June 27, 2012
The federal government says Canada's criminal law needs a major overhaul. The federal government is right. There is an opportunity to make some radical changes to the justice system. The Conservative government faces a fractured opposition and holds an unchallengeable majority — the question is whether, to quote the London, Ont., Police Service motto, there will be "deeds not words"?
It is time for reform. The Canadian Criminal Code was proclaimed in 1892 and was drafted for a small homogeneous and rural nation. The Criminal Code has never been fundamentally revised and is long past its "best before" date. The Canada of 1892 bears almost no resemblance to Canada of today. Laws long held unconstitutional (such as sodomy) or seldom if ever enforced (such as blasphemous libel) remain part of the Code. Offences relating to a sexual morality of a hundred years ago are a prominent part of the Criminal Code, while drug offences, which make up a very major component of the criminal justice system, are not even part of the Criminal Code.
In fairness, there has been a flurry of legislative activity by the federal government. It says the new legislation is needed because for the last 20 years the criminal justice system has "worked for criminals, not victims" and ordinary Canadians feel vulnerable to crime. The legislation has names like the Truth in Sentencing Act, the Safe Streets and Communities Act and the Tackling Violent Crime Act.
Deterrence is the policy adopted by the government. There is a respectable argument that crime can be deterred through punishment. Empirical evidence demonstrating a deterrent effect does exist. Such evidence is difficult to interpret and tends to show some types of crime (impaired driving, white collar crime) is more amenable to deterrence than others (sexual assaults).
Most criminologists would favour a criminal law system based on rehabilitation over a system based on deterrence as the best way to minimize crime. Evidence from other countries suggests recidivism can be minimized by humane treatment of offenders. Nevertheless, deterrence of crime is a reasonable basis upon which to build a criminal justice system. The problem is not the federal government's stated intention to deter crime but rather the scattergun approach being taken.
In any genuine intention to deter crime by punishment, more serious crime requires more serious deterrence. So child abuse should be punished more seriously than shoplifting. A genuine effort to deter crime would involve creating a system where crime is punished in accordance with its seriousness and criminals were punished in a measured and sensible way.
Unfortunately that is not what is happening. Piecemeal amendments to the criminal law are making an already incoherent system worse. A student who grows six marijuana plants in her rented apartment faces a mandatory minimum sentence of nine months in prison. Meanwhile, assault has no mandatory minimum sentence. Surely most reasonable people would accept that, say, beating up a spouse is a more serious offence than growing six marijuana plants?
The structure of sentencing, far from ranking crimes by seriousness or injury to others, becomes almost random and certainly arbitrary — why do six plants merit lengthy prison but five do not? And who is harmed by someone growing six marijuana plants?
Additional changes to the law are made for no obvious reason other than an attempt to gain media attention. So a private member's bill spurred by civil unrest in Quebec criminalizing the wearing of masks at a riot is supported by the federal government, ignoring the fact such a law already exists.
The minister of justice, in response to the bus beheading case, demands that boards reviewing the release of those found not guilty because of mental illness make public safety a primary concern. But he does so without acknowledging such has always been a statutory underpinning of review boards.
A dreadful shooting in a major shopping mall brings a flurry of Twitter suggestions to crack down on youth gangs despite the fact the crime was committed by an adult and was not directly gang related.
New legislation imposes a longer wait-time before persons can request a pardon and bars those convicted of serious crimes from ever obtaining a pardon.
Most of these changes make no sense except in the context of ephemeral press releases. Passing legislation that duplicates existing laws achieves nothing. Blaming the "usual suspects" does nothing to reduce crime or discover the truly guilty. Attempting to deter those who have already been punished or, as with those who cannot be deterred and are morally blameless (the mentally ill), is pointless.
Rather than adopting ad hoc responses to yesterday's news, the government has a unique opportunity to bring the criminal law into the 21st century. A careful revision of the Criminal Code, listing all the offences Parliament considers worthy of punishment (and none that are not), together with coherent sentencing guidelines and modern procedure can be completed during the term of this government.
It is time for the federal government to show Canadians it is serious about dealing with the criminal justice system.
James Morton is a lawyer practising in Ontario and Nunavut. He is a past president of the Ontario Bar Association and teaches at Osgoode Hall Law School of York University. The views expressed are solely his own.