Criminal Law in Canadian Society (1982)

THE CRIMINAL LAW
IN
CANADIAN SOCIETY
' Government Gouvernement OTTAWA

of Canada du Canada AUGUST 1982
Aussi disponible en frangais
The Criminal Law in Canadian Society
J2-3811982E
ISBN — 0-662-I 2083-3
PREFACE
This document sets out the policy of the Government of Canada with respect to
the purpose and principles of the criminal law. As such, it is unique in Canadian
history. Never before has the Government articulated such a comprehensive and
fundamental statement concerning its view of the philosophical underpinnings of
criminal law policy.
Canada's Criminal Code is nine decades old, and the common law on which it is
based spans centuries. In recent years, the need to reflect upon the basic
assumptions of our criminal law has become apparent. Growing crime, growing
public concern about crime, growing public expenditures for criminal justice, and
growing doubts about the ability of the criminal justice system to solve the
problem have had the combined effect of convincing federal and provincial
Ministers responsible for criminal justice of the need for a thorough review of
Canadian criminal law in all its aspects.
As a result, the Department of Justice, in cooperation with the Ministry of the

Solicitor General and in close consultation with the provinces, has embarked on
the Criminal Law Review. This Review will begin with recommendations of the
Law Reform Commission of Canada and will require detailed examination of all
substantive and procedural aspects of Canadian criminal law.
The Criminal Law in Canadian Society, issued at the outset of this complex
process, is aimed at provdng a basic framework of principles within which these
more specific issues of criminal law policy may be addressed, and assessed.
As Minister of Justice, I believe this statement offers the foundation for a credible
and effective criminal law, reflecting the needs and values of Canadian society.
Honourable Jean Chretien, P.C., M.P.

Minister of Justice
TABLE OF CONTENTS
Executive Summary .................................................. .
Introduction 7
I. Background of the Criminal Law Review ............... 7
2. The Criminal Law Review ................................. 10
3. Aim of this Paper ............................................ 1

II. The Context 13
I. The Incidence of Crime ...................................... 13

2. Perceptions of Crime ........................................ 16
3. In Search of an Explanation .................................. 17
4. The Response to Crime ..................................... 21
5. Future Policy: Pressures and Trends ...................... 24
III. Current Problems and Concerns 27

I. How effective is the criminal law in combatting
crime and correcting offenders? ........................... 28
2. How effective are preventive and alternative
measures? ....................................................... 28
3. How can the system be more responsive to
victims? .......................................................... 29
4. How should the powers of the state be balanced
with the rights and liberties of individuals? ................ 3 ,
5. How can the justice system be made more

accountable? ................................................... 32
6. How can sentencing and post-sentencing
processes be improved? ...................................... 3s
7. What should the criminal law be about? .................. 3 5

IV. Scope, Purpose and Principles 37
I. introduction. 37
2. The Nature of Criminal Law 38
a) Purpose of the criminal law .............................. 38
b) Proper scope of the criminal law ....................... 41
c) To whom should criminal penalties apply? ............. 46
d) How far can criminal law go in pursuing
itsaims? ...................................................... 48
3. The Concept of Balance ..................................... 49
4. Conclusion: A Proposed Statement of Purpose
andPrinciples ................................................... 5
V. Implications for the Criminal Law Review 55

I. Preamble ........................................................ 55
2. Statement of Purpose ........................................ 57
3. Statement of Principles to be Applied ..................... 58
VI. Conclusion ........................................................ 67
Appendix "A" The Canadian Criminal Justice System:

Jurisdiction and Institutions ......................... 7
Appendix "B" The Canadian Criminal Justice System

in Historical and Comparative Context ......... 75
Appendix "C" Data Sources ......................................... 119

EXECUTIVE SUMMARY
EXECUTIVE SUMMARY
Part
Outlines the background of the Criminal Law Review and identifies the aims of
this paper, which are to:
I. Provide Canadians with a summary outline of the context in which
criminal law policy should be viewed;
2. Articulate a statement of the appropriate scope, purpose and
principles of criminal law, on the basis of a discussion of its basic nature
and philosophical underpinnings; and
3. Give an indication of the general implications of endorsing the state-
ment of scope, purpose and principles, in order to provide guidance for the
more specific decisions that must be taken as the Review process evolves.
Part 1I
Analytically discusses crime trends, various explanations offered for the

phenomenon of crime, and the policy response made to crime by governments
over the past several decades.
The Canadian experience is seen as similar to that of most western democracies.

with respect to:
• the vastly expanded scope of "criminal law", taken in its broad sense, that
has accompanied growth in public sector involvement in the economic and
social spheres;
• the large growth in crime, especially in the last two decades, as the post-
war baby boom passed through adolescence into early adulthood;
• the dedication of increasingly large amounts of public sector resources to
criminal justice system activities, especially police;
• the existence of conflicting pressures to further expand resources to offer
protection on the one hand, and to tighten up or re-allocate resources in
view of financial constraints and doubts about the efficacy of traditional
justice system activities on the other hand;

2 CRIMINAL LAW REVIEW
• the trend to rely much less on imprisonment as the primary sanction for
many forms of non-violent property crimes, while maintaining or increasing
the severity of sentences for offenders involved in crimes of violence;
• the propensity of the Canadian justice system to respond to crime by a

greater overall use of imprisonment compared to the justice systems of
many similar countries; and
• the growing recognition of the interrelatedness of the criminal law and the
various components that constitute the criminal justice system, combined
with continued or increased sensitivity to issues of intergovernmental
jurisdiction.
Many of these factors will continue to influence the general shape of future events
Part III
Identifies seven major concerns that encompass the wide range of specific
criticisms, problems and complaints with respect to criminal law and the criminal
justice system. These concerns involve:
I. The effectiveness of the criminal law in combatting crime and correcting

offenders;
2. Enhancing the effectiveness of preventive measures and alternative

measures less coercive and intrusive than the criminal law;
3. The proper role of the victim in the criminal law, and the victim's needs
and treatment in the criminal justice system;
4. The balance between powers granted to criminal justice agents and the
rights and liberties of individuals;
5. Accountability in the exercise of discretion and in the use of public

resources to achieve objectives;
6. Sentencing and post -sentencing processes; and
7. The proper scope of the criminal law, the proper purpose of the
criminal law, and the distinctions that shouid be made between the
criminal law and other types of law or social measures.
Part IV
Addresses the underlying question of the proper scope, purpose and objectives of
the criminal law, by distinguishing four subsidiary issues:
I. With respect to the purpose of the criminal law, the paper concludes
that:
• the criminal law and the criminal justice system must pursue two major
sets of purposes — "justice" and "security";
EXECUTIVE SUMMARY
criminal sanctions, whether justified in terms of utilitarian or retributive

aims, are primarily punitive in nature, and are understood as such both by
society and by those on whom they are imposed:
acceptance of retributive justifications for punishment implies neither
rejection of utilitarian justifications for punishment, nor the acceptance
of harsh, cruel or vindictive forms or levels of punishment. Indeed, the
retributive approach acts as a brake, in setting a maximum permissible
limit on punishment that might otherwise be subject to no such limit in its
pursuit of various utilitarian goals such as deterrence, incapacitation, or
even rehabilitation. This distinguishes the concept of retribution from
that of vengeance: and
the necessity of pursuing these twin, and sometimes-conflicting,
purposes requires an approach to be developed for defining the proper
point of balance.
2. With respect to the proper scope of criminal law, the paper concludes
that:
• it makes sense to distinguish between the criminal law and other forms
of social control:
• the major criterion for determining what conduct merits response from
the criminal law is whether the conduct causes or threatens serious harm
to individuals or society: and
• any such "criteria" are in reality only guidelines, because their necessarily
general level of abstraction always leaves room for interpretation, and
because the judgment of Parliament on what conduct is to be treated as
criminal cannot be bound by anything other than constitutional limits.
3. With respect to the concepts of responsibility and blame, the paper

concludes that:
• it is vital to retain a standard of responsibility and fault in the criminal law

because of the impact of the criminal process and criminal sanctions:
• it is important to define clearly the standard of responsibility required by
each criminal offence: and
• it is not desirable to confine the criminal law to acts committed by
individuals against other individuals: rather, it is advisable to provide for
the liability of organizations, and individuals acting within organizations,
where serious harm to an individual or to the general good is caused or
threatened.
4. With respect to the limits on the powers and sanctions of criminal law,
the paper concludes that:
• the principles of justice, necessity and economy should be considered in

determining the means that may legitimately be employed by the criminal
law and the criminal justice system to effect its ends:
CRIMINAL LAW REVIEW
• justice may require the criminal law to respond to some conduct —

anything less would be inappropriate;
• the substantive and procedural limiting principles well known to criminal
law act as restraints on the extent to which the law and the system may
legitimately pursue the "security" objectives;
• it is unjust to go beyond the minimum intervention necessary for an
adequate and appropriate response to be made to criminal conduct —
from both a utilitarian and a retributive perspective; and
• the tension that results between the justice and security objectives
requires the criminal law to strike a delicate balance.
In summary, the criminal law has the positive objectives of contributing to the
promotion of a just, peaceful and safe society: "justice" and "security"
objectives. Its role in pursuing the "security" objectives is limited by application
of the principles of justice, necessity and economy — principles which reflect the
concept of criminal law as society's ultimate recourse along the spectrum of
informal and formal means for influencing and responding to conduct. These
principles restrict the appropriate scope of the criminal law to conduct which is
culpable. seriously harmful, and generally conceived of as deserving of punishment.
They restrict the appropriate form and amount of powers and sanctions by virtue
of well-recognized legal rights, largely of a procedural nature; and by the presump-
tion against any intrusion into individual rights and freedoms, unless a burden of
proof can be discharged by the state which demonstrates on reasonable factual
grounds that such intrusion is necessary. Furthermore, the intrusion must not
exceed the minimum necessary and adequate in the circumstances.
STATEMENT OF PURPOSE AND PRINCIPLES

Recognizing that
In the Charter of Rights and Freedoms, Canada has guaranteed
certain rights and freedoms consonant with the rule of law and with
principles of justice fundamental to a free and democratic society;
Canada has, in addition, undertaken international obligations to
maintain certain standards with respect to its criminal justice
system;
The criminal law is necessary for the protection of the public and the
establishment and maintenance of social order,
The criminal law potentially involves many of the most serious
forms of interference by the state with inijividual rights and
freedoms; and
Criminal law policy should be based on a clear appreciation of the
fundamental purpose and principles of criminal law;
It is appropriate to set forth a statement of purpose and principles
for the criminal law in Canada.
EXECUTIVE SUMMARY 5
Purpose of the Criminal Law

The purpose of the criminal law is to contribute to the maintenance
of a just, peaceful and safe society through the establishment of a
system of prohibitions, sanctions and procedures to deal fairly and
appropriately with culpable conduct that causes or threatens serious
harm to individuals or society.
Principles to be Applied in Achieving this Purpose

The purpose of the criminal law should be achieved through means
consonant with the rights set forth in the Canadian Charter of Rights
and Freedoms, and in accordance with the following principles:
(a) the criminal law should be employed to deal only with that
conduct for which other means of social control are inade-
quate 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 dearly 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) wherever 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, com-
munity, and offender;
CRIMINAL LAW REVIEW
(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 control;
(k) any person alleging illegal or improper treatment by an

official of the criminal justice system should have ready access
to a fair investigative and remedial procedure;
(I) wherever possible and appropriate, opportunities should be

provided for lay participation in the criminal justice process
and the determination of community interests.
Part V
Explains some of the implications of the proposed statement of objectives and
principles, taking each of the elements of the statement in turn. The specific
recommendation of the Law Reform Commission of Canada that a clear distinction
be drawn between "real' crimes and other offences is endorsed in principle in the
policy statement. The need is identified, in this context, to direct attention to a
number of issues not explicitly addressed by the Law Reform Commission, in
order to achieve the most effective and appropriate distinction in light of concerns
about practical matters of administration, enforcement, and statutory location.
Since approximately 300 federal statutes create offences. only a small proportion
of which would be seen as "real" crimes, the implementation of this recommenda-
tion will have to be undertaken on an incremental and long-term basis, primarily
through consideration by individual departments of the particular statutes they
administer.
Part VI
Summarizes and concludes the paper by reiterating the importance of employing
the concept of restraint in addressing the specific criminal law issues to be addressed
over the next several years by the Criminal Law Review. The ability to conclude
the overall process with a criminal law that is credible, effective and reflective
of the interests and values of Canadians requires the understanding and support of
the public at large. For this reason, comment and reaction to the concepts put
forward in this paper is invited.
INTRODUCTION
I. INTRODUCTION
Should family disputes, often involving violence or threats, be dealt with through
criminal charges, or through attempts to reconcile the parties through social
service agencies? Should so-called "victimless" or "consensual' offences such as
drug abuse, prostitution, gambling, or pornography be crimes? Should the criminal
process be invoked in cases of minor property offences where the offender is
wiling and able to make restitution? Should a corporation be treated as criminal for
ignoring its obligation to protect the environment by repeatedy paying regulatory
fries? Should "plea-bargaining" be encouraged, tolerated, or forbidden? Should
laws be passed to exempt poke and other peace officers from some laws in
certain circumstances?
Parliament and the public will be asked to consider issues such as these over the
next several years, as the fundamental review of Canadian criminal law proceeds.
The issues raised above are only examples, and demonstrate the need for the
Review to address basic questions concerning the very nature of the criminal law in
Canadian society. These more basic questions require us to reflect on:
• the purpose and principles of the criminal law;
• the proper scope of the criminal law;
• issues of responsibility and fault; and
• issues concerning the lengths to which the criminal law can legitimately go in
pursuit of its objectives.
This paper is the first major statement from the federal government on these
questions.
I. Background of the Criminal Law Review

The Criminal Code of Canada was approved by Parliament in 1892. Since then,
the Code and other federal criminal legislation have been the subject of an almost
continuous process of piecemeal and patchwork amendment.
In the past few years, the combined effect of a number of factors convinced
governments that priority had to be given to the complex job of overhauling
Canadian criminal law. Canada, like other Western post-industrialized nations, has
experienced in the past two decades a continued growth in traditional "street"
crime, growing public concern about the apparent breakdown in social controls
(especially as shown in rising violent crime), the emergence of new forms of

sophisticated white collar and organized crime, escalating costs for the criminal
justice system and growing doubts about its effectiveness, recurring problems in
prisons and penitentiaries, and intensified debates about the proper point of
balance between civil liberties and individual rights on the one hand, and powers
granted to criminal justice agents to prevent and detect crime on the other hand.
In this climate, doubts came increasingly to be raised, not only about specific
aspects of the statutes or the criminal justice system, but also about the basic
assumptions and orientation of the criminal law as a whole.
While these doubts have been brought into sharper focus in the past decade, they
represent the culmination of many years of commissions, inquiries and committees
which have examined various elements of the Canadian system of justice since
Confederation.
Indeed, for at least the past five decades, the Code has been the subject of
criticism. The Archambault Report of 1938 cited with apparent approval a resolu-
tion passed by the Canadian Bar Association complaining that:
Since 1892, the Code has been amended year after year, here and there,
something added to one section, something taken from another, with many
entirely new sections and even new statutes of a criminal nature added. One is
reminded of an ancient edifice to which additions have been made, planned
by many architects and carried out with little regard to the appearance of the
completed structure. The so-called revision of 1906 was a consolidation rather
than a revision. We therefore recommend that representations be made to the
Minister of Justice urging upon him the necessity of a complete revision .. .
In 1947, the Criminal Law Section of the Commissioners on the Uniformity of

Legislation resolved "that a commission be appointed to undertake a complete
recodification of the criminal law and a revision of the Criminal Code and
ancillary statutes."
Such a Commission was in fact appointed in 1949, and the fruits of its labours were
incorporated in the recodified Criminal Code of 1955. The Commission's
mandate, however, was limited to consideration of the organization and form of
the Code, rather than its substance.
By 1969, the Report of the Canadian Committee on Corrections (Ouimet

Report) felt it necessary to recommend "that the Government of Canada
establish in the near future a Committee or Royal Commission to examine the
substantive criminal law."
INTRODUCTION 9
The source of this recommendation was the Committee's conviction that "such a
comprehensive examination of the Criminal Code and related Canadian statutes
and that body of 'quasi-criminal' law enacted by the provinces is a matter of the
greatest urgency." This examination was thought to be necessary for a number of
reasons, including the belief that "unenforceable legislation is harmful since it
teaches disrespect for the law"; the existence of "considerable evidence to
suggest that in prohibiting certain kinds of conduct and imposing criminal sanctions
upon its occurrence, one may be providing the most effective and corrupting
publicity for the practice rather than the prohibition"; the present availability of
"adequate knowledge of glaring deficiencies in the existing system"; and the
conviction that "terms commonly employed to designate crimes do not adequately
describe particular kinds of activity" — a failure that may limit "the educative
function of the criminal process."
In 1970, Parliament responded by enacting legislation establishing the Law Reform

Commission of Canada, whose mandate ranged from "the removal of
anachronisms and anomalies in the law", to "the development of new approaches
to and new concepts of the law in keeping with and responsive to the changing
needs of modern Canadian society and of individual members of that society." The
Minister of Justice of the day made the suggestion that "the Commission should
have a complete re-writing of the criminal law as one of its first projects", in light
of his view that "the Criminal Code of Canada ... is in need of thorough
housekeeping, thorough revision not merely in the lawyer's law as it applies to the
Criminal Code, but also in many of the Code's social aspects."
The Commission's first Research Program (March 1972) noted that "at present
there is confusion and controversy about the functions of the criminal law. Thus,
the Commission will study on a continuing basis the purposes to be served by the
criminal law in Canadian society.... Ultimately, a concise statement of aims and
purposes may be formulated for incorporation within the introductory sections of
a remodelled Code."
Over the past nine years, the Commission has published eight formal reports,
eighteen working papers and a host of studies with respect to various aspects of
substantive law and criminal procedure. Some of this work related to specific and
fairly technical matters (contempt of court, miscellaneous procedural amend-
ments), while other elements were concerned with basic questions of philosophy
and principle (scope of the criminal law, guidelines for dispositions and sentences,
imprisonment and release).
This major initiative in law reform paralleled efforts undertaken in other countries
— the United States, France, West Germany, and, to a lesser extent, Great
Britain and Australia — to reform and revamp criminal law in a comprehensive
way.
And just as complaints about unnecessary complications, inaccessible language.

anachronistic provisions, and technical complexities informed all those exercises,
so too did concerns of a more general nature about the credibility, legitimacy, and
effectiveness of the law, and about the very purposes and objectives pursued by
the law.
These latter concerns led the Parliamentary Subcommittee on the Penitentiary

System in Canada (1977) to conclude that the criminal justice system
lacks any clear or acceptable governing conception of what we as a society

intend to accomplish under the rubric of 'criminality' ... and we can only
achieve justice, in a rational sense of that very significant term, through a major
commitment to fundamental reform.... Reform of our prisons should be
no more than one part of a thorough, open and necessarily painful candid assess-
ment of what the criminal justice system ought to do. (original emphasis)
Shortly after the Subcommittee Report was tabled in the House of Commons,
the then Chairman of the Law Reform Commission, in a speech to the Canadian
Congress of Criminology and Corrections, urged "the Parliament of Canada to
dedare a moratorium on all new legislative programmes and their associated
administrative support systems that involve criminal law reform, except in the area
of court procedure and of evidence." This moratorium should be undertaken
because of the absence of one fundamental thing: "a comprehensive justice
policy". Such a lack, the Chairman continued, "is not just an idiosyncrasy of the
present government — no government in Canada or the occidental world, to
the best of my knowledge, has ever sat down and reviewed where we have been
in the area of criminal justice, evaluated the experience and then developed
programmes designed to make future experience conform to known, articulated
future goals."
2. The Criminal Law Review
In response to this train of events, some twenty federal and provincial Ministers
responsible for the various aspects of the criminal justice system in Canada met in
Ottawa and unanimously agreed in October, 1979,
that a thorough review of the Criminal Code should be undertaken as a matter

of priority. The principle of federal-provincial cooperation was firmly established
and it was agreed that the review should encompass both substantive criminal law
and criminal procedures.
As a result of that agreement, a detailed proposal was developed by the federal

and provincial governments to launch an accelerated review aimed at expediting
the enactment of a modem, responsive and effective Canadian criminal law.
INTRODUCTION i^
Beginning with recommendations from the Law Reform Commission, the federal
government — in cooperation with the provinces — will systematically examine
all aspects of Canadian criminal law. By the end of 1985, the Law Reform
Commission is scheduled to complete work on more than fifty individual projects
addressing the substantive and procedural aspects of the law. The government will
analyze these findings and present proposals to Parliament in logically-connected
policy groupings, to enable the coordinated and timely implementation of the
Review process.
3. Aim of this Paper
As the first formal substantive statement by the federal government with respect
to the Criminal Law Review, this paper is intended to accomplish three major
goals:
a) to give Canadians a summary outline of the context in which criminal law
policy should be viewed;
b) to articulate a statement of the appropriate scope, purpose and principles

of criminal law, on the basis of a discussion of its basic nature and
philosophical underpinnings; and
c) to give an indication of the general implications of endorsing the statement

of scope, purpose and principles, in order to provide guidance for the more
specific decisions that must be taken as the Review process evolves.
In approaching this task, the paper adopts a sharper and deeper focus as it
progresses. A fundamental reappraisal requires consideration of a broad range of
questions. If criminal law is understood to be one possible response to those social
problems that manifest themselves in the form of criminal behaviour, then one
must begin with a general discussion of crime in society. Having set that context,
the focus can then be sharpened to isolate the current problems posed by crime
for Canadian communities and the Canadian criminal justice system. Finally, the
focus of the paper will be sharpened further to concentrate on the ways criminal
law itself can respond to these problems.
The focus of this paper is progressively sharpened in this manner because, although
the criminal law is only one component of the many necessary responses to crime,
it is the response of the criminal law that is the subject of the Review of which this
paper forms a part. It is only after the question of the nature and purpose of
criminal law has been answered that the Review can consider the host of specific
questions it must address in the coming months and years.
Criminal law and criminal law policy are matters of interest not only to victims,
judges, lawyers, police, corrections workers, and criminals, but also to all
Canadians. This paper is seen as a means both of informing the public as to the
issues and principles involved, and of providing a framework for discussion of those
issues and principles as the Criminal Law Review proceeds.
It is only through widespread public support and understanding that the criminal law
will adequately respond to our needs and reflect our values as Canadians. It is
hoped that this paper, issued at the beginning of a long and difficult process of
examination, will assist in realizing those aims.

