Or, rather, the "designated crime" of "Being Christy Clark", unlike, say, the state of "Being John Malkovich" which was a very good movie. On the other hand, the "crime" of "Being Christy Clark" should, at best, be an issue of morals, manners, and, dare we say, good breeding, at least in the better parts of British Columbia. However, it may be more than that. It seems to be a state which has the capacity? potential? to be defined as a crime to which the British Columbia Profits of Criminal Notoriety Act, SBC 2016, c 24, in force 19 May 2016 applies. (BC Dippers, somewhere, who get a note of this might be saying to themselves, if not based on this legislation, yet: so? this is new? we told you so!)
With that in mind, I offer what starts after the break for the holiday season. (No, I haven't yet started celebrating.) It's somewhat longish (about 7000 words) and filled with my seeming asides and tangents but I think it'll light up some spirits. There's even poetry (loosely).
Being Christy Clark
In the Province of British Columbia
Out by the western sea,
The voting public must, it seems to me,
Be thought to be more concerned with
The problem of notorious criminal profitability
Than the damming at Site C.
So the government of the day,
With the aid of the wise MLAs
Who remembered past sleazier days,
Recalled the wisdom of eastern MPPs,
Diligently considered, decided to enact
Legislation now known as
The Profits of Criminal Notoriety Act.
They did this, no doubt, before checking out
For the summer's dark
Ale, 'though not to help with
Rocky's revival (which Sir Paul has well in hand).
But if the need should arise,
At the call of a different band
Of MPPs to declare
The state of "being Christy Clark"
A crime in British Columbia, out by the western sea.
If not already that in the other lands
West of the eastern sea.
So, if need be, those of you
Who are are entitled to vote in BC
Provincial elections should do
What's needed to elect a gov't willing to do
What the current legislature has so presciently enabled
A next legislature to do.
Make "being Christy Clark" a crime
In British Columbia out by the western sea.
At least until the legislation is declared overbroad by the BCSC.
Yeah, I know much of this doesn't adequately rhyme or scan. Sue me. If you can find me and get a qualified barrister or solicitor, here, or in Canada, after ze stops giggling.
On the other hand, take a look at the reasons for judgment in Ontario's very recent Platnick v Bent, 2016 ONSC 7340 (CanLII), <http://canlii.ca/t/gvx6g> One has to have some sympathy for Mr. Platnick who, as he grew up, may well have been consistently badgered by people who though he was related to the "Plotnick" of the "Plotnick or Klopman Diamond Curse" joke. All I had to worry about, in that vein, as I grew up, apart from people mispronouncing my surname, was knowledgeable types comparing my lack of stringed instrument playing music talent to somebody who didn't share that lack. And Jascha Heifetz, too. (Sigh)
No. I haven't (recently) been doing what BC's Olympian RR denied he'd done in the relevant time leading up to a drug test. Nor have I been imbibing too much liquid peat bog squeezings. I've just been reading and so learned about this statute. I won't mention how. Innocent people are entitled to plausible deniability.
There really is, now in British Columbia, well-meant legislation titled the Profits of Criminal Notoriety Act. However, the drafting of certain portions leaves much to desired, starting at the constitutional level and going down into the nether regions. It's problematic enough to make me wonder if Ms. Clark's gov't chose to obtain legal advice from the same people who, we have to assume, provided constitutional legal advice to former Prime Minister Harper and his colleagues about so much of the Conservatives "tough on crime" legislative agenda. Or bothered to obtain advice at all, playing the "realpolitik" game that the public won't object to legislation that prevents "notorious criminals" from profiting from their notoriety. However, as many people with only pot busts on their resumes, let alone convictions for other activities once illegal because "socially deviant", the meaning of "criminal" actions changes over time.
Remember Alan Turing? If you don't, watch the recent movie about him: "The Imitation Game". it's not entirely historically accurate, but that's not the point. It's well worth watching at any time.
So, with the prologue out of the way, I can now get to substance: the text of the legislation.
You can find the Profits of Criminal Notoriety Act on the BC Laws site < http://www.bclaws.ca/>or on the CanLII site.
