Category: Criminal

Posted on

South Korea, Japan Ban Citizens From Toking in Canada, U.S. Bans Pot Investors

(South Korean and Japanese citizens will not be allowed to smoke marijuana in Canada, even though it is legal here)

Marijuana, or weed, was legalized in Canada, as of October 17, 2018. Far from the most controversial legislation is has passed since getting elected in 2015. While the substance will for now still be regulated, for all practical purposes it is completely legal. A number of developments from this are happening.

First, is that the Canadian government intends to make it easier to apply for a pardon for those with a pot conviction. This similar to prior moves years ago which pardoned gays and lesbians for consensual sexual acts.

Second, it remains to be seen how the economy will be effected by this legislation. There has been widespread speculation that it will boost economic growth. The details are outside the scope of this article, though more information is coming available.

Third, the United States says it intends to ban those who smoke cannabis, or even those who invest in the product, such as stock or bond holders. While the U.S. does have the right to refuse entry to anyone it wishes, this does raise 2 interesting questions: (a) how would Border Control even find out; (b) does it infringe on citizens doing lawful activity abroad? In later versions of the story, the U.S. is said to be backing off on that proposal — at least for now.

Fourth, and probably the most interesting here is that South Korea has formally declared that any of its citizens who smoke weed may be arrested. This applies even in Canada, where the act itself is legal. South Korean citizens are subjected to its laws regardless of where they are in the world. Japan has done the same, warning citizens that they may be subjected to home laws even while abroad.

As an aside, it would be interesting to know how the officials would ever learn about it. However, people today do brag about just about everything online. Also, given the distance, bringing witnesses for a criminal trial may prove difficult.

Furthermore, could a Korean or Japanese national smoke weed, and then claim asylum here, on grounds that they are being persecuted? This sounds absurd, but not outside the realm of possibility.

The Japanese and South Korea model stand in stark contrast to Canadian, American, and other Western nations, who oblige their citizens to follow the laws of wherever they happen to be at that time.

Fifth, and also worth noting, Russia has condemned the move as hypocritical. The Russian government says that legalization flies in the face of several anti-narcotic treaties, and does and end run around those agreements. Canada was a party to the following:

CLICK HERE, for the 1961 Single Convention on Narcotic Drugs.

CLICK HERE, for the 1969 Vienna Convention on the Law of Treaties.

CLICK HERE, for the 1971 Convention on Psychotropic Substances.

CLICK HERE, for the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Russia has a valid point. The legalization push by the Trudeau government “will” undoubtedly make anti-drug matters more complicated. After all, how committed can Canada be to fighting the marijuana trade considering the substance is legal here?

The October 17 legalization will bring a number of challenges both here and abroad. Too early to say where things will go, but there will almost certainly be a followup article on at least one of these points.

Posted on

Canada’s Bill C-75 (Watering Down Penalties for Terrorism, Rioting, Weapons)

(The Canadian Criminal Code, which typically gets amended every year)

Criminal offences in Canada are categorized like this

SUMMARY OFFENCE: more minor, lesser penalties (misdemeanor)
INDICTABLE OFFENCE: more serious, harsher penalties (felony)
HYBRID OFFENCE: Prosecutor has discretion as to proceed “summarily” or “by indictment”

For a good video on this subject, Julie Mora posted a video seen here. It had 2 parts: (a) an expanded gun registry, Bill C-71, and (b) changes to the Canadian Criminal Code, Bill C-75. Julie is a fine blogger, and her videos are well worth a watch by all Canadians. She claims in this video that the bill will “hybridize” many serious charges, meaning that they may now be tried summarily. And she is right. Below are the major points.

This is not trivial at all. Terrorism and rioting offence should be treated seriously. Yet, if this bill were actually to pass, the penalties for serious crimes may be gutted. True, for hybrid offences, Prosecutors could still choose to try the case by indictment. However, most people would agree that the option should not exist

Relevant links are below:
CLICK HERE for the Criminal Code as it currently exists.
CLICK HERE for the Liberal Bill C-75.

ORIGINAL

Marginal note:
Punishment of rioter
65 (1) Every one who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Marginal note:
Concealment of identity
(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.

REPLACEMENT

Punishment of rioter
65 (1) Every person who takes part in a riot is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Concealment of identity
(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than years; or
(b) an offence punishable on summary conviction.

