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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

Bondi Beach Survivor Says Cops Prevented Her From Fighting Back Against Terrorists

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From the Daily Caller News Foundation

By Harold Hutchison

A woman who survived the Hanukkah terrorist attack at Bondi Beach in Australia said on Monday that police officers seemed less concerned about stopping the attack than they were about keeping her from fighting back.

A father and son of Pakistani descent opened fire on a Hanukkah celebration Sunday, killing at least 15 people and wounding 40, with one being slain on the scene by police and the other wounded and taken into custody. Vanessa Miller told Erin Molan about being separated from her three-year-old daughter during Monday’s episode of the “Erin Molan Show.”

“I tried to grab one of their guns,” Miller said. “Another one grabbed me and said ‘no.’ These men, these police officers, they know who I am. I hope they are hearing this. You are weak. You could have saved so many more people’s lives. They were just standing there, listening and watching this all happen, holding me back.”

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“Two police officers,” Miller continued. “Where were the others? Not there. Nobody was there.”

New South Wales Minister of Police Yasmin Catley did not immediately respond to a request for comment from the Daily Caller News Foundation about Miller’s comments.

Australian Prime Minister Anthony Albanese vowed to enact further restrictions on guns in response to the attack at Bondi Beach, according to the Associated Press. The new restrictions would include a limit on how many firearms a person could own, more review of gun licenses, limiting the licenses to Australian citizens and “additional use of criminal intelligence” to determine if a license to own a firearm should be granted.

Sajid Akram, 50, and Naveed Akram, 24,  reportedly went to the Philippines, where they received training prior to carrying out the Sunday attack, according to the Australian Broadcasting Corporation. Naveed Akram’s vehicle reportedly had homemade ISIS flags inside it.

Australia passed legislation that required owners of semi-automatic firearms and certain pump-action firearms to surrender them in a mandatory “buyback” following a 1996 mass shooting in Port Arthur, Tasmania, that killed 35 people and wounded 23 others. Despite the legislation, one of the gunmen who carried out the attack appeared to use a pump-action shotgun with an extended magazine.

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Crime

The Uncomfortable Demographics of Islamist Bloodshed—and Why “Islamophobia” Deflection Increases the Threat

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By Ian Bradbury

Addressing realities directly is the only path toward protecting communities, confronting extremism, and preventing further loss of life, Canadian national security expert argues.

After attacks by Islamic extremists, a familiar pattern follows. Debate erupts. Commentary and interviews flood the media. Op-eds, narratives, talking points, and competing interpretations proliferate in the immediate aftermath of bloodshed. The brief interval since the Bondi beach attack is no exception.

Many of these responses condemn the violence and call for solidarity between Muslims and non-Muslims, as well as for broader societal unity. Their core message is commendable, and I support it: extremist violence is horrific, societies must stand united, and communities most commonly targeted by Islamic extremists—Jews, Christians, non-Muslim minorities, and moderate Muslims—deserve to live in safety and be protected.

Yet many of these info-space engagements miss the mark or cater to a narrow audience of wonks. A recurring concern is that, at some point, many of these engagements suggest, infer, or outright insinuate that non-Muslims, or predominantly non-Muslim societies, are somehow expected or obligated to interpret these attacks through an Islamic or Muslim-impact lens. This framing is frequently reinforced by a familiar “not a true Muslim” narrative regarding the perpetrators, alongside warnings about the risks of Islamophobia.

These misaligned expectations collide with a number of uncomfortable but unavoidable truths. Extremist groups such as ISIS, Al-Qaeda, Hamas, Hezbollah, and decentralized attackers with no formal affiliations have repeatedly and explicitly justified their violence through interpretations of Islamic texts and Islamic history. While most Muslims reject these interpretations, it remains equally true that large, dynamic groups of Muslims worldwide do not—and that these groups are well prepared to, and regularly do, use violence to advance their version of Islam.

Islamic extremist movements do not, and did not, emerge in a vacuum. They draw from the broader Islamic context. This fact is observable, persistent, and cannot be wished or washed away, no matter how hard some may try or many may wish otherwise.

