-Thomas Jefferson, Notes on Virginia, 1782
It is time to revise the criminal law of Canada. Our criminal laws were written, in large part, more than a hundred years ago and reflect a society quite different from modern Canada. The Criminal Code contains numerous offences that have been found unconstitutional and others seldom if ever prosecuted. Overlapping offences render the same act a breach of several criminal laws. Revision is surely needed.
But what should be criminal?
That's not obvious and the lack of an underlying theoretical basis for criminality makes it hard to define what should and should not be criminal.
One possible way to approach the issue is to look to harm. I support this approach because it restricts the criminal process to a bare minimum of offences. It is consistent with a maximum of individual choice and liberty.
In my view then, if direct, measurable harm to others is caused by an act then the act should be criminal.
But what does direct, measurable harm to others mean?
It should include financial or physical harm to others. Some emotional harm to others ought to be included but with the caveat such harm must be directly foreseeable and the act taken so as to cause the harm and not for another reason. This limitation is necessary to avoid the criminal law being expanded to include all the rules of social morality which, while appropriate, are not proper subjects for the criminal law of a free society.
Financial and physical harm to others is easy to understand and apply. It would encompass theft, fraud, assault and murder. In some edge cases there could be issues (say defining fraud and excluding mere puffery from material misrepresentation) but that goes to the definition of the crime and not whether the crime ought to be a crime.
Emotional harm is more complex. Let's suppose a significant part of Canadians are deeply distressed at the idea of someone, say, getting a tattoo. That distress ought not to suffice, in my thinking, to make tattoos criminal. Swearing in public, as another example, is offensive, wrong and disgraceful, but it ought not be criminal. The social punishment of being shunned will suffice to punish the wrongdoer.
That said, if someone takes steps for the specific purpose of distressing another that could be a basis for criminalizing conduct. A credible threat made, but not acted on, should amount to criminal conduct; it might have not physical or financial consequences but the emotional upset would be real. So, if I threaten to kill my neighbour's dog (but secretly hold never to do so), I can be properly punished as a criminal even though my neighbour suffers no physical or financial harm.
Some argue that society's view of itself justifies criminalizing conduct so as to preserve societal norms. Hence, if most Canadians disapprove of Sunday shopping it is proper to criminalize such conduct. This view was long the basis for criminalizing homosexual activity; it remains the main basis for criminalizing possession of marijuana. To my thinking this argument goes too far; as the Jefferson quotation that started this note suggest, actions which do not injure directly ought not be criminal. As Jefferson also said "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it."
Limiting the criminal law to dealing only with direct, measurable harm to others does not, of course, mean law must be silent about all other areas of human activity.
Alcohol or drug use, is a drain on society. When someone is intoxicated and drives that, properly, is criminalized because of the danger to highway traffic. But even without impaired driving, society may legitimately discourage alcohol and drug use -- taxes, tariffs, costs and the like are proper to discourage the offending conduct. But criminalization ought to be limited to that which is hurtful to others.
Hence, use or possession of drugs, qua drugs, ought not to be criminal. Society can discourage their use but so long as the user merely injures themselves the criminal law ought to stay away. Sale of drugs however, especially where such acts to lure others into addiction, may properly be criminalized as causing harm to others.
Similarly, when dealing with incompetent people, children, mental disabled or similar, there is an expanded role for criminal law. Prostitution, where engaged in by mental competent adults, is not and should not be illegal. But the act of engaging a prostitute may properly be criminal where a child or a mental incompetent is the prostitute, because the choice to accept potential harm is not a choice truly made (the same argument can extend criminalizing prostitution to those who engage exploited prostitutes). Again, legal acts short of criminalization discouraging prostitution, say by taxes etc, are proper.
If this approach to criminal law is taken we will have a vastly shorter criminal law that will protect society and punish those whose acts harm others.