David Butt is a Toronto-based criminal lawyer
The International Day to End Impunity for Crimes Against Journalists came and went amid dark days for that profession. The death of Jamal Khashoggi and many others less well known; the U.S. President routinely abusing his bully-pulpit to pronounce journalists enemies of the state; and the homemade bomb sent to CNN, all speak to ominously heightened concerns about journalists' safety and preservation of their crucial work.
We need a bold statement about the value of independent journalism. And there are few more impactful ways to make such a statement than through criminal law, which in Canada applies nationwide.
Our Criminal Code is a complex amalgam of laws, old and new. At its core, this labyrinthine document expresses our deepest disapproval of those acts most fundamentally destructive of the ordered liberty we all need. Not every bad act finds expression in the Criminal Code. There has to be an elevated level of moral opprobrium to qualify for entry. For example, a little speeding earns a ticket, not a criminal charge. But when merely bad driving escalates to dangerous, it achieves the moral stigma that makes it criminal.
Deliberate acts of violence are obviously sufficiently morally opprobrious to be labelled criminal. So the Criminal Code defines various acts of personal violence (murder, assault, etc.), then calibrates our shared abhorrence of these crimes by setting out ranges of penalties for each. The definitions of violent crimes are necessarily general in nature. Because most crimes can be committed in so many ways, such generality ensures the net cast catches every conceivable manner of transgression.
But violent acts can be committed in particular circumstances that aggravate their moral depravity. For example, while murder is always terrible, a murder for racist motives is worse. So as an adjunct to the general definition of crimes, the Criminal Code also enumerates specific features that aggravate those crimes, increasing the penalty. Among those aggravating features are crimes motivated by hatred of identifiable groups; crimes against domestic partners or children; crimes against police officers; crimes that benefit criminal organizations; and crimes of terrorism.
By recognizing these specific aggravating features, the Criminal Code is defining important social values. All violent crimes are terrible for individual victims. But some violent crimes also have broader negative social meaning and consequences. For example, we punish racially-motivated assaults more heavily than nonracially motivated assaults because we value not only personal safety, but also racial diversity. And likewise with each of the other defined aggravating features, we see broader social values vindicated: child welfare, domestic safety, law-enforcement and first-responder safety, etc.
Crimes against journalists should be added to this list of aggravating features.
Even the healthiest democracies are often a barely functional cacophony of disparate viewpoints, and self-serving and altruistic agendas, competing fiercely for primacy. In this never-ending heated rhetorical cage-match, disrespecting truth is a common tactic deployed by combatants of all stripes. It is the essential journalistic function to call out that tactic, haul truth up from a neglected or hidden corner of the canvas, and give it the vibrancy it deserves.
Violence targeting working journalists therefore does violence to the pursuit of truth, and as such undermines a bedrock norm without which no enlightened governance or social interaction exists. The social value of preserving the independent pursuit of truth as a pre-condition of sound governance and social life can easily occupy the same exalted moral pedestals on which the Criminal Code already places protecting children, denouncing racism, and so on.
One of the many virtuous features of our world-class democratic stability is the relative safety that domestic journalists experience, even while exposing the most egregious wrongs of the most powerful. But with threatening clouds gathering elsewhere, it would be naive to assume any ensuing storm would respect our national borders. And given the incalculable personal and social impact of deliberate acts of violence, pro-active deterrence is incalculably superior to mere reactivity to a storm already in full fury.
The federal government should add as an aggravating feature in our Criminal Code the fact that a crime was committed against a working journalist. There is no more emphatic assertion of a moral imperative than a nationwide legal commitment to incarcerate those who violate it. In dark times for journalism, such a step is far more than the practical evolution of criminal law policy. It also teaches a moral lesson about the importance of truth and its pursuers, from which much of the world could learn.