Martin’s Criminal Code

Society today is locked in a confused moral puzzle about the direction and purpose of the criminal law. Should abortions be prohibited by the State? Should the death penalty be reintroduced? Is the welfare state conferring ‘rights’ on people who don’t deserve them, and whose morals are being corrupted by a government that buys votes by giving something for nothing? What about the Charter of Rights—Canada’s largest unexploded time bomb? Are our judges too soft? Too hard? There is plenty of debate, there are plenty of fervent opinions. No sign of a national consensus is anywhere in sight.

All of this is, of course, the result of a complete misapprehension on the part of the public of the purpose of the Criminal Law, and the way in which it operates, and is designed to operate.

“If all of us were to receive our just deserts, who would ‘scape whipping?” asks Hamlet. Since we are none of us perfect, and most of us don’t want to be whipped, the basic starting points of the criminal law are the indisputable facts that:

  1. Certain types of behaviour (murder, theft, assault, perjury, for example) are socially disruptive.
  2. Persons who indulge in them tend to make the victims, as well as right thinking members of society (who, but for their social conscience, might well have wanted to do the same), very mad at them indeed.
  3. Victims, and right thinking members of society, are therefore likely to take punitive measures against persons whom they think have been guilty of these actions, unless they can be persuaded not to.
  4. In the course of so doing, victims and right thinking members of society are likely to do a great deal of harm by:
    • Excessively injuring the wrongdoer, so that he becomes thereafter useless as a contributing member of society;
    • Punishing innocent persons wrongly suspected of crime;
    • Punishing the relatives and family of the wrongdoer, who again may be entirely innocent.

A major purpose of the criminal law, therefore, is to deter these self-righteous victims and other right thinking members of society from tearing society to pieces in their excessive zeal to stamp out crime.

Doing so imposes a difficult task on the political authority. It cannot, of course, appear to be on the side of the criminal. Its technique, therefore, is to limit the power of private revenge, by giving the appearance of creating an even more efficient system of revenge on the part of Her Majesty. The criminal law can, from this point of view, in fact be regarded as an elaborate system to prevent unnecessary punishment from taking place.

Some parts of the process are reasonably simple. Once it is known that the Law intends to punish the criminal, and the criminal alone, the idea of a vendetta against the relatives and family of the wrongdoer begins to lose its appeal with the public. Similarly, once the public is made aware of the extreme need to prevent innocent persons from punishment, they well may be able to be persuaded that only those persons who can be proved to have committed a defined offence to the satisfaction beyond reasonable doubt of a jury of fellow citizens selected without bias, should be punished. “It is better that ten guilty men should go free rather than one innocent person should be punished”—and they certainly do, time and time again. How else do lawyers earn their fees?

However, once the criminal has been proved to an independent judge and jury to have committed the offence, the residue remains, and something has to be done, visibly and obviously, to satisfy the victims of violence that the state is doing a better job of punishment then they could. Hence our present, and perennial, debate on capital punishment—the answer to which is, that if it is needed to convince criminals that the law is not toothless, and to convince the public that the law carries sufficient teeth to make it unnecessary to organize vigilante squads, we’ll have to have it again, hopefully in highly restricted conditions. Otherwise, we’ll see a breakdown of law and order—created, not just by the ‘bad guys’, but also by the good ones!

The important thing to remember is that punishment by the state is the alternative to far more drastic punishment by the lynch mob. Our modern prison system was not derived from the idea of making it unpleasant for people to ‘be inside’, but from the ‘cities of refuge’ of Biblical times, and the sanctuary afforded by pagan temples. Here, the person with blood on his or her hands, whether shed innocently or otherwise, could stay in safety with religious protection against the victim or his relatives, at least until guilt was clearly established. The perpetrator stayed until tempers had cooled, compensation had possibly been paid, and the heat was off, after which he would be able to go back home.

In setting criminal punishment today, this concept of answering the question ‘how angry is the public?’ is a much more key element than is generally acknowledged. So the public is frequently hoodwinked by the apparent fierceness of sentences, which are mitigated, often unbeknownst to the public (whose memory is pretty short, anyhow), by mandatory remission, parole, day visits, rehabilitation programs, and so on. Again, this is not necessarily wrong—these activities are in fact probably the best things that can be done in order to restore the offender to become more useful in society in the future—but the public has a feeling of being cheated if what is happening becomes too obvious. Its rightly incurred wrath is not appeased when some offender is seen apparently to ‘get away with it’ from an ‘over soft legal system.’

What about capital punishment? In my opinion, it may have to be reinstated, not because of the murderers, but because of the public, inflamed, often enough, by unrealistic crime fiction on T.V. The difficulty is that the most dangerous variety of murderer is often enough on the borderline of insanity, and so actually more likely than his fellows not to be punishable under the present law (another loophole that the law has created!). The more typical murderer is someone who loses control as a result of drink, drugs, or an intolerable family situation, often coupled with an abusive upbringing. He may well have been convicted because he had a second rate lawyer working on his case, legal aid funds were insufficient to provide a first rate defence, a key witness could not be found, or expert evidence afforded. It is quite possible that he either does not remember now what happened, or is very sorry that it did.