THE CONTEXT 13
II. THE CONTEXT

The purpose of this Part of the paper is to give an overview of Canadian criminal
law and the system that has grown up around it, within the context of an evolving
Canada and a changing world. Such an overview should assist one in gaining a better
appreciation of the kinds of challenges with which we are presently faced, and
consequently in assessing the advisability of adopting various proposals aimed at
meeting those challenges through criminal law policy.
To this end, this Part attempts to describe, in an analytical way, a number of the
principal factors and trends that have a significant impact on both the current
Canadian situation and future possibilities. Taking this global approach should allow
our present problems to be viewed in perspective, by directing attention to the
key principles and themes in Canadian criminal law over the years.
Ask most people whether "crime" has grown in recent years and they would
reply yes, that it has jumped significantly. And in a way they would be right. Ask
most people if more than 10% of all crimes in Canada involve violence and they
would reply yes, most definitely. And they would be wrong. The next two
sections present some figures concerning crime and the public's perception of
crime in Canadian society.
I. The Incidence of Crime
The Ouimet Report (1969), after entering the mandatory cautions concerning the
dangers of relying on questionable — and often nonexistent — official statistics,
referred to the fact that the rate of total convictions for all offences grew by an
astonishing 2500% in Canada between 1901 and 1965. But the Report hastened
to point out that 98% of this total increase took the form of summary convic-
tions — for less serious crimes — rather than convictions for indictable offences,
and, further, that 90% of the 98% was accounted for by traffic offences.
Therefore, "what these overall conviction figures attest to mainly, then, is not an
upsurge in violent or predatory crime but a phenomenal increase in the use — and
consequently misuse — of motor vehicles."
An examination of the trend with respect to convictions for indictable offences —

generally the more serious crimes — showed an increase from 165 per 100,000
population in 1901 to 6 15 in 1966, an increase the Ouimet Committee speculated

was due in large measure to major social and economic changes such as increased
urbanization and industrialization.
The Ouimet Report also found that the conviction rate for indictable offences was
quite stable between 1950 and 1966, with increases largely accounted for by
increases in the proportion of young persons in the population.
Also, within the "indictable" category, crimes against property greatly

outnumbered crimes against the person (violent crimes), and the comparative
violent crime conviction rate in Canada was significantly lower than that in the
United States. On this basis, noted the Report:
The tentative conclusion to be drawn ... is that Canada has not been experiencing
a marked increase in serious crime. The dramatic increase in this century in the
convictions for all offences taken collectively has been largely an increase in
convictions for minor offences related to the growing use of the automobile. A
slight increase in the total rate of indictable convictions in the period since 1950
has been the result of an increase in the rates of young men and of women of all
ages, which has offset a steady decline in the rates of men beyond their mid-
twenties. When the distribution of offenders among various categories of
"serious". i.e. indictable, offences was examined it was found that non-violent
property offences. as distinct from violent offences directed against persons.
continue to predominate.
These findings underline the danger of attaching much significance to reports of
annual fluctuations in unfamiliar statistics or of extrapolating to the Canadian
situation the much-publicized trends of crime in large United States cities. Many
of the circumstances cited as causes of the apparently rising United States crime
rates are either absent or much less severe in Canada.
During the period 1966-1980, however, the rate of crime in both the violent and
non-violent categories has grown significantly — a fact that requires
re-examination of the analysis contained in the Ouimet Report.
The first comment made in Ouimet's chapter on crime (concerning the lack of
reliable information) is, if anything, more applicable today. There are no data on
convictions since 1973. One must rely on reports made to police — reported
crime, not convictions. And the reliability of these data has been questioned.
Fortunately, federal and provincial Ministers responsible for criminal justice have
taken steps to remedy this situation, through the establishment of the Canadian
Centre for Justice Statistics, but this organization was only set up in mid- 198 I, and
is not likely to have conviction data before 1984.
On the basis of all offences (federal, provincial and municipal) reported to police,
however, it appears that total offences have grown by 71 ao between 1970 and
THE CONTEXT I5
1980, from a total of 1,574,145 to a total of 2,692,159 (excluding traffic

offences, but including summary offences, offences under provincial and municipal
law, and under federal legislation other than the Criminal Code). The rate of all
offences reported to the police per 100,000 population has gone up 52%.
showing that some of the overall growth in reported offences is attributable to
growth in the Canadian population.
The proportion of Criminal Code offences in the total of offences reported to

police has changed from 70% in 1970 to 76% in 1980 — a fact that reflects
growth in almost all categories of crime in this period, except for provincial
offences and municipal by-law offences. (The latter, in any event, are not
"crimes" in the constitutional sense — a point to be discussed later).
A closer examination of the Criminal Code offences reported to police shows

significant growth in both property and violent crime reported, whether expressed
in absolute numbers or in rates of reported crime per 100,000 Canadians. More
detailed figures relating to specific offences appear to indicate a steady growth in
most property crimes throughout this ten-year period. Rates of reported violent
crimes are not so consistent, and the growth in certain violent crimes, such as
robbery and wounding, seems to have levelled off from 1975 to 1980, following a
period of significant increases from 1970 to 1975. The murder rate has actually
dropped since 1975.
In comparison with the United States, the rate of property crimes has grown at a
somewhat taster pace in Canada. For some offences, the per capita rates in both
countries are now quite similar. In the case of crimes of violence, however, the
reverse is true, and the difference between the two countries has grown greater.
In 1979, for example, there were 4.7 crimes of violence in the United States
for every one such crime in Canada (after taking into account the larger U.S.
population).
It must be stressed that these figures reflect reports to police, and do not take
into account the fact that there is a progressive "attrition" of cases throughout
the system. That is, only a portion of offences "reported to police" result in a
charge actually being laid against someone, and fewer still actually result in a convic-
tion. Also, statistics of crimes reported to the police are considered of
questionable validity. The increase in offences could be at least partly attributable
to increases in police manpower, better record-keeping, and use of more effective
policing and communications techniques. On the other hand, victimization surveys
suggest that a sizable proportion of some crimes go unreported to police.
Despite all these qualifications, it is clear that there has been a large increase in
crime over the century, and especially in the past two decades, although recent
years indicate a slowing down of the rate of increase in some of the most troubling
crimes. Further information is presented in Appendix "B".

2. Perceptions of Crime
The figures in the preceding section represent the best information available on the
extent of crime, problematic though that information is. It would appear,
however, that the general public perceives the extent of crime as being much
worse than, in fact, it is. Most people are familiar with the results of opinion
surveys showing that a large majority of the public supports the use of harsh
sanctions or believes that the courts are too lenient. Fewer people are familiar
with critiques of those surveys which suggest that the results ought not to be too
heavily relied upon.
One source of criticism is that, in forcing respondents to choose between two or

three possible answers to a simply-phrased question, an artificial and misleading
sense of certainty is injected into the results. Thus. if people are asked whether
they do or do not favour the death penalty, one set of responses is received. If,
however, more detailed, complex and specific questions are posed, the apparent
level of support for capital punishment is reduced significantly. Secondly, crime and
criminal justice appear to rank as major concerns in some surveys that ask people
to respond to a list of possible concerns on which "crime" appears as a category.
If, on the other hand, people are simply asked to name their chief concerns —
with no hints from a list presented to them — crime or criminal justice are very
rarely volunteered as an answer.
Thus, the responses to surveys are, in some measure, determined by the way
in which questions are posed. For this reason, attitudinal surveys about these
complex and emotional issues should be interpreted cautiously.
Near the beginning of the Criminal Law Review, a survey was commissioned to
explore the perceptions of Canadians about crime. This survey was unique in
Canada, in focusing on perceptions about the actual state of crime and workings of
the criminal justice system, as distinct from more common questions about
people's attitudes or opinions about what should be done. The subjects on which
answers were sought had some "objective", statistical reference point (bearing in
mind the difficulties of a statistical nature mentioned above and in Appendix "B").
In February, 1982, more than 2000 adult Canadians were asked a series of
questions about the extent of violent crime, and sentencing and conditional release
practices in Canada. The results indicated that, generally, Canadians vastly
over-estimate the proportion of crime which involves violence, believe murders
have increased since Parliament abolished the death penalty (when they have in fact
declined), and think people released on parole are far more likely than in fact they
are to commit violent crimes soon after release.
In short, the image Canadians have of crime is a violent one — far more violent
than statistics indicate is the case. In fact, only six to eight percent of all reported
crime is violent. The "average" Canadian believes that the situation is seven times
THE CONTEXT 17
as serious, that more than half of all crime is violent. Two-thirds of Canadians
believe murders have increased since 1976, when in fact they have declined,
whether measured in terms of numbers of incidents, numbers of victims, or rates.
Four in five Canadians believe many inmates commit crimes of violence shortly
after release on parole, with the average response overestimating the actual situa-
tion by a factor of five. Similarly, the average response indicated that people
believe the courts send far fewer convicted persons to prison than they in fact do,
especially for violent crimes such as robbery.
As is the case with all surveys, these results must not be over-interpreted. People
may understand the specific questions in different ways, and the "objective" or
"actual" statistics to which reference was made in analyzing the results are subject
to the qualifications and cautions referred to above. Also, the relationships
between apparent perceptions of crime, and fear of crime, or attitudes toward
crime and criminal justice are not well understood. It goes without saying that
those tragic or horrible individual crimes which are the subject of widespread and
justifiable public concern, require continued concentration on preventing such
incidents and protecting the public from such individuals.
For all these cautions, however, it does seem apparent that perceptions of crime
influence expectations of the criminal law and the criminal justice system. It is
not known if those perceptions stem from reliance upon media reports that
concentrate on the more spectacular, violent crime, or the influence of American
television programs or crime statistics. But it does seem clear that efforts should
be made to offer Canadians a more realistic picture of the problems we face. If a
better understanding is achieved of the actual state of the phenomenon of crime,
then a more effective, responsive and practical approach can be developed to
adapting the criminal law to the complexity and reality of the situation.
3. In Search of an Explanation
Theories about the causes of crime go as far back as history itself. Explanations
have taken many forms, concentrating on physiological, biological, psychological,
sociological, historical, political, economic or ideological theories, depending on
the focus of the inquiry, the perspective of the theorist, and the intellectual fashion
of the era. Some of these theories now appear silly, others sensible, but, to date,
none of them has been proven universally valid and all of them have given rise to
almost unending debate.
In the nineteenth century, for example, crime was attributed to the existence of a
"criminal class" in society. Later, explicit links were drawn between crime and
underlying social and economic factors such as poverty, ignorance, unemployment
and lack of opportunity.
During the early decades of this century, concentration on psychological explana-

tions for crime developed in parallel with this broader sociological approach.
The suggestion was made that crimes were committed by individuals who were
aberrant or maladjusted in not developing the kinds of inner controls and checks
required to make social life possible. Early psychological and psychiatric work had
led to growing confidence in the ability of humans to understand, and therefore to
change and control, the sources of their attitudes and behaviour. In criminology,
this led to a strong movement to revolutionize the nature of criminal punishment
by injecting into the system programs and personnel whose mission was to apply
this growing body of human science knowledge to criminals with a view to
transforming them into productive citizens. In later decades, there was a growth in
programs of social services and community intervention (such as finding jobs for
offenders) in recognition of the realities of the social environment in which the
criminal behaviour arose.
These two streams of theory, the psychological and the sociological, did not
necessarily conflict, since it was possible to work toward lessening the societal
causes of crime, while at the same time working with individual offenders, without
waiting for the overall change in societal conditions to occur.
In the face of experience during these decades, however, it became necessary to

offer more complex theories. The general lot of the individual in society, by most
traditional measures, progressively improved over the decades. A more elaborate
social welfare network was put in place to assist those who, for one reason or
another, did not derive the benefits from overall economic expansion that the
majority received. And yet, crime continued to grow, and even accelerate,
especially since the I960s — a period of unprecedented plenty in most western
industrialized democracies. Forensic psychology failed to make the giant strides
that its early enthusiasts had hoped for, and found many of its clients to be less
"mad" than "bad".
Theorists began to turn their attention to the vast expansion of opportunity and
incentive for crime (through such factors as urban planning and building design, and
the increased emphasis on, and availability of, mass-produced consumer goods),
the related idea of relative deprivation (whereby mass advertising contributes to
the feeling of comparative, if not absolute, poverty among some elements of the
population), general notions of alienation and anomie (where sectors of the
population — the young, the poor, minorities, and even a disaffected "middle
class" — feel increasingly depersonalized and at odds with the basic values of the
society in which they live), and media role modelling (where violence and other
things are learned or legitimized through the media).
Others pointed to even more basic demographic factors: the proportion of

"crime prone" youth in the total population as a result of the post-war baby
boom; the increase in the number of homes left unprotected during the day as a
THE CONTEXT 19
result of the increasing number of women in the work force; dramatic shifts in
population in search of employment opportunities to large urban centres and the
consequent pressure on local resources and patterns of life; the increasing rate of
family breakdown; the almost universal presence of television in Canadian homes.
Since the I970s, economists have entered the debate, suggesting that, far from
being an irrational or aberrant response to societal norms, much crime was in fact
a perfectly rational economic strategy. For those who desired certain goods,
services, or status, but who were unable or unwilling to acquire them by traditional
means, acquiring them through crime quite simply made sense. The risks of
detection and apprehension were real, but relatively low, and, for some, were far
outweighed by the benefits to be gained through criminal activity. In this view,
then, it was a mistake or a waste of energy to concentrate on "reforming" or
"rehabilitating" criminals (or at least those criminals who committed the bulk of
crime — crime against property for gain). Instead, it was argued, attention should
be devoted to increasing the element of risk involved, by protecting property
more adequately and by concentrating on steps to increase the likelihood of
detection, apprehension, and conviction of criminals.
Other social scientists focused research on specific, policy-related issues, concen-

trating on the operations and effects of the criminal justice system itself, rather
than on broad demographic, sociological and psychological factors.
These more recent trends in theories of crime causation have resulted from a
number of factors. First, there has been a shift in perception about the possibility
of altering the "root" causes many still associate with crime. It may be agreed that
poverty, ignorance, unemployment, and discrimination must continue to
be attacked, and that the influence of the proportion of young people in the
population, as well as the importance given to the family, school, friends, and
moral beliefs, must have a crucial and perhaps determinant effect on behaviour and
attitudes. But the current view within both government and the human sciences
seems closer to that expressed by American scholar James Q. Wilson of Harvard:
(if) we regard any crime-prevention or crime-reduction program as defective

because it does not address the 'root causes' of crime, then we shall commit
ourselves to futile acts that frustrate the citizen while they ignore the criminal.
In this view, the search for comprehensive causal theories about, and solutions
for, crime constitutes "a way of deferring any action and criticizing any policy.
It is a cast of mind that inevitably detracts attention from those few things that
government can do reasonably well and draws attention toward those many things
it cannot do at all."
Secondly, costs in the labour-intensive police and correctional fields have grown
exponentially, although this growth was due more to inflation than to large
improvements in services. Doubts have been increasingly expressed about the
efficacy of relying so heavily on government, and specifically the criminal justice

system, to solve the problem. Pressures on resources and demands for account-
ability in terms of results have contributed to the more narrowly-focused attention
on the system and its impact.
Finally, the results of new criminal justice research in the I960s and I970s have
shown that little is known about how to prevent or stop crime by traditional
methods of punishment or treatment.
A study carried out by the American National Academy of Sciences Panel on

Deterrence and Incapacitation (I 978) found that the relatively few studies that can
be relied upon indicate that punishment does act as a deterrent for some people
and for some crimes, but that no simple cause and effect relationship can be
established. Others have examined the impact on crime rates of "incapacitating"
the small minority of persistent or dangerous offenders thought to be responsible
for a disproportionate amount of crime. The primary method of incapacitation is,
of course, incarceration. Reliance on an imprisonment and incapacitation strategy
to reduce crime, according to a growing body of research, would have only minor
effects on the overall crime rate while causing an enormous increase in financial
and social costs. As yet, other major and emerging schools of crime causation and
prevention — such as defensible space, target hardening, and even intervention
with and for the individual offender — are only now developing a systematic
knowledge base.
This latter reference raises the question of rehabilitation. Over the past century,
great stress has been laid on the importance of this concept. This has been largely
based on humanitarian impulses and a utilitarian, "common sense" theory that the
best way to prevent crime in the long run is to rehabilitate those who commit
crime — by "transforming offenders into law-abiding citizens" (Archambault.
1938). But in the late I960s, on the basis of a survey of attempts to evaluate
rehabilitative or treatment programs. one criminologist concluded that these
efforts had resulted in expensive failure — that "nothing works." Later analysis
of these studies indicated that some programs do have a positive effect on some
people. In general, however, most efforts have been undertaken in such a way
as to preclude the possibility of making any definitive assessment of their
effectiveness, or lack thereof. Again, after several decades of work, experts are
really not in a position to say with any confidence whether specific policies do or
do not have much effect. Many advocates, however, maintain that resources
devoted to this approach have simply been inadequate for a fair trial.
Perhaps the major conclusion that has been drawn from this emerging body of
research and evaluation about crime, criminals and society is that not very much
can be concluded. This is partly because of the understandable focus of much of
that research, until recently, on the development of comprehensive causal
theories. Even if it were possible to develop such theories, it would not necessarily
assist one in determining what to do about crime. This call for relevance has
THE CONTEXT 21
influenced the recent trend to focus more closely on policy-relevant variables

that might give some better indication of what can be done; and the efforts over
the past decade in government and universities to undertake such research and
evaluation will no doubt assist in that endeavour.
4. The Response to Crime
This section traces the pattern of official (i.e. governmental) responses to crime
through a policy framework consisting of law, institutions, and resources.
Appendix "A" describes the unique constitutional division of responsibilities in the
area of justice. Appendix "B" outlines the rapid growth of criminal justice system
resources over the past several decades, and the manner in which that system
deals with cases presented to it.
In speaking of the response through enactment of legislation, this section will

refer to concerns more broadly-based than "crime", in the sense that the vast
expansion of government over the past century has led to legislative action in a
wide variety of fields. The historical fact is that much or most of that legislative
activity has, consciously or unconsciously, taken the form of an expansion in the
scope of criminal law — with that phrase being understood in a broad sense.
In the early decades after Confederation, governments at both the federal and
provincial levels paid comparatively little attention to crime. The federal Parliament
enacted the Criminal Code and other legislation having penal aspects, and maintained
and expanded the penitentiary system. The provinces, for their part, established
or oversaw the establishment of police, courts, prisons and local jails, as a
consequence of their responsibility for the administration of justice. But compared
to recent years, the level of government resources devoted to criminal justice was
minor.
The scope of activities was also limited because, with the exception of the power
to define offences specifically in legislation, the federal government was largely
content to continue the traditional common law approach to criminal law policy.
Under this tradition, the major role in determining overall principles and their
proper application was that of the judiciary, not the executive or the legislature. In
enacting the 1892 Code, and subsequent revisions up to and including that of the
early I950s, successive government spokespersons were careful to stress their
understanding of, and support for, this allocation of responsibilities.
As the system expanded and the workload increased, as public attention focused
more insistently upon the responsibility of government for solving major social
problems, governments came increasingly to play a more activist role in justice
policy.
Where criminal law debates in the House of Commons in early years concentrated
primarily on technical legal questions, the emphasis in the last three decades has
increasingly been to recognize the interrelatedness of legal policy and social policy.
In addition, the scope of the law itself expanded as governments became involved
in more areas of social and economic activity throughout this century. Many would
be surprised by the estimate made by the Law Reform Commission, that
Canadians are subject to a substantial number of criminal offences in addition to
the approximately 350 offences found specifically in the Criminal Code —
'20,000 federal offences, and 20,000 in provincial law, not to mention the welter
of municipal law".
To be sure, the overwhelming bulk of these offences is found in regulations made

under the authority of federal and provincial statutes, rather than in the statutes
themselves. And some may argue that, at the very least, the 20,000 provincial
offences and all municipal offences are not, in the technical sense, criminal, since
the constitution gives sole jurisdiction to the federal Parliament to enact truly
"criminal law". Most of the federal offences are not really "criminal" either, since
they deal with other subjects that are the justifiable constitutional concern of the
federal Parliament, such as banking, shipping, income tax, customs and excise,
interprovincial trade, immigration, and so on.
But the fact that citizens found guilty of almost all these offences are liable to
punishment — including imprisonment — makes their characterization as criminal
law sound more reasonable than it might at first seem. In other words, even
though most of the conduct being sanctioned might not be thought of as
"criminal" in the usual sense, the sanctions available for dealing with breaches are
thought of as "criminal" punishments.
A major factor explaining this development is the traditional legislative practice of

providing for the enforcement of the offence by almost-automatic reference to
the summary conviction procedures contained in the Criminal Code. Thus, breach
of most federal statutes creating offences (and there are some 300 such statutes)
carries a potential penalty of six months in jail, a S500 fine, or both, and requires
appearance in the ordinary criminal courts. Other statutes refine this, some
creating indictable offences (even more criminal-like in nature), others adjusting
the penalties, but almost all carrying the possibility of imprisonment.
Other noticeable trends seem related to this growth in the scope of the law. The
last two decades have seen a rapid expansion of resources in the justice field, and a
more activist leadership role played by federal and provincial governments alike in
introducing new programs of treatment and law reform. In addition, there is a
perceived breakdown, or at least reduction, in the ability of traditional social
institutions such as the family, the neighbourhood, the church, and the school to
effect a basic social consensus about acceptable limits and standards of behaviour.
This breakdown led to increased pressure on government to fill the vacuum, to
THE CONTEXT 23
stake out a more central role in "controlling" society through formal structures
such as the criminal justice system. Increased national and international attention in
the post-World War II years to individual rights, and the development of formal
legal structures to articulate and enforce those rights have accelerated this trend.
These sometimes-conflicting pressures continue to be felt, with some people

calling on governments to step up efforts to combat crime through the enactment
of new legislation or expenditure of more resources, and others insisting on
enhanced government efforts to protect human rights against attacks by other
individuals or components of society, and by government (and the criminal justice
system) itself.
Appendix "B" gives an indication of the manner in which the criminal justice
system deals with crime through the processing of cases, and compares the
Canadian experience with that of some other countries.
On the basis of the material presented in the Appendices and in this section, as well
as through reference to the many other legal, historical and sociological studies
concerning various aspects of the criminal law and the criminal justice system, the
Canadian experience over the past century can be seen to be in the mainstream of
most western democracies, with respect to:
• the vastly expanded scope of "criminal law", taken in its broad sense, which
has accompanied growth in public sector involvement in the economic and
social spheres;
• the large growth in crime, especially in the last two decades, as the post-
war baby boom passed through adolescence into early adulthood;
• the dedication of large and growing amounts of public sector resources to

criminal justice system activities, especially police;
• the existence of conflicting pressures to further expand resources to offer
protection on the one hand, and to tighten up or re-allocate resources in
view of financial constraints and doubts about the efficacy of traditional
justice system activities on the other hand;
• the trend to rely much less on imprisonment as the primary sanction for
many forms of non-violent property crimes, while maintaining or increasing
the severity of sentences for offenders involved in crimes of violence;
• the propensity of the Canadian justice system to respond to crime by
greater overall use of imprisonment in comparison with the justice systems
of many similar countries; and
• the growing recognition of the interrelatedness of the criminal law and the
various components that constitute the criminal justice system, combined
with continued or increased sensitivity to issues of intergovernmental
jurisdiction.
5. Future Policy: Pressures and Trends
While it is always a perilous business to predict, it does seem likely that many of
the factors that contributed to our current situation will continue to influence the
general shape of future events.
justice issues traditionally attract widespread public interest and attention, often of
a politically and socially polarizing nature. Thus, one element of the population may
react to perceived increases in criminality by calling for much tougher policies on
the part of the criminal justice system. At the same time, other elements question
both the effectiveness of criminal justice system action and the moral justification
for such intervention, calling instead for increased formal protection for individual
rights as well as a greater degree of openness and accountability on the part of
public institutions in general and criminal justice agencies in particular.
Despite the relative decline in the proportion of the population thought to be

most "crime prone" as the baby boom passes into middle age and beyond, most
experts predict a continued growth in "traditional" or "street" crime, if at
a continually declining rate of growth. It should be noted that much violent
"street" crime in reality occurs in the home, between people well known to each
other, rather than in the form of the anonymous violent attacks by strangers
which seem to be the major image of such crime.
In addition, the social and economic evolution of society over the past several
decades has resulted in the emergence of new, sophisticated and potentially
harmful forms of activities born of technological advances that may call for a
criminal law response.
The predicted continuation of slow economic growth, unemployment, and infla-

tion may contribute to this projected continued increase in crime, as well as to the
development of new forms of crime.
The increased use of technology in the economy, and in all aspects of society. will
have implications for criminal law and the criminal justice system. On the positive
side, reduced reliance on cash will lessen opportunities for cash theft. Use of new
computerized information and communications technology will provide police with
better investigative tools, and individuals with preventive and protective devices in
their homes and businesses. At the same time, however, new avenues will open up
THE CONTEXT 25
for white collar crimes involving manipulation of this new technology, as well as for
possible intrusions into privacy rights of individuals both by criminals and by public
and private sector agencies.
Continued influence on the economy by large national and trans-national enterprises

and organizations, and the consequent increased risk to the public posed by the
large-scale intentional or unintentional harmful effects of the activities of such
organizations, will require more attention to be devoted to ways in which society,
through law, can control and limit such risks.
The trend of recent years to shift away from neighbourhoods and public places to
increasingly enclosed, isolated and self-contained private complexes (in the form of
shopping malls, condominiums, total institutional environments) has resulted in a
rapid expansion of the private security industry, a development that raises issues
concerning rights, property, accountability and access. At the same time, the
erosion of private and shared space in other urban areas has led to the growth in
what some writers call crime generated by environmental design.
Growing attention to the needs of crime victims is already leading to heightened

emphasis on services addressing those needs, and to renewed consideration of the
appropriate role and rights of the victim within the criminal justice system — a
system that primarily considers crimes to be affronts to the peace generally, to
society as a whole, rather than focusing on the impact of crime on individual
victims.
Pressures on resources in a climate of fiscal restraint will bear heavily on

criminal justice agencies, which are especially labour-intensive in nature and
therefore especially difficult areas in which to effect reductions. These pressures
to cut back will likely run squarely up against anticipated public demands for higher
levels of protection by state agencies against crime. On the other hand, increasing
doubts about the effectiveness of traditional criminal justice institutions, programs,
and policies have led many to advocate the use of more innovative and cost effective
approaches that limit the degree of state intervention through more restricted use
of costly imprisonment as a sanction, and increased reliance on community-based,
victim-oriented restitutive and reparative sanctions, and on crime prevention
technologies.
One likely side effect of this trend will be a still higher proportion of difficult,
dangerous and violent inmates in penal rutitutions, with the accompanying
social, psychological and financial costs implied by that development for inmate,
staff and society alike. As for rehabilitative programs, the doubts cast on their
efficacy by some recent research has already led to a shift in emphasis or
rationale. Instead of suggesting that such programs can be imposed on unwilling
subjects "for their own good", it is recognized that non-voluntary rehabilitation is

simply not possible. The benefits of changing attitudes and behaviour — for both
the offender and society — are still very real, however, and for this reason, as well
as for reasons of simple humanity, correctional authorities must provide programs
presenting both opportunities and incentives for offenders to reform themselves.
Finally, no discussion of any public policy issue in Canada would be complete

without mention of federal-provincial issues of jurisdiction. Appendix "A"
describes the complex sharing of responsibilities for the various components of the
criminal justice system. and the increasing degree of consultation and cooperation
that has developed in the past two decades in recognition of the interrelatedness
of that system. While the extent of cooperation is significant, it would be
inaccurate to suggest that there are no frictions or disagreements. Indeed, a
number of issues of common concern within the system involve differing views on
how the responsibilities for programs and financing should be divided. Continued
pressures on resources may result in an increased level of interjurisdictional
conflict unless care is taken to ensure that attention is directed to productive ways
of maximizing effectiveness and minimizing conflict.
CURRENT PROBLEMS AND CONCERNS 27
III. CURRENT PROBLEMS

AND CONCERNS
This Part is designed to crystallize some of the main criticisms of the law and the
system, by describing the major problems perceived to have accompanied, or
grown out of, the factors outlined in the previous Part.
Reference to newspaper articles and learned journals, public comments by elected

representatives or spokespersons for particular groups, and correspondence from
the general public reveals a host of specific problems, concerns, and complaints
about criminal justice in Canada. A list of such perceived concerns would include a
range of subjects, such as:
• concerns about specific crimes or justice system decisions seen as

particularly outrageous or unfair;
• controversies about particular, and usually spectacular, negative incidents

such as prison riots, escapes, hostage takings or allegations about official
misconduct;
• delays in trials, backlogs in courts, numbers of persons in jail awaiting trial;
• concerns about the propriety of certain aspects of criminal justice, such as

the practice of plea bargaining, certain police investigative procedures, and
parole;
• concerns about sexual bias in the criminal law and alleged discrimination in its
administration;
• alleged inability of the system to deal effectively with crime because of

undue concern for the rights of accused;
• the role of and treatment accorded to victims of crime; and
• increasing costs of the system with no evidence of improved effectiveness

in solving the problems of crime.
These concerns, each important in itself, would seem to be related to more

general issues, at the level of the system as a whole.

