the daily snivel

Having now ranted a good deal about the shameful stupidity of the people who urinated on the Canadian War Memorial on this past Canada Day, I now have to rant a bit about how the very outrage itself has gone quite over the top. There has been so much public outcry and, accordingly, political pressure, that we now learn that the Ottawa Police Service has assigned a full-time investigator to the matter and vowed that charges shall be laid.

Ottawa police are looking for three Canada Day revellers photographed urinating on the National War Memorial.

Police have asked anyone with information about the three to come forward.

Det. Mike Walker said police have contacted the photographer, retired Canadian Armed Forces Maj. Michael Pilon, and will ensure charges are laid.
Pilon's picture, taken around 11 p.m. on July 1 after a fireworks display ended, has prompted outrage.

...

Police said they could lay charges of mischief, being drunk in a public place and performing an indecent act in a public place. [Emphasis Added]

Worse, an Ottawa MP (and the brother of the current Premier) is actually calling for an amendment to the Criminal Code of Canada specifically making "mischief, vandalism, or destruction" of Canada's war memorials a separate criminal offence with substantial fines and imprisonment as penalties, even though the intentional destruction of property is already a criminal offence.

We've moved from feeling rightfully shocked and angry to calling for punishments far worse than the situation merits. And the response of politicians like Mr. McGuinty seems more in line with pandering to the callers of AM talk radio shows than a measured response to an actual problem. If someone willfully destroys or damages property, it's already against the criminal law. While monuments and memorials are sacred spaces, so too are cemetaries and churchgrounds. We count on people to have the common decency and good sense and respect to not violate those spaces. If they do, they are subject to prosecution already. To call for amendments to the criminal law after an isolated incident, though shamefully and wearingly stupid that incident was, is not a judicious use of the law.

Here's one of my most fundamental beliefs: the criminal law should not be used to enforce morality. I am a strong believer that the criminal powers should be reserved for protecting the public from harm, whether that's the robber in the alley with the cudgel and the big bag with a dollar sign on it, or the corporate crook laying waste to the environment. In criminal law, this is referred to as "the harm principle." In other words: if there is no public harm in the activity, it might be just to have some law or regulation governing the activity, but it shouldn't be a criminal offence. To do otherwise, in my mind, simply enforces morality with the biggest hammer the state has, clogging courts and wasting the overtaxed resources of the police and the prosecutors in the meantime. And, of course, putting people in risk of a permanent criminal record, and possibly worse, for committing an offence whose main harm is that it upsets people.

While I cannot blame the police for responding to a public outcry, I am concerned by their change of stance in this case. The Ottawa Police Service have gone from saying "we can't be everywhere" in initial reports to "we're promising that we're going to catch these people and charge them."

While there is clear evidence for the police that some sort of offence has been committed (I won't go so far as to call it a crime), one gets the feeling that the decision has also been made for essentially political reasons. There is such a hue and cry raised about the issue that vowing that charges SHALL BE LAID seems the only way to satisfy the anger raised by this conduct -- and it doesn't hurt that people will then say to themselves "FINALLY, the police are doing something!"

I think charging people is overkill in the circumstances. It is certainly possible that the three young men now identified could get a criminal record over a drunken mistake on Canada Day, shamefully disrespectful and abhorrently moronic though that mistake was.

While I think it was unforgivably stupid to act as these people have done, I am not one to say "Oh, there outta be a law!" or "Lock 'em up and throw away the key!" I think there are a lot of regrettable things done by people that don't merit the full force of the legal system.

On Canada Day in particular, it seems that there is judicious use of discretion being exercised by the police in deciding not to charge everyone they see -- and for good reason. If you are a police officer on duty, there are literally thousands of people breaking the law come nightfall. You could empty a book writing tickets for open alcohol and public intoxication. Instead, it seems that it's better to simply take the beer bottles away from the merry drunks and understand that it's a holiday, people are celebrating, and boys will be boys and girls will go wild.

I can remember being out for a Canada Day just before I started law school, and the people I was with wanted to smoke some weed. I didn't partake. It makes me cough wretchedly and gives me heart palpiltations. Plus I think there's something pathetic about the whole practice, but that's a rant for another day. We were out in public on Wellington Street, not far from the Parliament buildings, and I remember being quite freaked out because I was terrified of being caught and charged on the eve of trying to start a career in law. But we were utterly ignored. In my opinion, the police were rightfully more worried about public safety (they asked us about some broken beer bottles at one point, but we hadn't thrown any so they moved along, whether or not they noticed that we were up-to-no-good with respect to narcotics laws) than enforcing every rule in the book. I doubt very much that, had police been on the scene this Canada Day, they would have done much more than tell the urine monkeys to move along, or keep them in the drunk tank overnight and set them free, likely without charges, once they'd sobered up some. I could be wrong, but it's the impression I have.

I abhor stupidity. I both lament and rue it. I think we all should. But to me, it's an issue of simply being profoundly disappointed in people, and wishing we could do better.

I am angry. I know why other people are angry. Both of my grandfathers were veterans. In fact, my paternal grandfather served in World War II and the Korean war. If Canada were threatened by war today, I would join the Armed Forces without hestitation to protect it. But I disagree that the full force of the justice system should be used in this situation, and it doesn't honour the freedoms and civil liberties our veterans fought for to have the state vowing to track down and prosecute a bunch of stupid young men with criminal charges for peeing.

We need to look at the context. There were drunk people everywhere. There were people taking a leak in public everywhere. There are tens of thousands of people downtown on Canada Day, and when you mix booze and crowds and scant public restrooms, you get a very predictable result. But what does punishment get us? I think it's enough that the idiots' pictures were on the front page of the Ottawa Citizen. Shunning and scorn are appropriate punishments in a situation like this. They must feel so tremendously humiliated now, praying that they can lie low and out of sight until the public gets caught up in the next outrage of a slow news month.

My friend Chris pointed out in the comments that it would likely be my fate to represent these people, given my anger at their idiotic behaviour. And, you know, I actually hope they come here, though I daresay any criminal lawyer in Ottawa would be happy to take this case on pro bono, given the publicity it would merit. I don't believe criminal charges are founded, and I doubt they would withstand a trial, and I frankly think the state would be wasting a lot of valuable time and resources with even a by-law or provincial offence prosecution.

If anything, the case ought to be resolved with pre-charge diversion. Given that two of the "suspects" are young persons (under 18), this seems likely. In other words, I think it would be appropriate to have them perform some community service, preferably aiding veterans in some way, in exchange for which no charges would be laid. It's a faily common and commonsensical approach in such cases, and would serve legitimate public ends without overly pandering to the hue and cry.