ORIGINAL

Neglect by peace officer
69 A peace officer who receives notice that there is a riot within his jurisdiction and, without reasonable excuse, fails to take all reasonable steps to suppress the riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

REPLACEMENT

Neglect by peace officer
69 A peace officer who receives notice that there is a riot within their jurisdiction and, without reasonable excuse, fails to take all reasonable steps to suppress the riot is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.

ORIGINAL

Possession without lawful excuse
82 (1) Every person who, without lawful excuse, the proof of which lies on the person, makes or has in the possession or under the care or control of the person any explosive substance is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

REPLACEMENT

14 Subsection 82(1) of the Act is replaced by the following:

Possession of explosive
82 (1) Every person who, without lawful excuse, makes or has in their possession or under their care or control any explosive substance is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.

ORIGINAL

Financing of Terrorism
Marginal note:
Providing or collecting property for certain activities
83.02 Every one who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out
(a) an act or omission that constitutes an offence referred to in subparagraphs (a)(i) to (ix) of the definition of terrorist activity in subsection 83.01(1), or
(b) any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, if the purpose of that act or omission, by its nature or context, is to intimidate the public, or to compel a government or an international organization to do or refrain from doing any act,
is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.

REPLACEMENT

Providing or collecting property for certain activities
83.‍02 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.

ORIGINAL

Providing, making available, etc., property or services for terrorist purposes
83.03 Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services
(a) intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity, or
(b) knowing that, in whole or part, they will be used by or will benefit a terrorist group,
is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.

REPLACEMENT

Providing, making available, etc.‍, property or services for terrorist purposes
83.‍03 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.

ORIGINAL

Using or possessing property for terrorist purposes
83.04 Every one who
(a) uses property, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity, or
(b) possesses property intending that it be used or knowing that it will be used, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity,
is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.

REPLACEMENT

Using or possessing property for terrorist purposes

83.‍04 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction

ORIGINAL

Offences — freezing of property, disclosure or audit
83.12 (1) Every one who contravenes any of sections 83.08, 83.1 and 83.11 is guilty of an offence and liable
(a) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both; or
(b) on conviction on indictment, to imprisonment for a term of not more than 10 years.

REPLACEMENT

Paragraphs 83.‍12(1)‍(a) and (b) of the Act are replaced by the following:

(a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or
(b) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than two years less a day, or to both.

ORIGINAL

Participation in activity of terrorist group
83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

REPLACEMENT

Participation in activity of terrorist group
83.‍18 (1) Every person who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than10 years; or
(b) an offence punishable on summary conviction.

ORIGINAL

Leaving Canada to participate in activity of terrorist group
83.181 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.18(1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years

REPLACEMENT

21 Section 83.‍181 of the Act is replaced by the following:

Leaving Canada to participate in activity of terrorist group
83.‍181 Every person who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.‍18(1) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.

ORIGINAL

Advocating or promoting commission of terrorism offences
83.221 (1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

REPLACEMENT

22 Subsection 83.‍221(1) of the Act is replaced by the following:

Advocating or promoting commission of terrorism offences
83.‍221 (1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction

ORIGINAL

Concealing person who carried out terrorist activity
83.23 (1) Everyone who knowingly harbours or conceals any person whom they know to be a person who has carried out a terrorist activity, for the purpose of enabling the person to facilitate or carry out any terrorist activity, is guilty of an indictable offence and liable to imprisonment
(a) for a term of not more than 14 years, if the person who is harboured or concealed carried out a terrorist activity that is a terrorism offence for which that person is liable to imprisonment for life; and
(b) for a term of not more than 10 years, if the person who is harboured or concealed carried out a terrorist activity that is a terrorism offence for which that person is liable to any other punishment.

REPLACEMENT

Concealing person who carried out terrorist activity
83.‍23 (1) Every person who knowingly harbours or conceals another person whom they know to be a person who has carried out a terrorist activity, for the purpose of enabling that other person to facilitate or carry out any terrorist activity, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 14 years, if the person who is harboured or concealed carried out a terrorist activity that is a terrorism offence for which that person is liable to imprisonment for life; and
(b) an indictable offence and liable to imprisonment for a term of not more than 10 years or an offence punishable on summary conviction, if the person who is harboured or concealed carried out a terrorist activity that is a terrorism offence for which that person is liable to any other punishment.

