Copyright: 2009 The Vancouver Sun
Contact: http://www.canada.com/vancouversun/letters.html
Website: http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: James Morton
Note: James Morton is the deputy chairman of the Council of
Presidents of the Liberal
party of Canada and a past president of the Ontario Bar Association.
The views expressed
are solely his own.

CANADA'S CRIMINAL CODE IS BASED ON A SOCIETY THAT DOESN'T EXIST

The 1892 document was written for a small, rural, homogeneous society
in which religion played a major role in controlling people's behaviour

In the early 1890s, Canada was a nation of fewer than five million
people. More than 70 per cent 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 Sherbrooke, Que., in 2009. More than nine in 10
Canadians lived in rural areas.

The Criminal Code was enacted 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 was never 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 19th century by leading criminal lawyers considering
the best law for a rural, ethnically uniform and fundamentally
Christian nation. The Criminal Code is very much a piece of the 19th
century, assuming that potential offenders are rational actors who
would weigh their present actions against the likelihood of future
punishment and social disgrace. Deterrence was assumed to work.
Prisons were assumed to reform criminals.

Of course, the Canada of 1892 no longer exists. Fewer than one in 20
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
don't see a criminal record as amounting to a significant social stigma.

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. Drug abuse and psychiatric
disorders are such common precursors of crime as to make the concept
of the typical criminal as rational actor deterred by punishment absurd.

Prisons do not reform; at best they separate dangerous people from
society. In 1999, researchers at the University of New Brunswick
examined 50 studies on recidivism that covered more than 300,000
offenders. Considering other factors - such as an inmate's criminal
background and age -- they found that the longer people spent in
jail, the more likely they were to commit another crime when they got
out. Indeed, one conclusion of the study was that prisons serve as
schools for crime.

Our Criminal Code is based on a society that no longer exists and
assumptions that, if ever true, are clearly false today. Now, that
does not mean 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 crime really best dealt with by prisons? In some cases -- white
collar crime -- probably yes, but in other cases, as with most drug
related crime, probably 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; 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 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 under an
evidence-based approach.

We are at a unique junction politically in Canada. All major parties
support criminal justice reform. The goal of a just and safer Canada
is shared by all public figures and there is the political will to make change.

The Conservative party's crime legislation has been supported by the
Liberal party. Criminal justice is a major part of the Conservative
party's platform. The Liberal party is holding a major "thinkers'
conference" in January to consider policy approaches for the future;
such a conference in the early 1960s led to the modern Divorce Act
and could lead to similar radical readjustments in the criminal law.

Changes to the criminal law that were politically unthinkable just a
few years ago are being debated in the House and Senate.

Now is the right time to revisit the Criminal Code in light of those goals.

James Morton is the deputy chairman of the Council of Presidents of
the Liberal party of Canada and a past president of the Ontario Bar
Association. The views expressed are solely his own.