel’s prostitution ruling. This morning he exasperatedly tweeted at them that “You don’t have to agree. You do have to read”—that is, read what Himel wrote. I’m on Dan’s side in this debate, but, hey, isn’t he being a little unfair and obnoxious? Surely respectable writers like Daphne Bramham wouldn’t denounce the Himel decision in such strong terms without examining the evidence:

If prostitution were a job freely chosen, as the pro-legalization forces would have us believe, it’s unlikely that the average age of entry into that workforce would be 14.

Damn, I guess Dan was right after all. This soundbite is a poor choice for an opening salvo against Himel, since it came up specifically in her hearing of the evidence from supporters of the existing law [emphasis mine]:

I find that Drs. Raymond and Poulin were more like advocates than experts offering independent opinions to the court. At times, they made bold, sweeping statements that were not reflected in their research. For example, some of Dr. Raymond’s statements on prostitutes were based on her research on trafficked women. As well, during cross-examination, it was revealed that some of Dr. Poulin’s citations for his claim that the average age of recruitment into prostitution is 14 years old were misleading or incorrect. In his affidavit, Dr. Poulin suggested that there have been instances of serial killers targeting prostitutes who worked at indoor locations; however, his sources do not appear to support his assertion. I found it troubling that Dr. Poulin stated during cross-examination that it is not important for scholars to present information that contradicts their own findings (or findings which they support).

Himel’s judgment gives the impression that she carefully scrutinized and weighted the massive body of evidence before her; Bramham, by contrast, uses cherry-picked stats in a way that recalls the old proverb about the drunk and the lamppost. Indeed, her column is such an impossibly confused piece of argument that one is tempted to think the drunkenness literal.

Like other critics of Himel, Bramham sneers at the idea that selling sex can possibly constitute an exercise of “choice”; you know this, she suggests, because you wouldn’t want your sister to be a prostitute. Well, I sure as hell wouldn’t want my sister to be a columnist at a Postmedia newspaper; I did that job, and, given my sister’s other options, the uncertainty and meagre pay certainly wouldn’t maximize her happiness or her income. It’s nonsensical to criticize someone’s means of earning a living from the standpoint that she could just presumably go be a master mariner or an accountant tomorrow if she didn’t have an imaginary gun to her head.

We are all trying to get by within a context of skills, credentials, abilities, and tastes, and these things are limited by our life experiences (particularly the horrible ones) and our inherent endowments. This is not the prostitute’s condition; it is the human condition. Sneering comments about the meaning and value of choice don’t reflect well on any commentator’s realism.

They’re especially odious when realism is precisely what those commentators claim to be advocating. Bramham writes: “Selling sex is dehumanizing and soul-destroying to most of the people who do it. That’s not a moral judgment. It’s fact.” This couldn’t be more embarrassing if she’d shouted “SCIENCE!” instead, could it? Has this soul-destruction been quantified by a graduate student? Is there an SI unit of dehumanization? Or is the columnist simply reluctant to admit that there might, in fact, be some irrational prejudices and scolding Methodist ghosts swirling around in her hindbrain?

Oh, not possible: Bramham eventually comes around to advocating the progressive, presumptively sex-positive “Nordic model” of prostitution—having either forgotten or never realized that the crux of the Nordic model is decriminalization of the supply side of the sex trade. It’s the pre-Himel law that’s inconsistent with the Nordic model! As Himel’s decision points out!

In Sweden, where prostitution is approached as an aspect of male violence against women and children, buying sex and pimping are illegal, but the seller of sexual services is seen as a victim and not criminalized. Public education campaigns targeting buyers of sexual services have reduced demand. Intensive police training has led to a 300 per cent increase in arrests and a reduction of complaints that the law is too difficult to enforce.

This evidence suggests to me that Canada’s prohibition of all public communications for the purpose of prostitution is no longer in step with changing international responses. These legal regimes demonstrate that legislatures around the world are turning their minds to the protection of prostitutes, as well as preventing social nuisance. The communicating provision impairs the ability of prostitutes to communicate in order to minimize their risk of harm and, as such, does not constitute a minimal impairment of their rights.