I. How effective is the criminal law in

combatting crime and correcting offenders?
Reference was made earlier to controversy over whether the criminal law or
justice system has much effect in controlling crime and protecting the public.
These doubts have led many criminal justice professionals to state the goals of the
system in a more modest way than was the case just a decade ago. It is now
generally agreed that the system cannot realistically be expected to eliminate or
even significantly reduce crime and rehabilitate unwilling offenders — but only to
reduce or mitigate the social costs of crime, to punish offenders, and to create
programs, opportunities and incentives for treatment or other help for offenders.
According to this view, it is not the penalties on the statute books, nor even the
severity of prison sentences handed down by the courts that are the most effective
criminal justice system responses to crime: instead it is improvements in preventive,
investigative and prosecutorial methods and in court procedures that offer the
best hope for improvement by increasing the certainty of detection, apprehension,
conviction and punishment.
These points are especially important in view of the fact that criminal justice
expenditures have continued to grow virtually every year and in every sector, and
it is becoming increasingly important to know how to be more effective with the
same or lower levels of resources.
Within this context, general concern about criminal justice effectiveness has been
more specifically focused on serious, especially violent, forms of crime, and on
certain new and emerging forms of crime which are not among the traditional
targets of criminal investigation.
Concern about effectiveness therefore relates to the question of whether the

criminal law should be broadened to encompass new offences, or old offences
committed with new technology, as well as to the question of whether the
interventions, decisions and programs of the criminal justice process are effective
and can be made more effective.
2. How effective are preventive and

alternative measures?
The general view is that the criminal law and the criminal justice system are, and
ought to be, the ultimate tools available to society in dealing with the anti-social
conduct of citizens. A continuum of measures and institutions exists for dealing
with human interactions in society, ranging from the informal or internal moral and
cultural norms and beliefs, traditions and expectations we share, to various formal
institutions such as the family, the school, the church, professional organizations,
positive incentive governmental programs, mediation and conciliation, the civil law,
regulatory schemes and, only at the end of the spectrum, the criminal law.
Because it embodies the coercive force of the state, and because it is the final
recourse open to the state and society for responding to anti-social conduct, use
of the criminal law ought to be reserved only for those cases where other. less
intrusive and coercive methods have either shown themselves to be inadequate or
are patently inappropriate for dealing with the type of conduct in question.
Some see the tendency to resort to the criminal law as a more or less automatic
response, or because of perceived shortcomings with other sorts of formal or
informal societal institutions, as a regrettable trend that should not only be
resisted, but reversed. In this view, imagination, dedication, and innovation should
be employed in the effort to resolve societal problems through means other than
the criminal justice system. thus enhancing the latter's credibility and effectiveness.
Included among alternative means are programs directed toward the prevention of
crime. Some argue that too many of the state's resources and crime policies are
directed, not towards the "front end" where crime is generated, but only later
when individual criminals are apprehended. This policy, or lack of policy, is said to
ignore a large sector of the possible measures that can be taken in dealing with
crime as a social problem. Governments, for their part, are increasingly heard to
say that crime is a community responsibility, and "we can't do it all". Current
thinking about preventive programs suggests that emphasis should be placed on:
• standards of environmental design and urban planning that would reduce

opportunities for crime generated by residential and commercial design,
materials and technology, and neighbourhood planning and community
structure;
• better public education, especially about such things as drug abuse, abuse of
alcohol, and the improper use of motor vehicles;
• amending certain regulatory statutes and procedures to increase the security

of the technology or system being regulated, decrease the crime-generating
capacity of the system (such as through "crime impact assessments" for
certain programs), and decrease the susceptibility of the system to misuse
and fraudulent use; and
• more specialized training of regulatory and law enforcement personnel in

the detection and handing of complex or sophisticated forms of social
harm, and better research on effective sanctions against these offenders.
3. How can the system be more responsive

to victims?
It is increasingly said that the victim is the "forgotten" person in the criminal
justice process. The immediate emotional, financial and physical needs victims
experience in the wake of crime are often not addressed. Victims are usually given
little or no information about the process they are entering when they report a
crime or participate in an investigation or prosecution. Such participation, especially
for victim-witnesses, can involve repeated court appearances, loss of wages,
difficulties with transportation and child care during participation, and, in cases of
confused and insensitive treatment, a loss of faith in and respect for the justice
system.
To the victim. it may at times appear that the criminal justice system is overly
concerned about "solemn ritual" and the punishment of the offender, and insuf-
ficientiy concerned with the victim's financial losses and needs. A homeowner
whose yard is damaged by vandals may have little interest in seeing the vandals
punished, but a great deal of interest in recovering the cost of the damages. Yet
the criminal justice system has not seen itself as the appropriate institution to deal
with these concerns. While no reliable figures are available. it is believed that
compensation to the victim by the offender is ordered by the court under current
law in only a minority of cases. The compensation awards available in most
provinces to victims of violent crime must be sought through an administrative
process totally separate from the criminal trial. Civil suit is the only other avenue
open to most victims.
Some critics of this state of affairs argue that the criminal and civil law systems
have been allowed to grow too distinct from one another, and that an effort
should be made to align the two systems more closely, as is the case in some
Western European countries. The benefits of such an alignment, it is suggested,
would be a more convenient, understandable and effective system of justice from
the viewpoint of the individual citizen, and a re-focusing of the system on positive
aims such as reparation and reconciliation, rather than on negative aims such as
blame allocation and punishment.
On the other side, important arguments are heard for resisting a thoroughgoing
merger of the civil and criminal systems. One practical argument is that the
criminal courts would become hopelessly clogged with cases smacking more of
civil debt enforcement or individual vengeance than criminal justice. Many courts
and prosecutors have also been reluctant to permit citizen dispute mediation
programs to operate in their jurisdictions, and concerns have been expressed
about involving criminal courts in the complex and time-consuming business of
assessing damages.
Despite these issues and concerns, the needs of victims have begun to be recognized
as a more valid interest in the criminal justice process. In 198 I, an International
Conference on Victim Assistance, held in Toronto, focused national attention on
the victim issue. In December, 1981, federal and provincial Ministers agreed "to
intensify their present efforts in the victim assistance areas by taking immediate
steps to stimulate and improve information and support services." All provincial
governments and the federal Justice and Solicitor General's departments have
agreed, through a Task Force, to survey the extent of victim services. In addition.
the Task Force will study the needs of victims, identify resources and approaches
showing particular promise, and examine important issues of principle and practice.
The Task Force is due to report back to Ministers in December, 1982.
4. How should the powers of the state be balanced with

the rights and liberties of individuals?
A wide range of contentious issues is grouped under this general heading. There
are those who argue on the one hand that police powers are too limited, that
courts are powerless to prevent pretrial releases of serious offenders, that trial
procedures are cumbersome, over-exacting and biased towards the rights of the
accused, as against the interests of the victim and society. On the other hand,
there are those who argue that the state's powers are already too strong, not
subject to effective review or other forms of accountability, and unguided
by statutory direction or public policy. In this connection, implementation of the
principles and rights enshrined in the Canadian Charter of Rights and Freedoms is
of special importance. Certain aspects of the law may require amendment to
comply with the Charter, and examination of both substantive and procedural
components of the existing law has already begun. In addition, it will be a continuing
duty to scrutinize proposals for changes to the law in order to ensure compliance
with the Charter.The chief anticipated impact of the Charter will likely not be felt
at the level of statute law, however, but instead at the level of administrative
actions by criminal justice agencies — actions that will likely be more subject to
judicial scrutiny than in the past.
Specific areas under debate with respect to this overall issue include:
police powers: These concerns encompass the issues of police

effectiveness and individual liberties. The last ten years have seen particular
attention focused on police powers through the various commissions of
inquiry leading to increased public pressure to strengthen human rights
guarantees in the face of police powers. On the other side, police have
argued that there has been an erosion of their ability to combat effectively
the large increases in crime over the last twenty years, and that effective
public protection requires the granting of enhanced powers;
trial procedures: Some argue that trials are too lengthy, too influenced
by universally available legal aid, and too subject to technical procedural
problems, court backlogs and delays to deliver the "swift, certain" justice
which is seen as a prerequisite for effective deterrence. Others hasten to
point out that full criminal trials are not the rule since most criminal
prosecutions (an estimated 75-80%) are settled through a guilty plea, and
that the right of the accused to a fair and full hearing must not be
compromised in pursuit of more expeditious trial procedures;
pretrial release of defendants on bail or their own recognizance:

Police and others claim that too many defendants released prior to trial go
on to commit other crimes, threaten witnesses, or illegally raise funds for
their defence while they are free. Civil liberties groups have argued, on the
contrary, that the initial progress made through the Bail Reform Act of
1972 has since been eroded through subsequent amendments which
facilitate the requirement of money bail or surety, and permit the pretrial
detention of large numbers of persons, many of whom, according to a
recent study, ultimately do not receive prison sentences: and
rights accorded to convicted persons: One view has it that convicted
offenders have more rights than their victims or than law enforcement
officials. Another view is that convicted offenders give up too many rights,
are too much subject to additional penalties as a result of convictions
(penalties such as criminal records and loss of employment opportunities),
and, especially in the case of imprisoned offenders, do not have effective
recourse to courts and other legal means of safeguarding their rights.
S. How can the justice system be made more

accountable?
In Canada, considerable decision-making discretion is given, either by law or by

tradition, to police, prosecutors, judges, correctional officials and parole boards.
Discretion is generally viewed as a desirable and necessary tool for criminal justice
agents, allowing them the degree of flexibility required to respond to the widely-
varying cases with which they are faced.
Yet it is increasingly being recognized that certain unintended and undesirable

consequences may arise from insufficient attention to the control of the exercise
of discretion. For this reason, the problem of finding a proper balance between
discretion and the rule of law has become an issue of concern. A number of
commissions and studies arising out of controversial instances of the exercise of
discretion in Canada have contributed to increased interest in the issue.
The concerns expressed about discretion are complex and interrelated. Most
obvious among these is a concern over disparity in the exercise of discretion. By
"disparity" is meant unexplainable or unjustified variation in the treatment of
similar offenders in similar circumstances, caused by decisions made on the basis of
unknown, indiscernible or indefensible considerations. Such disparity violates
notions of fairness and even-handed justice.
From another perspective, concern about discretion stems from its lack of visibility
and consequent resistance to public scrutiny and accountability. While the law
requires accountability for certain important decisions, and the right of appeal
provides another crucial means of legal accountability, little exists in the way of
formal policy criteria guiding the manner in which most criminal justice agencies
use their discretion: and it is therefore not always clear why decisions are maL°
Furthermore, the agencies do not assess, and cannot draw real conclusions about,
their operations and effectiveness.
In the context of the Review, the exercise of discretion and its control are issues
that must be addressed. The criminal justice system must be accountable for its
decisions and the effects of those decisions, as is any public agency. Indeed, it must
be more accountable than most, because of the direct or potential impact of the
criminal justice system on the rights and liberties of individuals. Accountability in all
its dimensions — legal, financial, public and political — must therefore be a question
specifically addressed in the criminal law.
6. How can sentencing and post-sentencing

processes be improved?
The principles and law of sentencing are at the heart of the objectives of the
criminal law. A century ago, Stephen observed that the imposition of sentence
represents the climax of the criminal process. It is at the stage of sentencing that
the criminal justice system most consciously and visibly expresses its denunciation
of behaviour, attempts to deter or incapacitate people from further wrongdoing,
or orders reparation or redress of the harm done.
The most significant concerns in sentencing can be grouped into three categories.
First, there are no clear policies or principles of sentencing in Canada. Second,
there is an apparent disparity in the sentences awarded for similar crimes committed
by similar offenders in similar circumstances. Third, while little is really known
about the effectiveness of various sentences, what is known suggests that the
present sentencing options and practice leave considerable room for innovation
and greater effectiveness. These three types of concerns are clearly interrelated,
since the lack of dear policy on sentencing may both encourage disparity and
reflect the lack of meaningful or dearly effective sentencing alternatives.
With respect to policies and principles, statutorily set maximum prison sentences
for each Criminal Code offence are typically so much higher than the actual
average sentence for the crime that they cannot be said to provide real guidance
on sentencing.
The decisions on sentence by courts of appeal reveal a lack of uniformity in

sentencing. General principles and procedural instructions abound, but there are
few guidelines as to the manner in which general principles should govern the
choice of sentence, or as to the weight which should be assigned to the different
objectives or principles of sentencing. Furthermore, the Supreme Court of
Canada does not hear sentencing appeals, reducing the possibility of a truly national
approach.
Confusion in sentencing policy seems also to be connected to confusion surrounding

the practice of laying charges and negotiating guilty pleas. Programs of
post-sentence remission of and release from sentence have also led to debate,
confusion and concern. The manner in which such processes as parole. remission,
temporary absence and mandatory supervision affect sentence is not well
understood by the public, and is periodically subject to criticism in the media and by
criminal justice professionals who claim either that these processes operate too
leniently, or that they should not be in use at all, because they needessly expose
the public to harm, usurp the court's sentencing authority and unduly lessen the ef-
fectiveness of the sentence.
All of these aspects of sentencing, concerning which there is no explicit policy,

would contribute to concern about sentence disparities even in the absence of
proof that there is such disparity. Though the quality of information on sentencing
in Canada does not at present permit definitive conclusions, and there is disagree-
ment as to the amount and type of sentence variation which is proper, the studies
that have been done on sentencing disparity in Canada have resulted in concern.
The Ouimet Committee referred to the "impression of disparity created by the
present uneven application of the so-called tariff system of sentencing to imprison-
ment", and quoted Professor John Edwards as saying that "Canada displays a
marked absence of uniformity in the principles of sentencing". In 1971, Professor
John Hogarth found the sentences awarded by Ontario magistrates to be based
more on individual tariff than on principles or factors in the case. The National
Task Force on the Administration of Justice (1977-78) showed variation from
province to province in the proportion of convictions which resulted in a sentence
of imprisonment, and significant variation in the length of prison terms awarded.
Further study of this question is required.
The third major concern relates to the effectiveness of sentences. There are
some indications, from scattered and preliminary studies, that certain effects may
result from certain sentencing practices. But there is virtually nothing known
about the effects on a given offender of a given sentence, or its effects on the
level of commission of that crime generally in the area. This "knowing that
we don't know" has contributed to calls for restraint from the Law Reform
Commission and others, especially concerning the use of those sanctions which
impinge most directly on individual freedoms and dignity. But a great deal more
needs to be learned about "what we don't know".
A particular problem in sentencing identified by the Ouimet Report and the Law
Reform Commission is the lack of distinctions between dangerous and other
offenders. In recent years, special provisions available in many countries, including
Canada, for the indeterminate incarceration of "dangerous offenders" have come
under fire on the basis of a recognition that no system of prediction has been able
to forecast violent behaviour reliably.
Another difficulty in sentencing is a shortage of meaningful alternatives falling

between the severe and potentially damaging effect of prison, and the some-
times minimal supervision and treatment available on probation.
In the context of the Criminal Law Review, the Law Reform Commission has
already completed its work with respect to sentencing, and it remains for the
government to suggest to Parliament the kinds of responses that might be made to
the issues discussed above, and to the recommendations made by the Commission.
In preparation for this task, a number of activities are currently underway, in close
cooperation with the judiciary and the provinces, in the form of judicial seminars,
preparation of a sentencing handbook, and gathering and analysis of data. This
work will enable the Criminal Law Review project on sentencing to build on the
basis of better information.
7. What should the Criminal Law be about?
The last in this list of major concerns is, perhaps, the most important and provides
the focus for much of the subsequent discussion in this paper. Uncertainty exists
about the purpose the criminal law should serve, the types of conduct the criminal
law should prohibit, and the ways in which the criminal law can and should be
distinguished from civil, regulatory or administrative law.
On the one hand, many agree with the Law Reform Commission that the Criminal
Code contains too many offences of an insufficiently serious nature, and that their
inclusion in the Code ties up criminal courts needlessly, unduly stigmatizes
individuals who do not deserve it, depreciates the value of the criminal law, and
engenders disrespect for the law.
Others feel that the criminal law should apply to more anti-social behaviour than it
does now, and that it should be invoked more often against wrongdoers. Some
support the view, for example, that the criminal law should be used more
energetically to reinforce certain values presently seen as threatened by such
conduct as drug abuse, prostitution, gambling and obscenity. Others argue that the
criminal law and justice system must be "modernized" to deal with new or emerging
offences (such as sexual harassment or waste of energy resources), or with the
seriously harmful consequences of some activities of large organizations. In this
view, there is a place for the criminal law in some instances, because such activities
violate emerging social values that acquire more importance as society becomes
more complex and interdependent and its citizens thereby become more
vulnerable to complex mischiefs such as pollution, misuse of information,
monopolistic or collusive manipulation of prices and markets, theft by computer,
destruction of scarce or non-renewable resources, manufacture of unsafe
products, creation of unsafe working conditions, and so on.
Defining more clearly what should be included in the category of "crime" is only
half the answer, since one of the additional sources of confusion about the bound-
aries of criminal law is the fact that there are no clearly distinguishing
characteristics in terms of consequences. That is, both criminal law and
non-criminal law cases, for the most part, are heard in the same courts, by the
same judges, and with the same possible penalties. It likely makes no difference to
the individuals in three neighbouring prison cells that one of them was convicted
for a Criminal Code offence, the second for a Narcotic Control Act offence, and
the third for an offence under a provincial statute. So attention must also be paid
to the adequacy and clarity of the distinctions made between "real" criminal
offences and other offences in terms of the consequences and procedures that
attach to each.
In addition, the traditionally complex and cumbersome language in which statutes

are drafted has been subject of criticism and complaint. The criminal law is a basic
social document that should be comprehensible to citizens. The notion that
citizens should have clear notice and fair warning of what conduct is prohibited
requires that criminal law should be expressed in clear and simple language,
consistent with the need for certainty, specificity, and completeness.
These issues will be discussed in the next Part of this paper, since an examination
of underlying premises and assumptions is an essential first step to a thoughtful
consideration of the many other issues and concerns that must be addressed during
the course of the Criminal Law Review.
SCOPE, PURPOSE AND PRINCIPLES 37
IV. SCOPE, PURPOSE AND

PRINCIPLES
Introduction
It was noted earlier that many thoughtful observers of the recent scene sense a
state of crisis about the criminal law: a crisis of legitimacy, of effectiveness, of
accountability. Furthermore, many of these same observers ascribe the crisis to a
lack of "any clear or acceptable governing conception of what we as a society
intend to accomplish under the rubric of criminality ..... (Parliamentary Subcom-
mittee on Penitentiaries, 1977), to an "absence of any global concept or overall
general policy which, if woven into the various elements of the criminal justice
system, would serve to guide the various services with a uniform philosophy"
(Quebec Commission of Enquiry into the Administration of Justice, 1969). The
Parliamentary Subcommittee on Penitentiaries, in fact, found a "corrosive
ambivalence" concerning the very goals and purposes of criminal justice.
The current debate concerning the proper purpose and scope of criminal law is of
comparatively recent vintage, although it entails renewed examination of issues of
moral and political philosophy that have been argued since before the Golden Age
of ancient Greece.
In addressing this basic issue of the nature of the criminal law — an issue critical
to the approach that will be adopted to a host of more specific issues of criminal
law and criminal justice policy — it seems useful to distinguish a set of interlinked
subsidiary questions:
a) What is and what ought to be the basic purpose of criminal law sanctions:
punishment or treatment? And why does criminal law impose sanctions:
because it is right to do so or because it works to do so?
b) What conduct should be subject to criminal law sanctions: what is the
proper scope of the criminal law?
c) On whom is it justifiable to impose sanctions: only on those who intend
harm, or also on those who cause harm without intending it?
d) How far can we go in pursuit of our aims through use of criminal law
powers and sanctions?
Answers to these questions will lead to the formulation of a general statement of
the appropriate scope, purpose and principles of the criminal law.

2. The Nature of Criminal Law
a) Purpose of the Criminal Law
The basic problem confronting criminal law and the criminal justice system, it
is often argued, is not the variety of specific concerns and complaints about
particular phenomena — which are mere symptoms — but rather a debilitating
confusion at the most basic possible level, concerning what the criminal law ought
to be doing.
Part II of this paper traced the swing of the pendulum in the past century away
from the so-called retributive orientation of criminal law and toward a utilitarian
approach.
In this view, as has been seen, the retributive approach was identified with an
anachronistic, backward-looking, punishment-oriented concern with the wrong
that had been done. The utilitarian approach, on the other hand, was seen as a
modern, forward-looking, non-punishment oriented concern with protecting
society by preventing future wrongs — either through changing factors in the
environment or the individual offender through rehabilitation, or through the
deterrent or simple incapacitative effects of imposing penalties.
This trend in the philosophical justification of criminal law was very strongly felt
over the past 100 to ISO years, and it is only in the past decade that the pendulum
has reversed itself, in placing more emphasis on criminal law punishment for the
sake of justice, to ensure appropriate denunciation for the wrong that has been
committed.
In large part, this swing has come about because of growing doubts about and
dissatisfaction with the efficacy of the utilitarian approach, as well as perceived
loosening of moral bonds in society that has resulted in an allegedly undisciplined
and unacceptably lax response to destructive anti-social behaviour.
The call to clarify goals and to resolve an ambiguity in objectives is an understand-

able one, given the confusion about aims and results, and the growing demand for
demonstrated effectiveness in the use of taxpayers' money.
As discussed in the second Part of this paper, the combination of growing crime,
growing public concern, and growing criminal justice resources has furthered the
swing to control and protection. This trend was accompanied and reinforced by
the optimistic belief that we had at hand the tools of individual treatment and social
engineering that would permit realization of those goals, allowing us at the same
time to lessen our reliance on primitive techniques that came increasingly to be
identified with an old-fashioned retributive philosophy.
The recent recession of that optimism, and the recent renewed emphasis on both
traditional "justice" and "equity" concerns in general, and on the legitimacy of a
retributive justification for punishment in particular, has defined the terms of the
current debate over fundamental criminal law objectives.
Posing the debate in these terms can be a useful means of sharpening understanding
of the issues at stake. Many have argued that the utilitarian interest of society in
eliminating crime requires that "punishment" and retributive measures (seen as
nothing more than vengeance), be replaced with a range of carefully-calibrated
tools designed to deter and rehabilitate. Some recent observers argue the
opposite case: that the utilitarian efforts of criminal justice have not only failed to
protect society and rehabilitate offenders, they have also led us to lose sight of
the legitimate interest of society in seeing justice done. On this basis, the justice
objectives should not only be revived, they should be given paramount emphasis,
with any utilitarian effects on safety or crime reduction being viewed as welcome
side benefits.
In the face of these apparently irreconcilable perspectives, it is important to clarify
several points.
First, the criminal law, for all the efforts and rhetoric expended over the past
century, is primarily a punitive institution at root. Certainly the sanctions it metes
out — whether justified in the name of treatment, rehabilitation, denunciation,
deterrence, incapacitation, or whatever — are and always have been perceived as
punitive by almost all of those to whom they are applied. So, whether the question
of the purpose of the criminal law is approached from a retributive or a utilitarian
direction, it is important to understand that the fundamental nature of criminal law
sanctions is punitive.
This should not be particularly surprising since, as Part II discussed, the criminal law
and the criminal justice system constitute the end point on a continuum of informal
and formal customs, beliefs and institutions of social control — the end point in
terms of the ultimately coercive intervention of the state in the lives of usually
non-consenting citizens.
Although it may be agreed that the ultimate characteristic of criminal law sanctions
is that they punish, this proposition does not mean that the sanctions awarded
under the criminal law are to be harsh, cruel, inhumane, or uninterested in the
ultimate effect they have on those subject to them. (Indeed, the concept of justice
is seen as imposing limits on the extent to which punishment may be inflicted, in
the sense that the traditional doctrine of "an eye for an eye" means that it is
unjust to take more that an eye for an eye). Neither does the proposition imply
that there is a necessary conflict in imposing punishment for retributive and for
utilitarian reasons, although there may be such conflict in particular instances. In
many cases, imposing punishment for retributive reasons may well have utilitarian
effects in terms of deterrence, denunciation and reaffirmation of social values.
Second, on the basis of the long-term perspective adopted in this paper, it appears
necessary to conclude that the debate, cast in "either/or" terms, is unresolvable
because it is artificial and unrealistic.

