|
|
APPENDIX: B - BACKGROUND MATERIALPrinciples to Guide Criminal Law Reform Prepared by: Vicki Schmolka Principles, Security and JusticeFrom 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 FreedomsThe 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:
Principles to Guide Future Criminal Law ReformBills 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 21st 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 --
AppendixFor 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. [ Previous ] [ Table of Contents ] [ Next ] |
Last Updated: 2005-10-20 | Important Notices |