I don’t mean to pick on Daphne Bramham in particular; she’s just the latest target to pop up, and the faults in her rhetoric, enormous and fatal though they are, don’t descend to the level of Barbara Kay, who is sure that legalizing prostitution today means she’ll be clapped in irons for being agin it tomorrow. Still, at least my friend Barbara is upfront about not giving a fig about any harm done to prostitutes by the law. I was criticized a little bit last week for suggesting that opponents of the Himel ruling, people who don’t like to entertain arguments about “harm”, should logically regard serial killers as Dexter-esque defenders—perhaps distasteful but in a sense admirable—of the social order they value so highly. I’m afraid this implication is hardly even disguised by Mrs. Kay: in her first column on Himel she brings up Robert Pickton explicitly, mentions in a flat, neutral way that his murder spree “seem to have been a strong motivation for [Himel's] decision”, and goes on to dismiss the question of “harm” willy-nilly. You’re left to infer her feelings about Pickton: she doesn’t take an explicit position. I think I know that she would oppose his particular species of social activism, but given her arguments against harm reduction, I can’t really account for why she would.

Espousal of the Nordic model of supply-side decriminalization is probably more reasonable, and Bramham should be given credit for that, even if the idea collides with absolutely everything else she apparently believes. For myself, I’d prefer it if we could just get past our superstitions about power imbalance in technically victimless exchanges. Our law, in practice, now pretty much treats pot growers as Satan and pot smokers as delusional, lazy unfortunates; suppliers bad, demanders OK. When it comes to prostitution we take the opposite tack: suppliers victims, demanders monsters—though at other times, for no better reason, the reverse approach has prevailed. I’m content to let the Nordic model be judged on a close, unbiased study of its practical effects (and I certainly do believe that policy surrounding prostitution should facilitate, even encourage exit from it), but at root, do all these just-so stories make sense?

My ideology is that it takes two to tango and that people should be allowed to tango. Nobody wants to argue for a man’s right to buy commoditized sex, just as he buys commoditized brainpower (in theory) when he buys the Vancouver Sun or the commoditized sweat of Mexicans when he buys garlic and oranges from California. The anti-prostitution regiment, though it may appear in our minds arrayed in the black bonnets and hoop skirts of our Victorian foremothers, seem to me like nothing more than degraded Marxists or hippies carping about alienation, or about how we don’t deal with each other as real human beings, maaaan. We commoditize each other and are commoditized; that’s where everything that lifts us above the miseries of subsistence farming comes from.

And that’s really pretty OK. Unless you’ve breathed in too much nonsense borrowed from nitwit German philosophizing about “the I and the thou”, you know that capitalist alienation doesn’t prevent civilized persons from forming genuine connections, or acting with decency and kindness, within a client-servant framework. As prostitutes will be the first to tell you. My argument here would probably seem stronger if I had some good, obvious objects of pathos to parade—if, for instance, ex-johns wrote as many blogs and books and news articles as ex-hookers do. But that’s the price of monsterizing the john: people can blather on about how “prostitution is violence” without even having seen or heard of the widowers, the social castoffs, and the deformed and disabled who make up part of pretty much every whore’s clientele. (Whether that whore is male or female.)

This is not to say that a lot of johns aren’t woman-haters: the only question, absolutely the only question, is how best to protect the women. Which brings us back to Bramham. She cites a case, and it is a fantastically rare case, in which a Vancouver “incall” prostitute was murdered by a client in an apartment being used as a massage parlour. (OMG! Another “Craigslist killing”!) But as Bramham presumably understands, many women are killed every year by husbands, boyfriends, and acquaintances under similar circumstances; we probably cannot expect prostitution policy to make sex for pay any safer than sex in general. So how is prostitution relevant to the example at all?