This is so because the criminal law has, and should continue to have, two major
purposes:
I. preservation of the peace, prevention of crime, protection of the public —

security goals: and
2. 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 — justice goals.
It must be admitted that there is continuing tension between these two clusters of
objectives and that they sometimes come into conflict. Furthermore, while the
criminal law is concerned with both sets of purposes, particular components of the
criminal justice system place varying emphasis on those purposes.
By recognizing the legitimacy of both the utilitarian and the retributive approaches,
and by refusing to equate them with security and justice respectively, we may
more productively debate the specific point of balance that is to be struck
between the two major purposes of the law and the criminal justice system: justice
and security. Thus, if the goal is to pursue "justice", utilitarian concerns about
security. protection. prevention, treatment and rehabilitation need not be
abandoned. Or, if the emphasis is to be on crime control and public protection,
arguments appealing to a retributive justification for punishment in the name
of "justice" or "just deserts" need not be dismissed as illegitimate. This is an
important consideration to bear in mind, since most recent debates on the issue of
the major purpose of criminal law are posed in such a way as to suggest there can
be only one such legitimate purpose. Acceptance of this assumption of the necessity
for a unique purpose may appear more logically or philosophically appealing, but it
does not seem to be realistic in terms of the actual uses to which criminal law is
put. and the actual effects it has in society.
In the case of the criminal law, most citizens would agree that criminals ought to
be punished because they have done wrong, and therefore deserve punishment.
But most would also like to see society protected, either by the punishment of
offenders in order to deter or simply incapacitate, or, perhaps preferably, by the
rehabilitation of offenders.
The argument in this section is that no social institution as important or complex as

the criminal law can afford the luxury of picking just one purpose — intellectually
simple and satisfying though that selection might be. As Henry M. Hart wrote in
1958:
A penal code that reflected only a single basic principle would be a very bad
one. Social purposes can never be single or simple, or held unqualifiedly to the
exclusion of all other social purposes; and an effort to make them so can result
only in the sacrifice of other values which are also important. Thus, to take only
one example, the purpose of preventing any particular kind of crime, or crimes
generally. is qualified always by the purposes of avoiding the conviction of the
innocent and of enhancing that sense of security throughout society which is one
of the prime functions of the manifold safeguards of ... criminal procedure. And
the same thing would be true even if the dominant purpose of the criminal law
were thought to be the rehabilitation of offenders rather than the prevention of
offences.
On the basis of this discussion, some important conclusions can be drawn. First,
the criminal law and the criminal justice system must pursue two major clusters of
objectives — "justice" and "security". Second, criminal sanctions, whether
justified in terms of utilitarian or retributive aims, are primarily punitive in nature,
and are understood as such both by society and by those on whom they are
imposed. Third, acceptance of retributive justifications for punishment implies
neither rejection of utilitarian justifications for such punishment, nor the accept-
ance of harsh, cruel or vindictive forms or levels of punishment. Indeed, the
retributive approach that is often expressed in terms of the concept of "justice"
acts as a brake in setting a maximum permissible limit on punishment that might
otherwise be subject to no such limit in its pursuit of various utilitarian goals such as
deterrence, incapacitation, or even rehabilitation. This distinguishes the concept of
retribution from that of vengeance. Fourth, recognition of the legitimacy — and
necessity — of pursuing two sometimes-conflicting purposes for criminal law,
directs attention to the need to devise an approach for defining the proper point
of balance between these two purposes.
b) Proper Scope of the Criminal Law

Part II of the paper touched briefly on the trends in penal legislation over the past
century, and Part III raised, as a major perceived problem, the question of the
proper scope of the criminal law, as opposed to other forms of response to
individual and collective behaviour within society.
Those Parts made the point that the criminal law and the criminal justice system
should be conceived of as the ultimate recourse available to society along the
continuum of informal and formal conventions, customs and institutions.
It is with this conception in mind that the Law Reform Commission, the Ouimet
Committee, and many others have urged the doctrine of restraint in the use of
the criminal law and the criminal justice system.
This notion — which has unfortunately and inaccurately been interpreted by some
as a call for laxity and leniency — is properly understood as implying the need to
examine carefully the appropriateness, the necessity, and the efficacy of employing
the criminal law, rather than these other, less intrusive, less coercive means of
dealing with particular social problems.
For some forms of conduct, this analysis can be quickly concluded. There is no
question that the only adequate and fitting response to such "core" crimes as
murder, assault, robbery, and so on is the criminal law. No one seriously suggests
otherwise. For other new, sophisticated and potentially harmful forms of activities
— especially those of large-scale organizations — use of the criminal law may also
be appropriate in some circumstances, in light of the increased dependence of
individuals on such organizations with respect to crucial aspects of everyday
existence and, therefore, the increased vulnerability of individuals to harmful
actions on the part of such organizations.
But, too often, the response to the emergence of a particular social problem has
been an almost routine or automatic invocation of the criminal law, or criminal-like
sanctions. The discussion above concerning offences of a comparatively trivial or
anachronistic nature contained in the Criminal Code, not to mention the huge
array of "public welfare" legislation that has grown up in the past century
and which relies heavily on criminal sanctions and criminal procedures for its
enforcement, bears on this point.
Restraint should be used in employing the criminal law because the basic nature of
criminal law sanctions is punitive and coercive, and, since freedom and humanity
are valued so highly, the use of other, non-coercive, less formal, and more positive
approaches is to be preferred whenever possible and appropriate. It is also
necessary because, if the criminal law is used indiscriminately to deal with a vast
range of social problems of widely varying seriousness in the eyes of the public,
then the authority, credibility and legitimacy of the criminal law is eroded and
depreciated. The lumping together of seriously harmful and wrongful conduct with
a host of technical, minor, or controversial matters blunts the impact and
undermines the effect the criminal law should have as society's institution of
ultimate recourse.
The Law Reform Commission and others have argued persuasively for a "pruning"
and clarification of the criminal law on the basis of arguments such as these. This
process requires consideration of the boundaries that should be drawn to
distinguish between criminal law and "public welfare" regulatory and administrative
law, criminal law and private morality, and criminal law and civil law.
The Law Reform Commission strongly emphasized the need to distinguish more
clearly between "regulatory" offences and "real" crimes. Regulatory processes
designed to control certain socially and economically useful enterprises are
sometimes viewed as being "too criminal" in nature, because of their
inappropriate use of summary conviction criminal procedures to enforce com-
pliance. For the Law Reform Commission, all "real" crimes should appear in the
Criminal Code and not in regulatory law, though the Commission also recom-
mends that criminal penalties — jail terms — be available for wilful or persistent
violation of regulatory law. The Law Reform Commission recommends that such
a distinction be made between crimes and regulatory offences for a number of
reasons. These include a need to be parsimonious with the criminal law, in order to
preserve the impact of its symbolic and solemn condemnation of violations of
"core values". Another reason is the need to observe the principle of equity by
ensuring that the most serious transgressions are normally dealt with in a more
serious manner and with a more elaborate procedure than other transgressions.
In the boundary between criminal law and private morality, various concerns have
been expressed about either decriminalizing or diverting from criminal prosecution
many acts widely considered crimes of "going to Hell in one's own fashion", such
as drug and gambling offences. Some of these offences are considered too minor
to be treated with the heavy hand of the criminal law; others are thought to be
more effectively dealt with through public education or regulation.
In the boundary between criminal and civil law, there has been considerable
interest, in Canada and elsewhere, in diverting from the criminal process certain
disputes which are more in the nature of civil wrongs between citizens, or staying
criminal prosecutions for the purpose of allowing the offender to make financial or
other redress to the victim. In this view, traditional criminal justice emphasis on
allocating blame and punishing the blameworthy has not served the interests of the
victim, righted the harm done, restored the "social harmony", nor had any
positive impact on the offender. Opponents of this "diversion" approach argue
that it may have a lesser deterrent effect on wrong-doing, may not serve social
needs to denounce criminal behaviour, has not yet shown any success in diverting
offenders who would in fact have been handled in criminal court caseloads, and
may endanger the legal rights of the accused and the interests of the victim.
Defining the Boundary

In calling for a re-examination of the substantive content of the criminal law,
attention must be devoted to two questions:
the appropriateness of continuing to treat as criminal some current
offences that may not seem to merit use of the criminal law; and
the need to examine some forms of conduct, not presently dealt with
as criminal, with a view to assessing the advisability of treating them
as criminal.
This process of re-examination will not be an easy one, nor will it be possible to
draw clear and unambiguous boundaries between the various forms of response to
conduct outlined above. These boundaries will always be indistinct, and the definition
of the boundary in respect to a specific issue, a particular form of conduct seen as
posing a social problem, will always be subject to dispute and the application of the
individual judgment of Canadians and, more particularly. Parliamentarians, whose
collective decision it is to call an act a "crime" or not.
A number of "tests" or "criteria" have been suggested to aid in the process of

addressing the key question of whether a particular form of conduct can be dealt
with adequately and appropriately through other social institutions, or whether it
requires a response by the criminal law.
The Ouimet Report recommended that:

No conduct should be defined as criminal unless it represents a serious threat to
society, and unless the act cannot be dealt with through other social or legal
means.

The views of the Report were clear. The criminal sanction should be employed
only as an "unavoidable necessity":
Men and women may have their lives, public and private, destroyed: families may
be broken up; the state may be put to considerable expense: all these
consequences are to be taken into account when determining whether a
particular kind of conduct is so obnoxious to social values that it is to be included
in the catalogue of crimes. If there is any other course open to society when
threatened, then that course is to be preferred. The deliberate infliction of
punishment or any other state interference with human freedom is to be justified
only where manifest evil would result from failure to interfere.
In light of this approach, the Ouimet Report adopted a number of criteria to assist
in delineating the "proper scope of criminal law ':
I. No act should be criminally proscribed unless its incidence, actual or

potential, is substantially damaging to society.
2. No act should be criminally proscribed where its incidence may adequately be

controlled by social forces other than the criminal process. Public opinion
may be enough to curtail certain kinds of behaviour. Other kinds of
behaviour may be more appropriately dealt with by non-criminal legal
processes. e.g by legislation relating to mental health or social and economic
conditions.
3. No law should give rise to social or personal damage greater than that it was
designed to prevent.
This doctrine of restraint, this concept of criminal law as the instrument of last
resort or ultimate recourse, also formed the heart of the approach recommended
by the Law Reform Commission, especially in "Our Criminal Law."
As noted above, the Commission urged a "pruning" of the criminal law, to draw a
true distinction between "real" crimes and regulatory offences. "To count as a
real crime an act must be morally wrong. But this ... is but a necessary condition
and not a sufficient one. Not all wrongful acts should qualify as real crimes.
The real criminal law should be confined to wrongful acts seriously threatening and
infringing fundamental social values."
The principle of restraint was to be applied at every stage, including that of defining
the ambit of criminal offences in the first place, and the Commission suggested a
set of "tests" for determining what are, and are not, crimes:
• does the act seriously harm other people?
• does it in some other way so seriously contravene our fundamental values as

to be harmful to society?
• are we confident that the enforcement measures necessary for using criminal
law against the act will not themselves seriously contravene our fundamental
values?
given that we can answer 'yes' to the above three questions, are we satisified
that criminal law can make a significant contribution in dealing with the
problem?
There are various other formulations of such criteria to be used in determining

whether conduct should be criminalized or not — cast in terms of the positive
objectives of criminal law and in terms of limiting principles. Some differences in
wording are important, some are not. Ouimet spoke of "substantial damage", the
Law Reform Commission of "serious harm", as noted above. In the United
States, on the other hand, the Model Penal Code spoke of "substantial harm", but
the Report of the Brown Commission and subsequent Senate bills referred simply
to "harm".
The basic theme, however, is important, in stressing that the criminal law ought to
be reserved for reacting to conduct that is seriously harmful. The harm may be
caused or threatened to the physical safety or integrity of individuals, or through
interference with their property. It may be caused or threatened to the collective
safety or integrity of society through the infliction of direct damage or the under-
mining of what the Law Reform Commission terms fundamental or essential values
— those values or interests necessary for social life to be carried on, or for the
maintenance of the kind of society cherished by Canadians. Since many acts
may be "harmful", and since society has many other means for controlling or
responding to conduct, criminal law should be used only when the harm caused or
threatened is serious, and when the other, less coercive or less intrusive means do
not work or are inappropriate.
It is important to understand that, insofar as they constitute an effort to give

legislators, officials and the public some sounder or more explicit basis for judging
when conduct that is considered unacceptable might appropriately be made subject
to criminal law, as opposed to other kinds of regulation or social reaction, these
criteria must be seen as guidelines and not as strict rules.
This is so for two major reasons. First, they must necessarily be stated in rather
general and unavoidably subjective terms, and the application of general terms to
specific situations always leaves room for different conclusions to be reached.
Second, Parliament has and must continue to have the sovereign authority (within
the limits of the Constitution) to respond as it deems appropriate to societal
problems; and concerns. The process of law-making is a political process, in the
best sense of the word, and must be responsive to public concerns.
Parliament and the public may, however, benefit from such criteria in deciding
whether some conduct requires a criminal law response. The practice of a century
in Canada has shown that Parliament can, and has, found it relatively easy to
subject conduct to criminal sanctions, in response to specific problems or
particular demands. But once an act has been made criminal, it is difficult to
remove or lessen criminal penalties, even in response to changes in public attitudes,
perceived inconsistencies in application, or emerging experience demonstrating

that use of the criminal law might be excessive, according to one or more of the
criteria mentioned above. When the 1892 Code was being debated, for example,
some Members of Parliament wondered why it was deemed necessary to create a
criminal offence for failing to post a copy of the Criminal Code section outlawing
gambling in a public conveyance. No one seemed to know, but it was pointed out
that this offence was already in existence, so good reasons would have to be given
not to have it. This offence still exists today, as s. 191(3) of the Criminal Code.
The main argument for a parsimonious and clarified criminal law is a convincing
one, although the difficulties of applying the limiting criteria to specific offences or
types of conduct should not be underestimated. The effort required in examining
some of the assumptions that have been applied almost automatically in creating
our criminal law over the past century is worthwhile in order that the Criminal
Law Review may result in a criminal law that is clear, enforceable, effective, and
reflective of society's needs and concerns.
In this section, it has been concluded that it makes sense to distinguish between the
criminal law and other forms of social control. Furthermore, the analysis of the
Law Reform Commission, the Ouimet Committee, and many other bodies both
here and abroad has been accepted with respect to the general conception that
conduct should be made subject to criminal law sanctions only if it causes or
threatens serious harm to individuals or society. This criterion will undoubtedly be
subject to wide variation in interpretation.
We now turn to other secondary criteria that may aid in the interpretation of the
"harm" test. Two more issues remain to be explored before the guiding state-
ment is articulated. Once it is decided what kind of conduct should be made
criminal and for what purpose, it must be asked to whom the penalties should be
applied, and whether there are principles that should be considered concerning
how far the criminal law and the criminal justice system can go in legitimately
pursuing the aims.
c) To Whom Should Criminal Penalties Apply?
The Law Reform Commission argued strongly that criminal sanctions should be
applied only to those who are culpable — that is, those who contravene the law
"intentionally, recklessly, or at least negligently" as opposed to through "careless-
ness or failure to attain requisite standards of diligence".
To most, perhaps, this argument seems self-evident. Obviously, society does not
want to punish those who did not mean to be criminal. But the argument is not
without challengers, and the points they make should be raised here.
The chief principle of criminal responsibility — no criminal liability without fault —
is said by some to depend on outdated and unscientific notions of freedom of will,
notions that have been called into question by developments in the understanding
of the human psyche, and of the powerful role of heredity and environment in
determining the behaviour of individuals.
Admittedly, that understanding may be more in the nature of a general apprecia-

tion that there is something much more complicated going on than the simple
assumption of the rational, free-willed individual would allow, rather than a spelling
out of the relationships and linkages between causes and effects, especially at the
level of the individual actor. Nonetheless, that understanding should call into
question the notion of individual guilt. Indeed, the very difficulty of determining
another's motives, intentions and feelings should give us pause in ascribing criminal
liability and imposing punishment on criminals, according to this argument. The
tortuous law on insanity, and the complex legal concept of "mens rea" — the
concept of the guilty mind — should serve to reinforce the psychological and
sociological lessons of the past century, according to this view.
This view is open to several objections. First, the current state of psychological
knowledge simply cannot be said to provide an adequate basis to overturn one of
the fundamental principles of our legal system. Second, from the pragmatic or
utilitarian perspective, the argument is heard that one of the most important aims
of criminal justice is reduction or control of crime through the encouragement of
respect for law. In this view, the administration of criminal justice must be in
accordance with fundamental community values, included among which is the
notion that no one should be punished unless "guilty". A third, and perhaps most
important argument is that freedom and justice demand that criminal penalties be
applied only to deliberate or reckless wrongdoers. Because freedom and justice
are more fundamental values than the more specific objective of crime control,
they impose constraints upon the pursuit of that more limited objective. Without
the principle of "no liability without fault", protections for the liberty of the
individual would be greatly reduced, and important safeguards painfully won over
the course of centuries would be abandoned to an uncertain future.
On the basis of these arguments, the recommendation of the Law Reform

Commission that the principle of responsibility, of culpability, must remain the
cornerstone of criminal sanctioning appears to be sound.
But reaffirming this important principle does not mean that no further attention
need be paid to the important subsidiary issues involved. The Law Reform
Commission is working on those issues, which include the need to identify more
clearly the bases for excusing individuals from criminal liability (defences, justifica-
tions and excuses) in order to clear up confusion about insanity, drunkenness,
duress, entrapment, and so on; the need to clarify the concept of responsibility as
an element of proof of criminal guilt (whether distinctions between intent,
recklessness, and negligence should be articulated or reformulated in the law); the
need to give more consideration to the responsibility and liability of individuals
acting for organizations, and organizations for the actions of their individual agents,
and so on.
To summarize, it is vital to retain the standard of responsibility and fault for a

finding of criminal liability, because of the significant meaning and impact of the
criminal process and criminal sanctions. Second, it is important to clarify the
ambiguities which currently exist as to the precise standard of culpability required
for each criminal offence. Third, it is not necessary or desirable to confine the
criminal law to acts committed by individuals against other individuals; rather, it is
advisable to clarify and give greater consideration to the liability of organizations,
and individuals acting within organizations, where serious harm to an individual or
to the general good is caused or threatened.
d) How Far Can Criminal Law Go

in Pursuing its Aims?
Canadian jurisprudence already contains a well-established body of criminal law

principles whose main import is to protect the individual against the power of the
state. These principles, largely concerned with questions of criminal law procedure
(as distinguished from the substantive scope of the criminal law discussed earlier),
are central to our ideas of justice, equity and fairness. They include the principle of
legality, the presumption of innocence, the right not to be subject to arbitrary
arrest or detention, the right to a fair hearing before an independent and impartial
adjudicator, and freedom from cruel and unusual punishment. The recent enact-
ment of the Canadian Charter of Rights and Freedoms sets forth those time-
honoured principles and entrenches them in the Constitution of Canada. Other
similar principles are found in the related law of evidence, which requires the
prosecution to prove every material element of an offence beyond a reasonable
doubt, protects individuals against self-incrimination, and so on. These principles
are re-stated in the draft Uniform Evidence Act, prepared by a federal-provincial
Task Force in 1981.
The concept of justice. as well as imposing constraints on the manner in which the
state can act, also imposes a positive duty in requiring the criminal law to respond
to certain forms of conduct: anything short of such a response would imply an
inappropriate attitude to the public interest or societal value attacked by that
conduct. This notion also applies to the next concept to be discussed, that of
necessity.
The Ouimet Report stated "as a fundamental proposition that interference with
individual liberty can only be justified where it is clearly necessary in the interest of
society as a whole, and that no greater interference with individual liberty than is
necessary to protect the interests of society is justifiable".
This formulation could also be applied to the process of determination of dis-
positions, to require the availability of a range of sanctions in law, an onus to apply
the least restrictive form of sanction adequate to the circumstances, and a
requirement to restrict the amount of that sanction to that which is justifiably
necessary and adequate. Reference to "adequacy" is important since it sheds light

on a point made earlier about the doctrine of restraint: that it should not be
confused with leniency and laxity. For some offences, necessity, like justice, will
require anything but restraint (in the sense of leniency). For other offences and
offenders, the circumstances, viewed from the perspective of justice and
necessity, may dictate a restrained approach.
This leads to the third concept to be discussed, that of economy. This concept
should not be equated with the notion of a cold-blooded pursuit of lowering the
"unit costs" of the "crime control" objectives of the criminal justice system at
the expense of individual rights, justice and fairness. Instead, it is an elaboration of
the concept of necessity, in contemplating the notion of state intervention to the
minimum necessary and adequate extent.
As was pointed out earlier, the retributive notion of justice contains this concept
within it, in setting out a limitation on the extent to which the state may punish
offenders: the punishment must not exceed the wrong done. In countries sharing
Canada's legal tradition, these principles are also reflected in a doctrine that the
state should limit its intervention to "the least drastic alternative" sufficient in the
circumstances.
These concepts require consideration of whether the desired end can realistically
be achieved, at an acceptable social and financial cost. In this sense, reservations
about effectiveness may restrain the impulse to take a certain course of action.
This factor is of relevance in considering the fact that, in 1979, it cost an average
of $69 a day to incarcerate a convicted offender in a federal penitentiary. The cost
of budding a new penitentiary is around $30 million. At that cost, it may be
wondered who is punished more by a sentence of imprisonment — the prisoner,
or the taxpayer — especially in cases where imprisonment does not seem to be an
obviously necessary sanction to allow an adequate and appropriate response to be
made to the offence or the offender in question.
Taken together, the substantive and procedural limiting principles discussed in this
Part embody aspects of the justice objectives of the law and, in so doing, act as
restraints on the extent to which the law and the system may legitimately pursue
the security objectives. The tension that results necessitates consideration of the
appropriate emphasis that should be assigned to competing claims about the
appropriate point of balance of the scales.
It is to this concept of "balance" that attention must now briefly be turned
3. The Concept of Balance
Throughout this paper reference has been made to the notion of balance, and,
indeed, it would appear that this metaphor is fundamental to the approach taken
to criminal law issues through the years. In considering specific amendments to the
criminal law, in assessing proposals for changes to offences, police powers or

sentencing provisions, the idea of balancing competing purposes and principles is
referred to repeatedly.
The search for the appropriate point of balance applies to a number of dimensions:
• balance between individual liberties and the provision of adequate powers
for the state to allow for effective crime prevention and control;
• balance among the various subsidiary aims of the system, such as denuncia-
tion, deterrence and rehabilitation; and
balance between Parliament's role in leading public opinion and acting as
custodian of important, if sometimes unpopular principles, and Parliament's
role in reflecting and responding to public concerns.
The British Royal Commission on Criminal Procedure (1981) discussed the

concept of balance in a useful way, pointing out that, while the "idea of
consciously seeking within the criminal justice system to define a balance between
the rights of individuals and the security of society and the state has been growing,
discussion has not often moved beyond the level of generality."
This is a real problem, since, in attempting to apply the concept in particular

circumstances to specific proposals, one person's "balance" might well be
anther's "intolerable excess", depending on basic assumptions about the
legitimacy of subjecting certain principles to utilitarian compromise. on perceptions
about the nature of the problem being addressed, on conclusions concerning the
acceptability of the "trade-off' being made, and so on.
But there would appear to be contained in the discussion in earlier sections of this
Part the seeds of a more practical approach, an implicit methodology that can be
used to sort out competing claims as to the appropriate point of balance. This
approach, too, is at the level of principle, but is cast in terms of a presumption.
onus, or burden of proof that must be discharged by reference to facts and
experience.
This approach seems in keeping with the traditionally pragmatic approach taken to
questions of policy in our system. The initial question is usually posed, not in terms
of a deductive argument from first principles, but rather in terms of the perception
of particular problems seen to be in need of solution. This requires an appeal to be
made to fact, experience, and evidence. But a framework of principles is needed in
order to assess the adequacy and appropriateness of proposed solutions to the
perceived problems. The methodology developed by the British Royal Commis-
sion on Procedure was described in the following terms:
if any acceptable balance ... was to be found, the right strategy was to develop an
approach which identified the main issues, constructed as firm a factual basis as
possible and undertook the analysis of existing procedures and proposals for change
within a framework of general principles.
Thus, the interlinked concepts discussed in this Part serve to restrict the
appropriate scope of the criminal law to that conduct which is culpable, seriously
harmful, and generally conceived of as deserving of punishment. They also restrict
the appropriate form and amount of powers and sanctions by virtue of well-
recognized legal rights, largely of a procedural nature, and by the imposition of a
burden of proof on the state to demonstrate on reasonable factual grounds that
intrusion into individual rights and freedoms is necessary, and that it does not
exceed the minimum necessary and adequate in the circumstances.
In essence, this methodology shifts the debate over criminal law objectives and
principles, to the extent possible, onto grounds that allow for an objective appeal
to observable fact and experience as opposed to pure combat by moral
philosophy.
Approaching the question of balance in this manner leads to a discussion in terms of

practical goals and means, but within a framework of principles that give meaning
and priority to the basic individual liberties and freedoms that remain the keystone
of our conception of the relationship of the individual and the state.
4. Conclusion: A Proposed Statement of Purpose

and Principles
The discussion on these points has been lengthy because the conclusions reached
are of paramount importance to the overall policy. It now remains to bring the
discussion together. and, in so doing, to state a general conception of the
appropriate framework of purpose and principles that should govern the approach
to more particular issues of criminal law policy.
Having considered the Reports of the Law Reform Commission, the Ouimet
Committee, numerous other committees, commissions and learned papers both
here and abroad, and having weighed the arguments concerning the various
perspectives that can be adopted with respect to the criminal law, it seems
justifiable and appropriate to endorse the general philosophy of restraint in criminal
law, on the understanding that "restraint" is a shorthand way of referring to
principles of justice, necessity and economy, and that it does not imply laxness and
leniency.
With these considerations in mind, a general statement of purpose and principles

may be articulated as follows:

STATEMENT OF PURPOSE AND PRINCIPLES
Recognizing that

certain rights and freedoms consonant with the rule of law and
with principles of justice fundamental to a free and democratic
society;

system;
The criminal law is necessary for protection of the public and the
establishment and maintenance of social order;

forms of interference by the state with individual rights and
freedoms; and

It is appropriate to set forth a statement of purpose and prin-

ciples for the criminal law in Canada.
Purpose of the Criminal Law

The purpose of the criminal law is to contribute to the main-
tenance of a just, peaceful and safe society through the establish-
ment of a system of prohibitions, sanctions and procedures to
deal fairly and appropriately with culpable conduct that causes or
threatens serious harm to individuals or society.
Principles to be Applied in Achieving this Purpose

The purpose of the criminal law should be achieved through
means consonant with the rights set forth in the Canadian
Charter of Rights and Freedoms, and in accordance with the
following principles:
(a) the criminal law should be employed to deal only with that
conduct for which other means of social control are inade-
SCOPE. PURPOSE AND PRINCIPLES 53
quate 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:
(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 unrea-
sonably 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;
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;
(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 investigative and remedial procedure;
(I) wherever possible and appropriate, opportunities should be

provided for lay participation in the criminal justice process
and the determination of community interests.

