APPENDIX: B - BACKGROUND MATERIAL

Principles to Guide Criminal Law Reform

Prepared by:

Vicki Schmolka
Lawyer & Plain Language Consultant
Kingston, Ontario

Principles, Security and Justice

From the time Parliament passed Canada's first Criminal Code in 1892, certain principles have been the cornerstone of our criminal justice system. Canadian law recognizes, for example, that a person accused of a crime is innocent until proven guilty in a court of law and that proof of the crime must be made beyond a reasonable doubt. These principles protect all citizens from the arbitrary use of the state's powers of arrest, detention and punishment.

Society uses the criminal law to shield its members from destructive, hurtful and socially unacceptable behaviours that undermine everyone's right to live in a just, peaceful and safe society. As such, the criminal law is a deterrent and primarily punitive. A person found guilty of a criminal offence may lose his or her liberty and face consequences that have a profound affect on personal freedoms and choices. The federal government's criminal law power is therefore our society's most extreme tool to use to control behaviour that society, through Parliament, has determined to be undesirable.

What, then, is a reasonable and acceptable use of the state's criminal law power? What principles should guide Parliament when it makes decisions about criminalizing or decriminalizing actions and behaviours and when it sets out the punishments for people found guilty of criminal offences?

The Department of Justice Canada's policy document, "The Criminal Law in Canadian Society", published in 1982, identified two major purposes of the criminal law:

1. security goals – the preservation of the peace, prevention of crime, protection of the public

and

2. justice goals – equity, fairness, guarantees for the rights and liberties of the individual against the powers of the state and the provision of a fitting response by society to wrongdoing.

There is an inevitable tension between these two co-existing goals which creates the underlying dynamic of our criminal justice system.

An articulation of principles provides guidance in society's on-going search for the best and most appropriate way to balance these goals.

Cornerstone Principles: The Canadian Charter of Rights and Freedoms

The coming into force of the Charter in the 1980s clarified the principles that must guide the criminal justice system and criminal law reform. The rights in the Charter spell out the basic legal protection that safeguards citizens in their "dealings with the state and its machinery of justice".

By and large, these rights already existed by precedent, by practice and through statutes but their inclusion in the Charter was a public acknowledgement of their unassailable status. The Charter rights include:

• the right to life, liberty and security of the person and the right not to be denied life, liberty and security of the person except in accordance with the principles of fundamental justice (section 7)
• the right to be secure against unreasonable search and seizure (section 8)
• the right not to be arbitrarily detained or imprisoned (section 9)
• rights on arrest or detention to be informed of the reasons, to retain and instruct counsel without delay, and to be released if the detention is determined to be unlawful (section 10)
• the rights of an accused charged with an offence
  • to be informed without unreasonable delay of the charges
  • to be tried within a reasonable time
  • to remain silent at his or her trial
  • to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal
  • to be granted bail unless there is just cause not to
  • to have a trial by jury for a more serious offence
  • not to be found guilty of an offence that was created after the act or omission took place
  • not to be tried for the same offence twice, and
• to receive the lesser punishment if the punishment for an offence was changed between the time the offence was committed and the time of sentencing (section 11)

• the right not to be subjected to cruel and unusual treatment or punishment (section 12)

• the right of a witness to give evidence and not to have that evidence used as incriminating evidence in another proceeding, except for perjury proceedings or other proceedings concerning the giving of contradictory evidence (section 13)
• the right to the assistance of an interpreter as a party or witness in a proceeding who cannot understand or speak the language in which the proceedings are taking place (section 14)

• the right to equality before and under the law and to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (section 15).
• The Charter also guarantees that all the rights and freedoms set out in it apply equally to men and women (section 28).
• In addition to these Charter rights, what other principles should be the backdrop for future reforms to the Criminal Code?

Principles to Guide Future Criminal Law Reform

Bills that propose amendments to the Criminal Code may include a Preamble which states the reasons for the proposed reform and the principles that guide it. For example, the Preamble to Bill 79, setting out changes to the Criminal Code concerning victims of crime, includes this clause:

"Whereas the Parliament of Canada supports the principle that victims of and witnesses to offences should be treated with courtesy, compassion and respect by the criminal justice system, and should suffer the least amount of inconvenience necessary as a result of their involvement in the criminal justice system".

