We like to think of our laws as a logical system, and at their best, they are.
On the other hand, some are like strange old houses that have been added to, tinkered with, repainted and adjusted over the years, according to the theories of past decades. In the house there are musty, long-closed rooms. We’re pretty sure you’d fall through the floor if you went in there, so nobody does. Over the years, it gets bigger and bigger. And if you stand back and look at it, the overall effect is pretty strange.
Here is a tour of nine of the oddest Canadian laws.
You can make your own beer, drink the beer you made, or give it to other people. You can’t sell it though, not legally.
But what happens if you do? On this point, the federal Excise Act takes a hard right turn into the 19th century. For the first offence, the unlucky culprit can be sentenced to three months with hard labour and for a second offence (after the offender gets out with a tan and an upper-body workout courtesy of Her Majesty) six months of hard labour.
Hard labour referred not to any work that could be done by inmates, but punitive, high-intensity work designed to be a punishment in itself. Sometimes it was useful work, like building roads, and sometimes it was meaningless, like filling and emptying wells, walking on a treadmill, or turning a heavy crank thousands of times a day.
“I question whether that form of punishment is ever going to be imposed,” says Ottawa lawyer Michael Spratt. “There are obviously Charter implications that come into play. I think if anyone was sentenced to that, or if the Crown was seeking that, we would quickly see a challenge to those sections.”
It’s not clear when hard labour died out in Canada’s jails and prisons (convicts laboured in quarries in Kingston, Ont. until 1963.)
And it certainly isn’t clear what a modern provincial jail would do with a prisoner who arrived to serve a sentence with hard labour.
“Practically speaking, I don’t know how you would possibly do that,” says Toronto criminal lawyer Sean Robichaud. “I’m sure that anyone who was sentenced to anything like that, their lawyer would be obligated to challenge that on constitutional grounds. It wouldn’t pass, but that puts an unnecessary strain, and ridicule, on the justice system.”
(The Foreign Enlistment Act, passed hastily in the 1930s to discourage Canadians from fighting in the Spanish Civil War, still provides for sentences of up to two years with hard labour.)
Thou shalt not market Viagra
Before sidenafil was discovered in the 1990s, there was no effective drug for male erectile dysfunction.
For centuries, an endless line of frauds and quacks claimed otherwise, and made money selling men an astonishing variety of cures, from snakes to strychnine. (One 19th-century doctor recommended cannabis.)
In that context, Parliament seemed to be protecting the gullible or desperate when it banned “advertis(ing) or publish(ing) an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility” in a section of the Criminal Code titled “Offences Tending to Corrupt Morals“.
Real erectile dysfunction drugs, prescribed by real doctors and sold by real pharmacies, are here — but so, to this day, is the provision banning advertising them.
It’s a defence to argue that “the public good was served” by advertising an erectile dysfunction drug but, oddly, not a defence to argue that it actually works.
We are not alarmed
Queen Victoria endured a number of assassination attempts.
All were more or less ineffectual (ineffective, but also inept), but she must have found them alarming. Her subjects, loyally, created a new offence of “alarming Her Majesty,” which made its way into Canadian law, where it has remained ever since. It has never, ever been used.
The law resulted from an 1840 incident in which someone fired pistols loaded only with gunpowder at Queen Victoria.
But if something similar were to happen during a royal visit in modern Canada, mainstream criminal charges would easily cover the situation, Robichaud says.
“In being convicted of those regular types of charges — assault, threats, attempted murder, even — the penalties themselves are not going to be any less.”
Don’t pretend to practice witchcraft. (Practicing real witchcraft is fine.)
Who commits this offence? Anyone who fraudulently (our emphasis) “pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,” or “pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found.”
Looking closely at the problem, pretending to practice witchcraft is really just a form of fraud that targets superstitious people. Also, fraud carries more serious penalties, so it’s not clear why a Crown would ever proceed with a witchcraft charge.
The Criminal Code is cluttered with variations on offences that have been added over the years, when one simple, clear provision would do, Spratt argues.
“We have theft of cattle, theft from clam beds and a general theft. Why do we need to have those other provisions, and not just rely on the general provision?”
What is blasphemous libel? No one seems to know
We should all be sure not to commit blasphemous libel, since it’s against the law. But what is blasphemous libel? The Criminal Code doesn’t say.
Is it libel, with characteristics of blasphemy? Is it blasphemy, with characteristics of libel?
“I can’t tell you what it is,” Spratt says. “No lawyer alive today has had to deal with it.”
Nobody has been convicted of blasphemous libel since the 1920s; a charge against a Sault Ste. Marie movie theatre in 1980 for showing Monty Python’s Life of Brian was quickly stayed.