ORIGINAL

Concealing person who is likely to carry out terrorist activity
(2) Everyone who knowingly harbours or conceals any person whom they know to be a person who is likely to carry out a terrorist activity, for the purpose of enabling the person to facilitate or carry out any terrorist activity, is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

REPLACEMENT

Concealing person who is likely to carry out terrorist activity
(2) Every person who knowingly harbours or conceals another person whom they know to be a person who is likely to carry out a terrorist activity, for the purpose of enabling that other person to facilitate or carry out any terrorist activity, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction

ORIGINAL

Person to be brought before judge
(3) A peace officer who arrests a person in the execution of the warrant shall, without delay, bring the person, or cause them to be brought, before the judge who issued the warrant or another judge of the same court. The judge in question may, to ensure compliance with the order, order that the person be detained in custody or released on recognizance, with or without sureties.

REPLACEMENT

25 Subsection 83.‍29(3) of the Act is replaced by the following:

Person to be brought before judge
(3) A peace officer who arrests a person in the execution of a warrant shall, without delay, bring the person, or cause the person to be brought, before the judge who issued the warrant or another judge of the same court. The judge in question may, to ensure compliance with the order, order that the person be detained in custody or make a release order, the form of which may be adapted to suit the circumstances

[Note: the new wording is such that is seems intended to make it easier to release suspected terrorists]

ORIGINAL

Possession of prohibited or restricted firearm with ammunition

Punishment
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, three years, and
(ii) in the case of a second or subsequent offence, five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

REPLACEMENT

27 Paragraph 95(2)‍(b) of the Act is replaced by the following:

(b) is guilty of an offence punishable on summary conviction.

ORIGINAL

Possession of weapon obtained by commission of offence

96 (1) Subject to subsection (3), every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition that the person knows was obtained by the commission in Canada of an offence or by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence.
Marginal note:
Punishment
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

REPLACEMENT

28 Paragraph 96(2)‍(b) of the Act is replaced by the following:

(b) is guilty of an offence punishable on summary conviction.

As absurd as it sounds, here is the “SUMMARY” of Bill C-75.

SUMMARY

This enactment amends the Criminal Code to, among other things,
(a) modernize and clarify interim release provisions to simplify the forms of release that may be imposed on an accused, incorporate a principle of restraint and require that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions, and provide more onerous interim release requirements for offences involving violence against an intimate partner;
(b) provide for a judicial referral hearing to deal with administration of justice offences involving a failure to comply with conditions of release or failure to appear as required;
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice;
(d) increase the maximum term of imprisonment for repeat offences involving intimate partner violence and provide that abuse of an intimate partner is an aggravating factor on sentencing;
(e) restrict the availability of a preliminary inquiry to offences punishable by imprisonment for life and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry;
(f) hybridize most indictable offences punishable by a maximum penalty of 10 years or less, increase the default maximum penalty to two years less a day of imprisonment for summary conviction offences and extend the limitation period for summary conviction offences to 12 months;
(g) remove the requirement for judicial endorsement for the execution of certain out-of-province warrants and authorizations, expand judicial case management powers, allow receiving routine police evidence in writing, consolidate provisions relating to the powers of the Attorney General and allow increased use of technology to facilitate remote attendance by any person in a proceeding;
(h) allow the court to exempt an offender from the requirement to pay a victim surcharge if the offender satisfies the court that the payment would cause the offender undue hardship, provide the court with guidance as to what constitutes undue hardship, provide that a victim surcharge is to be paid for each offence, with an exception for certain administration of justice offences if the total amount of surcharges imposed on an offender for those types of offences would be disproportionate in the circumstances, require courts to provide reasons for granting any exception for certain administration of justice offences or any exemption from the requirement to pay a victim surcharge and clarify that the amendments described in this paragraph apply to any offender who is sentenced after the day on which they come into force, regardless of whether or not the offence was committed before that day; and
(i) remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada, repeal section 159 of the Act and provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid.

