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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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2025 Federal Election

China Election Interference – Parties Received Security Briefing Days Ago as SITE Monitors Threats to Conservative Candidate Joe Tay

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Sam Cooper

SITE says it is concerned about the Hong Kong bounty on Joe Tay and is monitoring the situation, but confirms intervention in the Chiang case is not within its powers

Canada’s election threat monitoring body has confirmed that national party leaders received a classified security briefing late last week, as public concerns mount over threats tied to transnational repression and a widening controversy involving Liberal MP Paul Chiang’s remarks about Conservative candidate Joe Tay.

The revelation came Monday during a public update by the Security and Intelligence Threats to Elections (SITE) Task Force. Allen Sutherland, a senior Privy Council Office official and SITE leader, confirmed the briefing referenced today by Prime Minister Mark Carney covered high-level threat assessments and involved security-cleared representatives from each political party. While SITE would not confirm whether Chiang’s remarks were specifically addressed, the timing suggests they may have been a factor.

“I can speak to a portion of it,” Sutherland said in response to a question from The Canadian Press. “Last week, political parties received a briefing — a security briefing — on threats at the classified level. These are the cleared party representatives of each of the parties. So that briefing took place late last week.”

CBC reporter also pressed SITE officials on whether they were concerned by Chiang’s comment suggesting Tay could be delivered to the Chinese Consulate to collect a bounty. “I would say SITE is concerned about the bounty placed by Hong Kong on Mr. Tay,” said Laurie Ann Kempton of SITE. “We are aware of the comments.”

Asked what candidates should do if they face similar threats, Kempton said: “They should contact police of local jurisdiction immediately. They are also able to contact SITE and the RCMP if they have other concerns, and we will look at it from there.”

Joe Tay has stated publicly that he fears for his safety and has contacted the RCMP. Asked if police have reached out to Tay proactively, SITE official Greg O’Hayon said: “I’d have to get back to you specifically on whether the RCMP has reached out to Mr. Tay.” He added: “If candidates feel under threat, either immediate or not, I would encourage them to reach out to their local police as well as the Canadian Security Intelligence Service so that we can have a combined response to real and perceived threats.”

SITE officials confirmed that the bounty placed on Tay — a Canadian citizen and pro-democracy activist wanted by Hong Kong authorities under Beijing’s National Security Law — is being tracked as a live case of transnational repression. Officials described the recirculation of bounty-related content online as a coercive tactic employed by Beijing to chill political participation in diaspora communities.

“Spreading the information about the bounty is precisely how malign foreign states seek to silence, harass and coerce,” one SITE official said.

Tay’s situation has quickly become a flashpoint in the 2025 federal election campaign. The Chiang controversy erupted after reports surfaced late last week, based on Ming Pao reporting, indicating that during a January meeting with Chinese-language journalists, Chiang said of Tay: “If you can take him to the Chinese Consulate General in Toronto, you can get the million-dollar reward.”

Chiang also told the exclusive gathering of Chinese journalists that Tay’s election to Parliament, while under a Beijing-issued arrest warrant, would cause a “great controversy.”

Chiang has since said his comment was made in jest and issued a social media apology. But Tay rejected the gesture in a press release Monday, calling it “unsolicited” and demanding that Liberal leader Mark Carney remove Chiang as a candidate.

“Threats like these are the tradecraft of the Chinese Communist Party,” Tay said. “They are intended to send a chilling signal to the entire community in order to force compliance to Beijing’s political goals. This situation has left me fearing for my safety.”

SITE also issued a broader warning on Monday: Canada is seeing a rise in both physical and digital transnational repression, including online harassment, smear campaigns, AI-generated deepfakes, and attempts to dox critics of authoritarian regimes.

“In 2023, we informed the public about a targeted online information operation… aimed at silencing critics of the Chinese Communist Party,” said the SITE representative from Global Affairs Canada. “Now, we’ve seen new operations using deepfake content, including sexually explicit images, to further that goal.”

Come back to The Bureau for updates on this rapidly evolving story.

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2025 Federal Election

Joe Tay Says He Contacted RCMP for Protection, Demands Carney Fire MP Over “Bounty” Remark

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Sam Cooper

Threats are the tradecraft of the Chinese Communist Party to interfere in Canada … they are intended to send a chilling signal to the entire community‘ Tay states

Joe Tay, the Conservative candidate in Don Valley North, issued a formal statement Monday demanding that Liberal leader Mark Carney remove MP Paul Chiang as the candidate for Markham–Unionville, citing Chiang’s threatening comments and an unsolicited attempt to contact him.

“Mark Carney must fire Paul Chiang,” Tay said in the release. “His threatening public comments were intended to intimidate me, and they must not be tolerated.”

Tay also revealed he has already engaged the Royal Canadian Mounted Police for personal protection, citing growing safety concerns — even before Chiang’s remarks became public.

“This situation has left me fearing for my safety,” he said.

Tay, a Hong Kong-Canadian democracy activist, is wanted by authorities in Hong Kong under the territory’s sweeping National Security Law. In January, Chiang told Chinese-language media that Tay could be brought to the Chinese Consulate in Toronto to collect a one-million-dollar bounty. The remarks, first reported by Ming Pao and widely condemned across party lines, are under growing scrutiny amid allegations of foreign interference in Canada’s 2025 federal election.

Tay confirmed Monday that Chiang made an unsolicited attempt to contact him over the weekend and then posted publicly that he had issued an apology.

“I want to be clear: no apology is sufficient,” Tay said. “Threats like these are the tradecraft of the Chinese Communist Party to interfere in Canada. And they are not just aimed at me — they are intended to send a chilling signal to the entire community in order to force compliance to Beijing’s political goals.”

The Bureau has contacted the RCMP for comment.This is a developing story.

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