Vol. 14 No.10 (October 2004), pp.780-783
WHAT IS CRIME? DEFINING CRIMINAL CONDUCT IN CONTEMPORARY SOCIETY, by Law Commission of Canada. Vancouver/Toronto: University of British Columbia Press, 2004. 224pp. Paper. CDN$27.95 / US$23.00. ISBN: 0774810874. Hardcover. CDN$107.24 / US$85.00 ISBN: 0774810866.
Reviewed by Greg Marquis, Department of History and Politics, University of New Brunswick Saint John, Canada. Email: firstname.lastname@example.org
The subjectivity of criminal law and criminality is explored in this series of case studies by a collection of Canadian academics working in law, criminology and sociology. The sponsor is the Law Commission of Canada, a federal agency that advises Parliament on improvements to laws.
Legal scholars have long fretted over the open-ended and unsystematic nature of Canada’s criminal law. Since its inception in 1892, the federal Criminal Code has been amended many times, often because of the lobbying of special interests or political pressures resulting from a perceived ‘crisis’ in public order or morality (e.g., Macleod 1978; Brown 1989). Responding to these and other law reform concerns, the federal government over past decades has appointed investigatory bodies such as the Law Reform Commission (1970) and the Canadian Sentencing Commission (1984). In the late 1970s, the federal government and the provinces began a criminal law review process, which produced, in 1982, the policy statement The Criminal Law in Canadian Society. In terms of outcomes, such critiques eventually produced Bill C-41, which amended the Criminal Code to permit conditional (non-custodial) sentences.
DesRosier and Bittle, representing the Law Commission of Canada (the word ‘Reform’ disappeared from the organization’s title) provide an introduction to WHAT IS CRIME? In it they describe the criminalization of various behaviours as a type of “reflex application” by Canadian law makers (p.ix). Most academic researchers and legal experts by the 1970s, they note, were advocating fewer, less complex criminal laws, more rights for the accused and lighter sentences for the guilty. Legal academics and most advocacy groups, in other words, favoured less, not more law.
Quebec criminologists Jean-Paul Brodeur and Genevieve Ouellet, in “What is Crime? A Secular Answer,” explore many inconsistencies in the processes of criminalization, enforcement and decriminalization. As they illustrate, the tale is a complex one. Various groups and individuals do not share a consensus on a definition of crime. Activities can be formally decriminalized (the chapter discusses the issue of gambling and government moves into lottery ticket sales) or criminalized. Examples of the latter are various issues relating to firearms control, a controversial policy area in 1990s Canada. Punishment can serve many purposes, based on the [*781] harmfulness of the act of commission or omission: one is “communicating” to impart information or enforce conformity. The main body of criminal law, the Criminal Code of Canada, lists many offences under three headings: indictable, summary conviction offences and hybrid offences. Canada’s common law traditions, which complicate attempts to codify criminal law, have long frustrated reformers. Brodeur and Ouellet believe that putting more people in prison, particularly if they are petty offenders, is wrong. They criticize criminal justice policies such as America’s “war on drugs” as misguided and describe Canada’s use of minimum sentences as “backward” (p.21).
Wendy Chan, a Toronto criminologist, argues in “Undocumented Immigrants and Bill C-11,” a study of Immigration Act amendments, that “racialized” immigrants have been stigmatized and treated as criminals by changes in refugee and immigration policy. The article is part of Chan’s ongoing effort to bring race, a central issue in American criminal justice studies, more to the forefront in the Canadian literature. Readers should note that by international standards, Canada’s refugee policy is fairly generous; since the 1970s, refugees have been eligible to apply for admission as immigrants. Also, most ‘normal’ immigrants into Canada for the past two decades have originated in China, India, the Philippines and Vietnam; whereas in the mid 1960s, most newcomers were of European origin. Chan argues that Canada, officially “multicultural” since the early 1970s, had a mixed record of incorporating visible minorities into the political, economic and social mainstream. In recent years public concerns about crime and the problem of what Chan calls “undocumented migrants” (people who enter the country illegally) supposedly has led to a backlash. By placing the word “illegal” in double quotation marks, the author challenges the notion that entering a country with the intention of taking up residency without going through the proper channels should be an offence. Reflecting a conservative drift in public opinion, Bill C-11 subjected refugee claimants to tighter restrictions in cases of the use of false documents or trafficking or smuggling of humans. Yet as Amnesty International has pointed out, many genuine refugees find it impossible to secure proper travel documents. Drafted prior to the terrorist attacks of September 11, 2001, Bill C-11 authorized broader powers for immigration officials and imposed new categories of inadmissibility, including grounds for refusing right of appeal. Even a sympathetic reader will find part of Chan’s message taking the form of assertions, opinion or prediction, not evidence-based research. The chapter would be improved if the term “racialized” immigrant could be further explained.
