In a seminar last week that was part of the crime and punishment workshop series at the University of Toronto, Friedland argued the Criminal Code written by R.S. Wright’ was more liberal and would have been a better choice for Canada. Furthermore, Friedland said Canada’s current code, drafted by James Fitzjames Stephen, needs reform and should be taken out of the interpretive hands of Canada’s judicial system.
Friedland began his talk by describing how he came to study Wright’s code. While researching and writing his book on the process of law reform, Friedland had left a footnote in his chapter on codification blank to reference R.S. Wright’s penal code. He thought Wright’s code was prepared for Jamaica; but during his research, Friedland soon uncovered the global importance of Wright’s code.
“I thought it was just going to be a footnote that I was filling in,” Friedland says. “But then it became a paragraph, then a short article, and in the end, I had over 300 footnotes in that article and I never finished my book on the process of law reform.”
While researching Wright’s code, Friedland found not only had Wright’s code been intended for all British colonies, including Canada and Australia, but Stephen had reviewed Wright’s code. Many scholars of the day, including Sir Henry Maine, found Wright’s to be the superior version.
“While he was revising Wright’s code . . . which he did for the Colonial Office in the 1870s . . . Stephen was thinking about drafting his own code,” Friedland says. “[Stephen’s] code subsequently became the code for Canada, Australia and New Zealand; but there were these two codes.”
Wright, who was involved in the labour movement at the time, was often considered a radical, while Stephen was quite conservative. These differences, which may contribute to the lasting effect of Stephen’s code, are evident when you compare the two laws.
“Wright’s provision for sodomy was to call it a nuisance and a minor offence; Stephen had a 10-year minimum penalty, possibly a life sentence,” says Friedland. “Wright would not punish attempted suicide, Stephen would; their abortion sections were different.”
Another major difference between the two versions was their willingness to leave important lawmaking decisions in the hands of the judges.
“The judges were suppressing the new labour movement and they were using the law of conspiracy to do so,” explains Friedland. “Wright didn’t trust the judges, and said that in order for it to be a conspiracy, it had to be a conspiracy to commit an indictable offence. In Stephen’s code it could be a conspiracy to be anything the judges considered improper.”
This trust that Stephen had in the judges of the time was translated into a vague criminal code. He left large sections of his code under the jurisdiction of presiding judges. Such things as mens rea and the differences between homicide and murder are left to be decided by judges.
Wright, on the other hand, opted to clearly define the law of mens rea and eliminated homicide all together, leaving the court’s stance on murder, among other offences, without the need for interpretation.
Friedland mentions that allowing the judiciary to make decisions under the Charter of Rights and Freedoms, which it does now and has been doing for some time, means the decisions are permanent.
“When you use the Constitution, the Charter to develop the law, it’s cast in stone [and] it can’t be changed,” he says. “They therefore lack the possibility of experimentation that you can get with the legislative process.”
Friedland argues that our current Criminal Code should be revised and reformed to mimic Wright’s code. He wants to see Parliament take lawmaking out of the hands of judges and develop criminal laws and accompanying procedures.
“Parliament was quite happy to let the judges take on these hot subjects,” says Friedland. “Perhaps they encouraged the courts; but I think it’s now time, 25 years after the Charter, for Parliament to take back the initiative.”
Friedland says he feels strongly that Canada should do what it tried to many decades ago, and revise the code. He also feels the courts should support Parliament in this endeavour.
“The federal government should again take the initiative and take up the task of producing a new code of criminal law, procedure, and evidence,” he says. “Furthermore, the Supreme Court should encourage the government to do so.
“Every political party has an interest in justice not being complicated, expensive, and delayed. A well-developed code, sensitive to the decisions of the court, would likely survive Charter challenges.”