If anything, its relevance would seem to be that there was a record of the man’s internet browsing, a record of the cash transaction, and security-camera images of his arrival at the illicit business. The commercial aspect of his visit is almost certainly the reason he got caught; it’s the only way Bramham is able to give us the exact amount he paid. As an argument that violence against prostitutes can’t be deterred by making indoor security arrangements legal, her anecdatum isn’t just ineffective, it’s self-annihilating.

So, too, is the quote she provides from a UBC law professor who says “says at most the decision might change [prostitution] from ‘an extremely dangerous job to a very dangerous job’.” Here, again, the idea that prostitution should be made safer is just being laughed at. We have a whole universe of occupational health and safety regulations devoted to making extremely dangerous jobs very dangerous, don’t we? Are these rules somehow bad or ridiculous?

A useful exercise in assessing columns about prostitution is to substitute “taxi drivers” for “sex workers” and see how the rhetoric holds up. Driving cab carries the highest risk of violent assault and homicide of any commonly performed lawful profession—higher, easily, than that faced by cops. So imagine Bramham writing “What are the chances, if driving a taxi really were a choice, that so many who choose it are poor, under-educated immigrants or members of minority groups?” Whoa, the demographics check out and everything! Could Bramham find a lawyer to say that it is “naive, disingenuous and dangerous to frame cab driving only in terms of safety, choice and individual autonomy”? I wouldn’t bet against it. A journalist—particularly one who’s a brilliant, tireless reporter—can always find what she has decided to look for.

A splash in Ontario makes waves in Alberta

By Colby Cosh - Thursday, September 30, 2010 at 11:01 AM - 0 Comments

The Ontario Superior Court’s Charter finding against prostitution-related provisions of the Criminal Code has unexpectedly cast light on the new Alberta politics. The hard-charging Wildrose Alliance talks a good game when it comes to defending provincial rights; the logical corollary, one might suppose, would be for it to observe a dignified silence about matters reserved to the federal government. This is never how things work, of course, and the Alliance couldn’t move fast enough to issue a joint statement in the names of its two turncoat MLAs, Heather Forsyth and Rob Anderson.

Just as the mind of Newton was instantly discernible by contemporaries from his anonymous solution to the brachistochrone problem, so the corresponding organ inside Heather Forsyth is recognizable from the language of the press release. Forsyth never heard an idea for “protecting children” she didn’t like, and certainly never, as an Alberta cabinet minister, implemented one she would recognize as a failure.

“No little girl,” reads the statement, “ever dreams of growing up and becoming a prostitute, and no parent wants to see their child become a sex worker.” As an argument in favour of the existing prostitution laws, this immediately raises the question whether the parents of Robert Pickton’s victims dreamed fondly of their fate, complete with a soundtrack of swine gnawing bone. No little girl does foresee becoming a sex worker, any more than little boys imagine becoming garbagemen or sheet-metal cutters. (Hands up, all those of you who do have the job of their dreams! I’ll admit I’m relatively blessed in that regard, but then again I am not writing this note from the deck of the space shuttle.)

It is precisely the unpleasantness of such professions that demands we attend carefully to their occupational safety. That is the ground, for better or worse, on which Justice Susan Himel acted. The Wildrose statement does not object that Himel’s decision will fail to make prostitution safer; it concedes the point, and specifically rejects the idea that prostitution should be made safer for women. Why, one wonders, is Robert Pickton in prison at all? By the Forsyth standard, surely he should be freed, perhaps even subsidized as a public benefactor.

The fact is, Alberta already has a governing party that was happy to implement Forsythian ideas of justice and child welfare, dozens of them, before Forsyth became the victim of a geographic squeeze and left the PCs in a snit. The party’s statement thus leaves one wondering whether a vote for the Wildrose is a vote for ideological change, or just the same old formula with a different gang of ministers. It suggests tentatively that Danielle Smith’s “big tent” is going to fly the Oriflamme of social conservatism rather than the Gadsden flag of libertarianism.

