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President's Corner

President's Message

Red or White?

Categorizations of Law

Of all my children’s books, I particularly remember Bécassine, a young country girl, gentle and naive, who sometimes seemed to lack judgement. Bécassine’s stories were always comical misadventures that made me laugh a little while taking comfort in knowing that these were not my blunders.

In one of the stories, Bécassine is asked to tidy the kitchen. Full of good intentions, Bécassine comes up with a way of organizing things. She decides to place everything that is red in one cupboard: tomatoes, red bowls, strawberries, geraniums and the red tablecloth. She places everything that is white in a drawer: milk, eggs, napkins and flour. Of course, Bécassine is scolded when the milk sours and the strawberries go bad. Poor Bécassine! She chose an inappropriate method of categorizing. Perishable goods should have been refrigerated and non-perishable goods grouped together.

Law is a little like this: it categorizes people and events for certain purposes. For example, law defines people based on age for voting rights. For worker protection laws, a person is categorized as an employee or a self-employed worker. Consumer protection laws often place business owners and consumers at odds. The Criminal Code, however, defines events: the same act can be classed as assault or a boxing match, depending on the circumstances. Opening a locked window can be classified as breaking and entering or a perfectly innocent act, depending on whether or not the person opening the window owns the house…

The ability to differentiate between different circumstances or people is essential to law. Occasionally, we must reflect on the impact of such categorization: are the appropriate criteria being applied?

For example, a categorization that is often used in our legal system is the distinction between public and private. The Canadian Charter of Rights and Freedoms has sometimes been interpreted as applying directly to government officials and to public methods of applying the law, but only indirectly to private law. Similarly, distinction is made between public services offered by government – tax collection and/or payment of social benefits – and services offered by big business. Public law is said to regulate relationships between citizens and civil servants, while private law regulates those between customers and businesses. For citizens, however, trying to correct an accounting error on the part of a bank, social assistance or the Ministry of Revenue can be similar: it is a question of coming to terms with a large entity that manages thousands of files. However, the law sees the bank-client relationship in very different terms from the civil servant/citizen relationship. Why? There may be good reasons for the distinction, but it needs to be re-examined from time to time to ensure that it does not unjustly exonerate banks and civil servants.

That is somewhat the function of law reform organizations, to question categorizations imposed by the law in order to see whether they appropriately serve the Canadian public or whether they need to be reformed. The Law Commission of Canada’s mandate is to modernize Canadian law and to propose new legal concepts.

The Law Commission of Canada carries out its mandate by involving Canadians in a critical debate regarding law. It recently published a discussion paper on the private-public distinction in the policing sector.

The number of private security officers is increasingly on the rise compared to the number of police officers. Private security companies are increasingly present in the policing sector. Are regulations in this sector sufficient? Does the distinction between regulations regarding the private and public sectors hinder the proper identification of risks posed by policing carried out by private firms?

I encourage you to reflect on these issues and forward your comments to us.