WHAT DO WE EXPECT FROM THE LAW?

If you think our drug laws are too harsh, companies that foul the
environment get off too lightly and using a cellphone while driving should
be illegal, now's your chance to speak up.

The Law Commission of Canada, an arms-length government agency, wants to
know whether Canadians think our laws have kept pace with changing values.

At the same time, by the way, the federal Department of Justice is
embarking on its first comprehensive review of the Criminal Code since it
was enacted more than a century ago.

"The reflex to criminal law is not always the best strategy," Law
Commission of Canada (LCC) president Nathalie Des Rosiers noted last week
when the commission's discussion paper was released.

"Have we come to rely too heavily on the law to deal with unwanted behaviour?"

The discussion paper, What is a Crime? Challenges and Alternatives,
suggests that, indeed, we do resort to the law far more often than is
necessary.

The paper (on the commission's Web site) notes that many observers argue
that criminal law should be the tool of last resort to solve social problems.

"Do we have the right mixture of policies?" the paper asks.

The LCC believes the criminal law approach has its limitations and we
should explore alternative strategies to combat unacceptable behaviour.

The most visible contemporary example of the gap between what we expect
from the law and what is actually achieved is the marijuana issue.

Tens of thousands of Canadians have been charged with pot possession over
the years but vast numbers of people still smoke up.

The law is supposed to deter people from engaging in unwanted conduct but
criminalization has "had no significant deterrent effect," the LCC paper says.

If the criminal law is supposed to impart a "powerful symbolic message," as
the LCC suggests, Canadians apparently think the law is an ass when it
comes to marijuana. But this is what happens when you have a law that is,
in many cases, out of sync with Canadian beliefs.

The LCC once described the Criminal Code as "a hodgepodge of anachronistic,
redundant, contradictory and obsolete provisions."

It added: "The end result is that Canadians living in one of the most
technologically advanced societies in human history are being governed by
(law) rooted in the horse-and-buggy era of Victorian England."

Not a comforting thought, is it?

The notion of harm is often used as a basis for defining what constitutes
crime, the LCC paper points out.

Yet the state's response to potentially harmful activity is riddled with
contradictions.

"Some of these actions are criminalized, others are regulated and some are
simply frowned upon. Why?" asks the LCC.

It's a good question. Tobacco and booze can kill you but they're legal. No
one ever died from marijuana but it's illegal.

Keeping alive terminally ill people who are in excruciating pain or whose
quality of life has shrivelled to nothing is considered a social good.
Helping them commit suicide is a crime.

"What do we expect from criminal law?" the LCC asks. "Are these expectation
realistic?"

The discussion paper also examines other strategies that are used to deal
with unwanted behaviour.

Regulation by professional bodies and industry associations is an
alternative to criminal sanctions.

But the disadvantage, says the LCC, is "the longstanding perception that
corporations receive preferential treatment and that the harms they create
are ... dismissed as the cost of doing business."

We also use public education campaigns and community support groups, such
as Alcoholics Anonymous, exit strategies for hookers and dispute resolution
to change people's conduct.

"Many observers suggest that communities may be more effective than the
criminal justice system," says the commission. I agree. But it's your turn
to get on the podium. Watch out for the lobby groups on your way up.