THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON April 30, 2003

A short history of Canada's
complex Criminal Code

Hardly a day goes by that we don't read or hear of someone being charged, tried or sentenced under our Criminal Code. While we have all become familiar with the manner in which the Code is applied very little is ever mentioned about its intriguing but relatively short history. Prior to the enactment of the British North America Act of 1867, criminal law in each colony, including Quebec, was based on an assortment of English and local statutes along with English common law that had developed in Great Britain over hundreds of years. Due to the lack of any unified system of criminal law each colony had its own particular brand of criminal justice.

The fact that long after Confederation all of the provinces would be subject to the same criminal law, in large part under a codified formula, was anything but an historical accident. Sir John A MacDonald, who was to become Canada's first prime minister, was adamant that the new Dominion of Canada would avoid the confusion of the 19th century English criminal law system in Great Britain. One Canadian judge even described it as "a bottomless pit of complex case law, petty, anachronistic offences and harsh punishments ".

Sir John believed that with one code each Canadian would receive the same treatment from the courts, regardless of the province where he was accused and tried for a crime. As a result, when the first four provinces were confederated the federal government was invested with the exclusive jurisdiction over criminal law and procedure while the administration of justice was left to the provinces. The mere fact that our Fathers of Confederation opted for a codification formula which England had always resisted was not a sign that Canada was emerging as independent nation. They were just as committed in uniting the four colonies into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland and worded the preamble of the British North America Act, accordingly.

Canadian approach versus United States

Some legal historians contend that the main reason why Canadian criminal law was allocated to the federal government was to avoid the weakness of the "centre" of the American constitution. According to their theory by investing the central government with all of the powers incidental to national sovereignty, they were aiming to reduce the risks of a civil war. Right or wrong, Canada’s constitutional approach to criminal law was so unlike that in the United States it raises the question as to whether it guarantees more than a distinct brand of justice. While our Fathers of Confederation believed that the federal government was in a better position than the provinces to ensure a fair and consistent treatment of criminal behavior across the country, south of the border the constitutional division of powers was quite the opposite.

In the United States, each state has its own criminal code and procedure and as a result, criminal laws vary significantly. Their decentralized approach to criminal law also accounts for why the same conduct in one state is criminal while in another it is perfectly legal. Another direct consequence is their pronounced disparity of sentences particularly with regards to the application of capital punishment. This is not to say that the manner in which an accused is treated in Canada by our justice system does not vary from province to province or even from one judicial district to another. Provincial ministerial policies and priorities can have as much an impact on the local administration of justice as the personalities and values of those who enforce and administer our criminal laws.

An evolving process

The codification process of our criminal law did not begin overnight. Following Confederation, the federal lawmakers were faced with the challenge of unifying and consolidating the huge amount of Canadian criminal law. One of the first stages involved the passing in 1869 of a set of nine statutes by the federal House of Commons. These statutes consolidated criminal offences dealing with currency, forgery, and malicious injuries to property, forgery, crimes against the person and procedure. In July 1982 Sir John Thompson, then Minister of Justice and Attorney General of Canada, introduced the Bill Respecting Criminal Law. However, while it was a code when it came into force on July 1, I893 and included much of the criminal procedure it was far from complete. Other prior federal statutes remained in effect and common law was still part of Canada's criminal law.

It took until 1953 before all of the common law offences were abolished with the exception of common law conspiracy. The Criminal Code has since been revised on numerous occasions in order to accommodate the needs of changing times. In 1955, following a major reform, the Code was reduced from 1100 sections to 753. In both the 80s and 90s, Parliament passed numerous and occasionally sweeping amendments. By 1997 the number of sections had jumped to 841, where it presently stands.

However, the current edition of our code has so many subparagraphs it is now much longer then it was in 1955. In spite of the original intentions of the Canadian codifiers to include all of the criminal offences, their goal was never completely achieved. Our Code still contains only part of the criminal law. Many other federal laws have created criminal offences as well. One of them is the Narcotic Control Act, which covers drug offences such as simple possession of Cannabis. The others include the Competition Act, the Combines Investigation Act, the Customs and Excise Act and the Broadcasting Act. The same is true for criminal procedure. While the Criminal Code sets out the procedure to be followed in criminal cases, recourse must also be made to other laws in special cases such as the Extradition Act or the Young Offenders Act.

Room for criticism

Jeremy Bentham who was one of the champions of codification in England, was clearly an optimist when he argued that a code formula would "... set forth the whole of the penal law with such simplicity and clarity that the average citizen would be able to understand it and the average judge would be unable not to." While in 1892 the codification of Canada's criminal law was considered to be a major legal achievement, in actual fact it never came close, either then or later, to achieving Bentham's expectations. Even with more than a century of amendments it is still considered by many judges and lawyers as extremely complex. On questions of strict interpretation, hardly a day goes by that a lower court decision isn't overruled by an appeal court.