IMPLICATIONS 55
V. IMPLICATIONS FOR THE

CRIMINAL LAW REVIEW
This statement of purpose and principles provides a general framework within

which more specific policies can be developed and assessed. Because such state-
ments of principle are necessarily framed in fairly general terms, this final Part of
the paper spells out some of the principal implications of the statement for the
Criminal Law Review. At this stage of the Review, it would be premature to try to
list and explore all the legislative and policy issues related to this statement,
although those issues must of course be dealt with by the Review. An attempt is
made in this Part, however, to give a clearer indication of the themes and priorities
that will be applied in the Review process as a whole.
Also, while some reference will be made to implications for the criminal justice
system, the main focus is on questions of legislative policy. This is as it should be,
since this paper relates to the Criminal Law Review, and does not purport to be an
overall statement of criminal justice policy, for reasons discussed earlier and in the
final part of the paper.
Preamble
Recognizing that:

certain rights and freedoms consonant with the rule of law and with
principles of justice fundamental to a free and democratic society;

system;
The criminal law is necessary for protection of the public and the
establishment and maintenance of social order,

forms of interference by the state with individual rights and free-
doms; and


It is appropriate to set forth a statement of purpose and principles

for the criminal law in Canada.
The Preamble to the Statement of Purpose and Principles of the criminal law
summarizes the legal and social context of the criminal law affecting the process of
the Criminal Law Review.
As an important contribution to human rights legislation, the Canadian Charter of

Rights and Freedoms has special significance for criminal justice, in terms of the
limits it imposes on state power to interfere with basic individual liberties. The
implications of the Charter will, of course, become clearer over time, through
judicial, legislative and administrative developments. The fundamental review of
criminal law must also necessarily consider whether existing law and administrative
directives contain gaps or inadequacies in respect to the Charter. This exercise is
now proceeding at many levels, and its results will directly influence the Review
through interpretation and application of the Charter's meaning for each of the
principles enunciated in the statement.
Canada has also agreed to certain international human rights standards which bear
directly and indirectly on criminal justice. The meaning of these, like the Charter,
will continue to evolve through various international mechanisms for discussion,
reporting by individual nations, and the consideration of individual cases. Perhaps
the most significant of these agreements, the International Covenants on Civil and
Political Rights, and on Economic, Social and Cultural Rights, are being considered
in the context of the current federal review of the implications of the Charter.
They will therefore necessarily influence the Criminal Law Review as well.
The third preambular statement reaffirms the place of the criminal law as a neces-
sary component among the social control mechanisms which protect the public
and maintain social order. This is not to imply that it is only the criminal law which
serves to maintain order or protect the public. In some situations, other means
may suffice to meet society's interests in the case.
Read together with the fourth preambular statement, this implies that, because of
the potential gravity of a criminal conviction or criminal sanction, the invocation of
the criminal law should be subject to explicit limitations.
The fifth preambular statement serves to underline the mandate given by Cabinet
in 198 I to conduct a "fundamental" review of criminal law which would explicitly
address questions of purpose and principle. Attention to these issues also requires
a clearer understanding of the differences between criminal and non-criminal
conduct, as expressed in the offence and sanction-creation and enforcement
provisions of federal statutes.
IMPLICATIONS 57
2. Statement of Overall Purpose
The purpose of the criminal law is to contribute to the maintenance of

a just, peaceful and safe society through the establishment of a system
of prohibitions, sanctions and procedures to deal fairly and appropri-
ately with culpable conduct that causes or threatens serious harm to
individuals or society.
The twin purposes of justice and security are embedded in this overall statement
of the criminal law's purpose.
The criminal law is said to "contribute to" the achievement of security aims
because it is recognized that the criminal law alone cannot be a sufficient tool of
social protection and order, but must be supplemented by a vast array of other
social, moral, personal and economic incentives and contraints. The criminal law is
the apex of a pyramid of more or less serious personal and social processes.
The three aims of justice, peace and safety are interrelated but separable.
"Justice", or the imposition of a just settlement of a criminal conflict, dispute or
harm, may in a sense be an end in itself; the preservation of the social fabric may
demand that certain serious misconduct be dealt with in the solemn forum of the
criminal process, even if no immediate risks to peace and safety are involved. In
addition, the settlement of a criminal situation through the criminal law may
contribute to peace and safety, reinforce the boundaries of acceptable conduct,
and reaffirm certain fundamental values.
The statement of overall purpose refers to a "system" of both criminal law and
criminal justice, since the law and the manner in which it is administered are
inseparably linked.
Mention of "prohibitions" serves as a criterion distinguishing between criminal law

and most "regulatory" law. The desirability of restricting the scope of criminal law
is implied, in that the high value placed on freedom and liberty in Canada requires
minimization of the scope of "prohibited" conduct. Use is made of the term
"sanctions" in order to convey different aspects of that term. First, sanctions are
understood to mean the specific penalties enacted to enforce obedience to a law.
As was mentioned earlier, this notion is in line with the ultimately coercive and
punitive nature of criminal law. But, as was also discussed earlier, this does not
mean to imply that criminal law sanctions must be harsh or cruel. The presence in
the criminal law of sanctions encouraging reformation, reintegration and recon-
ciliation — many of which have been introduced in recent decades — demon-
strates this point, and in so doing illustrates the second aspect of the concept of
"sanctions", which extends the first aspect to include "the provision of rewards
for obedience, along with punishments for disobedience, to a law".
The statement also states the most basic criterion guiding the decision as to which
conduct should be considered most suitable for a criminal law response, namely
that the conduct must cause or threaten serious harm to individuals or society.
This concept was discussed in Part IV.
This does not mean that no other criterion should be considered in determining
when and whether to employ the criminal law for particular forms of conduct, and
the criminal justice process in individual instances. Principles (a) and (b), below, are
also to be considered in deciding whether to invoke the criminal law or process, or
to determine a finding of liability or impose a particular sanction.
The concept of blameworthiness is so central to the overall purpose of the

criminal law that the nature of criminal conduct is further qualified as being
"culpable" in nature. The term "culpable" is not meant in a technical, legal sense
here, but in the general sense that some mental element on the part of the wrong-
doer is involved. For example, matters of pure accident will not normally be
crimes, since it would be fundamentally unfair to place the stigma of a criminal
conviction on an individual in such a case. The discussion in Part IV of the persons
and organizations to whom the criminal law should apply, should be read to aid
interpretation of this non-technical meaning of "culpability". However, the issues
of criminal responsibility and defences are so complex that they defy clear
explication in a general document such as this. The Law Reform Commission will
shortly issue preliminary recommendations as to the mental element which should
normally form a necessary part of a "criminal" finding. These recommendations
will, in turn, affect a future part of the Criminal Law Review. Thus, at this point,
only the most general of indications is necessary and appropriate on the subject of
the offender's state of mind with regard to the conduct in question. A great many
issues and legal concepts will still remain tc be addressed in depth at a future stage,
to say nothing of the more practical questions of either creating new "technical"
terminology, or trying to clarify traditional terms like "intent", "recklessness".
"purpose", "knowledge". "negligence", and so on.
3. Principles to be Applied
Introductory Phrase
The purpose of the criminal law should be achieved through means

consonant with the rights set forth in the Canadian Charter of Rights
and Freedoms, and in accordance with the following principles:
This phrase, echoing the reference in the preamble to the Charter, emphasizes its
significance for criminal law and the criminal justice system. This is especially the
case for the legal rights contained in sections 7 through 14, which set out a
number of the most important procedural safeguards for individual rights against
intrusion by the state.

IMPLICATIONS 59
Principle (a)
(a) the criminal law should be employed to deal only with that conduct
for which other means of social control are inadequate or inappro-
priate, and in a manner which interferes with individual rights and
freedoms only to the extent necessary for the attainment of its
purpose;
This Principle embodies the concept of minimum necessary intervention discussed

in Part IV. As the most serious form of social intervention with individual free-
doms, the criminal law is to be invoked only where necessary, when the use of
other means is clearly inadequate or would depreciate the seriousness of the
conduct in question. As well, the Principle suggests that, even after the initial
decision has been made to invoke the criminal law, the nature or extent of the
response by the criminal justice system should be governed by considerations of
economy, necessity and restraint, consonant of course with the need to maintain
social order and protect the public.
Principle (b)
(b) the criminal law should dearly and accessibly set forth:
(ii) the responsibility required to be proven for a finding of criminal

liability;
This Principle reflects the need for the criminal law to be as understandable, acces-
sible and unambiguous as possible in the notice it gives to Canadians concerning the
standards of conduct required of them, both in terms of specifically forbidden
conduct, and in terms of overall standards of care and consideration or knowledge
of one's legal duties to others.
More specifically, paragraph (i) implies the need to define the offence sections
contained in the Criminal Code, and in any other federal statutes containing
criminal offences, in clear and simple language. This should not, however, be taken
to mean that either substantive or procedural provisions should sacrifice specificity
in the pursuit of simplicity. In addition, attention must be given to the manner in
which the criminal law is communicated to Canadians. given its importance as an
element of social policy.
The reference to "criminal" conduct implies the need to draw a clearer distinction
between crimes and "non-crimes", as was recommended by the Law Reform
Commission in "Our Criminal Law" and as was discussed throughout this paper.
The Review must consider the desirability and practicality of:
• differences in statutory language — identifying or labelling "criminal

offences" clearly and distinguishing them from non-criminal "infractions"
or "contraventions";
• differences in search, seizure and arrest powers under the various statutes;
• differences in the powers of courts or tribunals, with respect to such

matters as summoning of witnesses, admission of evidence, standard of
proof, appeal;
• differences in sanctions available, especially imprisonment;
• differences in the creation, use, retention and accessibility of information

contained in records of the investigation, charging and conviction of
offenders; and
• differences in the standard of responsibility or culpability required to be

established.
Practical matters of enforcement and statutory location will have to be addressed

in assessing the practicality of the various ways in which this process of clarification
can be accomplished. In the matter of statutory location, for example, the Law
Reform Commission has suggested that the distinction between "real' crimes and
other offences should be made clear by placing all true crimes in the Criminal
Code. There are, however, other ways of indicating the distinction, such as the
"labelling" approach taken in many civil law jurisdictions. This approach entails
identifying "crimes" as opposed to "non-crimes" by statutory language, thus
allowing for offences of either type to be located in the relevant subject-matter
statute. Considerations of relevance, accessibility and effective enforcement could
have a bearing on the approach adopted. This task, it should be noted, will require
a major effort to be devoted to the examination and revision of the 300 or so
federal statutes containing offence sections. This work will have to be coordinated
with that in the area of administrative and regulatory law reform, the groundwork
for which has been laid by the Law Reform Commission, the Economic Council of
Canada, and the Parliamentary Task Force on Regulations, among others.
Paragraph (ii) refers to standards of responsibiity and requires that they be set
forth clearly and accessibly. As suggested above, this will involve a clarification of
both the concepts and the language of the "mental element" of crime, and the
available defences and excuses. The specific standard of responsibility required for
a criminal conviction must be clearly specified.
Principle (c)
(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;
This Principle requires that Canadians be made better aware of their substantive
-a
and procedural rights vis -vis the criminal law. Many of these rights are elaborated
only at common law, or for other reasons are not clear and accessible to the
public. This statement does not require, however, that every existing or emerging
IMPLICATIONS 61
right be defined in the Criminal Code or other criminal legislation; the volume of
provisions needed would in itself create a lack of clarity. But where "liberty" is at
risk, statutory definition of one's rights is fundamental and necessary. This is in
keeping with the Charter's requirement that limitations on any of the rights and
freedoms in it must be "prescribed by law".
Principle (d)
(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;
This Principle states one of the fundamental guarantees of individual liberty, and
reflects a central principle of the law of evidence. It does not preclude exceptional
instances where the onus of proof is shifted from the prosecution to the defence.
Principle (e)
(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;
This Principle recognizes that the security objectives of the criminal law require
criminal justice officials to have certain powers sufficient to enable them to
perform their duties, and balances that recognition by imposing the restriction that
such powers should not permit unreasonable or arbitrary interference with
individual rights. The discussion in Part IV on the concept of balance bears directly
on this point. Consideration of this Principle will be central to future discussions of
police powers, in light of recent recommendations from a number of sources.
Principle (f)
(f) the criminal law should provide sanctions for criminal conduct that
are related to the gravity of the offence and the degree of respon-
sibility 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;
This Principle, which must be read together with Principles (g), (h) and (i), under-
lines the need for sentences to reflect, above all, the seriousness of the harm
involved in the criminal conduct, and the degree of culpability of the offender.
Without denying the importance of other factors to be taken into consideration in
the sentencing process, this wording is intended to emphasize the primary place of
these two factors in the sentencing equation. The reference to deterrence and

public protection in this Principle is intended to reflect earlier discussion in this

paper concerning the lack of precise understanding of how these objectives are
fulfilled, and of which sentencing options are likely to be effective in individual
instances.
The Principle also implies that the Review must examine the relative seriousness of
the various offences contained in the Criminal Code, and where appropriate,
rationalize the sanctions presently assigned to each, in view of the overall penalty
structure and the manner in which the present offences are arrayed within that
structure. This may require some alteration to the relative and the absolute
degrees of severity in the sanctions attached to various offences. In addition,
consideration must focus on the Law Reform Commission's recommendations
with respect to maximum sentences and the abolition of dangerous offender
legislation and minimum mandatory sentences, in its Report on Dispositions and
Sentences (1976). In this context, attention should also be devoted to a number
of other proposals that have emerged since that time, including recommendations
of the British Advisory Council on the Penal System (1978) that maximum
statutory sentences for most offences be cast in terms of the average or ordinary
offender, rather than according to the traditional criterion of the worst reason-
ably imaginable case. This will require consideration, in turn, of the various means
by which an appropriate and fair distinction can be drawn between the average
offender and the extraordinary (dangerous, aggravated, repeat) offender.
Principle (g)
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;

This Principle emphasizes the importance of options other than imprisonment and
fines, the traditional cornerstones of criminal sentences. Alternative types of
processes or sentences such as probation are already allowed and are in use. But
the extent to which they are employed varies, and the legitimacy of other alter-
natives, such as restitution, community service orders (discussed below), and
reconciliatory alternatives more generally, is not accepted in many areas. This
Principle is therefore intended to recognize the legitimacy of such alternatives, and
to remove formal and informal barriers to their use where the nature and circum-
stances of the case make them appropriate.
IMPLICATIONS 63
Not all areas in Canada permit opportunities for victim-offender reconciliation by

creating programs of dispute resolution, or by allowing privately-run citizen
conflict mediation projects to work with clients who are charged with and victims
of criminal offences. Reconciliation is aimed at resolving the dispute which resulted
in the criminal act and solving the problems or changing the circumstances which
contributed to the dispute. Reconciliation is usually most relevant in cases where
the parties are acquainted (as in family disputes) or have a special duty or relation-
ship to one another (as in landlord-tenant matters). In instances such as these,
reconciliation can have a greater preventive effect than traditional criminal
processes and punishment. Of course, reconciliation of the parties may not always
be adequate or appropriate in the circumstances. Care must also be taken to
ensure that no mediated solution be permitted to violate the legitimate rights of
the victim or the offender.
This Principle does not require these alternatives in instances where they are
inadequate or inappropriate. They are options which are more responsive to the
needs of victims in some cases, but should not be taken as implying that the
criminal law should be applied as a means of civil debt collection.
The second alternative noted in the Principle is redress or recompense for harm
done to the victim. Traditional criminal sentences often do little to address the
most immediate needs of victims by providing for or ordering recompense for the
harm done financially and emotionally. These reparative alternatives may, in
uncomplicated cases, include restitution by the offender and, as for violent
offences in most provinces, compensation (usually quite separate from the criminal
trial) from government funds to victims for their damages. Reparation may also
take the form of redress made to the community at large, through such disposi-
tions as community service orders. The Federal-Provincial Task Force examining
"justice for victims of crime", referred to earlier, is looking into matters related
to this Principle.
The third part of the Principle recognizes the continuing importance of developing
alternatives which may assist in the rehabilitation or reintegration of the offender
into the community. These are distinguished from other alternatives as involving
interventions with the offender which are primarily designed to reduce his or her
propensity to crime. The use of the term "opportunities" reflects the belief that
no one can be rehabilitated against his or her will. The references to "reintegra-
tion into the community" reflects the notion that crime does not develop in a
vacuum, and intervention with the offender will often necessitate intervention
with the community as well. The services available in the community may have a
better chance than jails of succeeding in affecting the environmental factors which
contribute to crime. There may be a need for an expansion in the type and
availability of programs in the community, Ni order to increase the meaningfulness
of the sentence choices available to judges, and to develop the maximum potential
for personal reformation.
Principle (h)
(h) persons found guilty of similar offences should receive similar

sentences where the relevant circumstances are similar;
This Principle reflects the importance of equity in the decision as to sentence. This
implies that the significance of the sentencing stage is so critical to the interests of
society and the offender that it deserves special mention and special attention
devoted to ensuring similarity of treatment for persons who are alike in relevant
respects. This Principle reflects the importance of equity as one aspect of justice.
Principle (i)
(i) in awarding sentences, preference should be given to the least

restrictive alternative adequate and appropriate in the circum-
stances;
This sentencing Principle reflects the general principle of employing the minimum
necessary intervention which is adequate in the particular circumstances.
Sentencing has a particularly significant place in a discussion of necessity, as in the
criminal law itself. This Principle, read together with the three which precede it,
implies that a hierarchy of sentencing options, from the least to the most serious,
should be available (at least potentially) for most offences, and that in effect the
use of the more serious alternatives must be justified on grounds of necessity.
Principle (j)
(j) in order to ensure equality of treatment and accountability, discre-

tion at critical points of the criminal justice process should be
governed by appropriate controls;
This Principle requires attention to be given to the formulation and imposition

of appropriate and effective controls on discretion through substantive and
procedural guidelines — some of which might be contained in statutes — applicable
to decision-making by criminal justice officials at "critical points" of the process.
Such critical points would include arrest, charge, bail, sentence, classification,
transfer, discipline, release and clemency. In some cases, it may be preferable to
provide for such guidelines in the form of administrative directives, available to the
pubic, rather than in legislation, because of the need for flexibility and openness to
change.
The language of this Principle implies the need for an articulation of specific policies
governing the exercise of the initial discretion to invoke the criminal process, and
the subsequent discretion to make other decisions about criminal cases. It there-
fore also implies formal recognition of the discretion not to arrest and prosecute
IMPLICATIONS 65
offenders who have committed non-serious acts and who can be handled by less
formal means. The other decision points in the criminal justice system mentioned
above are equally important. and many of them should also be governed by more
clearly stated policies.
To focus on another example, guidelines applicable to sentencing and post-

sentencing processes would be developed, with a view to reflecting such concerns
as:
• assuring fairness and predictability in sentencing while maintaining the

flexibility needed to take into account certain specified aggravating and
mitigating factors;
• recognizing the importance of imprisonment and its alternatives in the

formulation of sentencing guidelines;
• establishing means of evaluating the effectiveness of sentencing policy and

the actual use made of sentencing powers;
• establishing means of training judges and other justice system officials in the
meaning, interpretation, and use of sentencing guidelines;
• developing appropriate guidelines for crown prosecutors, governing the

laying of charges and negotiation of pleas, in recognition of the extent to
which these processes affect the severity and consistency of sentences; and
• preventing increased demand on prison capacity or increased average time

served in prison as a result of the use of such policies, by establishing that
imprisonment should be used only when lesser sanctions are inadequate or
inappropriate, by reflecting developments in behavioural science and by
taking account of presenting sentencing practice and resource availability.
The formulation and application of appropriate controls is a task that will require
attention at a number of different points, and by a number of different authorities
in the system, in light of the fact that responsibility for the various components of
the criminal justice system is shared both between and within levels of
government. The maintenance of the independent authority of the judiciary,
provincial Attorneys General, and the federal Parliament, for example, must be
respected within their spheres of responsibility.
Principle (k)
(k) any person alleging illegal or improper treatment by an official of
the criminal justice system should have ready access to a fair
investigative and remedial procedure;
This Principle requires systematic attention to be paid to the various forms of

remedies, inducing but not limited to judicial appeal and review, that could be
provided for citizens who believe they have been aggrieved by any process or
official of the criminal justice system. This would be consonant with the spirit of
the Charter of Rights and Freedoms, and could go beyond it in considering a wide
range of possible remedies.
Among the remedies contemplated by this Principle are: formalized citizen

complaint procedures (Bill C-69 contains such a proposal with respect to public
complaints against RCMP members); police, judicial, and corrections commissions;
mediation and arbitration procedures (where appropriate); and, of course, judicial
appeal and review, both as provided for explicitly by statute and in the form of the
general power of enforcement provided for in section 24 of the Charter of Rights
and Freedoms. An important consideration in this connection is that the provision
of less formal and more "grass roots" forms of remedy must not unreasonably
delay or have a chilling effect on the right to seek judicial review.
Principle (I)
(I) wherever possible and appropriate, opportunities should be pro-

vided for lay participation in the criminal justice process and the
determination of community interests.
Criminal law and criminal justice have become somewhat removed from the
scrutiny and involvement of the ordinary citizen. This was felt by the Law Reform
Commission to jeopardize effectiveness as well as humaneness. Examples of lay
involvement in the criminal justice system at present include "neighbourhood
policing", in which community representatives have a direct say in the law
enforcement norms of their neighbourhood, and "courtwatchers" programs, in
which citizens play a watch-dog role. Various other applications of this Principle are
possible, providing care is taken to represent all significant community interests, to
preserve accountability, and to safeguard the public and the offender from abuses.

