Sunday, June 19, 2011

When Crime Isn't Crime (Or It Is)

The comments on this Calgary Sun article about activists who wish to not receive a criminal record for their act of activism (namely draping a protest banner off the Calgary Tower, which is private property) are fairly predictable, because it's the Sun and the Sun commentership is predictably black-and-white about all crime being terrible and meriting punishment. But after you get past the comments, the question remains: should protesters receive criminal records for acts of civil disobedience?

This writer has little sympathy for the black-and-white "all crime is crime" argument favoured by Sun commenters; a criminal record is, in this day and age, a stiff burden. It greatly impedes a person's ability to travel, keeps them from finding certain types of employment altogether - and where it does not prevent it can certainly make things more difficult - and can be used to justify harsher criminal sentences for future offences. (Although one would hope that judges would take a record of trespass for posting a political banner lightly, we certainly can't guarantee it.)

However, I am conflicted on the issue. Dr. Martin Luther King, for example, died with a criminal record for his attempts to desegregate government buildings in Georgia (he was convicted and sentenced to forty-five days in jail). Civil disobedience is a powerful tool because it can be used to show that laws are unjust, but it only works if those laws are allowed to operate; the price of social change in this context is bearing the brunt of those laws.

But the problem with that argument is that Dr. King's argument was against the law itself. The protesters in Calgary aren't protesting private property regimes; they're environmental protesters. Is the "price" of civil disobedience necessary in this context? Is it appropriate?

And the counterargument comes back: that these protesters aren't breaking the laws to demonstrate their unjust nature doesn't make their act more valid. If anything, it makes it less valid: they have avenues to protest which are perfectly legal, so why trespass onto a private structure to make their message known? Is that proper? Would it be proper to trespass for other reasons? Isn't this act a challenge against the private property system on which our entire economic system is based?

But then maybe we should consider that we're not talking about somebody's house: we're talking about the Calgary Tower, a significant and important part of the Calgary skyline. Is there an avenue for protest more visible than the Tower in Calgary? Maybe if they draped the entire Saddledome in a giant bedsheet, but other than that, there doesn't appear to be a viable alternative for demonstration that can possibly match the visual impact of using the Tower. Isn't there an argument that edifices like the Tower have a quasi-public nature to them by virtue of being landmarks? Should our standards for criminal punishment be relaxed in these circumstances?

In the end, as in so many other things, there's no definitive answer as to whether a criminal record is suitable or not: there is viable argument on both sides of the equation beyond "a crime is a crime" and "they don't deserve to be punished." I personally agree with defense counsel: conditional discharges, with punishment being part of the condition, is appropriate in this regard. Increasingly our public square is being narrowed down by private interests, and free speech that is so regulated as to become meaningless isn't really free; I think of similarities to the infamous "free speech zones" that have arisen over the last decade which used newspeak to gloss over the fact that their intent was to marginalize free speech rather than celebrate it. Criminal records are overkill and overreach in this scenario when the defendants were only seeking to maximize their free speech, and in a way that caused minimal fuss. But that doesn't make trespassing not happen, and some punishment is warranted; it's not Dr. King in a Birmingham jail cell, perhaps, but it's proper.

- Christopher Bird, Toronto
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