MacGuigan’s plan to remake law

John Hay September 12 1983

MacGuigan’s plan to remake law

John Hay September 12 1983

MacGuigan’s plan to remake law


John Hay

The wheels of Canadian justice often grind intolerably slowly, and not always justly. One reason is that they turn under the deadweight of too many laws: Justice Minister Mark MacGuigan estimated last week that federal statutes alone contain an astonishing 97,000 separate offences. Another half-million flow from regulations issued by the federal cabinet. The Criminal Code itself, never thoroughly overhauled since its enactment in 1892, now sags with outmoded language which is both archaic and impenetrably complex even to lawyers and judges. This fall, however, MacGuigan plans to start major repairs on the criminal justice system. The slow process of rewriting criminal law seems about to produce results. In fact, says MacGuigan, the country now faces “a year of federal law reform that may well be unprecedented in our history.”

MacGuigan’s proposed changes, the product of years of study in and outside the government, will affect a vast array of criminal law, from the way juries are empanelled and the definition of new computer crimes to the punishments judges may inflict and the terms offenders can demand for clemency and pardons. Later amendments—some expected next spring—will deal with con-

tempt of court, soliciting for prostitution, the rights of prisoners and ways of treating the legally insane. MacGuigan has already announced some of the changes he wants enacted. Details of others will only emerge when tabled in Parliament. Outside the criminal law there will be changes in the Divorce Act in the next session of Parliament to permit easier “no fault” divorces based merely on marriage breakdown. Finally, Parliament has until 1985 to bring all federal laws into line with the Charter of Rights and Freedoms, en-

acted last year. (A current section of the code that makes it a crime for the captain or any member of the crew of a commercial vessel to seduce a female passenger, for example, must be repealed as a breach of the charter’s sex-discrimination clause.) Among the topics likely to appear in the first batch of amendments:

Impaired driving: The federal government has felt intense pressure for tougher penalties for drinking drivers—especially for those who kill.

MacGuigan has said that

he favors mandatory blood tests for drivers who cannot or will not submit to breath tests for alcohol, and justice department lawyers have studied higher maximum sentences, particularly for repeat offenders.

Theft and fraud: The nearly unintelligible Criminal Code definition of theft has nourished courtroom arguments for years: “Every one commits theft who fraudulently and without color of right takes, or fraudulently and without color of right converts to his use or...” and so on, through sections that spell out such

special objects of theft as oyster beds, stray cattle and “drift timber.” MacGuigan will propose changes to the code that will redefine theft to mean simply taking or using something “dishonestly.” The bill will also introduce the new crimes of theft of computer time and data. Juries: Some of the proposed changes are more esthetic than substantive. The “foreman” will

be redesignated as a

nonsexist “president.”

Among more material changes: the defence

would have the same

rights as the prosecution to reject jurors in the selection process (the Crown may now reject more often); and the identities of jurors could be banned from publication during trials to protect them from outside pressures. Sentencing: MacGuigan has favored alternatives to prison sentences, which he says should be largely reserved for dangerous offenders. Some of the options include cash restitution to victims, fines and community service work. He has also said that no one should go to jail just because he cannot afford a fine: “For those who cannot pay, there should always be alternatives.” Pardons: The whole correctional system is under review, but widespread concern has already produced results. A bill that would tighten the rules of mandatory supervision (the release under supervision of offenders during the last part of their sentence) has already

passed the Senate and now goes to the Commons. On the other hand, the government will propose changes that will make pardons easier for offenders to get after serving sentences. They could be automatic for some minor offences, such as causing a disturbance or public mischief, and they would completely erase an offender’s criminal record. Courts: Measures to provide speedier trials are also expected in the Commons this fall. One amendment would require a trial to begin within six months of a first appearance by an accused in court. Another change would limit a Crown attorney’s power to postpone a trial—a power that judges and defence lawyers complain has sometimes been abused in the past. The press and broadcasters would be prohibited from publishing the name of a person whose premises

have been searched by police under a warrant, unless charges result or the person consents to publication.

The minister has also announced that he is urging cabinet to abolish writs of assistance, the controversial documents issued to some policemen permitting them to search any person or property they choose. Some lower courts have ruled the writs unconstitutional—a stand that the federal government disputes. To help police make quick searches without obtaining a warrant from a judge in person, MacGuigan has also suggested allowing police to do so by telephone.

Still other amendments are due later in the legislative calendar, after the justice department consults experts in the field. One of the most contentious issues involves contempt of court—an ancient common law principle covering such offences as being rude to a judge, dis-

rupting a trial or publishing information against a judge’s orders. Contempt is riddled with difficulties, including the present authority of a judge to charge a person with contempt and then to mete out a penalty—in effect, acting as complainant and prosecutor as well as judge. MacGuigan is proposing amendments that would provide the right to a jury trial to anyone charged with most types of contempt, set out rules about press coverage of court proceedings and, for the first time, specify maximum sentences that judges may hand down.

The controversial insanity defence raises another set of nettlesome questions: how should a court decide whether a person was insane when a crime was committed or whether an accused is sane enough to stand trial? If

an accused is insane, who decides his or her fate? A bill addressing those issues may be ready by spring.

Reaction to all this activity has been predictably mixed, both about the content of the proposals and the way they are being introduced a bit at a time. At its convention in Quebec City last week, the Canadian Bar Association passed a resolution that agreed with the imposition of harsher penalties on drunk drivers, for example. Some critics have complained about the piecemeal process of Criminal Code revision, arguing instead for an all-embracing reform. Others, however, say that the immensity of the task makes a one-shot cure impossible. Most agree at least on the need for clearer language in the code. Says Halifax criminal lawyer Joel Pink: “I do not think the law should be written for lawyers. It should be written for ordinary citizens.”

Some of the sharpest criticism of the law reform proposals has come from the nation’s policemen. Ottawa’s deputy police chief, Thomas Flanagan, chairman of the law amendments committee of the Canadian Association of Chiefs of Police, says that criminals will “love” some of the recommendations emerging from the federal Law Reform Commission, which advises the government on changes. Flanagan particularly opposes commission recommendations for tighter judicial control over police powers of search and seizure. And he says police are frustrated that MacGuigan has not proposed a solution to the problem that many cities have with street prostitution. Instead, the minister has named Vancouver lawyer Paul Fraser to head a commission on pornography and prostitution. Fraser is to report by Dec. 31,1984.

it is mostly by chance that MacGuigan is presiding as justice minister over the quickening pace of criminal law reform. The process actually began with a 1979 federal-provincial agreement to launch a thorough review of the Criminal Code. By 1985 the Law Reform Commission is scheduled to have completed about 50 studies for the justice department. Nine of those have already reached Justice; five have moved on to cabinet in the form of draft legislation.

If there is a single theme in all the amendments pouring forth, it is that criminal law should be clearly stated and sparingly used. It should be, MacGuigan said last week, “regarded as the instrument of social ordering and regulation of the very last resort. It is the sledgehammer among the measures available to government to regulate conduct in our society.” The criminal law reforms so far proposed fall well short of a legal revolution. But they could render the justice system less mysterious and more predictable—and more just.