Words and Misdeeds

Following up on my musings here and here on the reasons why we think it is sometimes permissible to punish a person for saying something that is likely to cause others to act in a certain way, and sometimes not, my friend Simon Murray asks a very sensible question: in what other cases do we sanction people on the basis of a possible reaction of others to his words?

The answer is that we do it in quite a range of situations. The Criminal Code is replete with incitement offences, which criminalize statements made by one person because of the intended reaction to these words by another, to whom they were addressed.

There is a general incitement offence in s. 22, which provides that

22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.

(It is not necessary, by the way, that person whom the accused incited to commit an offence actually have committed it: see, for example,  R. v. Hamilton,  2005 SCC 47, [2005] 2 S.C.R. 432.)

But there are also specific incitement offences: for example incitement to mutiny (s. 53), counselling piracy (s. 75), incitement to various illegal sexual acts (ss. 152 et seq., 160), counselling suicide (par. 241(a)), advocating genocide (s. 318) and incitement of hatred against an identifiable group (s. 319), and others.

What is interesting is that the Criminal Code sanctions incitement not only of crimes, but also of things that are not criminal or even immoral. For instance, racial hatred is immoral, but not in itself criminal, yet incitement to it is. And suicide is arguably―though this is admittedly controversial―not even immoral, never mind criminal. To be sure, the criminalization of incitement to suicide probably dates to a time when suicide was in fact regarded as immoral. But, despite thinking that a person who commits suicide is not acting immorally (at least as a general matter; there might be specific exceptions depending on the circumstances), I do think that it is immoral to incite someone to do it, and I’m not convinced that we are wrong to criminalize such incitement.

On the other hand, I do think that criminalizing other forms of incitement, even of incitement to immoral actions, would be wrong. (Consider, for example, imposing a criminal sanction for incitement to adultery.) And for the most part, the Criminal Code sanctions incitement to commit crimes, not merely morally reprehensible acts. So, once again, it seems that the law is all over the place here, and so are my own intuitions. Maybe Parliament and I are just being inconsistent. But maybe there is a deeper logic to it all, which I haven’t so far been able to figure out. I’m afraid I’m not especially knowledgeable about criminal law and theory, so that’s certainly possible.

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