SWEEPING, OBTUSE LAWS CAN BE INSTRUMENTS OF OPPRESSION

May Be Used to Stifle Legitimate Protest

Reasonable Doubt

Last week reknown pot activist, Marc Emery, was sentenced to 3 months in
prison for the crime of passing a joint at a pro-pot, political
demonstration in Saskatoon. Last year the Supreme Court of Canada upheld
our pot possession law partly on the basis that the court believed nobody
would ever be sent to prison for smoking this plant.

Apparently our highest court knows nothing about prairie justice.

Like many political agitators, Emery was actually a victim of linguistic
chaos. Often our criminal law is drafted in vague, overbroad terms and this
lack of linguistic precision can give officials enormous powers to stifle
dissent. In this case, Emery fell victim to the overbroad definition of
"trafficking," which includes the mere act of giving.

Even though every Canadian reasonably assumes that a drug trafficker is
defined as a person who profits from peddling illicit substances, the law
extends the definition to charitable acts. Every pot smoker is a trafficker
because every pot smoker will at some point pass a joint to a fellow consumer.

The smokers may be guilty of possession, but our highest court has pledged
that pot smokers should never be jailed for simple possession. Emery was
charged as a trafficker because drug traffickers are presumptively
sentenced to prison.

By distorting reality, the crown and court found a convenient way to
silence those who challenge the established order.

In the 1970s, when the Charter of Rights was just a glimmer in Trudeau's
eye, courts had referred to the statutory extension of trafficking to
include giving as "distasteful." Surely in the Charter era, a distasteful
provision should be invalidated as unconstitutional. In 1980, the Quebec
Court of Appeal noted that "one can certainly hope that the Crown will
exercise a certain amount of discretion before relying upon a mere giving
in support of a charge of trafficking." Assuming that those in power in
Saskatoon understand that the prairie provinces have not been exempted from
the Charter, I think the decision of the police and prosecutors to charge
Emery with trafficking is a fairly clear indication that public officials
acted in a mean-spirited manner to punish an outspoken critic.

Political dissent in public spaces is not alive and well in Canada.
Democratic ideals are undercut by the criminal law. Whether it be the 1997
protest at the APEC conference in Vancouver, or the 2001 anti-globalization
demonstration in Quebec City, police walk into the melee armed with a large
cache of vague and overbroad criminal laws. With this much legal
ammunition, they can shut down a demonstration on a moment's notice.

First, they can arrest and remove anyone who is in "breach of the peace." I
have no idea when there is a breach but it does not bode well when there is
case law holding that shouting through a megaphone will do. Then there is
Officer Friendly's best friend - the offence of "cause disturbance." You
can be arrested for causing a disturbance in a public place by "fighting,
screaming, shouting, swearing, singing or using insulting or obscene
language." Forget about singing "We Shall Overcome"; protests in Canada
should be orderly, polite and courteous.

Let Miss Manners be the Master of Ceremonies and everything will be just fine.

Canada is also not big on crowd scenes.

If three or more people assemble and cause the community to reasonably fear
this assembly will "disturb the police tumultuously," the offence of
"unlawful assembly" is committed.

This is an offence committed on virtually every Three Stooges episode.

Finally, the Criminal Code goes on to define the serious offence of "riot"
as an "unlawful assembly that has begun to disturb the peace tumultuously."

The drafters of the code really liked this word "tumultuously." This adverb
is the defining threshold between hanging out with friends and an unlawful
assembly, or a riot. This threshold has been attacked as unconstitutionally
vague, but courts have upheld the provisions, stating that the tumultuous
means "chaotic, disorderly, clamorous or uproarious." Thanks for the
synonyms, but this does not help. The bottom line is that police
arbitrarily decide when a demonstration of uproarious fun becomes a riot of
clamorous evil, just as Saskatoon police decided to transform Emery's
political act of sharing a joint into a crime of trafficking.

People mistakenly believe that the health and vitality of a democracy is
maintained by the regular ritual of campaign and election.

Elections are important but the real spirit of democracy is measured by the
scope of the freedom to take to the streets for vigorous protest demanding
political change. The vast arsenal of overbroad and vague laws we have
created to preserve public order can imperil the true essence of democracy.

The language of the law is not the language of ordinary men and women.

For example, the word "cattle" is defined in the Criminal Code to include
"horse, mule, ass, pig, sheep or goat." This is not just a zoological
nightmare; the law becomes a trap when its language dramatically departs
from ordinary usage.

Emery is not a trafficker. Protestors are not rioters. Flying in the face
of linguistic precision, the criminal law has the potential to become a
tool of political oppression.