The full citation for the legislation is: the Profits of Criminal Notoriety Act, SBC 2016, c 24. It has been in force in BC since 19 May 2016 (the day on which it received Royal Assent). In another reality, Her Majesty's proxy would have been paying better attention and might have thought at least thrice before applying the metaphorical rubber stamp.
The BC Laws URL for the enacted statute is: http://www.bclaws.ca/civix/document/id/bills/billscurrent/5th40th:gov24-3
The CanLII URL is http://www.canlii.org/en/bc/laws/stat/sbc-2016-c-24/latest/sbc-2016-c-24.html?resultIndex=1
Those of us who know these things know there are often explanatory notes for legislation in earlier readings. Sometimes, too, some Honorable Members of the legislature are moved to declaim on the significance of the legislation during a House sitting. Or pass gas. One is never sure until one reads what Hansard asserts the Honorable Member supposedly expounded (on).
In this case, I didn't have the inclination to (electronically) dig up the relevant portions of the BC legislature's Hansard, so went to and stopped at the first reading of the statute. The 1st, 2nd and 3rd readings are on the BC Laws site. The first reading URL for the legislation is: <http://www.bclaws.ca/civix/document/id/bills/billscurrent/5th40th:gov24-1>. That reading has an explanatory note. The highlighting and all the words in brackets are mine. First I'll give you the clean text. Then I'll expand it to show you what the note means.
Explanatory Note
This Bill prevents a person who is charged with or convicted of a designated crime from profiting from the notoriety of the designated crime.
This Bill prevents a person who is charged with or convicted of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] from profiting from the notoriety of the designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs].
The Bill authorizes the government to
(a) recover consideration due under a contract for the recounting of a designated crime, and
(a) recover consideration due under a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], and
(b) recover excess consideration provided for crime memorabilia disposed of by a person who is charged with or convicted of a designated crime, or by the person's agent, for consideration that is greater in value than the consideration that would have been provided if the person had not been charged with or convicted of the designated crime.
(b) recover excess consideration provided for crime memorabilia disposed of by a person who is charged with or convicted of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], or by the person's agent, for consideration that is greater in value than the consideration that would have been provided if the person had not been charged with or convicted of the designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs]
If the government recovers consideration associated with a person who is charged with a designated crime and the person is convicted of the designated crime, the Bill authorizes the government to distribute the recovered proceeds to victims of that designated crime.
If the government recovers consideration associated with a person who is charged with a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] and the person is convicted of the designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], the Bill authorizes the government to distribute the recovered proceeds to victims of that designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs].
As I mentioned, the text of the 3rd reading / current version of the Profits of Criminal Notoriety Act can be found on at least the BC Laws site which, as it now happens, just happens to be the current official site for electronic versions of of BC legislation. Funny that, no?
Again: the URL is: http://www.bclaws.ca/civix/document/id/bills/billscurrent/5th40th:gov24-3
There is no explanatory note, this time.
What you'll soon get to, below, is the current text of the relevant sections of the The Profits of Criminal Notoriety Act . Again, what I've done is highlight and insert the definitions.
All you need to understand, to understand - the repetition isn't a typo, it's intended: the phrasing makes sense in English - is that the legislation, on its face, allows the government of the day to declare, by regulation, anything it wants to be a crime to which the Profits of Criminal Notoriety Act to be such a crime, because of the definition, in the legislation, of "designated crime" which "includes" a "a prescribed offence". After that? Essentially, a "prescribed offence" is anything the Powers that Be in the gov't of the day want it to be at that moment in time. (As H. Dumpty J said, and other legal and political philosophers, too, it's all about power - who "is to be master, that's all": words mean what ze who holds the stick wants the words to mean. That's easy to write when one sits not far from where Dodgson told Liddell the stories that became the Alice books.
You're about to ask: what's the definition of "offence". There isn't one, as such, yet, specifically; but, there is in general which, as it happens, is good enough for (technical) drafting purposes. Those of us who know these things, because we know where to look in the statute and had to know such things once, and still do, know that "offence" means an offence as defined in the regulations validly enacted under the statute.
