There is No Road To Redemption?

Yesterday, I made a connection between fictionalized (or as in the example yesterday musicalized) revenge, redemption, and retribution and our real-life sentencing principles. These concepts of punishment are particularly relevant as the Canadian Criminal Code has gone through many changes in sentencing. We will, of course, be seeing even more changes when the Federal government passes, what we call the "omnibus crime bill" or  Bill C-10. I have discussed certain aspects of this Bill in a previous blog that can be found here.

To shed light on the issue, I referred to the UK's effort to reform sentencing in the consultation paper and in the Government's Response, which was tabled in June of 2011, with recommendations on sentencing reform. I ended the blog rather ominously, asking if redemption was, in fact, dead.

Why? The UK Government response is telling: most of the recommendations flow from the Government's first recommendation or promise to make punishment "demanding, robust, and credible." Indeed, the UK will accomplish this goal by transforming "prisons into places of hard work." Suddenly, we are transported to Dickensian England with penal work houses or even to the American dirty thirties with the ubiquitous chain gangs. 

But the road to no redemption does not end there. Another goal is to make offenders pay back to the victim. This is not a concept of restorative justice. No, this is retribution, as those same prisoners who will be put to "hard work" will have those earnings partially estreated in favour of victim services programs. This is much different than the victim surcharge program we have in our Criminal Code under s.737 or the restitution orders available under s.738.

There are more examples of how this reformation has gone retro; taking us back to the old theories of Herbert Packer's crime and control model and the notion of the "stick is better than the carrot" at deterring crime. Will this "reform" work? Only time will tell. In a country like the UK, where riots turn particularly nasty (although who are we to judge in light of Vancouver's riots), there is immense public pressure to "get tough on crime."

In the end, however, whichever road is taken will not provide the real answer to how a society can minimize crime without compromising the principles of fundamental justice. In the end, only time will tell.

The UK tabled, on June 22,2011, new sentencing legislation to reflect the proposed reforms. According, to a UK blog found here, the reforms are not as "ambitious" as first proposed.

Where the Wild Things Are

The escape of wild animals in Ohio is a story which has caught my attention. It is a sad story. The suicidal exotic zoo owner released some 50 wild animals, including tigers and lions, before shooting himself in the head. Tragically, the animals were shot and killed by authorities in an effort to protect the public. In the aftermath, animal rights activists push for legislative reform in a State, which, shockingly, has no regulation for the keeping of exotic animals. 

Here, in Alberta, we do have provincial legislation to regulate and protect wildlife, exotic animals, and domesticated animals as found in the Wildlife Act and the Animal Protection Act. We also have cruelty to animal sections in the Criminal Code, found in sections 444 to 445 and 446 to 447.  

Oddly enough all of these Criminal Code sections are found under Part XI of the Code entitled "Wilful and Forbidden Acts in respect of Certain Property." True, animals are owned but to conceive animals as property conveys the wrong message. The focus is off. Instead of protecting animals because they are living things, our society protects animals because, like a book, they are owned. It is, therefore, this ownership quality of an animal, the concept of damaged goods, which we have decided to protect through our criminal law. 

But the world is changing and our raison d'etre for protection of animals must change too. Peter Singer, a Professor of Bio-Ethics at Princeton, has been a long-time proponent of animal rights after the publication of his book Animal Liberation in the mid '80s.  Since then, animal rights has become a movement with increasing number of supporters. A recent Slaw blog on "Animal Law and Animal Welfare Groups" caught my eye. Additionally, the Supreme Court of Canada will be deciding on a leave application filed by Zoocheck Canada and others on the release of Lucy the Elephant from the Edmonton Zoo.

It is clear animal rights as an emerging issue will require a more thoughtful approach to the protection of animals and, perhaps, a much needed review of Criminal Code sections.

Is "Innocent Nudity" Expression?

When is a nude a nude and when is being nude, contrary to the Criminal Code? When you walk through a local park sans clothing or when you go through a Tim Horton's drive-through with nothing but your charms to recommend you.

Today, in my human rights class, we talked about just that. Is nudity expression? And if so, does s. 174 of the Criminal Code, which prohibits public nudity, violate s.2(b) of the Charter? 

It appears Ontarians, Mr. Coldin and Mr. Cropper, would answer yes to both. Both men are charged with public nudity under s.174  of the Criminal Code and their counsel have argued a Charter violation. According to these avowed naturists, their nudity is an expression of a oneness with nature, in other words going au natural for nature. This "innocent nudity," they argue has expressive content and should not attract criminal penalties. 

First, the class tackled the issue of expression: is nudity expression? Well, it turns out the answer is not so clear. What is the expressive content of nudity? Is wearing nothing able to express anything? Let's just ask the Emperor who thought he wore new clothes. Was he "expressing" something when he waltzed down main street in his natural born state? Perhaps. And Coldin and Cropper, are they saying something through their nudity? I say yes. An expression of "getting back to nature" and an expression of "let's get back to the basics in this overly material world." Could this be a call to arms (uncovered of course) for an Occupy Nature movement? 

Now we have determined expression. How about the restriction? See anything wrong with the Criminal Code section? The class did.

s.174(1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

As Arnold Horshack would say, hand raised, "Ooh-ooh-ooooh."  How about this. It harkens back to the basic principles of criminal law, which require a minimum mens rea requirement.This offence may not be a true crime and attract a subjective liability requirement but does this section even permit an objective liability standard? Section reads more like an absolute liability offence: you are nude, you are guilty.

Aha, you say. How about that lawful excuse? What kind of "lawful" excuse could there be for being nude? Okay, you sleep in the nude, fire alarm goes off in the middle of the night and you jump out of bed and run outside stark naked. So the lawful excuse seems to be: I did not intend to be publically nude. A lack of mens rea, which is a required element of an offence, as a lawful excuse?

I could go on, but I will stop here.

What kind of offence is this anyway? Is it Charter bad or Charter good? What do you think?

Update on Wednesday, October 12, 2011 at 6:27PM by Lisa A. Silver

A student in my human rights class reminded me of the 1991 Guelph, Ontario woman who took her shirt off on a warm day. She was charged with an idecent act contrary to s.173 of the Criminal Code. CBC recently did a follow-up story of the case. The Ontario Court of Appeal acquitted Gwen Jacob on the basis that her actions did not amount to an indecent act, which required a sexual context. The Charter was not invoked. This decision did open the way for breast feeding in public, however it did not start a female shirtless movement, either on a hot day or otherwise. You will have to go to Europe for that.