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Crime

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

Biden-Harris Admin Adds China To Illicit Drug Watchlist After Touting Cooperation In Fighting Fentanyl Crisis

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From the Daily Caller News Foundation 

By Jason Hopkins

 

The Biden administration added China to its illicit drug watchlist on Monday, despite previously touting cooperation with Beijing on countering the growing fentanyl epidemic in the U.S.

To deal with the fentanyl epidemic in the U.S. — which China has historically played a significant role in — the Biden administration created a “working group” with Beijing earlier this year, building on an agreement between President Joe Biden and Chinese President Xi Jinping in November. But China still needs to do more to keep its end of the bargain, adding the country to its “Major Drug Transit or Major Illicit Drug Producing Countries for Fiscal Year 2025″ list released Monday.

Though the list is not a “sanction or penalty,” it is meant to designate countries that act as “major drug transit or major illicit drug-producing countries,” which include “countries that are a significant direct source of precursor chemicals used in the production of certain drugs and substances significantly affecting the United States,” according to the White House. Other countries named in the 2025 list include Afghanistan, Venezuela, Mexico and India.

China has been responsible for producing a substantial amount of the fentanyl ingredients that are trafficked overseas, including to Mexico and Central America, according to the Drug Enforcement Administration (DEA). Those ingredients are packaged into a final product and smuggled over the U.S. southern border.

While claiming that some “significant steps” have been taken by China to stem the flow of ingredients out of its mainland, “sustained enforcement and regulatory action will be necessary to significantly reduce the [People’s Republic of China’s] role as a source of precursor chemicals used in the production, sale, and trafficking of illicit synthetic drugs significantly impacting the United States,” a statement from the White House reads.

Prior to designating China as an illicit drug trafficker and producer, the Biden administration has at several points  promoted its new “working group” with Beijing and claimed that progress was being made in countering the fentanyl epidemic. But an investigation by the House Select Committee on the Chinese Communist Party (CCP) earlier this year found that there was “no evidence” that China was cracking down on illegal fentanyl production or trafficking inside the mainland.

Instead, China is an active enabler in the crisis because it “directly subsidizes” the production and export of ingredients and fails to prosecute those responsible, according to the investigation.

“This failure — when combined with new evidence establishing that the [People’s Republic of China] incentivizes the export of illegal drugs abroad and holds ownership stake in companies doing the same — casts doubt on the veracity of the PRC’s claims that it will act to stem the massive export of illicit fentanyl materials and other dangerous synthetic narcotics,” the investigation report reads.

Some Republican lawmakers feel the administration could also do more by preventing the flow of fentanyl over the southern border.

“If President Biden were actually taking the problem of fentanyl trafficking seriously, he would have already shut down the border and with it, points of entry for drug smuggling,” Republican California Rep. Michelle Steel previously told The Daily Caller. “The Biden Administration’s border crisis has been a key catalyst in the explosion of fentanyl into the U.S.”

“We continue to press for the [People’s Republic of China] to schedule all precursor chemicals that are controlled at the international level, in line with their treaty obligations,” A State Department spokesman told the Daily Caller News Foundation. “Our cooperation is laser-focused on driving action that save lives. This work will continue as we press for continued enforcement action and regulation to halt this deadly flow.”

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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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