Given this reality, it follows that for most non-Muslims—many of whom do not have detailed knowledge of Islam, its internal theological debates, historical divisions, or political evolution—and for a considerable number of Muslims as well, Islamic extremist violence is perceived as connected to Islam as it manifests globally. This perception persists regardless of nuance, disclaimers, or internal distinctions within the faith and among its followers.

THE COST OF DENIAL AND DEFLECTION

Denying or deflecting from these observable connections prevents society from addressing the central issues following an Islamic extremist attack in a Western country: the fatalities and injuries, how the violence is perceived and experienced by surviving victims, how it is experienced and understood by the majority non-Muslim population, how it is interpreted by non-Muslim governments responsible for public safety, and how it is received by allied nations. Worse, refusing to confront these difficult truths—or branding legitimate concerns as Islamophobia—creates a vacuum, one readily filled by extremist voices and adversarial actors eager to poison and pollute the discussion.

Following such attacks, in addition to thinking first of the direct victims, I sympathize with my Muslim family, friends, colleagues, moderate Muslims worldwide, and Muslim victims of Islamic extremism, particularly given that anti-Muslim bigotry is a real problem they face. For Muslim victims of Islamic extremism, that bigotry constitutes a second blow they must endure. Personal sympathy, however, does not translate into an obligation to center Muslim communal concerns when they were not the targets of the attack. Nor does it impose a public obligation or override how societies can, do, or should process and respond to violence directed at them by Islamic extremists.

As it applies to the general public in Western nations, the principle is simple: there should be no expectation that non-Muslims consider Islam, inter-Islamic identity conflicts, internal theological disputes, or the broader impact on the global Muslim community, when responding to attacks carried out by Islamic extremists. That is, unless Muslims were the victims, in which case some consideration is appropriate.

Quite bluntly, non-Muslims are not required to do so and are entitled to reject and push back against any suggestion that they must or should. Pointedly, they are not Muslims, a fact far too many now seem to overlook.

The arguments presented here will be uncomfortable for many and will likely provoke polarizing discussion. Nonetheless, they articulate an important, human-centered position regarding how Islamic extremist attacks in Western nations are commonly interpreted and understood by non-Muslim majority populations.

Non-Muslims are free to give no consideration to Muslim interests at any time, particularly following an Islamic extremist attack against non-Muslims in a non-Muslim country. The sole exception is that governments retain an obligation to ensure the safety and protection of their Muslim citizens, who face real and heightened threats during these periods. This does not suggest that non-Muslims cannot consider Muslim community members; it simply affirms that they are under no obligation to do so.

The impulse for Muslims to distance moderate Muslims and Islam from extremist attacks—such as the targeting of Jews in Australia or foiled Christmas market plots in Poland and Germany—is understandable.

Muslims do so to protect their own interests, the interests of fellow Muslims, and the reputation of Islam itself. Yet this impulse frequently collapses into the “No True Scotsman” fallacy, pointing to peaceful Muslims as the baseline while asserting that the attackers were not “true Muslims.”

Such claims oversimplify the reality of Islam as it manifests globally and fail to address the legitimate political and social consequences that follow Islamic extremist attacks in predominantly non-Muslim Western societies. These deflections frequently produce unintended effects, such as strengthening anti-Muslim extremist sentiments and movements and undermining efforts to diminish them.

The central issue for public discourse after an Islamic extremist attack is not debating whether the perpetrators were “true” or “false” Muslims, nor assessing downstream impacts on Muslim communities—unless they were the targets.

It is a societal effort to understand why radical ideologies continue to emerge from varying—yet often overlapping—interpretations of Islam, how political struggles within the Muslim world contribute to these ideologies, and how non-Muslim-majority Western countries can realistically and effectively confront and mitigate threats related to Islamic extremism before the next attack occurs and more non-Muslim and Muslim lives are lost.

Addressing these realities directly is the only path toward protecting communities, confronting extremism, and preventing further loss of life.

Ian Bradbury, a global security specialist with over 25 years experience, transitioned from Defence and NatSec roles to found Terra Nova Strategic Management (2009) and 1NAEF (2014). A TEDx, UN, NATO, and Parliament speaker, he focuses on terrorism, hybrid warfare, conflict aid, stability operations, and geo-strategy.

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