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Airhorns and Canadian Law

Posted by Matt on October 24, 2013         Tagged with: crime

Ken White has a great post over at Popehat today entitled Skeleton Keys, Airhorns and Magic Words. It's about the use by state actors of concepts like "terrorism" or "think of the children!" to drum up support for new laws and to avoid any conversations about whether those new laws infringe upon basic civil liberties and whether the results they will achieve are worth it. It's a good post on an important issue and I encourage you to read it.

Ken is an American lawyer and he writes in the American context. The post is inspired by a recent Fourth Amendment case in the Third Circuit in which the court held the FBI could not place a GPS tracker on a suspect's vehicle without a warrant. But this is not a solely American issue.

These "skeleton key" arguments arise in Canada too. The most recent example that pops into my head is the issue of cyber-bullying. In the wake of the tragic death of Rehtaeh Parsons, cyberbullying has become a hot topic in Canada. Nova Scotia has been the first province to actually enact cyberbullying specific legislation with the passage of the Cyber-Safety Act. The Act makes it easier for victims of cyberbullying to sue their tormentors. Of course, provinces can't pass criminal laws - only the Federal government can do that. And it sounds like such a law might be on it's way: in July, a Provincial/Federal joint task force on cyberbullying released a report recommending that a new criminal offense of cyberbullying be created. The issue was raised again in last week's throne speech:

Our Government will focus on protecting the most vulnerable of all victims, our children. Recent tragic deaths, including those of Amanda Todd, Rehtaeh Parsons, and Todd Loik, have shocked Canadians. Our Government will introduce legislation giving police and prosecutors new tools to effectively address cyberbullying that involves criminal invasion of privacy, intimidation and personal abuse. This legislation would create a new criminal offence prohibiting the non-consensual distribution of intimate images.

Statements like this are designed to appeal to our emotions. What kind of jerk doesn't want to protect children from being bullied, whether online or offline? How cold-hearted do you have to be to speak out against legislation like this? Unfortunately, that means that legislation like this isn't always subjected to the scrutiny that all legislation deserves. Discussion of potential problems in the legislation is brushed aside or dismissed as liberal, soft-on-crime malarkey.

And there ARE potential problems in this legislation. David Fraser has written a number of posts both on the Cyber-Safety Act and the Provincial/Federal joint task force report. The Act isn't just aimed at protecting children; it applies to all victims of cyberbulling. Unfortunately, it fails to adequately define what constitutes cyberbullying, which means it potentially tramples all over our constitutionally protected right to freedom of expression. As David Fraser writes:

Surely, it cannot have been the legislature’s intention to lump legitimate satire, political speech and fair comment in with the shaming Ms. Parsons experienced, by calling it all “cyberbullying.” That’s what they did, unfortunately, and that’s why it’s unconstitutional. According to the Supreme Court, any infringement of freedom of expression needs to be justifiable and cannot impair the right more than is necessary to accomplish the legitimate legislative objectives.

Meanwhile, the report recommended the introduction of new investigative powers to help law enforcement investigate cases of cyberbullying. No legislation has actually been tabled yet, so we don't know what such powers would look like. However, it was not so long ago that this same government attempted to introduce lawful access legislation, which would also have granted law enforcement new investigative powers. That legislation prompted a wave of protests before eventually being abandoned by the government. Remember #tellviceverything? It's reasonable to suspect that any new investigative powers included in a cyberbullying amendment to the Criminal Code might be similar to those those included in the now-dead lawful access legislation. If the Canadian public didn't support them then, we shouldn't support them now just because they've been tied to an emotionally charged topic.

It's natural to want to keep our children safe. But passing legislation which infringes upon our constitutional rights isn't the way to do it. Even if you don't accept the argument that such legislation makes all of us less safe, it also opens these laws up to a constitutional challenge at the first attempt to enforce them. What good is a law that gets struck down by the courts the first time it's applied?