The enactment also amends the Youth Criminal Justice Act in order to reduce delays within the youth criminal justice system and enhance the effectiveness of that system with respect to administration of justice offences. For those purposes, the enactment amends that Act to, among other things,
(a) set out principles intended to encourage the use of extrajudicial measures and judicial reviews as alternatives to the laying of charges for administration of justice offences;
(b) set out requirements for imposing conditions on a young person’s release order or as part of a sentence;
(c) limit the circumstances in which a custodial sentence may be imposed for an administration of justice offence;
(d) remove the requirement for the Attorney General to determine whether to seek an adult sentence in certain circumstances; and
(e) remove the power of a youth justice court to make an order to lift the ban on publication in the case of a young person who receives a youth sentence for a violent offence, as well as the requirement to determine whether to make such an order.

Finally, the enactment amends among other Acts An Act to amend the Criminal Code (exploitation and trafficking in persons) so that certain sections of that Act can come into force on different days and also makes consequential amendments to other Acts.
Bill C-75 is too long to possibly cover entirely in one article, though this is the most serious of it.

Having much smaller bills introduced would certainly be preferable. Far too often, governments ram through much unrelated material into a bill, called “omnibus bills”, such that proper debate never actually happens.

A more thorough debate could be had if this were broken up into 6-8 separate bills

And just reiterate, terrorism and other major crimes should always be tried by indictment.

Posted on

Using Genealogy and DNA to Catch Golden State Killer

James Joseph DeAngelo, the so-called “Golden State Killer”, has been caught using a very controversial method: genealogical DNA testing. See here, and here. DeAngelo is accused of committing rapes and murders over many years.

The short explanation of the method is this: When a person submits a DNA sample to a genealogical organization (and pays the fee), it is done with the intention of learning more about their biological relatives. Even previously known and distant relatives can be found. 2nd, 3rd, and even 4th cousins can now be identified using this technique.

Quite understandably, people submitting DNA to ancestory organizations do so in order to see who they might be related to. Certainly, no one does so with the intention of providing evidence or at least a lead against other distant relatives. This was never meant to be a police tool.

(4th Amendment)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But here, it gets a bit more complicated. Even if one argues that using DNA set aside for genealogical testing violates that person’s 4th Amendment rights, it is that person’s rights being violated, not the actual target’s rights.

Understandably, many are upset over a clear breach of their agreement.

While DeAngelo certainly deserves to be caught and tried, the method of DNA identification sends chills to many. It will be interesting to see what, if any policies and laws come as a result of this. There will likely be a followup article

Posted on

Voting Eligibility (Part 1) — Crime & Citizenship


(Image by WordPress)

Who is allowed to vote?

Well, depending on where you go, you will get a very different answer. Do you have to be of good character? Can you currently vote while in prison? Do you even have to be a citizen?

This topic could fill several books, but this is just a starter piece. The article focuses on 2 main areas: criminality and non-citizenship

Canada, Criminality:
The Canada Elections Act of 1985 used to prohibit a person from being able to vote if they are serving a federal sentence (2 years or more). However, that was struck down in 2002. The Crown conceded it violated Section 3 of the Canadian Charter of Rights and Freedoms, that everyone had the right to vote in elections to govern the country. To be fair though, the dissenting Justices thought that the violations were reasonable. As things stand now, even persons in custody are allowed to vote, and jail officials must make accommodation for them to do so.

American, Criminality
The case of Richardson v. Ramirez (1974), held that the 14th Amendment, Section 2, was not violated in barring felons form voting (called felony disenfranchisement). Since then, the 50 states have written their own laws, and they widely vary widely, from Maine, which allows voting while incarcerated, to voting after release, to Idaho and voting after probation ends, to never voting, to Florida requiring a petition.

Australian, Criminality
Things are a bit different here. For starters, voting is mandatory. There are arguments both for and against it. In the past, anyone serving a sentence of 1 year or more was unable to vote. As it stands now, only those serving a sentence of at least 3 years cannot vote until the sentence is finished.

British, Criminality
The UK is having to revise their policies on letting prisoners and convicts vote, because of the European Court of Human Rights. Originally, they couldn’t, but that is changing. Interestingly, Members of Parliament can keep their seat if they have been sentenced to 1 year or less. So they could hold office, but not vote.

Much Europe has some restriction of voting rights, such as type of offense, and is the sentence fully served.

Laws vary widely around the world. However, the main argument against letting cons, or ex-cons vote is that they have violated the social contract with the people, and hence should not be a part of forming its laws.

Voting by Non-Citizens

While this list is too extensive to go through, many countries do allow permanent residents to vote if they have lived their for a long enough period.