Government at work

By Aaron Wherry - Wednesday, July 14, 2010 at 10:35 AM - 0 Comments

In the middle of an article that notes, in part, the superfluousness of changing the Criminal Code to cover “honour killings,” this explanation for Rona Ambrose’s comments.

While a spokesman for Justice Minister Rob Nicholson on Monday shot down Ms. Ambrose’s assertion that the government is “looking at” the change, his director of communications, Genevieve Breton, yesterday said “minister Ambrose’s comments are consistent with our approach” to law-making.

On truth in $enten¢ing

By Colby Cosh - Thursday, June 24, 2010 at 4:11 AM - 97 Comments

The debate over the net costs of the government’s Truth in Sentencing bill is of the kind that makes me want to throw up my hands and whine “Aw, I don’t knowwwww…”. On the one hand, the Parliamentary Budget Office has presented an estimate of the costs that makes the bill seem demented. Kevin Page’s numbers don’t factor in the benefits of any potential deterrence effect; they admittedly rely, at many points, on wild assumptions; and they were assembled with the help of a lot of the sort of “independent” expert who sees prisons as inherently barbarous and would happily blow them all up if someone presented them with a big red button that would do it instantly. But as Page himself has pointed out, this is a fight between questionable evidence and no evidence. The government hasn’t really shown any good-faith sign of a serious effort to cost out the elimination of two-for-one credit for time in remand.

Penology, by and large, isn’t treated as a fundamental political issue in this country at all. We have a series of arguments over specific proposals; we don’t have explicit contending ideologies. Yet it’s discernible, surely, that those ideologies exist.

What we have, I think, is a group of citizens who believe that penology contains no moral component whatsoever. They are, or the most logical ones are, pure utilitarians who believe that punishment has no inherent place in a justice system. If we had a pill for perfect deterrence, one that could eliminate criminal tendencies with 100% effectiveness and no ill effects or pain, they would argue that the ethical thing to do would be to give it to all convicts, even serial murderers and child rapists, and turn them loose to reintegrate with society, preferably with their identities protected. And on the other side, we have the moralists, people who do believe in punishment even where it has no necessary utilitarian or deterrent value at all. They believe that the function of a criminal justice system is to provide justice, in the schoolyard, eye-for-an-eye sense of the term. These people would want prisons, and perhaps other miserable and dire punishments, even if we had a deterrence pill.

The camps don’t challenge each other ideologically very often. It goes unstated that the overwhelming majority of those who actually administer criminal sentencing don’t really believe in punishment—this is fairly obvious, for example, from their shiny-happy trade literature. And it goes unstated that people like Vic Toews are, in a sense, beyond evidentiary arguments like Page’s. Toews is pursuing “truth in sentencing” and applying the statutes of the land, which are based on an idea of punishment favoured by much of the citizenry (and by the framers and re-framers of our Criminal Code) but by few among the bureaucracy or the polite social elite. Toews’ bill may be stupid or insane, but his basic claim to be pursing an abandoned or betrayed “truth” is serious, and it is even half-supported by some critics, who agree that two-for-one remand credit is a substantially unlawful kludge.

I suppose a law-and-order conservative, somebody who has a moralist ideology when it comes to crime and punishment, can’t very well complain about the inspired passion for austerity displayed by critics of Truth in Sentencing. But when the Globe picked up its unsigned-editorial stick and gave Toews a broadly justified hiding with it on Wednesday, I wondered about the lede:

It is unfathomable that the Canadian government would be preparing to more than double annual spending on the country’s jails at a time when almost all other government departments are being held in check, or cut. Never mind deficit reduction. Never mind health care or education. Never mind the environment. Only one thing matters: to be seen as tough on crime.

