Crime
Has Canada’s Criminal Code Lost Its Way?
From The Audit
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.
Addictions
Nanaimo syringe stabbing reignites calls for involuntary care
Safe needle disposal box at Deverill Square Gyro 2 Park in Nanaimo, B.C., Sept. 5, 2024. [Photo credit: Alexandra Keeler]
By Alexandra Keeler
Some politicians, police and community groups argue involuntary care is key to addressing severe addiction and mental health issues
The brutal stabbing last month of a 58-year-old city employee in Nanaimo, B.C., made national headlines. The man was stabbed multiple times with a syringe after he asked two men who were using drugs in a public park washroom to leave.
The worker sustained multiple injuries to his face and abdomen and was hospitalized. As of Jan. 7, the RCMP were still investigating the suspects.
The incident comes on the heels of other violent attacks in the province that have been linked to mental health and substance use disorders.
On Dec. 4, Vancouver police fatally shot a man armed with a knife inside a 7-Eleven after he attacked two staff members while attempting to steal cigarettes. Earlier that day, the man had allegedly stolen alcohol from a nearby restaurant.
Three months earlier, on Sept. 4, a 34-year-old man with a history of assault and mental health problems randomly attacked two men in downtown Vancouver, leaving one dead and another with a severed hand.
These incidents have sparked growing calls from politicians, police and residents for governments to expand involuntary care and strengthen health-care interventions and law enforcement strategies.
“What is Premier Eby, the provincial and federal government going to do?” the volunteer community group Nanaimo Area Public Safety Association said in a Dec. 11 public statement.
“British Columbians are well past being fed-up with lip-service.”
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‘Extremely complex needs’
On Jan. 5, B.C.’s newly reelected premier, David Eby, announced the province will open two involuntary care sites this spring. One will be located at the Surrey Pretrial Centre in Surrey, and the other at the Alouette Correctional Facility in Maple Ridge, a city northeast of Vancouver.
Eby said his aim is to address the cases of severe addiction, brain injury and mental illness that have contributed to violent incidents and public safety concerns.
Involuntary care allows authorities to mandate treatment for individuals with severe mental health or substance use disorders without their consent.
Amy Rosa, a BC Ministry of Health public affairs officer, confirmed to Canadian Affairs that the NDP government remains committed to expanding both voluntary and involuntary care as a solution to the rise in violent attacks.
“We’re grappling with a growing group of people with extremely complex needs — people with severe mental health and addictions issues, coupled with brain injuries from repeated overdoses,” Rosa said.
As part of its commitment to expanding involuntary care, the province plans to establish more secure facilities and mental health units within correctional centres and create 400 new mental health beds.
In response to follow-up questions, Rosa told Canadian Affairs that the province plans to introduce legal changes in the next legislative session “to provide clarity and ensure that people can receive care when they are unable to seek it themselves.” She noted these changes will be made in consultation with First Nations to ensure culturally safe treatment programs.
“The care provided at these facilities will be dignified, safe and respectful,” she said.
Maffeo Sutton Park, where on Dec. 10, 2024, a Nanaimo city worker was stabbed multiple times with a syringe; Sept. 1, 2024. [Photo credit: Alexandra Keeler]
‘Health-led approach’
Nanaimo Mayor Leonard Krog says involuntary care is necessary to prevent violent incidents such as the syringe stabbing in the city’s park.
“Without secure involuntary care, supportive housing, and a full continuum of care from detox to housing, treatment and follow-up, little will change,” he said.
Elenore Sturko, BC Conservative MLA for Surrey-Cloverdale, agrees that early intervention for mental health and substance use disorders is important. She supports laws that facilitate interventions outside of the criminal justice system.
“Psychosis and brain damage are things that need to be diagnosed by medical professionals,” said Sturko, who served as an officer in the RCMP for 13 years.
Sturko says although these diagnoses need to be given by medical professionals, first responders are trained to recognize signs.
“Police can be trained, and first responders are trained, to recognize the signs of those conditions. But whether or not these are regular parts of the assessment that are given to people who are arrested, I actually do not know that,” she said.
Staff Sergeant Kris Clark, a RCMP media relations officer, told Canadian Affairs in an emailed statement that officers receive crisis intervention and de-escalation training but are not mental health professionals.
“All police officers in BC are mandated to undergo crisis intervention and de-escalation training and must recertify every three years,” he said. Additional online courses help officers recognize signs of “mental, emotional or psychological crisis, as well as other altered states of consciousness,” he said.
“It’s important to understand however that police officers are not medical/mental health professionals.”
Clark also referred Canadian Affairs to the BC Association of Chiefs of Police’s Nov. 28 statement. The statement says the association has changed its stance on decriminalization, which refers to policies that remove criminal penalties for illicit drug use.
“Based on evidence and ongoing evaluation, we no longer view decriminalization as a primary mechanism for addressing the systemic challenges associated with substance use,” says the statement. The association represents senior police leaders across the province.
Instead, the association is calling for greater investment in health services, enhanced programs to redirect individuals from the justice system to treatment services, and collaboration with government and community partners.
Vancouver Coastal Health’s Pender Community Health Centre in East Hastings, Vancouver, B.C., Aug. 31, 2024. [Photo credit: Alexandra Keeler]
‘Life or limb’
Police services are not the only agencies grappling with mental health and substance use disorders.
