In 1891 Canada’s third census revealed a young nation of nearly five million people. Over 70% of Canadians lived in Quebec or Ontario. The Church played a significant and direct role in civic life and virtually the entire population was Christian. Ethnic populations were, apart from First Nations, effectively non-existent. Urban areas were small – Toronto in 1890 had a population about the same size as Burlington, Ontario in 2009. More than nine in ten Canadians lived in rural areas.
The Criminal Code was proclaimed into such a nation in 1892. It was a careful attempt by leading criminal specialists to codify British law as applied in Canada in 1890. Despite amendments following a Royal Commission in 1947 (passed in 1953) the Criminal Code has never been fundamentally revised. A modern Canadian lawyer would immediately recognize the 1892 Criminal Code as being, in the main, the same Criminal Code as applies in Canada today.
This history is relevant largely because the Criminal Code was written in the Nineteenth Century by progressive penal thinkers considering the best law for a rural, ethnically uniform and fundamentally Christian nation. The Criminal Code is very much a piece of the Nineteenth Century, assuming that potential offenders are rational actors who will weigh their present actions against the likelihood of future punishment and social disgrace. Deterrence was assumed to work.
Of course, the Canada of 1892 no longer exists. Less than one in twenty Canadians live in rural areas. In many urban centres the concept of a visible minority has lost relevance – there is no group that obviously qualifies as the majority. The power of the Church in civic life is long gone and many Canadians fail to see a criminal record as amounting to a social stigma at all. The concept of the criminal as rational actor has been found to be in error (except perhaps for white collar criminals); mental illness is widespread through the criminal system and drug abuse and psychiatric disorders are so common precursors of crime as to make the concept of the rational actor deterred by punishment laughable.
Our Criminal Code is based on a society that no longer exists and assumptions that, if ever true, are clearly false today.
Now that doesn’t mean that we have to abandon trying to control crime. But it does mean that it is time to look again at how we deter crime. Is it really best dealt with by prisons? In some case, white collar crime, probably yes, but in other cases, most drug related crime, not. Should we use mental health treatment as a basis for dealing with crime? Perhaps, but there are some criminals who cannot be rehabilitated and who must be separated from society; perhaps those criminals need to be in prisons or in functional equivalents. Should we assimilate quasi criminal/administrative law into true criminal law? Certainly society’s revulsion at crimes of personal violence is greater than, say, environmental offences, but those environmental offences may injure far more people than a simple assault. Should we replace the entire system of adversarial court battle with something closer to a prosecuting magistrate? Perhaps; there are issues of fairness and the appearance of justice but is, say, the law of France grossly unfair?
All these issues should be open to consideration on an evidence based approach.
Being “tough on crime”, in itself, meaningless.
The goal of the criminal justice system is to prevent crime and to justify society where crime has occurred. We should revisit the Criminal Code in light of those goals.
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