This clause declares that the criminal justice system should be sensitive to the needs of victims and witnesses of crimes and provides a context for the law reforms in the legislation.

What principles can be identified to similarly guide the future reform of the Criminal Code? What principles beyond those in the Charter should be recognized as cornerstones of our criminal justice system in the 21^st century?

Here is a list of principles developed after a review of the principles in "Criminal Law in Canadian Society" and in Preambles to recent criminal law Bills. It has been compiled to provide a starting point for discussions at the Minister's Roundtable.

Should these principles be the foundation for criminal law reform? Are there other principles to add?

     The fundamental purpose of the criminal law is security -- 

• to preserve the peace, prevent crime and protect the public.
• The criminal law should only interfere with individual rights and freedoms to the extent necessary to achieve its purpose.
• The criminal law must provide a fitting response to wrongdoing while respecting the principles of justice and fairness and the rights and liberties of the individual.
• The criminal law should not be used in such a way that it disproportionately punishes people who are protected from discrimination under section 15 of the Charter.
• An accused should not be found guilty of a criminal offence and subject to punishment for it if he or she was unable to form the intent required to commit the criminal offence by reason of a recognized mental disability. The appropriate response is treatment in a health care facility.
• The sentencing of an offender must seek to rehabilitate the offender and to repair the harm the offender has done to individuals and to society, to the extent possible.
• The punishment for an offence must reflect the gravity of the offence as well as the degree of responsibility of the offender. There must be discretion in the criminal justice system to ensure that the goal of rehabilitation is not lost and that the least restrictive yet still adequate punishment is given.
• Similar offences committed in similar circumstances should result in similar punishments.
• Offenders may be separated from society when necessary but, except in the most extreme cases, reintegration of the offender into society should be the goal.
• The criminal justice system must recognize the reduced level of maturity of young people and must keep young people separate from adult accused and offenders, except when allowed by law.
• The criminal justice system must treat victims of offences and witnesses to offences with courtesy, compassion and respect. Victims and witnesses should not suffer harm as a result of their involvement in the criminal justice system.
• The criminal law must describe in clear and accessible language the actions that society has determined are criminal and the penalties for those offences.

Appendix

For your information, here is a list of the principles set out in "Criminal Law in Canadian Society":

(a)   The criminal law should be employed to deal only with that conduct for which other means of social control are inadequate or inappropriate, and in a manner which interferes with individual rights and freedoms only to the extent necessary for the attainment of its purpose;

(b)   The criminal law should clearly and accessibly set forth:

             (i) the nature of conduct declared criminal;

            (ii) the responsibility required to be proven for a finding of 

                  criminal liability;

(c)   The criminal law should also clearly and accessibly set forth the rights of persons whose liberty is put directly at risk through the criminal law process;

(d)   Unless otherwise provided by Parliament, the burden of proving every material element of a crime should be on the prosecution, which burden should not be discharged by anything less than proof beyond a reasonable doubt;

(e)   The criminal law should provide and clearly define powers necessary to facilitate the conduct of criminal investigations and the arrest and detention of offenders, without unreasonably or arbitrarily interfering with individual rights and freedoms;

(f)    The criminal law should provide sanctions for criminal conduct that are related to the gravity of the offence and the degree of responsibility of the offender, and that reflect the need for protection of the public against  further offences by the offender and for adequate deterrence against similar offences by others;

(g)   Whenever possible and appropriate, the criminal law and the criminal justice system should also promote and provide for:

            (i) opportunities for the reconciliation of the victim, community, and offender;

           (ii) redress or recompense for the harm done to the victim of the offence;

          (iii) opportunities aimed at the personal reformation of the offender and his reintegration into the community;

(h)   Persons found guilty of similar offences should receive similar sentences where the relevant circumstances are similar;

(i)    In awarding sentences, preference should be given to the least restrictive alternative adequate and appropriate in the circumstances;

(j)    In order to ensure equality of treatment and accountability, discretion at critical points of the criminal justice process should be governed by appropriate controls;

(k)   Any person alleging illegal or improper treatment by an official of the criminal justice system should have ready access to a fair and investigative and remedial procedure;

Wherever possible and appropriate, opportunities should be provided for lay participation in the criminal justice process and the determination of community interests.

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