We Need 21st-Century Law

Ottawa Citizen
24 November 2009

OPED:
We Need 21st-Century Law

James Morton, Citizen Special*

Canada's Approach To Fighting Crime Was Developed In A Rural, Ethnically Uniform Society That No Longer Exists

In the early 1890s, Canada was a nation of fewer than five million people. Over 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 fail to 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 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 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.

The goal of the criminal justice system is to prevent crime and to justify society where crime has occurred. Now is the right time to revisit the Criminal Code in light of those goals.

* James Morton is the deputy chair of the Council of Presidents of the Liberal Party of Canada and a past president of the Ontario Bar Association. He is adjunct faculty at Osgoode Hall Law School and practises with Steinberg Morton Hope & Israel LLP. The views expressed are solely his own.

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