Episode 57: Section 71 Duelling is Gone But Section 70 Unlawful Drilling Remains (text version - see Podcast page for audio)

Episode 57 of the Ideablawg Podcasts on the Criminal Codeof Canada recommences after a lengthy absence. Since the last podcast, the Criminal Codeworld has changed. Significant amendments to the Code have deleted many sections and added others. Some more changes are yet to come but this Podcast is not about the future but about the now. What we “now” have may be a different Codefrom the initial one in 1892 but the similarities remain. Although a primary objective of the Code amendments was to clean up our criminal law by discarding some long unused sections, such as dueling under s. 71, there are still sections, which are candidates for removal. 

For instance, in this Podcast, the next section to be dissected and discussed is section 70 entitled “Unlawful Drilling.” Before you assume this must reference oil and gas implements, I must ask you to not reference what is presently in the news but to focus on the actual wording of the Coderequirements. Drill, in section 70, is all about unnecessary, unwarranted and unasked for military preening, parading and practicing. This offence may sound unnecessary, unwarranted and unasked for in the modern Canadian context, but it is an issue in other countries. For instance, in China, the dancing or parading of retirees, mainly women, early in the morning and late at night is a significant social and legal issue. For these women, marching or dancing or exercising, depending on your perspective, down the streets to traditional music and in military regalia including imitation rifles is a pleasure they have earned through their commitment to their country. Nevertheless, the parading, for whatever reason, is deemed a public nuisance by those of the sleep-deprived younger generation. Law makers have stepped in to the fray by imposing stiff fines for infractions despite the health and reputational benefits. 

Section 70 is not an all-out ban of these activities. It permits the Governor General to proclaim such a ban as a form of crowd control akin to an unlawful assembly. An offence is an indictable one attracting a maximum of 5 years less a day, presumably to ensure such an offence is treated seriously but not so seriously that a jury trial is available. 

The section reads as follows:

70 (1) The Governor in Council may, by proclamation, make orders

(a) to prohibit assemblies, without lawful authority, of persons for the purpose

(i) of training or drilling themselves,

(ii) of being trained or drilled to the use of arms, or

(iii) of practising military exercises; or

(b) to prohibit persons when assembled for any purpose from training or drilling themselves or from being trained or drilled.

(2) An order that is made under subsection (1) may be general or may be made applicable to particular places, districts or assemblies to be specified in the order.

 (3) Every one who contravenes an order made under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

 I do recommend you review the previous Podcast, Episode 56, on unlawful assemblies to give this section context.

As mentioned, I do wonder why this section was not excised from the Code. Indeed, the section appears have been amended in 1992 albeit for the minimal purpose of ensuring the French version was consistent with the English one. There is no case law on the section. In terms of other legislative references, s. 14 (b) of the Federal Visiting Forces Act, exempts such visiting force from the possible ban under the section. The National Defence Act does not have a similar prohibition but does reference the Governor General’s authority to create regulations and orders relating to military drills and exercises. In terms of national security, such a prohibition is probably justified considering the potential danger of unsanctioned military exercises. 

In any event, this is definitely a section which could have been removed. As I pointed out in an earlier blog posting, You Missed A Spot! Amendments to the Reverse Onus Sections of the Code, the government in making changes to the Codecould have benefited from an extra pair of eyes to ensure nothing was left off the editing table. Perhaps this section will not go unnoticed in the next round of changes.

Next Podcast episode is on my favourite sections (now that duelling is gone), 72 and 73, on forcible entry and detainer!