When Canadian justice went on a liberalization binge between about 1965 and 1985, nobody thought it was necessary to provide an accurate accounting of every penny of the cost of the new measures. And while we’re on the subject, Page’s report notes, in passing, that the cost per individual federal inmate in our corrections system grew by about 50% in nominal dollars between 2001 and 2009. Where were the complaints about this extravagance, the demands that we be shown where the money was going? I must say it is funny how every newspaper columnist suddenly masters the Generally Accepted Accounting Principles as soon as a Conservative government wants to “be seen as tough on crime”.

(And, frankly, I’m not sure why the “seen as” is in that sentence, since Truth in Sentencing really would lengthen criminal sentences for virtually everybody that is held in pre-trial custody and eventually convicted. Can it be argued that this is not genuine toughness on crime?)

Anti-moralist utilitarians betray their own cause when they fail to count the social costs or benefits of a change to criminal justice. Surely, according to either ideology, formal line items in the federal budget should really be marginal considerations compared to whether the measures in question lead to a safer society and less fear. For the moralists, of course, the bar is even higher: the measures must also be just in themselves. The utilitarians, for their part, have a pretty strong case that we need not consider morality or Old Testament-y justice at all.* (This is basically how the emergent field of law-and-economics approaches criminal justice.)

*But then again, you can’t be a half-utilitarian: it’s not fair to fake it because you’re concealing a specious, one-sided romantic concern for the welfare of criminals. If you are going to scream for efficient deterrence as the ultimate penological standard and insist on evidence, you must be prepared to be held to the judgment of the evidence even where it supports apparently unjust or objectionable procedures.

(In the U.S., for example, I would say a consensus is forming around the proposition that capital punishment might save a large, even double-digit number of potential murder victims for each execution; but there have, on statistical grounds, just not been enough executions since Gregg v. Georgia to warrant much confidence in the relevant interstate comparisons. In other words, the jury is still out until the sample grows. So what if the large deterrent effect is upheld over time? Will reality-based liberals in Canada circa 2060 A.D. acknowledge their forebears’ mistake and bring back the noose?)

Idea alert

By Aaron Wherry - Tuesday, February 9, 2010 at 5:41 PM - 28 Comments

Joe Comartin advocates for sports gambling.

Windsor-Tecumseh MP Joe Comartin last spring introduced a parliamentary motion to delete one paragraph from the Criminal Code which bans sports wagering — as was done a few years ago with dice games. ”We have been working with the Canadian Gaming Association and the CAW to get the government to move on this, but they haven’t, and we’re not sure why,” Comartin said. “It’s kind of frustrating.”

Comartin said Ontario casinos are facing a perfect storm, with increased competition and tighter passport rules and that sports wagering could provide a much-needed edge. ”We are worried,” Comartin said. ”At some point, we expect some state in the U.S. will follow Nevada’s example. Probably one of the states in the midwest will allow it. Then they will all come on board, to remain competitive.”

Justice undone

By Ken MacQueen - Thursday, January 14, 2010 at 2:30 PM - 5 Comments

When it comes to closing cases and getting serious offenders into court, the statistics for police in British Columbia are the worst in the country. While there are many explanations for this, one significant cause, some police privately complain, is that they are handcuffed by a provincial law requiring Crown attorneys to lay criminal charges. (Police lay charges in most provinces, though Quebec and New Brunswick also require Crown charge approval.) As well, B.C. law sets a higher standard of evidence for laying charges than the Criminal Code requires. Police elsewhere lay charges if there’s a “reasonable” likelihood of conviction. B.C. requires a “substantial likelihood of conviction,” and a determination that prosecution is in the “public interest.”

Commit a crime in Victoria or Vancouver, in other words, and there are lower odds of ending up in court than in Ottawa, Toronto, Regina or Calgary. “Frankly, I view it as a corruption of the system,” Earl Moulton, a retired assistant commissioner of the RCMP, told Maclean’s. “There is no [federal] legal authority for the B.C. system,” says Moulton, a lawyer. “It’s just a usurpation of power.” Doug Stead, a Vancouver-area high-tech entrepreneur and a technical consultant to police on Internet crime, has spent 10 years campaigning against Crown charge approval. He calls the charge standard—“the highest threshold of any civilized government anywhere in the world”—a boon to criminals.

