Time for ‘rigorous review’ of the Criminal Code
A 2012 Justice Department study minimizing the need for reform was flawed, and systematically underestimated the prevalence of obsolete or outdated offences, according to two criminologists, who say the outdated Criminal Code needs serious modernization.
OTTAWA, May 24, 2013 –Did you know that in Canada it is a criminal offence to sell comic books? To advertise Viagra? To fraudulently practise witchcraft? These are just some of the reasons for thinking Canada’s Criminal Code is outdated and in need of “rigorous review,” argue two criminologists in a commentary released today by the Macdonald-Laurier Institute.
Dennis Baker and Benjamin Janzen of the University of Guelph say the federal government’s last look at the Code systematically underestimated the prevalence of obsolete or outdated offences , and failed to confront valid criticisms levelled against the Code.
The Justice analysis itself acknowledged the importance of continuing to monitor the Criminal Code “to ensure the statute is reflective of Canadian society and that the language is up to date.” The MLI authors agreed and went on further to “encourage the Government of Canada to conduct a rigorous review of the Code so that even a modest pruning proves beneficial to Canadians.”
The MLI authors point out that the Criminal Code, originally introduced while Sir John A. Macdonald was still prime minister, contains too many provisions that no longer make sense and whose infrequent use demonstrate that they are no longer relevant to life in 21st century Canada. Readers of the paper may be surprised to learn, for example, that provisions in the Code make it a crime to sell comic books, advertise Viagra, fraudulently practise witchcraft, or publish a blasphemous libel.
They said their own review of reported judicial decisions and search of media accounts showed only a single occasion of the comic book prohibition being prosecuted, for example, and zero prosecutions related to blasphemous libel between 1977 and 2012.
“Since a pursuit of either charge would engage Charter concerns (both potentially run afoul of the freedom of expression guarantee), regular prosecution—more than one per year—would have attracted at least some press coverage and judicial attention,” they said.
Mr. Baker and Mr. Janzen said the Justice analysis implies that 37 unused and infrequently charged provisions should remain in the Code because it is not worth the effort to repeal so few of the Code’s multitude of offences.
However, they suggest the real number of obsolete offences is much higher. A more complete survey of the Code should include the number of convictions as an additional measure of usefulness to complement the statistics on raw charges.
“In sum, the lack of convictions supports the notion that these underused provisions owe their existence more to their usefulness as prosecutorial bargaining chips than as legitimate charges in their own right,” the authors argue.
Dennis Baker is an assistant professor in the Department of Criminology and Criminal Justice Policy at the University of Guelph.
Benjamin Janzen is an MA candidate in the Department of Criminology and Criminal Justice Policy at the University of Guelph.
The Macdonald-Laurier Institute is the only non-partisan, independent national public policy think tank in Ottawa focusing on the full range of issues that fall under the jurisdiction of the federal government.
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