“These obscure statutes can be abused,” Robichaud warns. “We look at these and laugh, and say ‘What is blasphemous libel?’ and say that nobody has been prosecuted for the last hundred years on it, and sort of chuckle at it. But with something like that you may have a particular political movement get into power, and then they start prosecuting on these sorts of things. Then it’s no longer a joke, because that otherwise unused law can be used.”
Conscription if necessary
Outside big cities, Canadians in the 19th century didn’t have much in the way of municipal governments.
They did have some civic problems to solve, though. One was organizing schools, and another was figuring out how to maintain roads.
One common way of keeping roads in order, in Ontario and the Maritimes, was a form of conscription called statute labour. Property owners were expected to work on the roads for a number of days that related to the value of their farms (the idea seems to have been that more successful farmers could afford to show up with a hired man or two.)
For nearly 50 years in Prince Edward Island, from 1853 to 1901, the right to vote was based on performing statute labour. It was widely accepted as a fair system. When a provincial government tried to abolish it in 1877, furious voters immediately threw them out.
Statute labour fell into disuse in the 20th century (apart from anything else, contractors were more efficient), and mostly laws changed to reflect that. PEI’s statute labour law was abolished in 1948, for example.
In Ontario, though the practice died out long ago, the law never went anywhere, and the Statute Labour Act is still on the books ready for use. On paper, property owners in rural townships are one council decision away from being sent out to fix the roads, shovels in hand.
Ontario’s Statute Labour Act is an interesting case study of what a really neglected law looks like. Some effort has gone into it in our lifetimes — measures are all in the metric system, for example.
On the other hand, dollar values haven’t been updated in many, many decades:
- Owners of property worth less than $300 are liable to work for one day
- $3-500: Two days
- $5-700: Three days
- $7-900: Four days
- For every $300 over $900, one additional day
We’ve calculated this for you: owners of property worth anything over $108,900 are liable to work for free for the township for 365 days a year.
(On the other hand, you could pay the township a fee instead of working. That amount hasn’t been adjusted for inflation either — $3 a day.)
Jingle all the way
In Ontario, if you operate a sleigh “drawn by a horse or other animal” you need to attach at least two bells. Failing that, you can be fined, but not more than $5.
But who would ever have a sleigh without sleigh bells?
The Senate, bulwark of the propertied classes, sort of
When the Senate was conceived in 1867, its creators saw it as more or less a Canadian equivalent of the House of Lords. The upper house was supposed to stand for the interests of property and balance the “will of the mob” in the House of Commons.
The Constitution still requires senators to have at least $4,000 in real property, over and above debts, to be appointed. At the time it was a substantial amount of money, but it’s never been adjusted for inflation. Nobody who is likely to be appointed to the Senate today would have trouble showing that they owned at least $4,000 of property, since a tiny down payment on a tiny condo would qualify.
You would think.
In 1997, Peggy Butts, a nun who had taken a lifetime vow of poverty, was named to the Senate. (She gave her whole salary to charity.) To satisfy the property requirement, her religious order transferred a small piece of land to her name.
And last year, Nunavut senator Dennis Patterson pointed out that the property requirement excludes 83 per cent of people in that territory from being named to the Senate.
(A senator whose real property falls under the $4,000 mark — for example, a senator who decided to sell his house and rent an apartment instead — is automatically expelled. It’s not clear, however, whether a senator can be expelled for actual misconduct, or who has the authority to do it. Don Meredith resigned before the question could be settled.)
This has nothing to do with oil and gas, and everything to do with 19th-century authorities’ fear of rebellion. Section 70 of the Criminal Code gives Cabinet the power to prohibit groups of people from being “trained or drilled to the use of arms.” (Being trained or drilled to the use of arms is fine until Cabinet tells you to stop, interestingly.)
The provision, like many others, was copied straight from British law. It came out of the aftermath of the Napoleonic Wars, when depression and hunger plagued Britain. There were widespread calls for parliamentary reform, and thousands of people had marched for years in Wellington’s armies seemed to a nervous Parliament like they might be a basis for a British version of the French Revolution.
Canada has a modest history of armed revolt, of course. The rebels who drilled in 1837 with pikes and shotguns to follow William Lyon Mackenzie were breaking the Unlawful Drilling Act of 1819.
But might it be useful, maybe, to have a tool for dealing with groups who are preparing a violent rebellion?
“There’s no problem with having criminal prohibitions on situations that arise rarely,” Spratt says. “Many of these provisions are used rarely, and restraint should be used, but that doesn’t disqualify them from being in the Criminal Code.”