Also many cities, such as San Francisco, Toronto, Hamilton, Calgary, Vancouver, allow voting for permanent residents.

One argument against letting non-citizens vote is that it weakens what it means to be a citizen. What then, distinguishes a citizen from a resident? A second is that the longer time to obtain citizenship is necessary to fully adapt to the new homeland. A third is that it leads to divided loyalty from Members of Parliament/Congress, who will look towards future voters more than current ones. All have some merit.

A push over the years from leftist politicians has been to let “undocumented immigrants” (a.k.a.) “illegal immigrants” vote in elections, as well as to reduce or eliminate voter identification requirements.

Note: Women are now allowed to vote in Western countries as well as many others. New Zealand and Australia led the way.

Author’s Views:
However, things do, or at least should have a limit.

(1) There have been many challenges to Voter ID laws, claiming that it discriminates against people who can’t get identification. The usual claim is wither poverty, or that the community lacks these services. Really, a legal citizen, or at least permanent resident can’t get I.D.?! Of course, if they are “undocumented”, that may be why they can’t get “documents”.

(2)So-called “Sanctuary Cities” are letting illegal immigrants vote which seems bizarre. Why should people in the country illegally be helping to vote in people to draft laws? Seems like a serious conflict of interest here.

It seems that items (1) and (2) are very much linked. Could objecting to voter I.D. requirements be to enable, or help cover up, illegal immigrants voting? Hard to say, there is no “documentation”. Could it be to help “elect” candidates who would push for more immigration and easier citizenship paths?

As for convicts voting, obviously everyone has different ideas. My personal choice would be: (a) not while in jail or parole; and (b) not for serious crimes such as murder/treason/terrorism/drug trafficking/sex offenses.

Posted on

Rebuilding Your Life After Doing Something Stupid

(Screenshot of the Main Page of New Zealand’s “Clean slate Scheme”)

What happens to a person long after committing a criminal offense? Once a person has paid all obligations (prison, probation, fine) the charge still follows them around, right? Well, yes and no. While the convictions themselves do not disappear, there are options for getting the person back into society. Since a record limits people’s prospect for travel, work, education, adoption, etc… there are ways to get around this depending on the circumstances.

This article looks at 5 Common Law Countries: (a) UK; (b) US; (c) Canada; (d) Australia; and (e) New Zealand.

(a) UK: Spent convictions

Here is a link to the U.K. branch. The 1974 rehabilitation of offenders act refers to charges as ”spent” or ”unspent”. Spent charges are to have no impact on the person in most circumstances.

The waiting period differs. For example, community orders are spent a year after they are completed. Custody sentences range from 2 years, to 4 years, to 7 years, to permanently ineligible.

Also, the act has been amended. It used to be 30 months was the cut off period for charges being spent. It is now 48 months (4 years).

(b) US: Pardons

Click Here for more information.

This is still largely a political process, and can be done at the State level (by a Governor), or at the Federal level (by the President). Critics however believe that it largely leads to political and connected people getting the break. Those with minor charges do still get them often.

(c) Canada: Pardons, a.k.a. “Record Suspensions”

Click Here for the National Parole Board

For summary (misdemeanors) it is 5 years after the sentence is served

For indictable (felonies) it is 10 years after sentence is served.

In 2010 the rules were changed to prevent longer term and series criminals from getting their records sealed. Notorious pedophile Graham James discovered to have gotten one. This was 2010, and the rallying cry for reform became ”pass these reforms, or Karla Homolka also gets a pardon”.

However, those have been struck down for Ontario and BC residents, at least as far as those who finished a sentence before 2010. See here.

Note: to Canadian traveller’s going to the US — Homeland Security specifically says it does not recognise a Canadian pardon/suspension and a waiver must still be applied for.

One other thing of note: there are restrictions on those who can get one, (a) anyone serving a life sentence; (b) anyone declared a dangerous offender; (c) those with 3 or more felonies if they resulted in 2+ years in prison; (d) sex offences are still flagged in vulnerable persons checks; (e) drug trafficking if still flagged in U.S. access.

(d) Australia: Spent Convictions

Click Here for the link to the Australian site.

Australia ”spends” convictions, though it appears that the rules differ somewhat if the crime was committed in Australia v.s. abroad

(e) New Zealand: Clean Slate Scheme

Click Here, and also Click Here for information on the New Zealand site.