CONCLUSION 67
VI. CONCLUSION
The aim of this paper, as expressed at the beginning, was to give an appreciation of
the context within which criminal law policy must be considered, to articulate a
statement of principles and objectives for criminal law based on an analysis of its
basic purpose and functions, and to spell out some major implications of that
statement for the Criminal Law Review.
In undertaking this task, the Government was responding to the suggestions of

many who called for a formal official statement of the way in which criminal law
and criminal justice policy questions were to be approached.
Criminal Law Focus

This paper adopted a progressively narrower and deeper focus as it proceeded.
The discussion of context and problems was cast in the broadest possible terms,
through consideration of questions of law, of operations, of resources, and of
program effectiveness. This was done on the basis of a dear appreciation of the
interrelatedness of the law and the system that administers it.
But, as was said earlier, this paper is not, and was never intended to be, a state-
ment of overall criminal justice policy. For one thing, the primary focus of the
Review, of which this paper forms part, is on the criminal law — the statutes —
not the system as a whole (despite the recognition of the mutually-interacting
relationship of law and system referred to above). For another thing, the
fragmented and divided nature of the criminal justice system — both between
levels of government and between components of the system — diminishes the
practical possibility, and, to a degree, the theoretical desirability, of such an overall
justice system policy. It is for these reasons that such important issues in the
admnistration of justice as crime prevention, staff training, community programs,
and the treatment of native offenders and female offenders have been the subject
of little or no discussion in this document.
The Criminal Law Review

The Criminal Law Review process is well advanced in certain respects. As was
noted at the outset, the Law Reform Commission has already conducted exten-
live legal and policy research and analysis on many aspects of criminal law and
criminal justice, as is shown in the Study Papers, Working Papers and Reports
published over the last decade. By the end of 1985, the Commission is scheduled
to complete work and make recommendations on the remaining areas of criminal
law, and to publish a number of Working Papers and Reports on many areas of
substantive and procedural law.
The federal Department of Justice and Ministry of the Solicitor General, in con-
junction with other federal departments and agencies and provincial governments,
will review the findings and recommendations made in those Reports with a view
to preparing legislative proposals for the consideration of Parliament. Because of
the enormity of the task, and the priority placed on achieving results, the Review
will, when possible. proceed on the basis of incremental implementation: that is, as
soon as decisions are made on specific elements of the criminal law, legislative
proposals will be brought forward.
While this paper does not make specific proposals for legislative action, it is very
much a part of this integrated process of analysis, recommendation and response.
In providing an official government response to the major Law Reform Commis-
sion recommendations concerning the general direction and purpose of the
criminal law, the paper is intended to give guidance to the Review process as a
whole, as it moves to consider the myriad of more specific issues that must be
addressed.
General Theme
This general guidance can be seen as an endorsement of the fundamental approach

to criminal law adopted by the Law Reform Commission and the Canadian
Committee on Corrections (Ouimet Committee). In essence, this approach calls
for restraint to be employed in the use of criminal law and the criminal justice
system, on the basis of a conception of the criminal law as the ultimate point along
the spectrum of society's informal and formal methods of dealing with conduct.
Because of the coercive and, at root, punitive orientation of the criminal law and
its sanctions, we should reserve their use only for matters of serious concern, for
conduct that causes or threatens serious harm to individuals or society. Because
we believe in the integrity and responsibility of the individual, and because we
cannot afford to blunt the credibility and legitimacy of the criminal law in the eyes
of the public, its use should as a general rule be limited to culpable, responsible
conduct.
The temptation to respond to emerging social problems or sensational but atypical

events through the vehicle of the generally-applicable criminal law must therefore
be resisted, according to this approach, and a dispassionate assessment made of the
validity of employing the criminal law, as opposed to other, less intrusive or more
specialized means.
CONCLUSION 69
The experience of over a century with criminal law policy in Canada has reinforced
the conclusion that a restrained approach should be taken in considering the
specific uses to which the criminal law should be put.
Credible, Effective and Reflective Law
If the approach set out in this paper is used as a framework to guide the con-
sideration of the specific substantive and procedural issues to be addressed by the
Review over the next years. a criminal law that is credible, effective and reflective
of the interests and values of Canadians should result.
It is not so much the law, nor ever, the agencies of the justice system that have the
major impact on creating a just, peaceful and safe society — a society in which we
want to live. Rather, justice and peace are functions of the attitudes and behaviour
of individual citizens, and the understanding and support they give to the institu-
tions that, after all, exist only for the sake of the collectivity of citizens we call
society. For this reason, the issues discussed in this paper are intended to be seen
as a starting point for consideration and discussion by Canadians. As the Criminal
Law Review progresses and comes to grips with specific issues, the discussion will
sharpen. If this paper helps in focusing those discussions and debates, if it offers a
framework to which reference can be made, it will have served its purpose.

APPENDIX "A" 71
APPENDIX "A"
The Canadian Criminal Justice System:

Jurisdiction and Institutions
Over the past century a multi-billion dollar network of police, court and correc-
tional institutions has evolved to administer the criminal law, and no discussion of
the context within which criminal law policy operates would be complete without
reference to the criminal justice system administering that law. Because Canada is
a federal state, with divided jurisdiction in the justice field, it is of vital importance
to understand the complex jurisdictional and administrative arrangements that
characterize the Canadian criminal justice system.
Divided Jurisdiction
If the general functions performed by governments can be classified within two

categories — law-making and administration — then an initial reading of the British
North America Act would seem to indicate that the Fathers of Confederation
wished to divide those functions having to do with justice fairly clearly between the
two orders of government.
Thus the federal Parliament has the authority to legislate with respect to "criminal
law and procedure" under s. 91(27), while the provinces are given responsibility
for the "administration of justice" under s. 92(14). This apparently clear-cut
division of responsibilities is misleading, however, since the precise boundaries
between these two broad areas of responsibility are often the subject of disputes
before the courts and in federal-provincial discussions. The initial impression of
clarity must also be modified in light of other provisions in the BNA Act which split
jurisdiction over the operation of penal institutions, assigning responsibility for
penitentiaries to the federal government, prisons to the provinces. The Criminal
Code, confirming a practice predating Confederation, determined that offenders
sentenced to terms of incarceration of two years or more would serve those
sentences in penitentiaries, offenders given sentences of less than two years would
serve them in prisons.
As for courts, the system is more unified than that of the United States, with both
lower and higher-level courts in the provinces being established and administered

by the provinces. Even here, however, there is a division of responsibility, with the
power of appointment of superior, district, and county court judges resting with
the federal government.
This kind of sharing of jurisdiction is different from many other federal states.
In the United States and Australia, for example, the individual states have the
primary authority both to make and enforce criminal law, and the federal govern-
ments play a less central role. While there is little explicit historical evidence on the
point, it is generally understood that the approach taken by the Fathers of
Confederation was an attempt to create a unifying, nationally-applicable set of
standards by giving the criminal law power to Ottawa. At the same time, flexibility
and sensitivity to local and regional differences was built into the system by giving
provincial governments the power to administer that law in the light of more local
conditions and considerations.
A somewhat-closer look at the actual administrative functions carried out by the

two orders of government reveals a complex set of relationships and institutions
that requires further refinement of our understanding of the way in which the
Canadian justice system operates in practice.
Provincial Responsibilities
Provincial governments, under their general responsibility for the administration of

justice:
• provide the bulk of policing services, through municipal police forces in

most provinces and also through provincial police forces in Ontario and
Quebec. (In the other eight provinces, the two territories, and some 200
municipalities, the RCMP — a federal institution — carries out these policing
functions under the terms of contractual agreements):
• carry out almost all prosecutions under the Criminal Code:
• establish, maintain and appoint judges for the provincial courts that hear the
vast majority of criminal cases:
• deliver services to young offenders (recovering part of those costs from

the federal government under the Canada Assistance Plan):
• maintain provincial prisons and services to offenders serving terms of less

than two years:
• administer probation services, and provide other programs of a non-

carceral nature, such as community service order programs, fine option
programs, and the like: and
• in some provinces, provide separate parole authorities to serve inmates of

provincial prisons.
APPENDIX "A" 73
Federal Responsibilities
The federal government, for its part:
• enacts criminal law in the Criminal Code or in other federal statutes:
• maintains the RCMP to enforce federal law other than the Criminal Code,
and to provide contract services as described above;
• prosecutes offences under federal statutes other than the Criminal Code:
• appoints judges at the county, district and superior court levels;
• maintains some 60 federal penal institutions and the services provided to

federal inmates;
• maintains the National Parole Board and parole services; and
• provides central research, investigative, information, and innovative facilities

providing common benefits to federal and provincial agencies involved in the
justice field.
Cost-Shared Programs
In addition, there are some services and programs that are cost-shared by the two
levels of government, including:
• criminal legal aid services, provided by agencies administered independently

of both orders of government and supported by federal-provincial cost-
sharing agreements;
• compensation to victims of crime, provided in most provinces by indepen-

dent agencies under federal-provincial cost-sharing agreements;
• justice information and statistics, through the newly-established Centre for

Justice Statistics referred to earlier: and
• native courtworker services, also usually administered by independent native

agencies and cost-shared by federal and provincial governments.
This complicated and fragmented justice system contains the potential for confu-
sion, duplication and overlap, but recognition by both orders of government of the
intimate linking of the components in a criminal justice system has led, especially in
the past decade, to the development of close coordination and cooperation
through a host of federal-provincial organizations at the level of Minister, Deputy
Minister, and officials. Despite these efforts, a number of concerns continue to be
expressed by both provincial and federal governments about the appropriate
division of responsibilities in such areas as enforcement, prosecutions and
corrections.
While in practice the system functions fairly well, it must be noted that the
fragmentation of authority, both between and within levels of government, and
through the important independent role of the judiciary, renders the possibility of
a clear, internally-consistent and uniform criminal justice policy equally applicable to
all components of the system a near impossibility. The important checks and
balances that are an inherent part of the system's structure, and the crucial role
played by independently-acting components, distinguish the justice system from
many other spheres of public sector activity, which are organized in a relatively
integrated "line" fashion and responsible to one ultimate authority. The fact that
this is not the case is not necessarily a cause for complaint, since the idea that the
ultimate coercive power of the state should be concentrated within one centre of
responsibility would, in itself, be cause for concern. But the limited ability of the
system to coordinate efforts and articulate a single, all-encompassing justice policy
must be borne in mind.

APPENDIX "B" 75
APPENDIX "B"
The Canadian Criminal Justice System in

Historical and Comparative Context
Introduction
This Appendix examines what is known in quantitative and comparative terms
about crime and justice. It focuses on trends in national data from 1890 to 1980
for Canada, and compares those trends with similar data for Australia. England and
Wales, France, Japan, the Netherlands and the U.S.A. The time period stars with
the enactment of the present Criminal Code. The countries were selected
because they are similar to Canada as economically advantaged societies, but have
different rates of crime, social composition and prison use.
The data in the Appendix describe:
I. Data and Trends for Reported Crime
II. Processing and Attrition of Cases
III. Use and Nature of Imprisonment as a Sanction
IV. Criminal Justice System Expenditures and Employment
The data were taken from published sources, usually official government publi-
cations. However, to locate, understand or verify the data, a wide variety of
different sources was used.
The Appendix is based on tables or charts which use rates per 100,000 total
population. This rate allows for differences in absolute numbers that are due to
differences in population over time or between countries. It is not always the ideal
way of calculating a rate, but is adequate and easy to understand.
The difficulties and inherent limitations involved in both identifying accurate data
and understanding their meaning over a ninety year period for seven different
countries cannot be overestimated. Reliable, valid, and comparable data are
available for only a very few aspects of crime and justice. In the face of these
severe limitations, other data must be used to give an indication of the phenomena
of interest, such as crimes known to police, court convictions, or average inmate
populations. Use of data concerning "public order" offences or based on admis-
sions to prisons was abandoned, because the statistical definitions both in Canada
and several of the selected countries are too vague.
The tables, charts or graphs prepared for each of the four sub-sections of this
Appendix are found at the end of each sub-section.
Data and Trends for Reported Crime
Part II of the paper briefly described the rise in crime over the past several
decades, as measured first by convictions in courts and, for the past two decades,
by offences known to the police. That Part also referred to the analysis of the
Ouimet Report, ascribing 98°o of the rise in convictions between 1901 and 1965
to summary conviction offences, rather than the generally more serious indictable
conviction offences, and 90 0 0 of the 98 °o to traffic offences resulting from the
universal introduction of the automobile during this century.
As an accurate indicator of the actual extent of crime, reports to police are

subject to a number of limitations, as is mentioned briefly in the text and exten-
sively discussed in the literature.
One source of limitation is the fact that many offences do not come to the
attention of police, for any number of reasons, and therefore cannot be recorded.
Criminologists believe that a more accurate way to measure crime is by surveying
the general public on a random selection basis — "victimization" surveys. Others
believe that "self-report" surveys of potential offenders can provide valid esti-
mates of criminal involvement. While results are not yet available for Canada, an
intensive set of victimization surveys is being undertaken and analyzed by the
federal government during 1982. Preliminary work done in Canada has confirmed
findings from similar surveys in the United States, England-Wales, Australia, and
the Netherlands. In Canada, it would appear that only two out of three break-and-
enters, and one in two assaults, are actually reported to police. Similarly, findings in
the U.S.A. indicate that more than one-half of most conventional crime is not
reported to police.
Despite the limitations inherent in data based on offences reported to police, such
data are available for most of the selected countries since the early I960s.
Furthermore, because of the absence of conviction data in Canada for the past
decade, it would be impossible to discuss the Canadian situation since then without
referring to "reported offence" data.
Table I displays the total range of reported offences for 1970, 1975 and 1980.
In 1980, approximately one-quarter of the 2.7 million offences known to police
involved offences outside the Criminal Code, but instead found in other federal
statutes such as the Narcotic Control Act or the Food and Drugs Act, or in
various provincial statutes or municipal by-laws. The percentage of Criminal Code
offences in the total has grown from 70 °o in 1970 to 76°o in 1980. It should be
APPENDIX "B" 77
noted that the huge number of traffic offences is not included in these figures.
Over the decade 1970-1980, the rate of property crimes increased by 60%.
while the rate of violent offences, including robbery, rose somewhat less. Violent
crimes continued to account for less than ION of the total number of offences
reported to police. The table also shows a steady growth in most property crimes
over the decade. Rates of violent crime, on the other hand, are not so consistent,
with the growth in such crimes as robbery and wounding appearing to have levelled
off between 1975 and 1980, after increasing significantly between 1970 and
1975. The murder rate has actually declined since 1975.
Figure A contrasts the actual situation in respect of violent crime with the
apparent perceptions of the public in this regard. The first diagram displays in a
pie chart the breakdown of total reported offences into various categories, using
Table I as the basis, and highlights the proportion of violent crimes as a percentage
of the total. A Gallup national omnibus survey carried out in February 1982 asked
2099 adult Canadians the following question: "In your opinion, of every 100
crimes committed in Canada, what percent involve violence — for example,
where the victim was beaten up, raped, robbed at gun point, and so on?" As the
second pie diagram illustrates, the average response to this question indicated that
most Canadians thought more than half of all crimes involved violence, as opposed
to the actual figure of less than one in ten.
Table 2 shows the offences reported to police for 1980, in descending order of
frequency. More than seven out of every ten offences relate to a handful of
sections of the Criminal Code, concerned with the property crimes of theft,
break-and-enter, and wilful damage.
Table 3 indicates the trends with respect to serious traffic offences over the past
two decades, with the bulk of the enormous growth accounted for by impaired
driving, and failure to stop or remain at the scene of an accident.
Tables 4 through 7 consider the phenomenon of crime in a comparative context,

as opposed to solely within Canada. In considering trends over time with respect
to some selected offences, it should again be stressed that comparisons of the
absolute rates of crime between countries must be undertaken very cautiously,
because of differences in crime recording based on differences in reporting
behaviour by the public, police recording practices. definitions of offences, and
cultural factors. The trends in police crime data, on the other hand, are likely a
fairly reasonable indicator of trends in actual crime, because police recording
technology and practice in the selected countries has remained relatively constant
over the last fifteen years for most major cities in the selected countries. Also.
U.S. surveys of the general public suggest that reporting of crime to police has
remained constant over this time period, and comparisons of trends in survey data
with police data over this period indicate similar types of increase.
In general, these tables indicate that Canada is still considerably less violent than the
U.S.A., but has become more violent than Japan. and (except for murder) most of
the other countries.
The data on murder are likely the most reliable, and indicate that Canada is less
violent than the other countries. with the exception of Japan and England-Wales.
Rape rates are notoriously unreliable, but on the basis of Table 5, only U.S.A.
reports more rape than Canada. The same pattern applies to robbery, although it
must be noted that definitions of the offence vary from country to country.
Burglary rates are surprisingly similar from one country to another, and are
uniformly much higher than reported rates for the other crimes compared. For all
four offences, the trends have been for the rate of reported crime to increase,
Japan excepted. The overall rate of increases has also been roughly comparable
between countries.
TABLE
ACTUAL OFFENCES KNOWN TO POLICE BY TYPE OF
OFFENCES WITH RATES PER 100,000 TOTAL POPULATION:
CANADA: 1970, 1975 AND 1980
Total Actual Offences 1,574,145 7,391.4 2,132,507 9,395.5 2,692,159 11,257.7 •

CRIMINAL CODE 1,109,988 5,211.9 1,585,805 6,986.9 2,045,399 8,553.1
Violent Offences 102,358 408.6 135.424 596.7 155.864 651.8

Murder 430 2.0 633 2.8 493 2.1
Manslaughter 34 0.1 63 0.3 97 0.4
Attempted Murder 260 1.2 642 2.8 792 3.3
Sexual Offences 11,025 51.8 10,900 48.0 12.787 53.5
Rape 1,079 5.1 1.848 8.1 2.315 9.7
Other Sexual Offences 9,946 46.7 9,052 39.9 10,472 43.8
Assaults (Not Indecent) 78,979 370.8 101.886 448.9 1 17.1 1 1 489.7
Wounding 1.641 7.7 2,128 9.4 2.407 10.1
Other Assaults + 77,338 363.1 99,758 439.5 114,704 479.7
Robbery 11.630 54.6 21,299 93.8 24.581 102.8
Property Offences 748.519 3,514.7 1,041.036 4,586.7 1,334.619

&
Breaking Entering 177,712 834.4 260,652 1,148.4 349,694
5,580.9
1,462.3
Theft-Motor Vehicle 62.805 294.9 90,791 400.0 93,928 392.8
Theft-Over S200b 150.010 704.4 94,957 418.4 224,595 940.0
Theft-$200& Underb 278.765 1.308.9 492.372 2,169.3 539,490 2.256.0
Stolen Goods 11,956 56.1 16,240 71.6 24.657 103.1
Frauds 67.271 315.9 86.024 379.0 102.255 427.6
Other Criminal Code 256.572 1.204.7 409.345 1.803 S 554.916 2 320 S
FEDERAL STATUTES 55.283 259.6 1 100.514 442.9 1 15.023 481.0

Drugs 18,789 88.2 55.542 244.7 1,434 290.3
Other 36.494 171.4 44,972 198.1 45,589 190.6
MUNICIPAL BY-LAWS ES

335.788
Note: a. Assaults were not classified "other assaults" in 1970.

.576.7
1 343.2
381,388
1 285.5 I 452,812 1,893.5
v
b. In 1970 theft was classified overlunder $50. 10
oo
FIGURE A 0

ACTUAL OFFENCES KNOWN TO POLICE PUBLIC PERCEPTION OF VIOLENT CRIME
CANADA 1980 (IN PERCENT) CANADA GALLUP SURVEY 1982 (IN PERCENT)

OTHER CRIMINAL FEDERAL STATUTES ALL OTHER CRIME

CODE (4.3%) (46.1%)
ITES
NICIPAL BY-LAWS
(2.8%)
VIOLENT CRIMES
(5.8%)

PROPERTY OFFENCES VIOLENT CRIMES
(49.8%) (53.9%)
TABLE 2
ACTUAL OFFENCES KNOWN TO THE POLICE
IN ORDER OF FREQUENCY OF PRINCIPAL SUB-SECTIONS
IN THE CRIMINAL CODE INDICATED IN PARENTHESES:
CANADA: 1980
Sub-group Actual Cumulative
number number % %
. Theft - $200 and under (294(b)") 539,490 26.38 26.38
Bicycles 120.208
From motor vehicles 1 51,774
Shoplifting 76,556
Others 190,952
(includes 290,292,287(1),(2))
2. Wilful damage (387. 388") 318,211 15.56 41.94
Private 281,341
Public 36,870
3. Theft - over $200 (294 (a)') 224,595 10.98 52.92
Bicycles 8,225
From motor vehicles 109,247
Shoplifting 4,399
Others 102,724
(includes 290, 292, 287)
4. Breaking and entering:
residence (306(l)(d)') 209,565 10.25 63.17
5. Breaking and entering:
business premises (306(1)(e)') 99,041 4.84 68.01
6. Theft - motor vehicles (295"') 93,928 4.59 72.6
Automobiles 61,845
Trucks 17,140
Motorcycles 9,662
Others 5,281
7. Assaults (245(1 )" , 246(l),, 80,896 3.96 76.56
246(2)(b)", 246(2)(c)'')
(common assault, assault with intent,
assault to prevent arrest)
8. Frauds (314(l)(b), 315) 75,335 3.68 80.24
(cheques, credit cards)
9. Disturbing the peace (17l") 43,975 2.15 82.39
ct
Sub-group Actual Cumu ative
Number Number
10. Breaking and entering (others) 41 ,088 2.01 84.40
(306,_307)
I I . Bail violation (I 33(2),(3),(4) and (5)•') 29,132 1.42 85.82
12. Bodily harm (assault) 27,688 1.35 87.17
(228•, 229, 230. 231,
232,_245_•)
13. Frauds (others) (296, 301.1(1)' , 320". 26,920 1.32 88.49
323•, 324, 326, 327, 328. 332.
329, 333, 330•. 331', 334, 335,
336, 338" to 348 (incl.), 350,
351 ", 352, 354, 355• to 360'
(incl.), 361, 362", 363, 364'
to 371" (incl.))
14. Have stolen goods (312". 313") 24,657 1.21 89.70
I5. Robberies (302 (d)') 13.357 0.65 90.35
Firearms 8, 594
Other offensive weapons 4,763
16 Offensive weapons (others) (76.3(I) 11,522 0.56 90.91
83, 84 ", 85•, 86". , 88
95", 102"
17. Indecent acts (169, 170' ' ') 11,429 0.56 91.47
18. Robberies (others) (302, 304) 0.55 92.02
19. Trespass at night (173") 10,185 0.50 92.52
20. Arson (389(l), 389(2), 390, 392) 9,379 0.46 92.98
21. Indecent assault-female (149') 6.535 0.32 93.30

22. Assaults (246.2(a) and (c)") 6,120 0.30 93.60
Police 5.478
Other peace-public officers 642
23 Obstruct public peace officers 5,857 0.29 93.89
(118", 184, 405(2)"')
24. Prisoner unlawfully at large 2,972 0.15 94.04
(133(l)(b)')
25. Sexual offences (others) (146, 146 (2), 2,623 0I 94,17
148, 150(1), 150(3), 151, 152,
153(I)(a), 153, I S4, 155. 157)
26 Escape custody (133(1)(a)*) 2,483 0.12 94.29
7. Wounding (assault) (228 (a), (b) 2,407 0.12 4.
and c '
28. Rape (143, 145') 2,315 0.11 94.52
Sub-group Actual Cumulative
Number Number % q(,
29. Prohibited weapons (89, 90") 2,166 0.11 94.63

30. Gaming and betting (185") 2,007 0.10 94.73
Betting house 635
Gaming house 1.372
31. Restricted weapons (91 to 94 (incl.). 1,812 0.09 94.82
96__)
32. Prostitution 1,504 0.07 94.89
Bawdy House (193", 194"') 442
Procuring (I 95, 166. 167) 153
Others (195.1 ') 909
33. Counterfeiting currency 1,352 0.07 94.96
(407' to 412" (incl.))
34. Indecent assault - male (I 56') 1,314 0.06 95.02
35. Public morals (159", 162 to 958 0.05 95.07
168 incl. '. 165"
36. Attempted murder (222') 792 0.04 95.11
37. Kidnapping (247') 689 0.03 95.14
38. Gaming and betting (others) 688 0.03 95.17
(186' , 187' , 189" , 191 , 192' )
39. Homicide ' 593 0.03 95.20

Murder 1st degree (214) 225
Murder 2nd degree (214) 268
Manslaughter (217) 97
Infanticide (216) 3
40. Explosives (76.3 (I). 78, 79. 80') 438 0.02 95.22
Other criminal code offences 98,157 4.80 100
Total Criminal Code Offences 2,045,399 100 100
Note: Indictable
Indictable or summary
Summary
oD
w
TABLE 3 00
RATES OF SERIOUS TRAFFIC OFFENCES KNOWN TO

POLICE PER 100,000 TOTAL POPULATION: CANADA:
1962, 1970 AND RECENT YEAR
1962 1970 1980
Criminal Code 339 4 669.0 1, 260.4

Criminal negligence
causing death 0.9 0.8 1.3
causing bodily harm 0.5 0.4 0.8
operating motor vehicle 2 I I .8 4.3
Failing to stop or remain
at scene of accident 106.7 218.3 396.7
Dangerous driving 15.9 24.6 33.4
Failure or refusal to
provide breath sample 19.2 68.6
Driving while intoxicated 20.3
Driving while impaired 155.5 359.7 639.0
Driving while disqualified 37.6 44.2 124.6
Provincial statutes 310.1 666.3+

Failing to stop or remain at
scene of accident 79.4 324.6
Dangerous driving 244.0 301.7
Driving while disqualified 6.7 37.2b
a. approximate based on 37.2 driving
while disqualified for 1978
b. for 1978
TABLE 4
RATES OF MURDERS RECORDED BY POLICE

PER 100,000 TOTAL POPULATION: SELECTED COUNTRIES:
1960-1980
England -
Canada Australia Wales France Japan Netherlands U.S.A.

