HOW?

Much of the day's discussions focused on how major reform of the criminal law could be successfully undertaken. Several of the participants had lived through – and participated in – the former Law Reform Commission's (LRC) lengthy, and ultimately unsuccessful, attempt to rewrite the Criminal Code. "We don't need another 17-year process," noted one LRC veteran.

It was recognized that any reform must take into account the capacity of Parliament – and indeed the Department of Justice – to carry out the work. Many participants agreed Parliament does not have the capacity to deal with an entire new Code. There was much discussion about whether there was political will to undertake such work. One suggested that the Code is in the shape it is today because politicians have abdicated their responsibility to take leadership and left it to the judges to decide what the criminal law should be. "Why do we have to wait until the Supreme Court tells us what the law is?" he asked.

Although crime is inherently political – "if it bleeds it leads" as one described it – participants said the process of reform should be depoliticized as much as possible. While there are likely to be a few hot-button issues, participants said there is likely to be much consensus on most reform issues.

There was consensus that comprehensive reform was unlikely to be achieved all at once but should be done in "manageable chunks." This was the way the Quebec Civil Code was eventually rewritten – in stages. "If you try to do it all at once it will surely fail," said one participant. Another compared criminal law reform to the Meech Lake Accord – it tried to do too much and different people opposed different parts and eventually it collapsed.

Differing views were expressed on what the priorities for reform should be, although many said any reform should be based on fundamental principles (such as restraint and clarity) rather than just "putting out fires." There was support from some participants for reform of the General Part and defences, even a suggestion that there should be two Codes – one on procedure and one on evidence.

Participants also suggested that any future reform should build on existing work, such as previous efforts at reforming the General Part. It was also noted that the Law Commission of Canada is already engaged in a process to determine what is a crime and that work should be integrated.

It was also recognized by participants that any reform cannot just be left to experts and exclude ordinary Canadians. Ways must be found to engage Canadians in such work. One participant said we should not assume the public can't understand or won't agree with proposals for reform – the public is remarkably sensible about these things as long as there is a process to explain in a reasonably way what is being discussed.

As well, the provinces and territories, which administer the criminal law, and the police, which enforce it, must be involved. There must be a strategy to get these interests on side otherwise reform will be very difficult to achieve.

One suggestion that received support from a number of the participants was to set up several working groups of experts to bring forward proposals for reform in specified areas of criminal law. These working groups would need to be funded, work within tight deadlines and include broad public consultations. This type of process would require the Minister to provide guiding principles for the work.

[ Previous ]     [ Table of Contents ]     [ Next ]