Oh yes, those regs? Guess what. They don't yet exist. And, because of the manner in which regulations are validly enacted in our legal system - under the statutory grant of power to the Executive (the Lieutentant-Governor in Council): in general, it's the only way gov'ts could function effectively - the regulations don't have to be approved by the legislature. The legislature has given its approval in advance.
Imagine what somebody with the "right" motive and access to the right people could do. Or, instead, don't.
Indeed, imagine that if, say, Ontario, in its wisdom should make "being physically present in Ontario" a crime if one is (a) wearing a tat of Nickleback on any visible part of one's body that is not required to be covered up under the provisions of any section of the Criminal Code while (b) not smoking a spiff larger than 7.5 cm in length and 2.5 cm in circumference composed of at least 90% Ontario or BC grown weed (or any combination thereof) that (c) could be a designated crime under the Profits of Criminal Notoriety Act so that, (d) if one then, for example, appears on Vancouver's Cable 10 (or whatever) in return for appropriate payment to talk about one's experiences in Ontario jails (next to Ontario's better people, as GBS might have pointed out), the payment could be confiscated under the legislation.
And used to repair Site C damage to come.
If you want to confirm for yourself that there are, as yet, no enacted regulations, you can check this for yourself on either the CanLII or the BC Law site. In fact, don't trust me. Those of you who want to be lawyers should realize that there are some things you have to check for yourself. Even if, eventually, you trust the "junior associate" you have doing the research so that you can get to your golf game, and that so you can also double-bill the client for reviewing that work. Even though, as it happens, you know even less than your "junior associate".
Anyway, on to the text of the statute.
the Profits of Criminal Notoriety Act
1 (1) In this Act:
"conviction", in relation to a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], includes the following:
(a) the granting of an absolute or conditional discharge to a person who pleads guilty to the designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] or is found guilty of the designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs];
"recounting" includes the following:
(a) the recalling and retelling of the circumstances related to a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs];
(b) an expression of thoughts or feelings about a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs];
(c) a re-enactment of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs];
"designated crime " means an act or omission that is one of the following:
(a) an indictable offence under the Criminal Code that involves
(i) the use of violence against another person, or
(ii) conduct that endangers the life or safety of another person;
(b) an indictable offence under the Controlled Drugs and Substances Act (Canada) for which the maximum penalty is imprisonment for 7 years or more;
(c) an offence under the law of a jurisdiction outside Canada, if the act or omission would, had the act or omission occurred in Canada, be an offence referred to in paragraph (a) or (b);
(d) a prescribed offence; [DC: FULL STOP NOTHING MORE IN (d) - and much like the Rules in the Bruces Philosopher sketch there is no (e)]
Application of Act
2 (1) This Act applies to a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], whether the contract is entered into before or after this Act comes into force, if
(a) the designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] occurred in British Columbia, or
(b) consideration under the contract has been provided, or is to be provided, in whole or in part,
(i) to or by an individual who is a resident of British Columbia,
(ii) to or by a corporation that carries on business or activities in British Columbia, or
(iii) to an individual serving a sentence of imprisonment in a penitentiary, correctional facility or other custodial facility located in British Columbia.
(2) This Act applies to a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] that occurred or is alleged to have occurred before or after this Act comes into force.
Notice to minister
4 (1) If a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] is entered into on or after the date this Act comes into force, each party to the contract must, within 7 days after entering into that contract, give the following information to the minister:
(a) a written notice setting out the name and address of each party to the contract;
(b) a copy of the contract or, if the contract is not in writing, a written summary of the terms and conditions of the contract.
(2) If a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] was entered into
(a) on or after January 1, 2001, and
(b) before this Act comes into force,
each party to the contract must, within 60 days after this Act comes into force, give to the minister the information referred to in subsection (1).
(3) If a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] was entered into
(a) on or after a date prescribed by regulation, and
(b) before January 1, 2001,
each party to the contract must, within 60 days after the regulation comes into force, give to the minister the information referred to in subsection (1).
Prohibition against providing consideration
5 (1) A person must not provide consideration in accordance with a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], except as permitted under an order under section 9 (1) [court order to uphold recounting contract].
