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Has Canada’s Criminal Code Lost Its Way?

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7 minute read

From The Audit

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.

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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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Crime

ICE Nabs Illegal Migrant ‘Gotaway’ Charged With Raping Child On Ritzy Island In ‘Sanctuary’ State

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From the Daily Caller News Foundation

By Harold Hutchison

 

Federal immigration authorities on Tuesday successfully apprehended an illegal migrant charged with raping a minor on a wealthy Massachusetts island.

Immigration and Customs Enforcement (ICE) agents in Nantucket nabbed Bryan Daniel Aldana-Arevalo, a 28-year-old Salvadoran national living unlawfully in the country, according to a press release from the agency published Monday. Aldana was charged earlier this year with two counts of indecent assault and battery of a child under 14 and one count of rape of a child with a 10-year age difference.

“Bryan Daniel Aldana-Arevalo stands accused of some detestable and disturbing crimes against a Nantucket child,” Enforcement and Removal Operations (ERO) Boston Field Office Director Todd Lyons stated on Monday in the press release. “He represents a significant danger to the children of our Massachusetts communities.”

Aldana illegally crossed into the U.S. at an unknown date and unknown location, according to ICE. Such illegal migrants in the country are categorized as “gotaways,” as they were not stopped by Border Patrol or other federal immigration officials before entering the interior of the U.S.

ICE arrest of Bryan Daniel Aldana-Arevalo

Immigration and Customs Enforcement (ICE) arrest of Bryan Daniel Aldana-Arevalo. (Photo by ICE)

The Salvadoran national was arraigned in Nantucket District Court for the multiple sex crime charges on July 26, according to ICE. He was later released on bail by the Nantucket District Court on July 29.

“ERO Boston will not tolerate such a threat to the most vulnerable of our population,” Lyons stated. “We will continue to prioritize the safety of our public by arresting and removing egregious noncitizen offenders from our New England neighborhoods.”

Since his ICE apprehension, Aldana has been served with a notice to appear before an immigration judge, and he remains in ICE custody, according to the agency.

“The Nantucket Police Department, specifically the Detective Unit did assist with identifying requested addresses provided to them by the U.S. Immigration and Customs Enforcement Agency,” reads a Thursday press statement from the police department. Deportation officers made an unknown number of arrests on the island last week, which specifically targeted “violent offenders.”

The Nantucket population in 2022 had a median household income of more than $131,000, according to Data USA, far surpassing the median household income of the country that same year, which was slightly less than $75,000. Housing has become so expensive on the island, that some homes costing as much as $1 million have been offered via a lottery system as a part of a subsidized housing program, according to The New York Post.

President Joe Biden won more than 70% of the vote in Nantucket County in the 2020 presidential election, according to county election results compiled by CNN.

Aldana is one of the countless gotaways who enter the country illegally and undetected by federal immigration authorities. Around two million known gotaways have crossed into the U.S. since the beginning of the Biden-Harris administration, a congressional source confirmed to the Daily Caller News Foundation earlier this year.

Over seven million migrants have illegally crossed the U.S. southern border since the beginning of the Biden-Harris administration, according to the latest Customs and Border Protection (CBP) data.

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COVID-19

‘Mind-boggling’: Billions gone and little to show for it years after rampant COVID fraud

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From The Center Square

By 

“The estimated amounts of waste, fraud, and abuse in COVID-related programs are simply … mind-boggling,” Subcommittee on Government Operations and the Federal Workforce Chairman Pete Sessions, R-Texas, said at the hearing. “Half a trillion dollars. Maybe more. Much of it lost to criminal actors and our enemies. Often using comically simple tactics.”

Years after the passage of federal COVID-era relief and the subsequent loss of likely hundreds of billions of those taxpayer dollars, lawmakers are still unsure where that money went, how to get it back, and seemingly have done little to prevent it from happening again.

