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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD October 23, 2002

Times change and so do our laws


The other day a news report on marijuana usage got me thinking about how easy it is to get all riled up over changes to our laws only to look back decades later and wonder what the fuss was all about. Today the controversy is about legitimizing the use of marijuana; yesterday it was about abolishing capital punishment and legalizing homosexual acts between consenting adults.

Trudeau's Omnibus Bill

I can still remember hearing in 1967 the public outcry against Canada's first major divorce law reform since Confederation which was introduced in the House of Commons by then Canada's justice minister, Pierre Elliot Trudeau. Previously, our divorce law required a private bill in the House of Commons together with an investigation by a parliamentary committee. Applicants for divorce were required to obtain a private investigator's report establishing adultery and then wait until their bill proceeded through parliament.

We were told that marriage would never be the same. Now 35 years later, hardly anyone bats an eyelid, certainly not the 70,000 couples whom, each year, formally end their marriages. As for those who marry for the first time, they certainly don't seem to be discouraged from tying the knot even though they face roughly a 40-50 percent chance of divorcing in their lifetime.

Now our provinces operate lotteries and casinos How about gambling which was considered " inherently criminal in nature " when the first Criminal Code was passed and still is. Who could have imagined that our very own governments would one day be operating lotteries and casinos in order to reap the immense profits. I can still remember hearing predictions by the police that the underworld would infiltrate the government casinos. It never happened.

Capital punishment amendments

How about the approximately 710 Canadians who were hung by their necks until they died after being convicted of capital crimes between 1867 and 1962. Under our current laws their lives would have been spared. In 1892, when the Criminal Code of Canada was first established, the sentence for every type of murder was the death penalty just as it was during our country's colonial beginnings. The last execution in Canada occurred on December 1962 when two men were hung in Toronto, Ontario. During a free vote in 1976 the punishment was abolished by Parliament and substituted for life imprisonment. Contrary to predictions by the death penalty supporters, the homicide rate in Canada never increased over the next 20 years. In fact, it declined.

The marijuana controversy

Take our Criminal Code - what do you think future generations will say about the use of marijuana, which became illegal in 1923? By the mid 80s roughly 2000 Canadians were sent to jail each year for simple possession. According to Statistics Canada, in the mid 90s almost 30,000 Canadians were charged with cannabis crimes of which two-thirds involved possession charges. Nowadays, first offenders that don't end up with a small fine and a criminal record are often conditionally discharged. Quite clearly our laws have had little deterrent effect if we are to believe that at least three million people in Canada still use marijuana.

A few years ago Canada's police chiefs recommended that the federal government decriminalize (not legalize) possession of small quantities so as to allow the police to concentrate their limited resources on more serious crimes. However, if the Senate Special Committee on Illegal drugs has its way, simple possession will be legalized and treated much like the use of alcohol. Assuming the past is any indication of the future, we shouldn't be too surprised if one day the Senate's recommendation becomes the law of the land, no matter how much the U.S. government tries to prevent it.

Crimes that no longer exist

All we have to do is consider Canada's first Criminal Code, which was adapted in 1892 and has since been amended, modified and totally revamped more time than one can dare remember. For example, in 1892 begging was a crime and continued to be so until 1972. Subject to a penalty of up to two years' imprisonment it was also a criminal offence during the same period, just to "sell, advertise, publish an advertisement ...of any medicine, drug or article intended or represented as a means of preventing conception...". In 1969, along came Prime Minister Pierre Trudeau's Omnibus Bill and his memorable statement," The state has no business in the bedrooms of the nation ". Once again, various crimes were abolished including the sale of contraceptives as well as sexual acts among consenting adults of the same gender. Today, many wonder why the crimes existed in the first place.

Convictions that would no longer stand

Without a doubt, during the first 100 years following the adoption of Canada's Criminal Code, thousands of accused were convicted of crimes on the basis of confessions that would never meet our current admissibility requirements. Furthermore, had Canada's Charter of Rights and Freedoms been part of our legal system back in the 19th century the conviction rate would have been cut in half. Just think of the many accused that were convicted before the Supreme Court literally rewrote the definition of criminal indecency. I'm referring to the landmark decision, which, three years ago overturned the decision of the Quebec Appeal Court on lap dancing. Until then, mere touching between lap dancers and customers was a crime. As for all those who would have been acquitted under our present laws and latest court interpretations but who have long since departed from this earth, unfortunately it is too late for them to seek legal redress.

Lessons to be drawn

So what lessons should be drawn from the many changes in our legal system? The simple truth is that as we change the way we live and work we also modify our attitudes and standards of tolerance. As society evolves, our lawmakers are never far behind. Old crimes become out dated and new situations arise that require new crimes all of which leads to a never-ending cycle of law reform. In the end it is the people who decide what they want from the law. As for marijuana, if and when the use is legalized, you can bet that future generations will wonder what the fuss was all about.