Clayton Pecknold, deputy chief of the Central Saanich Police Service and head of the B.C. Association of Police Chiefs, says past attempts to change the system went nowhere. He says the association continues to raise concerns about long delays before charge decisions are made, about decisions not to charge that may be “based on the capacity of the courts as opposed to the public interest,” and especially about the lack of transparency when the merits of a charge are weighed in private by Crown lawyers.

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The Boissoin case: freedom gains a moral victory

By Colby Cosh - Friday, December 4, 2009 at 7:53 AM - 41 Comments

So how stands freedom of the press in Alberta after Thursday’s Queen’s Bench decision tossing out the Boissoin human-rights panel ruling [PDF]? Justice E.C. Wilson’s reasons establish two big things, pending some higher-level judicial review of Alberta’s human-rights regime:

1. The Charter of Rights can’t be used willy-nilly by content creators in magazines and newspapers as a shield against tribunal oversight, but
2. The tribunals have to confine themselves strictly to the powers granted them by statute, defer to Charter values, respect the presumption of innocence, and in general act a lot less like a cross between a military junta and a three-ring circus.

In 2002 Red Deer preacher Stephen Boissoin had written a sweaty, sulfurous letter about the Great Gay Conspiracy to the local daily paper (pause for ironic smirk: it’s called the Advocate). Among other things, Boissoin denounced the spectacle of “men kissing men”, which suggests he may not know his way around the synoptic Gospels too well. In any event, a panel of the Alberta Human Rights and Citizenship Commission found him guilty of discrimination-by-the-word, and he was subjected to a fine, prior restraint on his future speech, and a demand for a written apology.

Justice Wilson found that while the speech provisions in the Alberta human rights statute pass Charter muster under the principles of the Supreme Court’s Taylor decision, he put a lot of practical problems in the path of future complainants. A province, Wilson observed, isn’t allowed to duplicate the Criminal Code provisions against hate speech. It’s only allowed to suppress hateful speech that can also be shown to encourage discrimination in the specific areas that lie within provincial powers and are enumerated in the statute—i.e., housing, employment, access to goods and services.

Wilson thus ended up throwing several witnesses who testified against Boissoin overboard: the ex-cop who thought Boissoin’s anti-gay babblings might make teens “act out”, for example, and the shrink who warned that the Reverend’s letter might provoke a second Columbine. (Untold thousands have read the letter who wouldn’t otherwise have seen it, precisely as a consequence of the proceeding against Boissoin, but it doesn’t yet appear to have played a role in any school shootings.) Wilson has thus made expert evidence in future tribunal proceedings a lot harder to come by: the logic of his decision suggests that complainants will no longer be able to round up every bleeding-heart social scientist or self-styled hate expert they can find, but will have to provide evidence of potential economic impacts from hate speech.

Wilson also reaffirmed that the standard of judicial review for Alberta tribunal rulings is a low one, requiring the appellant to raise questions of mere “correctness” in matters of law; he beat up the panel for some of its one-sided interpretations of the evidence against Boissoin; he emphasized that hate speech isn’t hate speech under Taylor unless it’s “unusually strong” and appeals to “deep-felt” emotions; he notes that tribunals must take note of not only the majority decision in Taylor, but also not-yet-Chief Justice McLachlin’s monumental dissent warning against vagueness and subjectivity; he observes that Taylor also requires hate speech to have been repetitive; he suggests that the law does not generally concern itself with “puny anonymities”, but only with speech that is likely to be influential and dangerous in some way; and he notes that the AHRCC panel had no statutory warrant for any of the punishments it levied on Boissoin.