1960 0.9 2.8 2.6 5.1
1961 1.2 2.8 4.8
1962 1.4 2.5 4.6
1963 1.3 3.7 2.4 4.6
1964 1.3 4.1 2.4 4.9
1965 1.4 4.6 0.6 2.3 3.1 5.1
1966 1.2 3.9 0.7 2.2 5.6
1967 1.7 3.9 0.8 2.1 6.2
1968 1.8 4.0 0.8 2.2 6.9
1969 I.8 3.6 0.8 2.0 7.3
1970 2.2 3.9 0.8 1.9 4.2 7.9
1971 2.2 3.7 0.9 1.8 4.7 8.6
1972 2.4 4.2 1.0 2.3 1.9 5.5 9.0
1973 2.5 4.3 1.0 2.4 1.9 6.7 9.4
1974 27 4.1 1.2 2.7 1.7 7.1 9.8
1975 3.1 4.4 I I
. 2.8 1.9 7.3 9.6
1976 2.9 3.9 1.2 3.0 1.9 8.9 8.8
1977 3.0 3.6 I.0 3.4 1.8 8.3 88
1978 2.8 4.0 I 3.2 1.6 8.0 9.0
1979 2.7 5.4 1.3 3.6 1.6 9.7
1980 2.5 3.9 10.2
Definitions: Canada: murder and manslaughter. Australia: murder, attempted murder, manslaughter (manslaughter
arising from motor traffic accidents for some states from 1973-74 has been included). England-Wales: murder,
manslaughter and infanticide. France: meurtres lies au profit (meurtres crapuleux, reg$e ments de compte) et meurtres
non-li6s au profit (homicide ordinaire). Japan: homicide. Netherlands: murder and manslaughter. U.S.A.: murder and
non-negligent manslaughter.
U,
a
01
TABLE 5
RATES OF RAPES RECORDED BY POLICE PER 100,000

TOTAL POPULATION: SELECTED COUNTRIES: 1960-1980
England-
1960 1.4 6.8 9.6
1961 2.5 6.9 9.4
1962 3.1 6.4 9.4
1963 2.9 6.5 9.4
1964 3.9 3.0 7.1 11.2
1965 3.3 3.2 68 12.1
1966 3.2 33 6.7 13.2
1967 3.8 2.8 64 14.0
1968 4.3 3.7 6.1 15.9
1969 4.9 3.9 1.8 5.5 18.5
1970 5.1 3.8 1.8 5.0 18,7
1971 5.7 4.3 1.6 4.6 20.5
1972 5.9 4.9 1.8 4.4 22.5
1973 7.2 4.7 2.0 3.8 24.5
1974 8.2 5.5 2.1 3.6 26.2
1975 81 5.4 2.1 3.3 26.3
1976 8.0 5.7 2.2 2.9 26.4
1977 8.I 63 2.I 2.6 29.1
1978 9.0 6.4 2.5 2.5 30.8
1979 9.7 5.9 2.4 2.4 34.5
1980 9.7 3.5 36.4
Definitions: Canada: rape. Australia: includes attempted rape and assault with intent to rape. England-
Wales: rape and attempted rape. U.S.A.: forcible rape, attempts to commit forcible rape by force or
threat of force are included,
TABLE 6
RATES OF ROBBERIES RECORDED BY POLICE PER

100,000 TOTAL POPULATION: SELECTED COUNTRIES:
1960-1980
England -
Canada A ustralia Wales France Japan Netherlands U.S.A.

1960 18.1 5.7 60.1
1961 21.0 4.8 58.3
1962 26.6 4.4 59.7
1963 31.1 4.2 61.8
1964 29.4 4.7 4.0 68.2
1965 28.4 5.3 7.8 4.0 71.7
1966 28.0 7.7 9.3 3.6 80.8
1967 35.4 8.2 9.4 3.0 102.8
1968 40.5 10.8 9.9 3.0 131.8
1969 47.8 13.7 12.4 2.7 148.4
1970 54.6 16.5 12.9 2.6 2.6 172.1
1971 52.1 21.8 15.3 3.5 2.3 188.0
1972 54.3 23.3 18.2 3.5 2.3 180.7
1973 59.7 21.4 14.9 5.0 1.8 183.1
1974 75.8 24.1 17.6 5.0 1.9 209.3
1975 93.8 20.8 23.0 6.7 2.1 218.2
1976 87.2 20.1 23.6 7.2 1.9 195.8
1977 83.8 21.1 28.0 8.6 1.8 187.1
1978 83.8 24.9 26.8 8.9 1.7 191.3
1979 88.3 25.5 25.4 9.4 1.8 212.1
980 102.7 9.0 243.5
Definitions: Canada: firearms, other offensive weapons, other robbery. Australia: use or threat to use
violence to obtain property including attempts. England-Wales: robbery and assault with intent to rob. France:
hold-up et autres vols A main armbe. U.S.A.: use or threat to use violence to obtain property including attempts.
00
V
OD
TABLE 7 oo
RATES OF BURGLARIES RECORDED BY POLICE PER

1960-1980
England -

1960 280.4 73.2 508.6
1961 393.0 357.4 518.9
1962 441.8 412.1 535.2
1963 497.9 466.0 576.4
1964 504.0 374.2 493.5 634.7
965 491.4 409 3 529.1 131.3 662.7
1966 5006 452.8 574.0 721.0
1967 585.9 486.9 548.7 826.6
1968 699.9 4998 588.7 932.3
1969 769,9 577.6 861.8 984.1
1970 834.4 6390 884.4 334.7 1,084.9
1971 873.8 750.4 926 3 435.1 1163.5
1972 875.8 944.2 894.9 286.5 492.2 1,140.8
1973 898.4 948.0 799.5 302.9 522.8 1.222.5
1974 1,043,5 884.2 983.5 342.8 699.0 1,437.7
1975 972.2 919.6 1060.3 376.4 736.8 1,525.9
1976 1,167.0 894.7 1,048,0 337.4 822.9 1,439.4
1977 1,163.7 914.3 1,229.8 379,6 874.1 1,410.9
1978 1.186.2 983.5 1,151 I 378.1 904.9 1,423.7
1979 1,252.3 1,120.7 1,116.8 437.2 1.499.1
1980 1,450.3 499.9 1,668.2
Definitlons: Canada: breaking and entering (in all kinds of buildings). Australia: break and enter. England-
Wales: burglary in a dwelling, aggravated burglary in a dwelling, burglary in a building other than a dwelling
aggravated burglary in other, and going equipped for stealing = Total burglary. France: cambriolages de tous
genres de lieux. U.S.A.: burglary.

APPENDIX "B" 89
II. Processing and Attrition of Cases
Few policy-makers or citizens think of the extent to which crime is handled by

citizens, police and lawyers away from the formal rules of the courtroom.
However, comprehensive studies which have looked at the reaction of citizens to
crime, and at how police and courts deal with crime reports, have brought a
realization that:
• much crime is not known to the police:
• only a portion of crime known to the police becomes the subject of a

charge or arrest;
• many charges are dropped or withdrawn before trial; and
• while most cases actually reaching the trial stage result in a conviction, the
vast majority of convictions results from a guilty plea.
Chart B illustrates this process of "attrition" of events through the various stages
of the criminal justice system, using the offence of break-and-enter as an example.
As is shown, more offences are committed than are known to police; more are
known to police than result in an actual charge being laid; and more charges are laid
than convictions entered.
Table 8 compares "attrition" rates between countries for robbery and burglary,
showing the fairly comparable rates of attrition between the "reported offence"
and "charge laid" stages. England-Wales has a higher ratio for robbery than all
other countries except Japan. In both Japan and the Netherlands, prosecutors have
the formal authority to decide whether a particular prosecution should or should
not be proceeded with, in the public interest. As a result of the presence of police,
and sometimes probation officers or victims at hearings to decide on this point, it
is understood that police get to know when prosecutors would be unlikely to
prosecute, and consequently are less likely to record such offences. This helps
explain both the high ratio of charges to offences, and the comparatively low rate
of offences. As for the ratios generally, it cannot be determined from the available
data what proportion of the "attrition" is due to inability to identify an accused,
and how much is due to the exercise of informal police or prosecutorial discretion.
Figure C displays the data contained in Table 8 in graphic form.
Tables 9 and 10 demonstrate the large growth in convictions in Canada for both
indictable and summary offences during this century. As is mentioned in the text,
the vast bulk of the increase is found in summary conviction offences and, in the
indictable category, for non-violent property crimes. Consideration of these tables
in the light of Chart B and Table 8 reinforces the point that much of the "law in
action" is a comparatively low visibility phenomenon, only indirectly and marginally
subject to the control of statute or court decisions.
Figure D illustrates in graphic form the conviction rates over time for murder,
robbery and burglary. This figure is based on the data contained in Table 10.
Table I I illustrates a parallel phenomenon in Australia. England-Wales, and France,

broken down according to whether an indictable procedure, or a more simplified
procedure (usually employed for less serious offences) was used.

CHART B
ATTRITION OF EVENTS THROUGH THE CRIMINAL

JUSTICE SYSTEM
This diagram illustrates the processing of individual crime victim's cases through
three major stages in the criminal justice system. As nationwide data do not exist
on victimization for any offences, the rates were estimated for break and enter as
it is a relatively frequent serious offence for which studies have been undertaken in
British Columbia and Ontario. These rates may differ for other jurisdictions within
Canada. The differing widths of the graph indicate the relative volume of offences
handled at different points in the system.
All break and enters

(estimated by survey
of victims)
35 of all break and

enters are reported
to police
I 10 of all break and
enters are eventually
cleared by charge (I , 6
of all reported to polio
I 17 of all break and
enters result in con-
victions (3!5 of all
cleared by charge)
Data are not available which permit an assessment of the proportion of convic-
tions resulting in sentences of imprisonment. However, it appears that 2i5 of
offenders convicted of break and enter receive such sentences.
The final disposition of an offence or offender lies at the end of a long chain of
decisions made by victims, police, prosecutors, and judges.
The result of this chain of decisions is that relatively few cases result in conviction
and relatively few offenders are imprisoned in comparison with the total number
of offences committed, even for a relatively serious offence such as break and
enter.
The greatest volume of cases are affected by decisions made early in the process
by victims, police and prosecutors.
The rate of commission of offences in our society is quite high. Canadian studies in
which juveniles reported offences which they had committed indicate that 60 to
90 0 o of all juveniles commit at least one offence in a given year (many of them
admittedly minor). Research in the U.S. suggests that similar findings may hold for
adults as well.
TABLE 8
PERSONS CHARGED AS RATIO OF OFFENCES KNOWN

FOR ROBBERY AND BURGLARY PER 100,000 TOTAL
POPULATION: SELECTED COUNTRIES: RECENT YEAR

ROBBERY BURGLARY
A B A:B A B A:B
offences persons offences persons
known charged known charged
Canada•
1973 91.9 29.4 1:0.3 I,382.0 160.6 1:0.1
fl Australia
1:0.3 1,123.2 138.5 1:0.1
1979 25.5 8.3
England-Wales
1979 25.4 14.0 1:0.6 1,116.8 157.2 1:0.1
France
1980 9.0 2.8 1:0.3 512.0 81.8 1:0.2
Japan
I979 1.8 1.6 1:0.8
e r
1977 187.1 56.6 1:0.3 1,410.9 210.0 1:0.2
Note: One person can be charged for more than one crime and vice versa.
a. Alberta and Quebec are excluded.

b. For the Netherlands. there was a rate of 4,450 I offences and 1,402.8 charges for all offences in 1979,
ratio 1:0.3
10
I.0
0.9
0.8
0.7
0.6
0.5
0.4
0.3 -
0.2
0.1 -
0.0
Ratio (Charges to offences)
Canada (1973) Aust. (79)

_1FIGURE C
PERSONS CHARGED TO OFFENCES KNOWN
Robbery and Burglary: Selected Countries
Eng. (79) France (80)

Burglary
Per.Charged
Robbery
Per.Charged
Robbery
Off.Known
Burglary
Off.Known
span (79)
_
USA (77)
o
N
TABLE 9
CONVICTIONS FOR INDICTABLE AND SUMMARY

OFFENCES, OF PERSONS AGED 16 YEARS AND OVER, WITH
RATES PER 100,000 TOTAL POPULATION: CANADA:
1890 TO 1973
I
Indictable Offencesab Summary Offencesi-
Number of Number of
Year convictionsi Rate convictions Rate
1890 3,340 69.9 34,606 724.1
1900 4,853 91.6 35.885 676.9
1910 10.327 147.8 91,203 1,305.1
1920 15,088 176.3 138,424 1,617.9
1930 28,457 278.8 308.759 3,024.7
1940 46,723 410.5 456,109 4,007.6
1950 42,624 310.9 1.183,991 8,634.7
1960 64.707 362.1 1,106, 532 6,192.1
1970 75,334 544.2 1,451,943 10,488.6
1973d 72,430 505.5 1,384,017 9,658.4
Note: a. Alberta and Quebec are excluded for 1970 and 1973. Figures before 1951 do not include
Newfoundland.
b. Until 1948 the basis of the statistics of indictable crime was the offence and figures for number of
persons convicted were not available on a satisfactory basis. Data for 1950 to 1970 for number of
persons convicted for indictable offences are as follows - .
Number of persons Rate

1950 31,385 228.9
1960 35,443 198.3
1970 45,880 215.8
c. Summary offences includes juveniles, but excludes parking.
d. After 1973 figures for convictions for indictable offences are not collected. 10
w
TABLE 10 10
CONVICTIONS OF PERSONS AGED 16 AND OVER FOR

SELECTED INDICTABLE OFFENCES WITH RATE PER 100,000
TOTAL POPULATION: CANADA: 1890-1980
Murder j Rape Robbery Burglary
Number of
Year Rate No. Rate No. Rate No. Rate
Convictions
1890 28 0.6 42 0.9 234 4.9
1900 21 0.4 85 1.6 322 6.1
1910 49 0.7 99 1, 4 844 12.1
1920 69 0.8 237 2.8 2,073 24.2
1930 68 0.7 435 4.3 4,212 41.3
1940 60 0.5 26, 0.2 541 48 6.136 53.9
1950 103 0.8 37 0.3 776 5.7 7,295 53.2
960 61 0.3 55 0.3 1,239 6.9 13,445 75.2
1970b 108 0.8 43 0.3 1,021 74 12,241 88.4
1980c
Note: a. For 1941.

b Excludes Alberta and Quebec.
c. Conviction data not available for 1980.
FIGURE D
CONVICTIONS OF PERSONS AGED 16 AND OVER

CANADA: SELECTED INDICTABLE OFFENCES: RATE PER 100,000
Rate Per 100,000

90
80
70
60
50 -
1"41
40
LI LI I
30
20
10
0 -_
1890 1900 1910 1920 1930 1940 1950 1970 1980
Uo

TABLE I I .o
0'
CONVICTIONS INVOLVING INDICTABLE AND SIMPLIFIED

PROCEDURES WITH RATE PER 100,000 TOTAL POPULATION:
SELECTED COUNTRIES: 1900, 1960, RECENT YEAR
Indictable I Simplified Procedure
Year Number('OOO) Rate Number('OOO) Rate

Canada 1900 4 91.6 35, 6769
1960 64 362.1 1.107 6,192,0
1973 72 505.5 1,384 9,658.4
Australia 1900 13b 349.5 II3, 3,016.4

1960 65 642.1 671 6,538.5
1971 130 1,010.5 853 6,600.5
England- 1966 232d 484.4 1.213, 2,523.3

Wales 1978 424 863.4 1,509 3,073.3
France' 1900 189f 492. I 441 x 1,147.3

1966 261 5351 5.577 11,392.3
1976 460 871.0 9,355 17,714.5
Note: a Summary procedure.

b. Convictions against persons, property, forgery and currency.
c. Offences against good order and petty offenses.
d Indictable,per;ons convicted.
e. Non-indict^ole,oersons convicted.
f. Activite des tra unaux correctionelles. For 1900, persons convicted is used including Cours d'assises.
g. Activite des tnbunaux de police. For 1900, persons convicted is used.
APPENDIX "B" 97
I11. Use and Nature of Imprisonment
The two major measures of prison use are the number of persons in prison on an
average day and the period of time each person spends in prison. Unfortunately,
there are no reliable methods of measuring on a comparative basis the length of
stay or its analogue, the number of admissions. Just as unemployment is measured
by the rate of persons unemployed on an average day, so prison use will be indi-
cated here by the 'static' or 'stock' measure of the average daily estimate of
persons in adult prisons per 100,000 total population. This measures an average
use of prison rather than the number of persons experiencing prison for varied
time periods.
Table 12 indicates that fines continue to be the main alternative to incarceration,

and by far the most common sanction awarded. Other alternatives to incarcera-
tion, and especially probation, have been introduced in recent years, but do not
approach the use of fines for any category of offence. In 1973, the rate of
probation varied from 67.0 for indictable offences, to 40.4 for motor vehicle
offences, to 155.5 for other summary conviction offences. Over the century, the
bulk of increased use of fines has been for motor vehicle violations, the fine rate
for which was 7495.4 out of the total of 9269.9.
Canada has approximately one person in a thousand incarcerated on an average

day in 1980 as in 1890, as shown in Table 13. These 23,000 persons are mainly
young males. More than 3,000 are held before trial in prisons administered by the
provinces. Another 10,000 are sentenced to provincial prisons and 10.000
sentenced to federal penitentiaries.
In Table 14, the property and personal crime indices are displayed by province and
territory, as are the rates of persons held in adult prison. As may be seen, higher
reported rates of crime are generally associated with higher incarceration rates.
In Table 15, incarceration use has been broken down by Canadian province or
territory in terms of the change over the past decade. The rapid increase in use of
incarceration in Saskatchewan and Newfoundland is offset nationally by the
decrease in use in British Columbia. This geographic distribution is shown in
Chart E. Basically, the further West and North one is in Canada the higher the
violent crime rate, and the higher the incarceration rate.
Table 16 compares trends in prison use among the selected countries. The trends
in Canada and France have remained relatively stable, while in the U.S.A. use of
prisons has increased, and in Japan and the Netherlands it has decreased. The
incarceration rate for England-Wales has risen in the past two decades, reversing
an earlier decline. While the decline in the Netherlands has persisted over the
century,there are recent indications that increases in violent crime may revise the
trend marginally.
Table 17 breaks down the figures for incarcerated persons in the selected coun-
tries according to whether they are actually serving sentences of incarceration, or
are held in custody before trial and sentence, as opposed to being free on bail, say.
Chart F illustrates the relative rates graphically.
In Table 18, rates of probation and parole are shown to vary substantially from
one country to another. There is a general tendency for there to be more
persons on probation and parole when there are more persons in prison. This is
confirmed both for the selected countries and over time. Within Canada, pro-
bation use has increased in some provinces to the point where Ontario, for
instance, has four times as many persons on probation as it has incarcerated.
Table 19 attempts to reflect the phenomenon reported for Canada in Table 14 in

a comparative context, in displaying the robbery. burglary and incarceration rates
for the selected countries. Basically the same pattern is found to apply: higher
robbery and burglary rates are associated with higher incarceration rates.
Table 20 compares the use made of imprisonment as a sanction for those con-
victed of robbery and theft in Canada between 1964 and 1973. The decline in use
of imprisonment for theft continues a century-long trend, in that theft convictions
in 1880 resulted in incarceration around 80% of the time, or four times the rate
in 1973.
Table 21 reinforces the point made just above, in displaying the increasing propor-
tion of the inmate population in federal penitentiaries who are serving sentences
for crimes of violence, as opposed to property crimes. Figure G illustrates these
data graphically. Also of interest is the decline in percentage of admissions for
conviction for Criminal Code offences, as a result of the large increase in Narcotic
Control Act convictions, and the introduction of parole in 1960, and mandatory
supervision a decade later.
TABLE 12
TOTAL CONVICTIONS WITH SENTENCES PER 100,000

TOTAL POPULATION: CANADA: 1900 AND 1973
1900 II 1973b
Number of Number of
Convictions Rate Convictions Rate
Total convictions 41,653• 785.8 1,462,714 9,755.1

Death 9 0.2 I —
Penitentiaries 539 10.2 1,718 12.0

Reformatories 256 4.8 1,01 I 7.
Fines orJailc 35,049 661.2 1,328,360 9,269.9
Various sentencesd 4,130 77.9 91,602 639.2
NOW a. Includes 1669 convictions in the Yukon for which no sentencing details are given.
b. Excludes Alberta and Quebec for both sentences and total population.
c. In 1973. the rates for jail and fines were 220.4 and 9,049.6 respectively. Fines and jail were not
separated statistically in 1900.
d. Included in various sentences is probation. which was not used in 1900. However, in 1973 the rate was
262.9.
10
%0
0
0
TABLE 13
PERSONS IN ADULT PRISONS AT YEAR END WITH RATES

PER 100,000 POPULATION: CANADA: 1890 TO 1980
I Incarceration
Number of Number of
Year persons Rate Year persons Rate
18903 4,424 91.5 1955 15,059 95.9
1900 4.339 81.9 1960 16,240 96.5
1910 1965 20,097 102.3
1920 1970 19,233 90.3
1930 11,223 109.9 1975 19,860 87.5
1940 12,198 107.2 1980 22,941 96.9
1950 13,655 99.6
Note: General: 1955 to 1980 data are adults only.

1955 to 1980 data include penitentiaries, prisons, reformatories and some lock-ups.
1930 and 1940 data exclude lockups.
1891 and 1901 data exclude reformatories.
a. 1891
TABLE 14
RATES OF PROPERTY CRIME, VIOLENT CRIME AND

PERSONS IN ADULT PRISONS PER 100,000 POPULATION:
PROVINCE OF SENTENCE: 1978 AND 1980
Population Property Violent Persons in

('000) Crime, Crime" adult prisonsc
Province 1978 1978 1978 1980
I. Alberta 2,013 4,706.3 101.2 141.0
2. Manitoba 1,032 4,637.7 102.9 123.81
3. Saskatchewan 959 4,060.1 62.7 123.4
4. British Columbia 2,569 6,190.9 128.6 1 1 1.6
5. Nova Scotia 847 2,991 .5 59.2 99.2
6. New Brunswick 701 2,506.8 32.2 96.7
7. Ontario 8,502 4,333.7 75.6 86.7
8. Prince Edward Island 123 2,278.0 16.3 85.4,
9. Quebec 6,283 3.421.5 172.7 81.6
10. Newfoundland 573 2,386.5 19.5 73.71
Northwest Territories 43 7,935.5 165.9 389.4

Yukon 22 9,433.1 147.5 304.0
CANADA 23,671 4,178.0 106.7 96.9
Note: a. Property crimes are offences of breaking and entering, theft of motor vehicle, theft over and under
$200.
b. Violent crimes are offences of homicide, attempted murder, wounding, rape and robbery.
c. This combines persons held in prisons administered by the federal, provincial and municipal governments
for each province. The federal portion of the rate is based on the number of inmates by province of
residence at time of sentence.
d. Includes lock-ups.
e. Some lock-ups are included.
f. Counts are on register rather than actual counts.
0
0
N
TABLE I5
CHANGES IN RATES OF PERSONS IN ADULT PRISONS, PER

100,000 TOTAL POPULATION: PROVINCE OF SENTENCE:
1970 AND 1980
Province 1970 1980 Chan e

I. Alberta 127.8 141.0 13.2
2. Manitoba 103.7 123.8 20.1
3. Saskatchewan 78.2 123.4 45.2
4. British Columbia 145.6 III .6 -34.0
5. Nova Scotia 76.5 99.2 22.7
6. New Brunswick 77.2 96.7 19.5
7. Ontario 89.8 86.7 -31
8. Prince Edward Island 87.3 85.4 - I.9
9. Quebec 65.2 81.6 16.4

10. Newfoundland 42.8 73.7 30.9
Northwest Territories 242.4 389.4 147.0

Yukon 347.1 304.0 -43.1
r CANADA 89.8 96.9 7.1
Note: Persons in adult prisons by province of sentence includes persons held in prisons administered by
federal, provincial and municipal governments. For federal penitentiaries, rates are by province of residence
at time of sentence.
CHART E
MAP OF CANADA SHOWING RATES OF PERSONS IN

ADULT PRISONS PER 100,000 TOTAL POPULATION:
GEOGRAPHIC REGIONS: 1980
0
TABLE 16
RATES OF PERSONS IN ADULT PRISONS PER 100,000 TOTAL

POPULATION: SELECTED COUNTRIES: 1900, 1960, 1970
AND RECENT YEAR
1900 1960 1970 Recent Year

Canada 81.9 96.5 90.3 96.9 (1980)
Australia 52.9 77,9 90.0 63.3 (1980)
England-Wales 81.7 58. I 80.2 85.1 (1980)
France 64.9 61.6 59.5 66.7 (1980)
Japan 77.2 46.0 43.0 (1978)
Netherlands 143.3 28.3 17.7 24.6 (1978)
U.S.A. 128.8+ 192.9 175.8 207.3 (1978)
Note: General: The estimate of average daily population is usually based on a calendar year or fiscal year end, or.
census estimate.
a. 1890
TABLE 17
RATES OF PERSONS IN ADULT PRISONS WITH THOSE ON

PRE-TRIAL DETENTION PER 100,000 TOTAL POPULATION:
SELECTED COUNTRIES: 1978, 1979 AND 1980
Persons in Pre-Trial
Year adult prisons Detention Convicted
Canada (1980) 96.9 12.4b 84.5
Australia (1979) 67.4' 8. I 59.3
England -Wales (1980) 85.1 9.0 76.1
France (1980) 66.7 26.5 40.2
Japan (1978) 43.0 7.8 35.2
Netherlands (1978) 24.6 10.8 13.8
U.S.A. (1978) 207.3 32.8 174.5
Note: General: Persons in adult prisons includes all persons incarcerated in federal, state, provincial or local
jurisdictions. In most countries pre-trial detention means awaiting trial or unconvicted
a. Persons in adult prisons includes pre-trial detention i.e., for Canada, pre-trial rate is 12.4, post-trial rate
is 84.5 and persons in adult prison rate is 96.9.
b. Pre-trial detention means awaiting trial and awaiting sentence.
c. Prisoners exclude persons held in police cells or lock-ups which are mostly pre-trial.
O
to
CHART F 0
o'
RATES OF PERSONS IN ADULT PRISONS WITH RATES

