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Michael Kempa: Crime is surging and Canadians are being left with one message: You’re on your own

Commentary

When it comes to skyrocketing auto theft across Canada—double-digit percentage increases more frequently tied to carjackings and breaking into homes in search of keys—recent frank personal safety advice from the Toronto Police Service has sent a clear and unfortunate message to Canadians: You are on your own.

Last week, statements made by Toronto police constable Marco Ricciardi at an Etobicoke public safety meeting earlier in February went viral, and for good reason. Ricciardi warned that car theft is now so aggressive and so brazen, that residents would be wise to leave their key fobs close to their front doors. Why you might ask? To prevent car thieves from entering deeply enough into homes that violent confrontations with owners would become more likely. These thieves are armed with “real” and “loaded” guns, the constable Ricciardi ominously intoned.

Suggesting that citizens simply give up and make it easier for car thieves to steal their property reads like an admission that the police have lost control over a dangerous and costly problem. Auto thefts are exploding across Canada, with Ontario in particular becoming a “candy store” fueling a rail pipeline that runs to the Montréal ports and global markets directed by organized crime.

In Toronto, vehicle theft is up 150 percent over the past six years, with insurance associations listing it as over a 1.2 billion dollar problem. The city’s police chief recently stated that there were over 12,000 vehicles stolen in 2023—a 24 percent increase in a single year and a 300 percent increase since 2015. A vehicle is now stolen approximately every 40 minutes in Canada’s most populous city.

It is not reasonable to tell citizens to fend for themselves against such sophisticated and motivated adversaries.

Organized crime expands its tentacles into all opportunities for extraordinary profit. The pandemic has created many such exploitable distortions, including human trafficking, trading in counterfeit vaccines, and coordinated shoplifting.  In the case of auto theft, prices of newer used vehicles have been driven sky-high due to the scarce availability of new inventory and supply chain disruptions for microchips, which slows down production.

With a lucrative market at their feet, organized criminals have exploited loopholes in Canadian law to run circles around police officers.

The first involves simply taking advantage of jurisdictional ambiguities and the inertia that results when multiple agencies involved in combating auto theft bump up against one another. 

When a car is lifted from an innocent person’s driveway, it is often then parked for a day or two in a public place and monitored by thieves at a distance to determine whether the vehicle is being electronically tracked. This is most often done by private companies whose owners contract for these services. If these companies are actually able to locate the stolen vehicle, they typically mobilize police. However, if there are no suspects on the scene, these officers treat the theft as a low-priority call. Remember they also have assaults, break-and-enters, and domestic violence to deal with.

Often, thieves will then move that untended vehicle by train, which is under the separate jurisdiction of railway police.

It could then arrive at  Montreal shipping ports, under the watchful gaze of the Canada Border Services Agency. Keep in mind, on a typical day, there are mere single-digit CBSA agents available to monitor thousands of shipping containers at a major port. Even if police know a vehicle is in a particular port yard, it becomes a needle in a haystack. There is but a minute number of border agents literally working against the shipping clock to find it. Meanwhile, regular police are often left waiting on judicial warrants to lend assistance.

The second loophole criminals regularly take advantage of is recruiting legal minors (often members of street gangs) to conduct commissioned theft. The entire thrust of Canada’s youth justice system is to avoid incarcerating young people in secure facilities in favour of encouraging their rehabilitation within—and reintegration into—the community. In other words, young car thieves stand to earn healthy payments from organized crime syndicates while risking little custody time.

When the thieves are adults, delays pending trial mean suspects are likely to be released on bail for months on end with a level of supervision stretched thin to the point of near nonexistence. Canada’s bail system over the last three decades has become extraordinarily risk-averse, to the point that the great majority of people across the country currently held in provincial prisons—upwards of 80 percent in Ontario—are awaiting trial. This leaves little room to hold many further suspects on remand.

If we are failing to prevent the high volume of crime many argue is committed by a small number of repeat offenders, it follows that we must be holding far too many of the wrong types of accused offenders. Given that car theft is increasingly a repeat offence tied to home invasion and violence, we need to make some remand space for these accused in our prisons by returning to our historical practice of releasing less risky offenders on bail. Or we could entirely divert less serious cases to alternative measures, including restorative justice.  

Prime Minister Justin Trudeau speaks with Toronto Chief of Police Myron Demkiw before the National Summit on Combatting Auto Theft, Thursday, February 8, 2024, in Ottawa. Adrian Wyld/The Canadian Press.

Some promising moves have been made. However, because they are piecemeal, they fail to address the capacity of the range of security and criminal justice agencies needed to work together. The Trudeau government recently made car theft the focal point of its winter retreat, signalling that harsher penalties are coming in the Criminal Code. They also promised to make hundreds of millions of dollars available to provinces to support combating the problem (along with gun and gang violence). In Ontario, the Ford government has supported the efforts of police organizations to create special task forces and partnerships. There have been reports of some successes.

Bolder action involving evidence-driven decisions about which crimes should be prioritised for processing through a prosecution and corrections system with a finite capacity would be reassuring to citizens 

Public education about the sophistication of organized crime would be beneficial. People need to know that this spike in auto theft may be a shorter-term problem, requiring temporarily focused policing and policy responses, until the market for newer model used cars begins to normalise.