Steven Penney, a New Brunswick law professor, has contributed “Crime, Copyright and the Digital Age,” which examines the challenges of regulating intellectual property, including copyright, in societies where digital technology is inexpensive, accessible and encouraged in schools, universities and other institutions. The owners of recorded music and films traditionally have employed litigation, technological controls and lobbying of government to protect their interests. Criminal convictions were possible only when the [*782] accused was deemed by the courts to have been motivated by profit.
In recent years, vested interests such as the American entertainment industry have deemed civil remedies insufficient to protect their investments and profits. The advent of VCRs, personal computers, file sharing, the Internet, CD-ROMs and DVDs has overwhelmed property protection through civil law, technological countermeasures and public relations. The US entertainment sector lobbied for a more robust criminal law response to protect against “theft” of corporate property in the form of films, music and software, and legislation was passed in 1988. Legal changes have made sentencing tougher. Despite the law, and greater discussion and awareness of intellectual property, Penney is not convinced that prosecutors view non-commercial “copying” as real crime. Copyright violation in the form of downloading music files from the Internet is practiced regularly by millions of North Americans, who do not regard their actions as “criminal.” The author suggests that the use of criminal law to regulate this problem is not likely to be effective.
Ericson and Doyle, in “Criminalization in Private: the Case of Insurance Fraud, ” examine legal issues surrounding the private sector’s major way of managing risk-insurance. The chapter explores how fraud is defined and regulated in the case of home and auto insurance, and casualty insurance. Based on interviews with insurance personnel in the US and Canada, the researchers reveal a professional climate of suspicion and distrust. Executives, adjusters and fraud investigators assume that most claimants exaggerate their losses. The industry engages in PR campaigns, claiming that billions of dollars are lost each year to fraud, yet the public remains unsympathetic or even hostile. Since the 1980s, special investigation units in insurance companies have proliferated. Despite these attempts at rooting out “criminal” acts against the industry, most losses come from the low-level exaggeration of claims. The chapter also notes that insurance companies themselves have been accused of fraud, harassment of claimants and the concealment of documents. As a system of private justice, insurance is governed by expediency, not the public interest. The most common form of sanction is not prosecution but denial of claims. The authors have discovered that “less desirable populations,” such as high-risk drivers or owners of substandard property, are investigated and judged more intensely. Much like police officers, insurance investigators “read” claimants on the basis of their life style and socio-economic status.
Pierre Rainville’s chapter, “From Practical Joker to Offender: Reflections on the Concept of ‘Crime,’” explores differences between humour and inappropriate or criminal conduct. Examples are slander, inappropriate touching and throwing pies at public figures. Despite official attempts to criminalize the harmful side of humour, Canadian case law has recognized the “prank” defence.
Laureen Snider, in “Poisoned Water, Environmental Regulation and Crime,” discusses a classic issue in critical criminology—how white-collar crimes are often viewed as unfortunate accidents as opposed to offences punishable by incarceration. In 2000, a [*783] municipal well contaminated by E. coli bacteria from manure infected half the population of the small town of Walkerton, Ontario. Seven people died, 65 were hospitalized, and more than 2,000 became ill. A Conservative provincial government elected in 1995 had embarked on a neo-liberal “Common Sense Revolution” aimed at reducing “red tape,” cutting government operations and reducing taxes. Cuts were made to the Ministry of Environment (MOE) and to the system of drinking water inspection. Because the Walkerton well lacked chlorine and turbidity monitors, tests has to be made daily by local municipal employees. These tests were often neglected or falsified. A commission of inquiry, headed by a judge, placed most of the blame not on local officials, but the MOE and the Common Sense Revolution.
The O’Connor inquiry was dominated by legal counsel and privileged “scientific” evidence. O’Connor’s approach was liberal—it did not challenge privatization and government downsizing per se, only the implementation of such policies. Yet Snider notes O’Connor’s defence of a public interest that was not captive to market forces and deregulation. Although the inquiry was not a criminal trial, police later charged two municipal officials with several criminal offences. In this case, the “criminals” were not the provincial politicians or bureaucrats who had created the political and regulatory climate for Walkerton, but two small-town civil servants. Criminal harm, according to Snider, tends to be attributed to individuals, not organizations such as government which are equally or more culpable.
Although the issues raised are not new—many of them can be found in undergraduate criminology textbooks—the research contributions of this volume for the most part are useful additions to the literature, and will be appreciated by scholars and students in more than one discipline.
Macleod, R.C. 1978. “The Shaping of Canadian Criminal Law, 1892-1902.” Canadian Historical Association, HISTORICAL PAPERS, 64-73.
Brown, Desmond. 1989. THE GENESIS OF THE CANADIAN CRIMINAL CODE OF 1892. Toronto: The Osgoode Society.
© Copyright 2004 by the author, Greg Marquis.
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