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Originally Posted by photon
Emotionally I get why there's a double standard, but that's what I'm trying to understand, not the emotion, but the reasoning behind some things, because basing a response off emotion is ultimately a bad idea.
I had to google Millsian (though I now remember seeing the concept elsewhere), but that doesn't really tell me any more than you think a utilitarian view is too limited. Why is it too limited?
In the peeping tom case I could see how having lots of peeping toms out there is harmful to society, but how else can you police or enforce that in any other way THAN a utilitarian view? Unless they're caught, you can't (and shouldn't be able to) do anything about them anyway.
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Ok, let's use this hypothetical to avoid some of the practical issues here. Peeping Tom surreptitiously observes a nude Bathing Bill through Bathing Bill's bathroom window. Bathing Bill is not at any time aware that he is being observed and blissfully continues to bathe himself. Some time later, Bathing Bill dies. Some time after Bathing Bill's death, a neighbour finally summons the courage to report that she observed Peeping Tom in the window outside Bathing Bill's bathroom window that night some time ago. So Bathing Bill never ever becomes aware that he was watched that night. Should Peeping Tom be guilty of a criminal offence?
I say yes. I say so because I think it is harmful to society and to the lives of all Canadians if we cannot bathe and carry on with our most personal actions because we are afraid that someone out there might be observing us. That is a harm to society writ large.
I would also argue (and this is where the SCC and I agree) that the state has a valid interest in criminalizing conduct in order to avoid preemptively avoid harm. In this case, criminalizing the behaviour of Peeping Tom, whether Bathing Bill is aware his privacy is being infringed or not, seeks to avoid Bathing Bill ever having to become aware that his privacy was infringed.
Quote:
Originally Posted by photon
Ok, but that doesn't really mean anything to me. What standard do they use then?
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As alluded to above:
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131 In other words, avoidance of harm is a “state interest” within the rule against arbitrary or irrational state conduct mentioned in Rodriguez, supra, at p. 594, previously cited, that:
Where the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose. [Emphasis added.]
132 The conclusion that the state has a particular interest in acting to protect vulnerable groups is also consistent with Charter jurisprudence affirming the state’s power to intervene to protect children whose lives are in jeopardy and to promote their well-being: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 70; B. (R.), supra, at para. 88 (per La Forest J.).
133 We do not agree with Prowse J.A. that harm must be shown to the court’s satisfaction to be “serious” and “substantial” before Parliament can impose a prohibition. Once it is demonstrated, as it has been here, that the harm is not de minimis, or in the words of Braidwood J.A., the harm is “not [in]significant or trivial”, the precise weighing and calculation of the nature and extent of the harm is Parliament’s job. Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do. A “serious and substantial” standard of review would involve the courts in micromanagement of Parliament’s agenda. The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected, as will be discussed.
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SOURCE:
R. v. Malmo-Levine, 2003 SCC 74.
EDIT TO ADD: Interesting discussion btw. I love these sorts of issues.