The contours of what is criminal.

• Author: Bowal, Peter
• Position: FEATURE on Criminal Law

"If we do not maintain justice, justice will not maintain us. "--Francis Bacon, 1615

We often hear the expression that "something is (or ought to be) criminal." This usually signals that the behaviour referred to is more than bad, wrong, unethical, or illegal. It is of the status of criminal, which is to say, it is in the worst category known to our legal and social system, our most serious moral wrongs. Crime, like obscenity, is hard to define, but we seem to know it when we see it.

There is continuous review in Canada on what actions should be labelled as criminal (criminalization) and which current crimes might be downgraded in modern society to mere regulatory offences (de-criminalization).

The federal government, which is responsible for all criminal law across the country. is choosing to criminalize more corporate misbehaviour which affects employees, the environment, and capital markets. Occupational health and safety breaches and retaliation against whistle-blowers, both of which until last year were regulatory offences, are now crimes.

On the other hand, alcohol consumption and gambling, activities once considered victimless crimes--but crimes nevertheless--have now been repealed or are merely regulated in less coercive and more remedial ways. Homosexual behaviour is no longer a crime Some jurisdictions regulate prostitution and drug use in the interests of health, instead of prosecuting them. The decriminalization of marijuana for medicinal or small-scale recreational use is currently the subject of Bill C-17. Possession of small quantities may soon be a mere ticketable provincial regulatory offence, like consuming alcohol in public or jaywalking. These changes may begin with judicial decisions, especially Charter cases.

The realms of crime and mere regulatory offences are important to distinguish. One must acknowledge a criminal record when asked, such as when applying for a job or travelling internationally. By comparison, convictions for regulatory, offences such as speeding violations or parking tickets do not yield a criminal record, and those convictions are not required to be disclosed. Here we describe the history of the development of criminal law in Canada, including the judicial structuring of criminality. We see that the answer to "what is criminal?" is found in the contours of contemporary society.

The History of Criminal Law in Canada

Prior to Confederation, the Canadian colonies not only created courts and legislatures on the English model, but they also took over the law, including the criminal law, from England. Each province had also assembled its own criminal law in response to local concerns. This resulted in a patchwork of crimes across the country. Prime Minister Sir John A. Macdonald's "national policy" included the consolidation of provincial criminal laws into a national criminal code after the founding of the Dominion of Canada in 1867. The new British North America Act (renamed the Constitution Act, 1867) "also conferred exclusive legislative authority over "the Criminal Law [and] the Procedure in Criminal Matters" to the national government. The first Canadian...