Giving citizens the idea they are on their own, however, is a dangerous message that Canadians are getting used to hearing in an increasingly disorderly post-pandemic world. Economic, ecological, and geopolitical turmoil have fuelled extraordinary opportunities for organized crime to make profits and for hostile ideological opponent states and other groups to fan instability and fear in Western democracies. To the public’s eye, the police seem incapable of managing the fallout, whether it is addressing opportunistic spikes in property crime, increasingly well-resourced and confrontational mass protests, or corruption where domestic political representatives are compromised by foreign interference. This then fuels a resigned public acceptance of an increasingly feudal world order, where frightened citizens bunker down to ride out the seemingly endless uncertainty. 

The dark but inevitable endpoint of downloading responsibility for crime prevention and personal safety upon citizens can be seen in places like South Africa and Brazil. In Canada, homeowners are now being given door stops by police to prevent door kick break-ins and are being told it’s on them to invest in alarm systems and security cameras. In South Africa and Brazil, residents with any resources to protect themselves now live in homes hidden behind high walls topped with razor wire, equipped with panic buttons and guarded by heavily armed private security meant to deter home invaders.

Canada must reverse this dark trend. We need to give people hope that the state has what it takes to secure our more courageous forays into open public and commercial life. It all starts with effective policing and community safety.

Kristopher Kinsinger: The Liberals’ online harms law is a full-frontal assault on freedom of speech

Commentary

While often referred to as the Online Harms Act, the Liberal government’s recently-introduced Bill C-63, if enacted, would go far beyond regulating harmful content on the internet. Among many other things, the bill proposes to make three significant amendments to the Criminal Code.

The first is to specifically define “hatred” under the Criminal Code, which currently includes no such definition. This amendment would define “hatred” as “the emotion that involves detestation or vilification and that is stronger than disdain or dislike,” subject to the exception that a statement will not be deemed hateful “solely because it discredits, humiliates, hurts or offends.” 

Meanwhile, the second amendment would significantly broaden the current categories of hate crime offences, to capture any offence under any act of Parliament that is motivated by hatred based on a prohibited ground of discrimination. Currently, the only substantive hate crimes in the Criminal Code consist of prohibitions on wilfully promoting or publicly inciting hatred. In theory, this new provision would turn any federal offence (not just those found in the Criminal Code) into a potential hate crime. Those who commit such offences would potentially be liable for life imprisonment. To say that this is a radical provision would be an understatement.

These provisions have already garnered significant criticism from across the political spectrum. However, Bill C-63’s proposed amendments to the Criminal Code don’t stop there. Perhaps the most significant—and problematic—amendment would allow individual Canadians (with the attorney general’s consent) to seek peace bonds against others whom they fear will commit a hate crime in the future. Under this provision, provincial court judges would be empowered to call these parties to appear before them to determine whether there are “reasonable grounds” to fear that the defendant will commit such an offence. 

When a judge ultimately decides that an individual is reasonably likely to commit a hate crime, their powers are far-reaching. Specifically, Bill C-63 allows judges to issue peace bonds against individuals in such cases for up to 12 months that may: require them to abstain from communicating with certain individuals or from consuming drugs and alcohol; place them under house arrest; or (on the application of the attorney general) order that they wear an electronic monitoring device such as an ankle bracelet. 

The inclusion of peace bonds (known more formally as “recognizances”) against future hate crimes is arguably Bill C-63’s most draconian provision—which says something in and of itself, considering the other provisions of the bill vying for that title. And yet, at the same time, Canadian lawyers and law students (even constitutionalist ones) may be at a loss to articulate precisely how this provision offends some of the most basic tenets of our legal and constitutional order. To this end, a refresher on the rarely cited but crucially applicable legal doctrine of prior restraints is long overdue.

In short, a prior restraint is a limitation on expression that doesn’t just target the ostensibly harmful effects of that expression but seeks to prevent such expression from taking place at all. This is a departure from the other numerous ways in which our law frequently limits expression: libel, defamation, sedition, and even the current prohibitions on willfully promoting or publicly inciting hatred are all intended to punish expression after it has occurred.

By necessity, prior restraints censor expressive content by turning agents of the state into the licensors of permissible expression. To wit, the evidence that judges will consider when deciding whether to issue the peace bonds envisioned by Bill C-63 will, invariably, include the allegedly hateful content that the individual in question is expected to express. It is by no means unreasonable to fear that certain expressive content will be presumed to cause harm even where such harm has not taken place, much less been proven on a balance of probabilities—the requisite mens rea or “guilty act” that our law requires to establish that a criminal offence has been committed. 

A person holds a copy of the Canadian Charter of Rights and Freedoms during a rally on Parliament Hill in Ottawa, on Saturday, Jan. 29, 2022. Justin Tang/The Canadian Press.

The doctrine of prior restraints has seldom been cited by the Supreme Court of Canada. Though the term is largely derived from American legal scholarship and case law, the doctrine itself is rooted in the British law on which Canada’s constitutional order is modelled. Justice Iacobucci recognized as much in his partial dissent in the Supreme Court’s 2000 ruling in Little Sisters Book and Art Emporium v. Canada, citing the 18th-century English jurist William Blackstone’s warning that “Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.”

Although Justice Iacobucci did not go so far as Blackstone to conclude that prior restraints are “necessarily destructive” of freedom of the press or freedom of expression, his reasons ought to serve as an admonishment against the “inherent dangers” of prior restraints as “particularly severe restrictions on speech.” 

Should Bill C-63 become law, the legislation will inevitably be challenged under the Canadian Charter of Rights and Freedoms. The doctrine of prior restraints ought to drive the assessment of any peace bond provisions under Section 1 of the Charter, which only allows for limitations on Charter rights and freedoms if they can be “demonstrably justified in a free and democratic society.” It is doubtful that such a profound limitation on a guarantee as important as freedom of expression can survive constitutional scrutiny under this standard.