(2) When consideration becomes due under a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], a person who is prohibited under subsection (1) from providing the consideration in accordance with the contract must instead provide that consideration to the Minister of Finance.
Prohibition against accepting consideration
6 (1) A person must not accept consideration in accordance with a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], except as permitted under an order under section 9 (1) [court order to uphold recounting contract].
(2) When consideration becomes due under a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs], a person who is prohibited under subsection (1) from accepting the consideration in accordance with the contract must instead direct the payor to provide that consideration to the Minister of Finance.
(3) If, before this Act comes into force, a person accepted consideration in accordance with a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] to which section 4 (2) [notice to minister] applies, the person must, within 60 days after this Act comes into force, provide the consideration to the Minister of Finance.
(4) If, before this Act comes into force, a person accepted consideration in accordance with a contract for the recounting of a designated crime [remember: this includes “a prescribed offence” - where a prescribed offence is whatever the government in power declares as an offence under the regulations which, guess what, don’t go before the legislature because they are only regs] to which section 4 (3) applies, the person must, within 60 days after the regulation referred to in that section comes into force, provide the consideration to the Minister of Finance.
Offences
20 (1) A person who contravenes any of the following provisions commits an offence:
(a) section 4 (1), (2) or (3) [notice to minister];
(b) section 5 (1) or (2) [prohibition against providing consideration];
(c) section 6 (1), (2), (3) or (4) [prohibition against accepting consideration].
(2) A person who commits an offence under subsection (1) (a) is liable to a fine of not more than $50 000.
(3) A person who commits an offence under subsection (1) (b) or (c) is liable to a fine of not more than the greater of $50 000 and, as applicable,
(a) the amount or value of consideration that the person provided in contravention of section 5 (1),
(b) the amount or value of consideration that the person accepted in contravention of section 6 (1),
(c) the amount or value of consideration that the person, in contravention of section 5 (2) or 6 (3) or (4), did not provide to the Minister of Finance, or
(d) the amount or value of consideration in respect of which the person, in contravention of section 6 (2), did not direct the payor to provide to the Minister of Finance.
(4) Each occasion on which a person contravenes a provision referred to in subsection (1) is a separate offence.
(5) The payment of a fine under this section does not relieve a person of a duty under this Act to provide consideration to the Minister of Finance.
Liability of directors and officers
21 If a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence also commits the offence, whether or not the corporation is convicted of the offence.
Limitation period
22 (1) The time limit for laying an information to commence a prosecution for an offence under section 20 [offences] is 2 years after the date on which the minister learned of the facts on which the information is based.
(2) A certificate purporting to have been issued by the minister certifying the date referred to in subsection (1) is proof of that date.
Other regulations
General regulation-making authority
28 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 [powers to make regulations] of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations respecting any matter for which regulations are contemplated by this Act.
(3) The authority to make regulations under another provision of this Act does not limit subsection (1) or (2).
(4) In making a regulation under this Act, the Lieutenant Governor in Council may do one or more of the following:
(a) delegate a matter to a person;
(b) confer a discretion on a person;
(c) make different regulations for different persons, places, things, circumstances or transactions, or for different classes of persons, places, things, circumstances or transactions;
(d) establish or define classes of persons, places, things, circumstances or transactions.
29 The Lieutenant Governor in Council [that is, the gov’t in power at any particular time] may make regulations as follows:
(a) for the purpose of paragraph (d) of the definition of "designated crime" in section 1 (1) [definitions and interpretation], prescribing as an offence an act or omission that is any of the following:
(i) an offence under the Criminal Code or any other enactment of Canada;
(ii) an offence under an enactment of British Columbia or any other province;
(iii) an offence under the law of a jurisdiction outside Canada, if the act or omission would, had the act or omission occurred in Canada, be an offence prescribed under subparagraph (i) or (ii) of this paragraph;
...
As I said, welcome to British Columbia where, some day, the state of “Being Christy Clark” may be a designated crime because that state of affairs is an offence under any enactment of Canada or any province of Canada. Or even "worse" states. See the "Other Comments ... " section below.
I think.
Great stunt on April 1, no? You think Newfoundland would have any qualms about doing this? Do you know somebody to ask?
