Obscure offences in Canada's Criminal Code reviewed
A book titled 'Pocket Criminal Code' sits beside Justice Minister Rob Nicholson (not pictured) as he appears as a witness at a commons justice and human rights committee on Parliament Hill in Ottawa on Tuesday, February 7, 2012. (Sean Kilpatrick / THE CANADIAN PRESS)
The Canadian Press
Published Sunday, October 21, 2012 7:20AM EDT
OTTAWA, Ont. -- God save our gracious Queen -- from alarm.
A new study of Canada's sprawling Criminal Code found not a single case of anyone prosecuted for "acts intended to alarm Her Majesty."
The Justice Canada project was intended to determine whether the code has so many obscure, obsolete offences that it needs a major overhaul.
Section 49 refers to "every one who wilfully, in the presence of Her Majesty, does an act with intent to alarm Her Majesty," on penalty of a maximum 14-year prison sentence.
The prohibition has been on the books since Confederation, and can be traced to Britain's Treason Act of 1842, which specifies flogging and up to seven years in prison as punishment.
The 1842 law was prompted by an incident that year in which a British citizen pointed a gun at Queen Victoria but did not fire, though he did discharge the weapon without harm to her on a second occasion.
The Justice Department study found only four other Criminal Code sections with zero charges prosecuted in the decade ending 2006, drawing on court databases.
The little-known sections refer to assisting deserters from the Canadian Forces; applying or removing marks indicating something is publicly owned; selling "defective stores to Her Majesty;" and issuing trading stamps.
"With only five offence sections under which no charges have been processed over the 10-year period, the contention that the Criminal Code contains many unused sections is questionable," the authors argue.
"Furthermore, even though there were no charges processed under these sections, this does not imply that people did not commit these offences during the study period."
The encyclopedic Criminal Code, drawing together all of Canada's criminal statutes, was created in 1892, then wholly revised and redrafted twice, in 1954 and 1985, or 27 years ago.
"Anecdotal reports have suggested that there remain many offence sections that have not been recently used, which would indicate the code may be out of date and may benefit from being revised in its entirety and being modernized," says the Justice Department's rationale for the research.
A copy of the March 2012 document was obtained by The Canadian Press under the Access to Information Act.
Authors Nicole Crutcher and Albert Brews further investigated whether there were sections with no charges laid in the five years to 2006. They found 11 more, including Section 69 which applies to peace officers who fail to take reasonable precautions to stop a riot.
Another obscure prohibition, Section 440, forbids the unauthorized removal of material protecting a harbour.
Further Justice Department research found 32 additional sections where only between one and 10 charges proceeded to court over the decade 1996-2006.
The authors argue that some of these 32 sections, including Section 52 referring to sabotage, may be genuinely rare crimes but not necessarily obsolete.
On the other hand, sending a telegram in a false name -- forbidden by Section 371 -- "may demonstrate a shift in technology that could render the section obsolete." Only three such charges went to court over the 10 years.
The report finds no compelling reason to overhaul the code at present, but the authors say it should be subject to periodic review.
A popular paperback edition of the Criminal Code runs to more than 1,600 pages.
A spokeswoman for the Justice Department did not respond directly to questions about why the study was undertaken, about the source of anecdotal claims regarding the need to overhaul the Criminal Code, and about next steps.
"Justice Canada regularly conducts research/studies as part of its internal development process," Carole Saindon said in a brief email.
"This particular study was solely intended to be informational."
Toronto criminal lawyer Adam Goodman said in a 2010 blog that his informal survey of case law from 1981 to 2004 found no charges proceeding to court for the crime of "alarming Her Majesty."
Few visits to Canada by the Queen appear to have offered any cause for alarm, with the possible exception of her appearance in Quebec City on Oct. 10, 1964. Anti-monarchists protested, leading to harsh police actions that triggered a riot, an event now known as "Truncheon Saturday," or "Le Samedi de la Matraque."