This scheme only refers to NZ society, and acknowledges that it isn’t recognized in many other places.

In order to be eligible, no jail sentence must ever have been imposed.

SOME THOUGHTS

This looked at 5 Common Law Countries: UK/US/Australia/New Zealand and Canada. While the result is much the same, one major difference is that the US system seems to be politically based.

Still, good news for those looking to move on. Doing something stupid (any fairly minor), shouldn’t be a lifetime hinderance for people looking to rebuild their lives.

In almost all circumstances, a pardon/suspension/spending can be revoked if the person commits more crimes. Makes sense, as its intended use is for people who have moved on. According to sources within the Canadian justice system, 96% of people who get a record seal do not commit other crimes. That is 24 out of every 25 people. Being able to clear a record is helpful for the vast majority of people.

Understandably, it does upset some people that ex-cons are able to seal or move on afterwards. In particular, many victims and their families take issue with this. And depending on the circumstances, they are absolutely right. However, these options seem much more geared towards minor offences and not towards serious, repeat offenders.

The 5 Common Law countries listed here all have this option, to varying degrees. Not sure where else it exists, but worth a close look.

Posted on

Child Killer Gets Transfer to “Healing Lodge” Because of her Race

(Interrogation of McClintic)

(Interrogation of Rafferty)

(News on McClintic’s Transfer To Healing Lodge)

As cited in a previous article, see here, all defendants/prisoners are not equal in the eyes of the law. This is a racially discriminating practice that Canada has been involved in doing since the late 1990s.

Here is section 718.2(e) of the Canadian Criminal Code:

all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Yes, one racial group is allowed to get what amounts to a race based discount. The 1999 Gladue ruling essentially paved the way for this to be normalized across Canada, while the Ipeelee decision expanded the scope to include long term offenders.

Here are the links to the Court decisions of Gladue (1997, 1999) and Ipeelee (2012).

R. v. Gladue, 1997 CanLII 3015 (BC CA)
R. v. Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)
R. v. Ipeelee, [2012] 1 SCR 433, 2012 SCC 13 (CanLII)

While Indigenous people getting a race-based discount is nothing new in Canada, the transfer of child killer Terry McClintic to a “healing lodge” has the Canadian public flared up.

In 2009, 8 year old Tori Stafford was murdered by Terri McClintic, who was an accomplice to Michael Rafferty. In 2010, both McClintic and Rafferty received life sentences, with a 25 year custodial minimum. In 2014, McClintic was transferred to a medium security prison. Now, in 2018, McClintic is being sent to this “healing lodge”.

Not only is McClintic a child killer, but she viciously assaulted another inmate in 2012, and bragged that she only regretted not causing worse injury. Definitely a candidate for transfer from maximum to medium security prison.

Unfortunately, the federal parties are playing politics with it, while avoiding the real issue. The Liberals, now in government, blame the Conservatives for the 2014 transfer to medium security prison (when Stephen Harper was PM). The Conservatives blame the Liberals for not stopping this transfer. Both blame the other, while saying that they were not able to do anything — that Corrections Canada makes the decisions.

But the real issue that both Liberals and Conservatives dodge is that the entire law giving special treatment to Aboriginal/Indigenous/First Nations peoples. No group should receive “any” special treatment. Raced-based discounts are immoral.

What “should” be done is have the Gladue/Ipeelee rulings overturned. Yes, the Supreme Court of Canada endorsed this nonsense, but it can be stopped permanently using Section 33, the Notwithstanding Clause of the Canadian Charter of Rights and Freedoms.

Application of Charter
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Marginal note:
Exception
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
Marginal note:
Exception where express declaration
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Rafferty/McClintic have frequently been compared to Paul Bernardo/Karla Homolka, another male/female child killing couple. Karla Homolka’s mere 12 year sentence outraged Canadians, as does the McClintic transfer now.

Rather than bickering about whose government dropped the ball, this soft bigotry of low expectations needs to end. Legislate this nonsense out of Canadian law.

Update on the Story: On October 3, the Liberals, NDP and Green Party voted against a Conservative motion that would have kept Terri-Lynn McClintic in prison. See this link.

Further Update on the Story
On November 8, the Liberals have announced they will make new rules to send McClintic back. However, it doesn’t address underlying racist nature of the law — different sentencing rules based on skin colour, or even on ”how someone identifies”.