And believe it or not, I am leaving some criticisms out. The Commission has a Herculean amount of procedural and constitutional cleanup ahead if it hopes to scrutinize speech and press activity in Alberta. Which is good. It would be better still for the legislature to take the “fundamental freedoms” in the Charter as seriously as other provinces do, and eliminate the Commission’s jurisdiction over the press altogether, but it seems that won’t happen while Ed Stelmach is premier.

Talking suicide on the Internet

By Michael Barclay - Thursday, December 3, 2009 at 11:40 AM - 11 Comments

In March 2008, Carleton University student Nadia Kajouji committed suicide, drowning herself in the Rideau River. When Ottawa police searched her laptop, they discovered conversations she had online with a man named William Melchert-Dinkel, a 47-year-old male nurse living outside of Minneapolis, Minn. Police say that he used an Internet chat room to encourage Kajouji to kill herself—furthermore, according to transcripts of their chats, he even suggested that she hang herself (instead of drowning) so he could watch.

Melchert-Dinkel has not been charged for his alleged role in Kajouji’s death. But the incident motivated Kitchener-Conestoga MP Harold Albrecht to introduce a private member’s motion seeking to clarify the Criminal Code, by specifying the role of the Internet in the existing provision that makes it illegal to “counsel a person to commit suicide” or to aid or abet them in doing so, whether or not they are successful. Albrecht told Maclean’s, “By clarifying this loophole, this takes current technology and places it within the law so that there’s no question for law enforcement officials.” The motion passed unanimously in the House on Nov. 18.

The Ottawa Citizen reported that shortly after being questioned by Minnesota police, Melchert-Dinkel checked himself into a Minnesota hospital. He confessed that he was addicted to Internet chat rooms and felt guilty “because of past and present advice to those on the Internet of how to end their lives,” according to hospital notes that were quoted by the Minnesota Board of Nursing in their decision to revoke his nursing licence this summer. In October, Melchert-Dinkel told the Associated Press that “nothing is going to come” of the allegations pertaining to Kajouji and eight other cases he has been linked to. “I’ve moved on with my life, and that’s it,” he said.

Harold Albrecht and his fellow MPs hope that’s not the end of the story.

Torture in Afghanistan v. The Criminal Code

By Aaron Wherry - Monday, November 30, 2009 at 8:35 AM - 8 Comments

Our John Geddes talks to those who study such stuff.

Forcese said those arguing that charges under the act could be laid fail to realize Canadian officials would only have committed a war crime if they truly intended that detainees be tortured. “Negligence, stupid policy, turning a blind eye—none of that, in my view, rises to the level of conspiracy or being an accessory,” he said. “I know that people are talking about it, but I’m not persuaded. They’re using this murky concept of ‘complicity.’ It’s really hard to nail that down in law.”

However, that doesn’t mean Forcese sees Canadian officials as being safe from investigation and prosecution. He points out that a lesser charge of criminal negligence could be laid even if there is no evidence Canadians intended for torture to occur. “Everything else in the Criminal Code requires that you actually wanted the outcome,” he said. “Criminal negligence means that you’re just unbelievably careless or indifferent to the outcome.” For any official who might have “washed his hands” concerning the possibility of torture in Afghanistan, Forcese said, it’s the possibility of a negligence charge being laid that “would keep me up at night.”

Why we don’t need to make polygamy a crime

By Andrew Coyne - Wednesday, February 18, 2009 at 4:45 PM - 59 Comments

Whatever you may have heard, the case of Winston Blackmore and James Oler, the fundamentalist Mormon preachers from Bountiful, B.C. whose polygamy trial begins next week, is not about religious freedom. Nor is it about gay marriage, or child abuse, or any of the other extraneous issues with which partisans of one stripe or another would like to festoon the debate.

It certainly isn’t about whether the two men are guilty of the crime of polygamy under Section 293 of the Criminal Code, which prohibits “any kind of conjugal union with more than one person at the same time whether or not it is by law recognized as a binding form of marriage.” The defence does not contest the charges, but rather intends to argue the law is a violation of their freedom of religion as guaranteed under the Charter of Rights.

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