PRE-TRIAL, PER 100,000 TOTAL POPULATION:
SELECTED COUNTRIES: RECENT YEAR
Netherlands
Japan
//
France
Australia
England-Wales
Rate of Pre-Trial Detention

Per 100,000 Population
Canada /
United States
Rate of Incarceration

0 100 200 300 Per 100,000 Population
TABLE 18
RATES OF PERSONS IN ADULT PRISONS, ON PROBATION

AND PAROLE PER 100,000 TOTAL POPULATION:
SELECTED COUNTRIES: RECENT YEAR
Persons in
adult prisons' Probation• Parole•
Canada 96.9 (1980) 241.2 (1980) 28.6 (1980)
Australia 67.4 (1979) 137.0 (1978) 29.8 (1978)
England-Wales 85.1 (1980) 149.8 (1978) 64.0 (1978)
France 66.7 (1980) 124.6 (1979) 8.8 (1979)
Japan 43.0 (1978) 19.2 (1976) 5.7 (1976)
Netherlandsb 24.6 (1978)
U.S.A. 207.3 (1978) 444.0 (1976) 79.4 (1976)
Note: a. average daily estimate.

b. probation or parole data are not available as data are calculated by admissions rather than average day.
TABLE 19
RATES OF BURGLARIES AND ROBBERIES RECORDED BY

POLICE, WITH PERSONS IN ADULT PRISONS PER
RECENT YEAR
Robbery Burglary Persons in

1979 1979 adult prisons
Canada 88.3 1,252.3 96.9
Australia 25.5 1,120.7 67.4
England-Wales 25.4 1,116.8 85. I
France 9.4 437.2 66.7
Japan 1.8 43.0
Netherlands 904.9 24.6
U.S.A. 212. I 1,423.7 207.3 0
V
TABLE 20
INCARCERATION RATE AS A PERCENTAGE

OF CONVICTIONS: CANADA: 1964-1973
Robbery Theft
Incarceration Incarceration
Year Rate Rate
1964 89 33
1966 85 29
1968 90 29
1970 90 21
1972 88 21
1973 87 21
TABLE 21
TYPE OF MAJOR OFFENCE — MALES ADMITTED TO FEDERAL PENITENTIARIES: 1948-1978
Admissions During the Year
Tvoe of Malor
Offence 1948 1952 1956 1960 1964 1968 1972 1976 1978
Total No. 1,547 1,806 2,363 3,332 3.816 3,433 4,162 4,408 4,663
% (100) (100) (100) (100) (100) (100) (100) (100) (100)
Criminal Code 1,472 1,703 2,189 3.088 3.527 3,191 3,426 3,351 3,549
(95) (94) (93) (93) (92) (93) (82) (76) (76)
Violent 459 443 603 882 962 1,009 1,288 1,671 1,865
(30) (25) (26) (26) (25) (29) (31) (38) (40)
Property 879 1,129 1,427 1,958 2.189 1,788 1,713 1,388 1,322
(57) (63) (60) (59) (57) (52) (41) (31) (28)
134 131 159 248 376 394 425 292 362
Other Criminal Code (9) (7) (7) (7) (10) (II) (10) (7) (8)
Other Federal 75 103 174 244 289 242 736 1,056 1.113
Statutes (5) (6) (7) (7) (8) (7) (18) (24) (24)
Narcotic Control 57 79 115 157 100 130 304 421 431

Act (4) (4) (5) (5) (3) (4) (7) (10) (9)
Parole & M.S. 5 10 28 43 169 97 406 584 646

Revocation (0) (I) (I) (I) (4) (3) (10) (13) (14)
Note: As of the fiscal year (ending March 31) for 1968 and earlier. As of the calendar year (ending December 31) for 1970 and thereafter. Parole and M.S. revocation for the years
1948-1956 means violation of Tickets of Leave.
0
.o
FIGURE G
0
TYPE OF MAJOR OFFENCE - MALES ADMITTED TO FEDERAL PENITENTIARIES: 1948-1978
Property
Crimes
Violent
% of All Offences Crimes
I00
90
80
70
60
50
40
30
20
10
1948 1956 1964 1972 1976 1978

APPENDIX "B" I1I
IV. Criminal Justice System Expenditures and Employment
Chart H illustrates the rapid growth in public expenditures for the Canadian
criminal justice system over the past two decades, although it should be borne in
mind that a significant proportion of that growth is due to inflation.
Table 22 and Figure I detail criminal justice expenditures in Canada for the latest
available year. The major portion of these penal justice expenditures goes to
policing, a phenomenon common to Canada and the U.S.A. In Canada, for
1979/80, two billion dollars were spent on police services, of which the major
portion went for police officer salaries. The average expenditure on such services
per officer was S35,000 for 60,000 police officers. Nearly one billion dollars was
spent on corrections. Of this total, the expenditure at the federal level on
offenders in the community was less than 10 million dollars or $ I ,500 per offender
per year.
Table 23 shows that the number of persons employed in the statistical categories
that encompass criminal justice has grown dramatically from 1900 to today.
However, the growth has been limited to police and corrections. The rate of
persons employed as judges and lawyers has not changed for Canada, although it
has grown in the U.S.A., and recent years have seen a dramatic growth in the
number of lawyers in Canada. Community corrections would be a negligible
proportion of the total even if 1980 figures were available. There has been a
substantial growth in both private security and private insurance in the last two
decades in most of the countries.
Table 24 illustrates the growth in estimated police strength in Canada over the
century. Table 25 shows a similar pattern of growth in the actual number of police
officers for the selected countries, while also reflecting substantial variations in the
number of police per capita. France appears to have nearly fifty per cent more
police than Canada, while the rate in the U.S.A. is only marginally greater.
Table 26 demonstrates the fact that correctional staff in Canada grew at a faster
rate than the inmate population in Canada over the past few years. Table 27
shows the relatively all proportion of correctional resources that are devoted
to community-based alternatives, despite overall growth in the numbers of
probation and parole officers. In Canada, offenders in the community represent
two-thirds of the total under correctional control, but have only one-eighth of the
staff allocated to them.
ChART H
POLICE,000RTS AND CORRECTIONAL EXPENDITURES:

Dollars
in millions
CANADA: 196I TO 1980
2600
2500
2400
Police
2300
2200
2100
Note: — This Chart is expressed in current dollars. not constant dollars. Inflation accounts for approximately 2/3
2000
to 314 of the growth in dollar amounts.
1900
1800 Police expenditures are reported in gross terms, and are therefore consistently overestimated because
federal revenues from provincial and municipal contract policing by the RCMP. and provincial transfers
1700
to municipalities for policing purposes, are not subtracted from the total.
1600
1500 — Prior to 1971 , municipal spending for police, courts and corrections was not reported in disaggregated
form. After 1971, police expenditures are reported separately, and account for at least 95% of
1400
municipal spending for criminal justice. Of the remaining portion, virtually all municipal expenditures are
1300 for courts, with municipal spending for corrections occurring only in Nova Scotia.
1200
— If a comparison were made for the period 1971172. 1980/81, the growth rates in expenditures for the
1100 three major components of the system would be roughly equivalent, with the police sector growing
1000 by approximately 270%, the court sector by approximately 203%, and the corrections sector by
approximately 280%.
900
800
Corrections
700
600
500
Courts
400
300
200
100
0
63/64 67/68 71/72 75/76 79/80

TABLE 22
AVERAGE EXPENDITURES PER PERSON FOR

PENAL JUSTICE PROGRAMS:
CANADA: 1977/78
Program SMillions % $ Per ita

Police 1.718 65.6 73.60
Crown Counsel 51 1.9 2.20
Criminal Legal Aid 43 I .6 1.86
Courts 248 9.5 10.61
Compensation to
Victims of Crime 6 .2 .27
Adult Correctionsa 551 21,1 23.62
TOTAL 2,617 100 112.16
a. Adult corrections is composed of "adult imprisonment" (20,3%) and "community corrections" (0.8%).
FIGURE
AVERAGE EXPENDITURES FOR PENAL JUSTICE PROGRAMS:
CANADA: 1977/78
Criminal Legal Aid (1.6 %) Courts(9.5 %)

ims(.2%)
Crown Coun!
It Imprisonment (20.3%)
Comm. Corrections (.8 %)
Police (65.7 %)
TABLE 23
PERSONS EMPLOYED AND RATES PER 100,000 POPULATION IN CRIMINAL JUSTICE

ACTIVITIES: CANADA AND U.S.A.: 1900 AND 1970
Census category 1881 •

CANADA
1971 1900
U.S.A.
1970 Census Category

I
Persons Rate Persons Rate Persons Rate Persons Rate
Policemen 1.313 30.4 41,940 194.5 32,452b 42.6 591,506 288.7 Policemen
and
detectives-
government
Lawyers and 3,503 81.0 16.315 76.7 55,632 73.1 413.978 203.1 Lawyers and
notaries judges
Judges and
magistrates 146 3.4 1,260 5.9
Guards and
caretakers 1,542 35.7 51,220 240.9 9,876' 39.3 497,076 243.9 Guards,
watchmen and
doorkeepers
Private Private
security 36,525 169.1 397,000 195.0 security
Note: a This includes Nova Scotia, New Brunswick, Prince Edward Island, Quebec, Ontario, Manitoba and British Columbia. It also includes certain territories later included
in Alberta. Saskatchewan and Labrador. but excludes what is known today as the Yukon and Northwest Territories.
b. Includes marshalls, constables, sheriffs and bailiffs.
c Estimate.
U,
TABLE 24 v
ESTIMATED POLICE STRENGTH WITH RATES PER 100,000

TOTAL POPULATION: CANADA: DECADES 1901 - 1980
Municipal
Census Data' R.C.M.P.b Provincialc Policed
Year Number Rate Number Rate Number Rate Niimber
1901 2.411 45.5 936 17.7
1911 3,374 53.4 649 9.3
1921 6,314 73.8 1,671 19.5
1931 10,978 107.5 1,245 12.2 5,004
1941 16,070 141.2 4,154 36.5 5,778
1951 25,797 188.1 3,800 27.7 2,322 8,531
1961 30.179 165.5 7,558 42.3 2,314 15,679
1971 38.885 180.3 I1,7611 55.2 7,437 23,353
1980 66,6871 278.8 20,2891 84.8 10,829h 35,742h
Note: a. These data represent "policemen and detectives" from the Census, but exclude the Yukon and the
Northwest Territories from 1901 to 1951. In 1901 , the data for "Northwest and Unorganised
territories" are limited to agglomerations.
b. These data are for 1900, 1910, 1920, 1930, 1940 and 1950.
c. BCPP, OPP, QPP.
d. Up to 1961, only includes major municipalities these police were employed by areas with 3.3 million in
1930, 4.4 million in 1940 and 5.2 million in 1950.
e, From 1960, figures include all civilians and public servants. The figures used are 1960 and 1970. The
equivalent figures for police officers only is 6, 149 (33.5) for 1961 and 9,917 (46.0) for 1971.
f. Total numbers of police personnel from Statistics Canada 52,986 were full-time police officers.
g. For fiscal year 1980181, there were 12,888 uniform members, 1,506 special constables, 2,105
civilians and 3,790 public servants.
h. Total police personnel, including others of 2,180 for provincial and 6,249 for municipal.
TABLE 25
POLICE OFFICERS IN RATES PER 100,000 TOTAL

POPULATION: SELECTED COUNTRIES: 1900, 1960, 1970 AND
RECENT YEAR
Year Number Rate
Canada 1900
1960a 26,189 143.6
1970 40,295 189.2
1979 52,646 222.4
Australia 1900' 6,571 150.5

1960 15,262 148.5
1970 20.321 162.5
1979 30 989 214.9
England- 1900 44.054 135.4

Wales 1960 72,852 159.2
1970 94,280 193.7
1979 113,309 230.4
France 1900 37,977 98.8

1960
1970
1979 177,493 332.6
Japan 1900
1960 Note:
1970
1980 211.004 , 181.7 The notion of police is difficult to define cross-nationally. Most countries have government agencies like
the U.S. Drug Enforcement Agency or Canadian Customs which have law enforcement respon-
Netherlands 1900 sibilities, but are not usually included as police.
1960 Police strength may include as many as 20 per cent of employees of police forces who are civilians ouch as
1970 17,587 135.7 secretaries or computer programmers. Governments as well as private companies employ a large number
1979 24,333 174.0 of private security agencies for everything from airport security to doormen of buildings.
Countries like France and Holland have at least two major agencies with functions similar to police in
U.S.A. 1900 32,452 42.6 Canada.
1960 303,771 168.8
1970 449,656 221.2 a. 1961
1978 581,957 266.9 b. 1912
c. authorized strength.
TABLE 26
PENITENTIARY STAFF, INMATE POPULATIONS, AND

INMATE- STAFF RATIO: CANADA: 1900101, 1966167 and
1978179
1900101 I 1966167 I 1978179

Inmates (average count) 1 ,430 7,444 9,481
Correctional Staff 169 3,714 7,993
Inmate: Staff Ratio 8.5 I 2.0 : I 12 1
Note: a represents 'custodial staff'.
TABLE 27
EXPENDITURES AND STAFF PER OFFENDER,

WITH OFFENDERS PER 100,000 TOTAL POPULATION:
CANADA AND U.S.A.: RECENT YEAR
1977 I 1976
c.omoinea expenaitures on probation

and parole $58,937,000 $727,571,000
Probation and parole agents 2,417 36,588
Adult offenders on community supervision 57.648 1,525,705
Expenditure: offender ratio $1,022 I $477 :
Offender: agent ratio 23.9:1 41.7 :1
Adult offenders on community supervision
per 100,000 population 248 709
Note: Most recent figures for U.S.A. were for 1976. No dramatic changes occurred in the previous years on a
year by year basis.
APPENDIX "C" I1
APPENDIX "C"
Data Sources
TABLE I: Statistics Canada (annual), "Crime and Traffic Enforcement Statistics'
FIGURE A: see Table I (Actual Offences ...)

Gallup National Omnibus Study. February 1982 (Public Perception ...)
TABLE 2: Statistics Canada (1982), "Crime and Traffic Enforcement Statistics
1980"
TABLE 3: Dominion Bureau of Statistics, Canada. "Traffic Enforcement

Statistics"; Statistics Canada (1982), "Crime and Traffic Enforcement
Statistics 1980"
TABLE 4: Dominion Bureau of Statistics, Canada (annual 1960 to 1970), "Crime

Statistics (police)"
Statistics Canada (annual 1971 to 1973), "Crime Statistics (police)"
Statistics Canada (annual 1974 to 1980), "Crime and Traffic
Enforcement Statistics"
Mukherjee, Jacobsen & Walker (1981), "Source Book of Australian
Criminal and Social Statistics 1900-1980"
Home Office (annual), "Criminal Statistics, England and Wales"
France (1981), "La criminalite en France en 1980"
Japan (annual), "Japan Statistical Year Book"
Netherlands (annual), "Statistical Year Book of the Netherlands"
F.B.I. Uniform Crime Reports (annual), "Crime in the United States"
TABLE S: Dominion Bureau of Statistics, Canada (annual 1960 to 1970). "Crime

Statistics Canada (annual 1974 to 1980). "Crime and Traffic
F.B.I. Uniform Crime Reports (annual). "Crime in the United States"

TABLE 6: see Table 5
TABLE 7: Dominion Bureau of Statistics, Canada (annual 1960 to 1970). "Crime

Statistics Canada (annual 1974 to 1980), "Crime and Traffic


France (1981). "La c iminalite en France en 1980"
Netherlands (annual), "Statistical Year Book of the Netherlands"
F.B.I. Uniform Crime Reports (annual), "Crime in the United States"
CHART B: Solicitor General Canada (1981), "Selected Trends in Canadian Criminal

Justice"
TABLE 8: Statistics Canada (1974). "Crime and Traffic Enforcement Statistics"
Statistics Canada (1973), "Statistics of Criminal and Other Offences"

Home Office (1980), "Criminal Statistics, England and Wales"
Japan (1981), "Japan Statistical Year Book 1981"
U.S. Department of Justice (1981), "Sourcebook of Criminal Justice

Statistics 1980"
FIGURE C: see Table 8
TABLE 9: Canada (annual). "Statistical Year Book of Canada" and "Canada Year
Book"
Dominion Bureau of Statistics, CanadaiStatistics Canada (annual),

"Statistics of Criminal and Other Offences"
TABLE 10: Dominion Bureau of Statistics. Canada/Statistics Canada (annual),

FIGURE D: see Table 10
TABLE II: Canada (annual), "Statistical Year Book of Canada" and "Canada Year
Book"
Dominion Bureau of Statistics, Canada/Statistics Canada (annual).

Mukherjee, Jacobsen & Walker(1981), "Source Book of Australian


APPENDIX "C" 121
France (annual). "Annuaire statistique de la France"
TABLE 12: Canada (annual), "Statistical Year Book of Canada" and "Canada Year
Book"
TABLE 13: Canada (annual), "Statistical Year Book of Canada" and "Canada Year
Book"
Dominion Bureau of Statistics. Canada/Statistics Canada (annual),

Dominion Bureau of Statistics. Canada/Statistics Canada (annual),

"Correctional Institution Statistics"
Justice Information Report (1981), "Correctional Services in Canada

1978179 - 1979180"
TABLE 14: Statistics Canada. "Crime and Traffic Enforcement Statistics 1978"

1978179 - 1979180"
TABLE 15: Dominion Bureau of Statistics. Canada (I 970), "Correctional Institution

Statistics"

1978179 - 1979180"
Solicitor General Canada, "Incarceration in/au Canada 1945-1980"

(unpublished)
CHART E: see Table l S
TABLE 16: Canada (1900). "Statistical Year Book of Canada"
Dominion Bureau of Statistics, Canada ((960, 1970), "Correctional

Institution Statistics"
Justice Information Report (1981). "Correctional Services in Canada

1978/79 - 1979180"

Bites (1979), "De-Institutionalisation of Corrections and its Implications

for the Residual Prisoners" (Australia)
Australian Institute of Criminology Quarterly (1981). "Reporter"
Wilkins ((965), "Social Deviance: Social Policy. Action and Research"

(England-Wales)
Scull (1977). "Decarceration: Community Treatment and the Deviant

— A Radical View" (England-Wales)
France (1901), "Annuaire statistique de la France 1901"

Robert & Faugeron (1980). "Les forces cachees de la justice: La crise de

la justice penale"
Ruller (1981), "Tijdschrift Voor Criminologie" (Netherlands)
Netherlands (annual). "Statistical Year Book of the Netherlands"
Cahalan ( 1979), "Trends in Incarceration in the United States since

1880"
TABLE 17: Justice Information Report (1981), "Correctional Services in Canada

1978/79 - 1979/80"

France (1979), "Rapport general sur 1'exercise: 1979"
Tsuchiya (1981), "Corrections in Japan" (unpublished)

Statistics 1980"
CHART F: see Table 17

1978179 - 1979180"

Home Office (1979), "Statistics of the Criminal Justice System, England

and Wales 1968-78"
France (1979), "Rapport general sur 1'exercise: 1979"
Suzuki (1979), "Corrections in Japan"

Statistics"
U.S. Department of Justice (1978), "State and Local: Probation and

Parole Systems"
TABLE 19: see Tables 6,7 and 17
TABLE 20: Solicitor General Canada. "Incarceration as a Sentencing Disposition

(1979)," R. Lorcan Scanlon
TABLE 21: Annual Reports of the Commissioner of Penitentiaries, 1 948-1974
Statistics Canada, Correctional Institution Statistics, 1968-1974
The Correctional Service of Canada, 1976-1978
Statistics Division. Ministry of the Solicitor General. October, 1979
FIGURE G: see Table 21

APPENDIX "C" 23
CHART H: Statistics Canada. "Federal Government Finance"
Statistics Canada, "Provincial Government Finance"
Statistics Canada, "Local Government Finance"
Justice Information Report (1981). "Correctional Services in Canada

1978179 - 1979180"
Demers D.J., - Criminal Justice Expenditures in Canada: Examination of

Recent Trends". Solicitor General Canada, 1979 unpublished
TABLE 22: Solicitor General Canada (1979), "Selected Trends in Canadian Criminal
Justice"
FIGURE I: see Table 22
TABLE 23: Canada (1881 and 1971). "Census of Canada"
U.S. Census Board (1976), "Statistical History of the United States from
Colonial Times to the Present"
Shearing & $terming (1981), "Modern Private Security: Its Growth and
Implications"
TABLE 24: Canada (decennial 1901-1971), "Census of Canada"

Canada (annual). "Statistical Year Book of Canada" and "Canada Year
Book"
TABLE 25: Dominion Bureau of Statistics, Canada (annual), "Police Administration
Statistics"
Canada (annual), "Canada Year Book"
Statistics Canada (1982). "Crime and Traffic Enforcement Statistics

1980"
Australia (annual), "Official Year Book of Australia"
United Kingdom (1887-1902), "Statistical Abstract for the United

Kingdom"
Central Statistical Office, England and Wales (annual), "Annual Abstract

of Statistics"
France (annual), "Annuaire statistique de la France"
Robert & Faugeron (1980). "Les forces cachees de la justice: La crise de

la justice penale"
Ministry of Justice (1980). "Criminal Justice in Japan"
Netherlands (annual). "Statistical Year Book of the Netherlands"
U.S. Census Bureau (1976), "Statistical History of the United States

from Colonial Times to the Present"
U.S. Department of Commerce (1980), "Statistical Abstract of the

United States"

Criminal Law in Canadian Society (1982)

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THE CRIMINAL LAW

' Government Gouvernement OTTAWA

As a result, the Department of Justice, in cooperation with the Ministry of the

Honourable Jean Chretien, P.C., M.P.

Executive Summary .................................................. .

I. The Incidence of Crime ...................................... 13

III. Current Problems and Concerns 27

5. How can the justice system be made more

IV. Scope, Purpose and Principles 37

V. Implications for the Criminal Law Review 55

VI. Conclusion ........................................................ 67

Appendix "A" The Canadian Criminal Justice System:

Appendix "B" The Canadian Criminal Justice System

Appendix "C" Data Sources ......................................... 119

Analytically discusses crime trends, various explanations offered for the

The Canadian experience is seen as similar to that of most western democracies.

• the propensity of the Canadian justice system to respond to crime by a

I. The effectiveness of the criminal law in combatting crime and correcting

2. Enhancing the effectiveness of preventive measures and alternative

5. Accountability in the exercise of discretion and in the use of public

6. Sentencing and post -sentencing processes; and

criminal sanctions, whether justified in terms of utilitarian or retributive

3. With respect to the concepts of responsibility and blame, the paper

• it is vital to retain a standard of responsibility and fault in the criminal law

• the principles of justice, necessity and economy should be considered in

• justice may require the criminal law to respond to some conduct —

STATEMENT OF PURPOSE AND PRINCIPLES

Purpose of the Criminal Law

Principles to be Applied in Achieving this Purpose

(ii) redress or recompense for the harm done to the victim

(h) persons found guilty of similar offences should receive similar

(i) in awarding sentences, preference should be given to the least

(j) in order to ensure equality of treatment and accountability,

(k) any person alleging illegal or improper treatment by an

(I) wherever possible and appropriate, opportunities should be

I. Background of the Criminal Law Review

(especially as shown in rising violent crime), the emergence of new forms of

In 1947, the Criminal Law Section of the Commissioners on the Uniformity of

By 1969, the Report of the Canadian Committee on Corrections (Ouimet

In 1970, Parliament responded by enacting legislation establishing the Law Reform

And just as complaints about unnecessary complications, inaccessible language.

These latter concerns led the Parliamentary Subcommittee on the Penitentiary

lacks any clear or acceptable governing conception of what we as a society

2. The Criminal Law Review

that a thorough review of the Criminal Code should be undertaken as a matter

As a result of that agreement, a detailed proposal was developed by the federal

3. Aim of this Paper

b) to articulate a statement of the appropriate scope, purpose and principles

c) to give an indication of the general implications of endorsing the statement

II. THE CONTEXT

I. The Incidence of Crime

An examination of the trend with respect to convictions for indictable offences —

population in 1901 to 6 15 in 1966, an increase the Ouimet Committee speculated

Also, within the "indictable" category, crimes against property greatly

1980, from a total of 1,574,145 to a total of 2,692,159 (excluding traffic

The proportion of Criminal Code offences in the total of offences reported to

A closer examination of the Criminal Code offences reported to police shows

One source of criticism is that, in forcing respondents to choose between two or

During the early decades of this century, concentration on psychological explana-

In the face of experience during these decades, however, it became necessary to

Others pointed to even more basic demographic factors: the proportion of

Other social scientists focused research on specific, policy-related issues, concen-

(if) we regard any crime-prevention or crime-reduction program as defective