Take the recent amendments to B.C’s Offence Act.
In October, 2011 Attorney General Shirley Bond proudly introduced Bill 4 - the Offence Amendment Act, 2011 - to the legislature. The government's press release stated that amendments would give the court options for imposing probation, with a wide range of conditions "that are better tailored to reflect offences and offenders circumstances". Key provisions will include giving the court the power to impose probation orders for up to two years and creating an offence for breach of an order.
Section 89.1 says that the justice must include, as conditions in a probation order, that the defendant do all of the following: (a) keep the peace and be of good behaviour; (b) appear before the court as and when required to do so by a justice; (c) notify the justice or a person designated by the justice (i) in advance of any change in the defendant's name or address, and (ii) promptly of any change in the defendant's employment or occupation.
The amended 89.6 says that "A defendant who is bound by a probation order commits an offence if the defendant, without reasonable excuse, fails to comply with a condition in the probation order."
But it is brand new section 89.7 which is most dangerous. It says "A police officer may arrest without warrant a person whom the police officer believes on reasonable and probable grounds is committing an offence under section 89.6." This gives police the ability to arrest a person without a warrant that they suspect is breaching their probation.
One of the differences between provincial offences and Criminal Code offences is the mind boggling breadth of the former. People can commit provincial offences in numerous different ways. Many offences are strict liability; it does not matter if you intended to commit the offence. Two year probation orders combined with a power to arrest without warrant gives the state - with the able assistance of the police - the power to target certain people.
In addition to the myriad of provincial offences municipal by-laws can also be prosecuted under the Offence Act. Municipal by-laws often proscribe undesired "lifestyles" - noise by-laws, unsightly premises, other "unsocial behavior". Do the s. 89 amendments apply to by-laws prosecuted under the Offence Act? Probably. If so, will two year probation orders become a standard part of by-law enforcement? Will municipal enforcement officers work hand-in-hand with the police to arrest and re-arrest people who are not in their favour.
Are the Offence Act amendments the first step towards a B.C. version of the UK’s infamous ASBOS. The Anti-Social Behaviour Orders (ASBOs) were introduced in the UK by the Crime and Disorder Act 1998. They were ‘reinforced
by the Anti-Social Behaviour Act 2003. The 1998 Act defines anti-social behaviour as behaviour that "caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household." They stopped people from doing stated things or going to stated places. They lasted for a minimum of two years, but could last longer. Those given ASBOs could be ‘named and shamed’ in local media, and sometimes were. Orders have been granted for abusive behaviour, vandalism, fly-posting, and harassment as well as more the more celebrated exotic problems such as elderly people incessantly playing gramophones. While ASBOs were civil orders, criminal penalties resulted from breaching them.
Although s. 89.1 has an ASBO like flavour there may be a few "links" that are still needed to introduce to B.C. a full blown equivalent. Can this be far behind? Theoretically B.C. does not have a criminal jurisdiction although its criminal-like remedies are ever expanding. Provincial offences can be punished by up to six months imprisonment and by seizure of hundreds of thousands dollars worth of assets. The essence of ASBOs in the UK was not so much the threat of long prison sentences but the exposure of certain individuals to constant police action, fines and short imprisonment. In the end it was youth who were the primary target of ASBOs. Basically the same "tools" will now be available to police as part of their youth targeting activities like the Bar Watch programs.
In face of widespread criticism ASBOs in the UK were rebranded and perhaps pulled back to a degree. B.C. again rediscovers and introduces something that has had lots of problems when tried somewhere else. Shirley Bond has a roundish, grandmotherly face. She has little understanding of the law. She is probably well intentioned but appears to have no critical appreciation of the potential harm to civil liberties that accompany legislative initiatives likes these changes to the Offence Act. Big Sister Shirley is possibly the most dangerous attorney general in B.C.’s history.
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