The Criminal Code of Canada: Codification and Reform

Whenever we read of a sensational arrest in the paper or we follow the latest celebrity trial, we are invoking the criminal law. Most of us, lawyers and lay people included, know the criminal law is found generally in the Criminal Code (drug offences are also federally created but are found in the Controlled Drugs and Substances Act and not in the Criminal Code). Lawyers are taught in first year Constitutional Law why the criminal law is created by Parliament: due to the Division of Powers between Provincial Legislatures and Parliament as found in the Constitution Act, 1867, which gives the Federal government exclusive authority to create criminal law.  But many of us do not know why this power resulted in a codified criminal law as opposed to the hodge-podge of criminal statutes as found in the United Kingdom.

Although the first Criminal Code was not adopted until 1892, it was conceived much earlier by our first Prime Minister, John A. MacDonald, who envisioned a codified criminal law as an important element of Confederation. Codification seemed to be on the mother country’s mind as well in 1878 as a codification of British criminal law, Bill 178, written by Sir James Fitzjames Stephen, received Second Reading in the House of Commons but died on the order paper. So too, other Commonwealth nations, such as India, Jamaica, Australia, and New Zealand, flirted with, or in some cases enacted, codified criminal laws.

Even a subsequent Royal Commission could not resuscitate the UK version of the Code. Canada, not being near as critical of the draft English Code, imported many aspects of the draft into the first Criminal Code in 1892. The rest, as they say is history as the Code has maintained its status since, albeit with amendments and renumbering along the way.

Let’s trace the crime of theft as an example. Prior to the enactment of the Criminal Code in 1892, theft was defined through British statute and common law. Indeed, the first consolidation of crimes, which occurred in 1869, included the crime of larceny: the old common law offence of theft. Presently, theft is particularized in our Criminal Code under s.322 as follows:

Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent 

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or 

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Historically, there were numerous statutes in England, which pertained to specific forms of theft such as embezzlement, animal theft, shoplifting, pickpocketing, housebreaking, and the like. Presently in England, although a general definition of theft can be found in the Theft Act, 1968, one would have to also look at other statutes for the specific form of theft involved. For example, the basic definition of theft in the Theft Act, 1968 states:

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

However, one would have to look at the Theft (Amendment) Act, 1996 for the crime of “dishonestly retaining wrongful credit.” The Canadian equivalent, of course, is theft and can be easily found under s.322.

Over the years there have been calls to reform the Code to simplify many of the complex and convoluted sections but to no avail: today’s Criminal Code reads much the same as it has for the past fifty years. Much of the difficulty stems from the amendments to the Code, which adds onto existing sections an ever-increasing number of subsections instead of making new sections by re-numbering and re-structuring the Code. For more on this, read my previous blog on lists where I outline the 33 sections found between the search warrant section under s. 487 and the execution of the search warrant found at s.488.  

Clearly, there is still work to do. In 2012, when the Code celebrates its 120th anniversary, the Federal government should take up the call to reform in order to provide Canadians with a cogent and relevant Criminal Code, which will promote the principles of justice and be a model for developing democracies.