Federal watchdog and other reports estimate anywhere from $200 billion to half a trillion was lost to waste, fraud and abuse across various federal and state COVID-era programs.

“Insiders, including those who worked for state workforce agencies, conspired with organized crime factions and other individuals to defraud state UI programs and the states did little to stop them,” a Republican-led House Oversight Committee report released this week said. “Some states even hired individuals convicted of identity theft to process UI claims.”

Examples like that and the scope of the amount lost was the subject of a House Oversight hearing this week where lawmakers on both sides of the aisle and experts grappled with the scope of the lost funds and what to do about it.

“The estimated amounts of waste, fraud, and abuse in COVID-related programs are simply … mind-boggling,” Subcommittee on Government Operations and the Federal Workforce Chairman Pete Sessions, R-Texas, said at the hearing. “Half a trillion dollars. Maybe more. Much of it lost to criminal actors and our enemies. Often using comically simple tactics.”

The most common among those tactics was stealing unemployment dollars doled out by the federal government during the pandemic.

One inspector general report from the Small Business Adminstration estimated at least $200 billion in taxpayer money was lost.

“We estimate that SBA disbursed over $200 billion in potentially fraudulent COVID-19 EIDLs, EIDL Targeted Advances, Supplemental Targeted Advances, and PPP loans,” the report said. “This means at least 17 percent of all COVID-19 EIDL and PPP funds were disbursed to potentially fraudulent actors.”

Nearly all of those “fraudulent actors” have so far gotten away with the theft.

Congress approved $40 million for the Pandemic Response Accountability Committee, tasked with finding and preventing fraud. That committee and other investigative efforts have shown the COVID-era fraud was rampant and that little has been done to recover those funds.

That committee’s authority expires next year.

“Every dollar that goes to a fraudster doesn’t go to the small business, to the unemployed, to others that Congress were intending to help,” Michael Horowitz, Chair of PRAC, said at the oversight hearing this week. “If we want to continue to advance the fight against improper payments and fraud, we shouldn’t allow this important and fraud fighting tool to expire.”

Horowitz also said at the hearing that there is “clearly insufficient” access to data for oversight, such as accessing Social Security Administration’s death database so that payments are not sent to deceased individuals. He also pushed for his authority to be expanded to helping other agencies.

Orice Williams Brown, chief operating officer at the U.S. Government Accountability Office, also testified at the hearing that federal agencies can do more to prevent fraud of this kind. But federal agencies are not alone in the blame.

The House Oversight report released this week is called the “Widespread Failures and Fraud in Pandemic Unemployment Relief Programs” showing that states mishandled funds doled out by the federal government for unemployment insurance, sometimes with little oversight.

From the report:

The U.S. Government Accountability Office (GAO) estimates 11 to 15 percent of total benefits paid during the pandemic were fraudulent, totaling between $100 to $135 billion. The Department of Labor (DOL) Office of Inspector General (OIG) estimates that at least $191 billion in pandemic UI payments could have been improperly paid, with a significant portion attributable to fraud. As of March 2023, states reported recoveries of improper payments in an amount of only $6.8 billion.

The design of the Pandemic Unemployment Assistance (PUA) program led to massive fraud. During the program’s first nine months, claimants did not have to provide any evidence of earnings or prior work which made the program susceptible to fraud. DOL reported that the PUA program had a total improper payment rate of 35.9 percent.

Both sides have lamented the lost taxpayer dollars, but so far little has been done to prevent it from happening again, even as Congress continues to pass multi-trillion dollar spending bills often with little time for lawmakers to review.

Lawmakers passed two bills in 2023 to increase reporting from federal agencies on fraud and to prevent those previously convicted of financial crimes from receiving certain federal payment.

The House Oversight report recommended stronger security measures, cross checking with other relevant databases, more oversight and transparency, and more documentation from benefit recipients.

“If this is not a call to action…” Sessions said at the hearing. “I simply do not know what is.”

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