I wonder if any of Ms. Clark's minions - I mean cabinet ministers, sorry - have been bringing back, to BC, alcohol purchased (with their own funds of course) in other provinces and using this as, say, an inducement to attract people to fund raisers.
If you read the legislation otherwise - not just believe it couldn't have been intended to mean what it literally says, because everybody knows that "being Christy Clark" can't be a crime. It's a good thing. Just ask Deadpool - the floor is yours. Even if you are wearing spandex with a rip in the arse. (In passing, isn't Deadpool a "notorious" criminal? So how come ...? Oh? Right, of course. Fantasy. Not merely legal fiction.)
Other comments and questions, most of which probably matter; none of which will I answer.
1. "Notoriety" isn't defined; nor for that matter is any version of that word; such as "notorious". However, neither word is used in the text of the statute, itself. Only "notoriety" appears in the title: Profits of Criminal Notoriety Act. However, in British Columbia, the title of a statute is relevant to its meaning. The Interpretation Act, RSBC 1996, c 238, s. 9, provides: The title and preamble of an enactment are part of it and are intended to assist in explaining its meaning and object. There is no preamble (or post amble, or any kind of amble) in the enacted statute. Where are we to look for the meaning of "notoriety"? A dictionary? Something said by "Some Honorable Member" of the legislature and reported in Hansard, even if the member isn't notorious for anything? The explanatory note in the first reading? Any other material relevant to the interpretation of BC states.
2. The explanatory note, you'll recall, states: "This Bill prevents a person who is charged with or convicted of a designated crime from profiting from the notoriety of the designated crime." Based on this, it's the nature of the crime which defines whether there's notoriety. I suppose that makes sense. After all, milquetoasts can become notorious by acts with give them 5 minutes of fame. The act is remembered long after the actor. But, let's go back to a dictionary definition, using the Oxford online dictionary which is at <https://en.oxforddictionaries.com/definition/notoriety>: "The state of being famous or well known for some bad quality or deed". Let's take Mike Duffy, again for example. Can we agree that he is famous or well known for some bad quality or deed"? What about Conrad Black. Indeed, we don't have to go that far, or even as far as Ms Clark (for now). We could go, for example, to a CBC hockey broadcasting icon who is notorious for his belief that certain aspects of "old-time" hockey should be retained; or worse, for his execrable taste in clothing. Why does that not qualify as relevant notoriety? It certainly is a "bad quality".
3. May we suppose, then, that the intent of the legislation is that its compass be limited to "actual" criminals - whatever "actual" means in this contenxt - with notoriety? Whatever "criminal" means in this context. Does "criminal with notoriety" have the same meaning as "notorious" criminal. Readers of ths blog will probably agree that a person who commits multiple murders is a "notorious" criminal. But what about a recidivist jaywalker? An underage drinker? A regular user of BC weed? People who supply BC weed to those in otherwise untreatable pain?
4. What about Mike Duffy, if he had been convicted? Would he be a "notorious" criminal or merely a "criminal with notoriety." Or hitting a bit farther from B.C.; let's go back to Conrad Black. He is certainly notorious. He has notoriety. He was convicted of offences in the United States which (let's assume for arguments sake) if committed in Canada could be offences in Canada under either the Criminal Code or any other Canadian legislation, federal or provincial. Any one of the provincial securities statutes seems like a good candidate
5. At this juncture, I suppose it's worth asking (just because I remembered the association) whether a "smooth criminal" is a "notorious" criminal? (I'm not, by this link, asserting anything about the artist at the end of the link. That's an issue I do not want to touch on, here.)
6. Let's go back to issues relating to BC's most popular cash crop. Say a person was to publish, on the web, and sell for $1, a how-to manual about how to do X with that crop and that manual went viral. Do we have "criminal notoriety"? (Note to all "Bruces": this one has a "6", because we're not dealing with Rules.)
