Quote:
Originally Posted by Doctorfever
There are a thousand reasons why a phone might be searched when an individual has done nothing wrong?
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Correct. Not even just by state actors like police, but there are a plenty of reasons a person's phone might be looked through and that picture might be found and reported to police without a separate offence having occurred.
Let's back up and maybe make this at least slightly educational for... I don't know who. The original hypothetical from the Supreme Court was an argument that in the plausible situation where an 18 year is caught a picture of a 17 year old on their phone, they should not be sentenced to a year in prison in that circumstance. In other words, this criminal provision could apply to cases that are broader than those where a year in prison is the proper sentence to be applied in the circumstances.
There are only three possible logical responses to that argument:
- The Supreme Court has misinterpreted the provision - as drafted, it would not apply to the hypothetical scenario they have posited.
- The Supreme Court is wrong in saying that, if that hypothetical situation were to occur, the crime would not warrant a one year sentence - the 18 year old should go to prison for a year in that situation.
- The Supreme Court is right that the provision could be applied that way and that the punishment would be too severe for the crime in that circumstance, but circumstances like this are rare enough that we have to "bite the bullet" and accept those instances of injustice as a tradeoff for the good that this one-year rule will ultimately do for Canada. Put another way, this law passes the Oakes test under s.1 of the Charter as a reasonable limit on the right to liberty and the right to not be subject to cruel and unusual (i.e. grossly disproportionate) punishment in a society like ours.
The last one is going to be pretty tough to convince a Court of given the standard set for section 7 and section 12 rights, in my view, but you could say that maybe we've got the whole thing wrong and that the standard set for infringing people's right not to be imprisoned in unjust circumstances is too high and that this shouldn't meet it.
Anyone with any critical thinking skills who looks at the argument the Supreme Court made should immediately and clearly see what the available avenues of rational response are. It should be looking at "4+5"; the number 9 should just pop into your head without effort if you are capable of basic arithmetic. What bothers me is there are so many people whose brains apparently cannot do this basic logical math, and what pops into their head is "pedophiles bad therefore anyone opposing this is pro pedophile", or "well he must have been doing something else bad to get caught so I'm fine with it", or "well in that circumstance I just don't think they'd get charged even if they technically fit the crime".
The limitations of the simian brains in the heads of far too many people are both depressing when so clearly demonstrated, as the last few posts you've made have done, but also paint a very clear picture of
why we have a Charter in the first place. The public is simply not going to agree, in every case, with the application of fundamental democratic principles, particularly when they get their hackles up about a charged issue like this one. Grabbing a torch and getting to the front of that mob, like Ford and PP are doing, is to me one of the key things that disqualifies someone from being fit for public office.