It seems a week does not go by without a reminder of how badly handled the justice portfolio was handled under Stephen Harper’s Conservative government.
Last week it was a guest on CBC Radio’s The 180, who brought back some of the disturbing legacy of the Conservatives for me.
Lisa Silver, a Calgary lawyer, was on the show advocating the Criminal Code should be overhauled for the 21st century. She argues the Code is confusing, poorly-organized and full of outdated laws. For entertainment value, The 180 host Jim Brown focused on a few scientifically or morally archaic sections to illustrate.
These included Section 163 (1) that makes it a criminal offence to make, print, publish, distribute, sell or possess for the purpose of publication, distribution or circulation, a crime comic.
In fact, 63 years ago, a Manitoba comic book seller was actually convicted under that outlandish law.
The entire section here, in fact, is a fantastic demonstration of Silver’s point. Normally, definitions come at the beginning of sections, but here, definition of a crime comic was tacked on later and became subsection (7). Section (2) of 163 includes selling or exposing to public view “obscene” materials, drugs intended to cause an abortion and advertising such a drug.
Again, obscene is so subjective, subsequent legislation sought to clarify by adding subsection (8), which defines it as “any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
Clear as mud, but still law.
There are also sections on dueling and procuring a fake marriage, but my favourite example was Section 365, which states: “Every one who fraudulently (a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration, (b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found, is guilty of an offence punishable on summary conviction.
By today’s standards that legislation is amusing enough, but what tickled my fancy most was the use of the word pretends, suggesting that it would be legal to actually use witchcraft, sorcery or knowledge of an occult or crafty science for the prescribed purposes.
Whether this demonstrates lawmakers at the time believed in witchcraft or just had difficulty crafting an English sentence that would stand the test of time, that section could obviously be removed entirely as it is covered other sections of fraud by whatever means.
In any event, at 2,540 pages, with 849 sections, the Criminal Code as a piece of legislation, or rather a hodge-podge of 125 years worth of legislation, additions, amendments and clarifications, Silver may be on to something with respect to a rewrite. And the perfect body to undertake such a task would be the Law Commission of Canada (LCC).
The only problem is, Harper and his cronies got rid of the LCC in an act of ideological single-mindedness and petty vengeance.
The LCC was an impartial body that made significant contributions to Canadian law with respect to clarity, fairness, modernization, access to justice and accountability.
At the time, Parker MacCarthy, president of the Canadian Bar Association (CBA), said what was at stake was nothing less than “the rights of Canadians.”
It was painfully obvious during Mr. Harper’s tenure that the government did not care about Canadians’ rights or fairness in the justice system. They were a punitive lot who spent money on prisons and incarceration contrary to every shred of evidence that being “tough on crime” in that way is a model that simply does not work.
At the same time, the Conservatives shut down the Court Challenges Program (CCP), which existed solely to provide assistance to groups fighting court cases that advance language and equality rights guaranteed in the Constitution, Canada’s most important legislation.
Just like muzzling scientists and putting layers of “communications” bureaucracy in between civil servants and the media, shutting down the LCC effectively removed another obstacle to governance by ideology over evidence-based decision-making.
John Baird, then-Treasury Board president, as much as admitted it saying: “I just don’t think it made sense for the government to subsidize lawyers to challenge the government’s own laws in court.”
Sustaining a modern democracy is an extremely complex endeavour that requires robust checks and balances. Even with the best intentions—something Baird rarely demonstrated—Parliament can pass laws that inadvertently contravene the Charter. Even with bodies like the LCC and programs such as the CCP, improving the country’s laws is a daunting task. Without them it is nearly impossible.
People are working on having them reinstated. Let’s hope the new government is listening and lives up to its pledges of accountability and transparency.