7. Did anybody in British Columbia - in a position to matter and who was supposed to do such things: we'll get back to those person(s) - bother to consider whether any version of the legislation exists anywhere else in Canada. You know: the part of North America on the east side of the Rockies that prevents Lalaland from drifting off and sinking in the Marinas Trench. Or being swallowed by Mexico. Remarkably (or maybe not) - H/T to Moin Yahya for reminding me - Ontario, at least, has had similar legislation since (take a deep breath, but not if you're at a party like those RR didn't attend to inhale at before ... ) for more than a decade.
8. This is the text of Ontario's definition of "designated crime" with the related grant of regulation-making power to the LGiC. Notice what's "missing" from the Ontario defintions?
2. ...
“designated crime” means an act or omission that,
(a) is an indictable offence under the Criminal Code (Canada) for which the maximum punishment is imprisonment for five years or a more severe punishment and that involves,
(i) the use or attempted use of violence against another person, or
(ii) conduct that endangered or was likely to endanger the life or safety of another person or that inflicted or was likely to inflict severe psychological damage on another person,
(b) is an offence or attempt to commit an offence under section 271, 272 or 273 of the Criminal Code (Canada),
(c) is an offence under the Criminal Code (Canada) that is prescribed by the regulations as a serious property offence, or
(d) is an offence under the criminal law of a jurisdiction outside Canada, if a similar act or omission would be an offence referred to in clause (a), (b) or (c) if it were committed in Canada,
whether the act or omission occurred before or after this Act came into force;
Regulations
13. (1) The Lieutenant Governor in Council may make regulations,
(a) prescribing circumstances in which a person has a substantial connection to a corporation for the purpose of clause (c) of the definition of “agent” in section 2;
(b) prescribing offences under the Criminal Code (Canada) as serious property offences for the purpose of clause (c) of the definition of “designated crime” in section 2
9. Again, most readers of this blog will know (some better than others) that each of the federal, provincial, and territorial legislatures have people responsible for doing legislative drafting. That shouldn't come as a surprise to anyone. Many are civil servants, not employees of the government; although there's no doubt that at least some of the political sides of the ministries will have people capable of drafting very well: maybe too well, but that's different issue for another day.
10. The few civil-servant side legislative drafters that I have had the fortune to know personally were or are extremely competent at their jobs. (Were simply means they've retired or gone on: to other occupations.) Lawyers and relevant others working for the gov't of the day are supposed to know about the existence of such people. These lawyers and relevant others should know, but if they don't the legislatures' drafters will certainly know, about a Canadian institution - by institution I also mean a body that has existed since the last millennium, early in the past century - that drafts "uniform" versions of legislation for the legislatures and governments, and researchers, and ... to consider, even use, when creating new legislation. For example, Canada has long has something called, in English, the (not surprisingly) "Uniform Law Conference of Canada": no, it doesn't make uniforms, but if it did it would do a damn good job.
11. (Because it is now the case that all lists than get anywhere near 10 have to be capable of going at least to 11. And not just for "elevenses" should one be in the UK - or Victoria - though that, too.) As I mentioned, I happen to know people whose job is or included or was somehow related to legislative drafting. I don't, to my knowledge, know anybody in Victoria involved with the drafting of this legislation. I sent an email to one person I know asking for some information about legislation of this sort. The reply was quick and fulsome. It included the ULCC information above, and below, as well as the other links and other background information. I mention this because if I could get this, we have to assume that any reasonably competent person associated with the preparation of the BC legislation could, too. Maybe we have to assume ze did. What does that tell us? That question is rhetorical. Remember what H. Dumpty J said.
12. The URL for the English version the ULCC web site is: http://ulcc.ca/en/. If one hasn't asked somebody who already knows - as I did - one might have to spend a few moments searching through the site. That, however, should present no problems for the competent researcher. What ze will find is that "there was a uniform act on the topic developed between 1995 and 1997. This link will get you the background papers and the drafts, as well as the final uniform statute: http://ulcc.ca/en/uniform-
13. I was also given links to other material relating to legislation of designed to prevent some criminals from becoming wealthy telling their stories:
http://www.victimsofviolence.on.ca/research-library/profiting-from-crime-laws-against/
https://ualawccsprod.srv.
There is a good quantity of interesting history in the article at the last link.
14. I leave it to anybody who cares to follow the link to decide if there is anything there that explains the astonishing breadth of the BC legislation. I skimmed them but left it at that.
