Category: Criminal Code

Rewriting History

February 16, 2018

Who would have thought that it would be the CBC in court defending the likes of the now disgraced General Cornwallis, Father of Confederation Sir John A McDonald or even our first judge, Sir Matthew Baillie Begbie, while the rest of politically correct society is demanding that they be removed from public view because of their racist views. Given the mother corporation’s penchant for political correctness, I’m sure this defence  was quite inadvertent, but the precedent the CBC has set may well help these historical figures now branded as  pariahs  to retain at least some of their legacy.

The case was one of criminal contempt against the Corporation, brought against the CBC by prosecutors in Alberta for the broadcaster’s refusal to remove a previously published story from its website. The story, and accompanying photograph, concerned a 14-year-old girl who had been killed. At the time of publication the story was completely legal and proper; the sort of story aired every day by the CBC, and simultaneously posted to its online edition.

The trouble began a few days later when a man was charged with her murder and the Crown, as it was required to do by the Youth Criminal Justice Act, sought, and was granted, a publication ban on the girl’s identity. That Act protects the identity of under-aged victims as well as youthful accused persons.

The Crown then demanded that the CBC essentially ‘un-publish’ its earlier story, by removing it from its online archive. The CBC refused, resulting in the Crown requesting a citation for criminal contempt against the Corporation.

The decision of the Supreme Court of Canada was a unanimous 9-0 ruling in favor of freedom of expression. After all, the Crown wasn’t asking print newspapers to destroy their archives, or to attempt to retrieve their printed stories from their subscribers, or from libraries.

On one level the CBC case can be confined to its particular facts, but on another perhaps stands for the proposition that you cannot order the rewriting of  history by demanding  the “un publishing” of  historical material.  So where does that leave Cornwallis, McDonald and Begbie? Well,  it appears they may be safe for the time being from being excised from the history books, – but their statues ? Ah, that is  something else entirely- they shouldn’t sit too comfortably upon their pedestals!

IMPAIRED CANOEING NOW ILLEGAL ? SAY IT AIN’T SO!

October 15, 2017

A very long time ago when the earth was  young I successfully defended a chap charged with impaired driving. The defence rested  upon the rather unique vehicle he was driving at the time of his arrest- a railway hand cart.

My client had acquired the  handcart at an auction, and tested it out (without permission) on a section of  the E&N railway track, finding that it still worked like a top. A few pumps on the handles and he was sailing down the track.

To celebrate, he invited a couple of buddies on board and they pumped the contraption down to the Red Lion Inn, a pub conveniently  located adjacent to the railway tracks, where they proceeded to get drunk as lords, and, on the return trip, attracted the attention of the Victoria constabulary.

The acquittal  was achieved because of the particular wording of the impaired driving sections of the Criminal Code. The offence, you see,  can only be committed by driving a motorized vehicle, and a hand -pumped  railway cart  simply doesn’t fit the definition!

Those same provisions of the Criminal Code apply to impaired boating, but, oddly,  until now, contain no definition of what constitutes a “vessel”, leaving it an open question whether you can legally paddle your canoe or kayak while ( to use a nautical reference ) you are three sheets to the wind. In the result, and depending upon where you live, some tipsy canoeists end up being charged, while others aren’t.

So, in the Spring of 2017, along came Bill C-46, legislation amending and modernizing the Criminal Code, including a re-vamp of the impaired driving provisions. The term “vehicle” was scrapped, in favour of the term “conveyance”, which the Minister (no doubt still smarting from my long ago hand cart win) sneakily defined as including railway equipment of all sorts.

The definition continued however, to specifically exempt  “a vessel propelled exclusively by muscular power”. To the great relief of a few of my paddling buddies, it appeared that tipsy canoeing and kayaking were to become legal.

In fairness, I suspect what the drafters of the legislation had in mind was exempting those who paddle inner tubes and  air mattresses, or inflatable party rafts a few feet off the beach with beer in hand, but definitions are tricky.

Before the champagne corks could even be popped down at the paddling club, the Stalwarts at the Canadian Safe Boating Council had a word in the Minister’s ear, and an amendment was swiftly proposed, and unanimously passed, tanking the exemption, and leaving us again without a definition   of “vessel”

This, unfortunately  puts us right back in the grey area that existed before. If it floats, you might  get tagged for drunk boating- something you may want to think about the next time you are lounging around on a pool noodle with a cold one in hand.