The City of Vancouver told Canadian Affairs it has expanded programs like the Indigenous Crisis Response Team, which offers non-police crisis services for Indigenous adults, and Car 87/88, which pairs a police officer with a psychiatric nurse to respond to mental health crises.
Vancouver Coastal Health, the city’s health authority, adjusted its hiring plan in 2023 to recruit 55 mental health workers, up from 35. And the city has funded 175 new officers in the Vancouver Police Department, a seven per cent increase in the force’s size.
The city has also indicated it supports involuntary care.
In September, Vancouver Mayor Ken Sim was one of 11 B.C. mayors who issued a statement calling on the federal government to provide legal and financial support for provinces to implement involuntary care.
On Oct. 10, Conservative Party Leader Pierre Poilievre said a Conservative government would support mandatory involuntary treatment for minors and prisoners deemed incapable of making decisions.
The following day, Federal Minister of Mental Health and Addictions Ya’ara Saks said in a news conference that provinces must first ensure they have adequate addiction and mental health services in place before discussions about involuntary care can proceed.
“Before we contemplate voluntary or involuntary treatment, I would like to see provinces and territories ensuring that they actually have treatment access scaled to need,” she said.
Some health-care providers have also expressed reservations about involuntary care.
In September, the Canadian Mental Health Association, a national organization that advocates for mental health awareness, issued a news release expressing concerns about involuntary care.
The association highlighted gaps in the current involuntary care system, including challenges in accessing voluntary care, reports of inadequate treatment for those undergoing involuntary care and an increased risk of death from drug poisoning upon release.
“Involuntary care must be a last resort, not a sweeping solution,” its release says.
“We must focus on prevention and early intervention, addressing the root causes of mental health and addiction crises before they escalate into violent incidents.”
Sturko agrees with focusing on early intervention, but emphasized the need for such interventions to be timely.
“We should not have to wait for someone to commit a criminal act in order for them to have court-imposed interventions … We need to be able to act before somebody loses their life or limb.”
This article was produced through the Breaking Needles Fellowship Program, which provided a grant to Canadian Affairs, a digital media outlet, to fund journalism exploring addiction and crime in Canada. Articles produced through the Fellowship are co-published by Break The Needle and Canadian Affairs.
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Alberta
Electronic monitoring of repeat offenders begins
Offenders and accused who pose a public safety risk may now be subject to 24-7 court-ordered electronic monitoring by Alberta Correctional Services as part of their community supervision conditions
Alberta’s government is taking action to combat rising crime and restore safety by launching an electronic monitoring program as part of its Safe Street Action Plan.
Alberta’s government is keeping a promise and implementing a new ankle bracelet monitoring program in response to the country’s problematic bail system. The ongoing catch-and-release policy brought in by Ottawa forced Alberta’s government to take additional action to protect families and communities.
Starting Jan. 15, the new provincial ankle bracelet electronic monitoring program to help hold high-risk and repeat offenders accountable will officially launch. Through this program, offenders and accused who pose a public safety risk may now be subject to 24-7 court-ordered electronic monitoring by Alberta Correctional Services as part of their community supervision conditions.
“Ottawa’s Bill C-75 has broken the bail system. We are taking an important step toward combating rising crime. High-risk offenders pose a significant risk to public safety and require enhanced supervision in the community. As government, it’s our duty to protect Albertans and their communities. Ankle bracelet electronic monitoring is another tool in the toolbox for courts to consider when determining sentencing or bail conditions, helping us combat rising crime and create safer Alberta communities.”
Announced alongside other measures to enhance community safety in last spring’s Public Safety Statutes Amendments Act, 2024, individuals under a court-ordered electronic monitoring condition will be required to wear a Global Positioning System (GPS) tracking device monitored by a new unit within Alberta Correctional Services, ensuring compliance and consistent oversight of high-risk offenders on bail and community release throughout the province.
Ankle bracelet electronic monitoring will protect Albertans and communities by helping to secure offender-restricted areas, such as victims’ residences, places of employment or any other area deemed off-limits as part of an individual’s bail or community-release conditions. Probation officers within Alberta Correctional Services continue to supervise individuals under provincial community-based court conditions and bail supervision. Previously, this supervision primarily occurred during regular business hours and did not involve the use of GPS electronic monitoring ankle bracelets. Anyone under court-ordered electronic monitoring conditions will be informed of the program requirements, including the tracking of their location.
“Alberta’s government continues to call for federal bail and sentencing reform to stop violent criminals from re-entering our communities. We remain committed to prioritizing the safety of Albertans through measures like the use of ankle monitors, strengthening the Crown Prosecution Service, the courts and policing to protect Albertans from violent criminals.”
Following extensive stakeholder engagements and an open technology vendor procurement process, the launch of the provincial electronic monitoring program enhances community supervision with around-the-clock monitoring and adds to the various methods and community supports already used by probation officers, including regular reporting, referrals to community programs and ongoing engagement with policing partners. Additionally, this program aligns Alberta with programs in other provinces across Canada.
Quick facts
- The new program will supervise individuals whose conditions include court-ordered electronic monitoring.
- Alberta’s electronic monitoring program is supported by $2.8 million to cover implementation costs for the 2024-25 fiscal year.
- In August 2024, the government selected SCRAM Systems as the technology vendor for the ankle bracelet electronic monitoring program through an open procurement process.
- The estimated end date for the electronic monitoring vendor contract is March 31, 2029.
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