15. One word I think you'll notice throughout the material, either expressly or implied, is "violent".
16. Getting back to Mike Duffy, if only because he is such an easy target. One who is hard to miss, too. If the legislation means what it seems to mean, if Mike Duffy had been convicted, would the current gov't have chosen to attempt to collect from him? Assuming that he appeared on, say, a "left wing" talk show to explain why he still felt he was unjustly convicted and thrown to the wolves by those in gov't whose ascent to power he had so helpfully greased ... sorry, appropriately, ethically, honestly, forthrightly, out of the goodness of his heart (sometimes even his own pocket) legally assisted? And he had mentioned, say, that he planned to mention some BC locals whom he had so "assisted"?
17. Or better yet, let's assume that somebody unhappy with the BC gov'ts "co-operative" approach to the resolution of concerns surrounding the Site C damn decides to organize a revolving 24/7 "flash crowd" to sit in front of Ms. Clark's residence(s) singing, continuously, in at least 4-part harmony, in rounds where appropriate, songs that include: the complete Nickleback oeuvre; a few rousing choruses of "Kumbaya"; "Alice's Restaurant"; Don McLean's "American Pie", with our without accompanying skits from the other "American Pie" and the "sound effects" scene by a not-yet-famous Canadian actress in Porky's; the Archies and the Sex Pistols greatest hits: "Sugar Sugar" followed by "God Save the Queen" should just about do it, no?; Vanilla Ice's "Ice Ice Baby"; the "Thong Song" with a pan-sexual cast for after 9 p.m. performances; a few arias or duets from famous pieces: I'd opt for the "Pearl Fisher's duet but others might prefer pieces popularized by Bugs and Yosemite Sam; Pete Seeger's "Waste Deep in the Big Muddy"; suitable excerpts, in costume, of course, from the "Rocky Horror Picture Show" - no need to stop at "Time Warp"; and, of course, the ever-haunting "Puff the Magic Dragon" suitably accessorized with what it wasn't supposed to be about at all. That'll certainly go viral. The organiser(s) and some of the participants might become "notorious". They'll certainly have some notoriety. They might even trespass or, at least, disturb the peace. (See Nickleback: that should be enough buy There's certainly a question of bad taste in the One or more might be convicted of an "offence" and might even profit from ze's involvement.
18. And, now, the setup for my last question. Let's assume, for argument's sake, that (a) I am somewhat more knowledgeable, even possibly perhaps arguably maybe somewhat smarter, than the smartest person amongst all of the BC politicians, civil servants, lawyers, lobbyists, posse members and other hangers-on of various reputes who had anything to do with the content of the Proceeds of Criminal Notoriety Act and (b) that is why, on an individual basis, I was able to stumble across all these possible issues with the legislation. But, (c) does it make sense to assume that I am also sufficiently smarter than all of them working together? (d) If we assume that I am not, then we have to assume that somebody knew about at least some of these problems and, maybe, collectively, all were known and reported to the person at the top of the pyramid, whoever ze was.
19. Yet ze did nothing. What conclusion would you draw from that? That somebody in Ms Clark's gov't, with her permission of course - or, like ex-PM Harper and Mr. Wright, with the belief that, if asked, she'd have approved - decided to role the dice on the constitutionality of the legislation? That it would be read down rather than thrown out. Paraphrasing and reversing Dorothy Parker: that it is legislation that would be put treated lightly rather than thrown down violently? Or that "they", whoever "they" are didn't care because, of course, "they" could always blame the judges? Because so many of the voting the public are always happy to blame the judges? Unless, of course, by then one of the lawyer "theys" had taken a judicial appointment.
20. So, the choices we're left with, to explain the broad content of the BC Profits of Criminal Notoriety Act are either incompetence or intention; the last explained by Machiavellian realpolitik. Either way, that's stinking up the joint, not lighting it.
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* I gratefully acknowledge the reminder of Kápoios Όgdoo that members of the BC legislature are referred to as MLAs, not MPPs, and the advice of Gregorius Johannus who saved me from other embarrassing errors and omissions.
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