What about some other offences—the abortion controversy, for instance? It seems to me that here, we have the same problem that we have with Sunday opening laws, gambling, prostitution, prohibition—and perhaps also the non-smokers’ lobby. We have passed laws to suit our hypocrisies rather than our actual convictions. We have banned things that everyone else should not do, but we sometimes wouldn’t mind doing ourselves. Morality, though, and legality are two quite different things. The State should only make those things illegal which are quite obviously ruinous to the social fabric. Churches can quite correctly point out to their members that the world will be a much nicer place if they observed much higher standards—the man with two coats giving one to the person with none, for instance—but making this compulsory is not the job of the state. Christianity, if it includes giving one’s shirt away to a person who has already taken one’s coat, is completely unjust. To make it the law of the land is therefore to enshrine injustice in the law. We have far too much of this already in our modern welfare state.

The purpose of the criminal law is to use force to compel the necessary behaviour patterns in all citizens that enable society to exist. Today, we use it to control a hundred and one irrelevant matters, and to shake money out of the pockets of the taxpayers for every worthy and unworthy cause a vote-buying government can dream up. Some people evidently imagine that by enforcing a perfect code of laws, Canada can be transformed into Paradise. Forget it! I respect the do-gooders of the world, when they do good at their own sacrifice and expense. But I would respect our Prime Minister a hundred times more if he took ten dollars out of his own pocket for Rick Hansen, than when he hands over a million of taxpayers’ money, that costs him nothing. Law today is being grossly abused, and consequently made to look asinine. People who would impose higher standards on themselves, and lower ones on the rest of the community, would make an immense contribution to a happier society!

– Gemini, March 1987

Legislating Morality

So, Catholic Bishops want Catholic politicians to conform to Vatican directives when voting on moral issues—and Catholic politicians are refusing to listen to them!

I’m on the side of the politicians.

We have to understand what the issue is about.

Government is all about imposing law, order and justice. Force is used with the consent of the community, to insist on behaviours that keep society together by stopping people from doing injury to each other, and taking action when they do. Civil and criminal laws set out the parameters of what is allowed and what is not, so that we can all live together in a peaceable and prosperous society. Justice requires that there be a precise balance between damage done by people and penalties imposed on them—‘an eye for an eye’, and so on—and between taxes paid to government and value received from government. Democratic government, for all its faults, has been devised to achieve this result.

Such is the basis of our Common Law, and the religion of the Old Testament.

Christianity is not the same. Jesus’s inspiration was to tell his followers that they could bring peace and healing to a world that had fallen short of keeping the Law, by asking them voluntarily to forgo what justice would have given them: to forgive injustices, to go the second mile, to bless those who persecute them, and so on. Now this is a wonderful way of living, and it makes for a friendly, forgiving, generous society—but the catch is that, if this behaviour is imposed by the force of government, it is unjust.

We see this injustice when we marvel at Muslim countries imposing death sentences for persons dealing in alcohol, or stoning victims of rape because they have been guilty of adultery. What we may not notice is the degree to which Christianity has also been incorporated into law in our own society. Lord Atkin, for instance, established the ‘foreseeability of injury’ test which is the foundation of the modern law of negligence, and so of our whole motor vehicle insurance industry, by a reference to the parable of the Good Samaritan. Equally, our own laws on marriage and divorce are based on Christ’s “counsel of perfection” on sexual relations—monogamy, permanence, heterosexuality and fidelity, which goes way beyond what leading Old Testament figures—Abraham, Jacob, Moses, David or Solomon, for instance—ever achieved, or Old Testament law demanded.

During the past few years, we have seen a gradual abandonment in Canada of laws that were essentially legalizing Christian morality—things like banning divorce, or Sunday shopping restrictions. The current political debate is about the legal recognition of homosexual unions. The lawyer in me queries the legality of the federal government widening the definition of ‘marriage’, to embrace a matter that was clearly one of provincial ‘property and civil rights’ by the law at the time of Confederation, but that is another matter altogether. The question remains.

In the Old Testament, we read that David and Jonathan had a love ‘passing the love of women.’ Ruth’s dedication to her mother in law Naomi is an equal example of loyal commitment on the feminine side. Homosexuality and bestiality are condemned in Leviticus, along with other matters that today we would disregard as trivial. Adultery is prohibited in the Ten Commandments, but has never been made an offence under our criminal law. The condemnation of homosexuality in the New Testament comes principally from a few passages of Saint Paul, though in the pagan world to which he wrote, it was certainly not a crime.

It is such a temptation—and ultimately a disaster—for churches, who can well expect their members willingly to embrace particular styles of conduct, to attempt to make such conduct part of the law of the land. Surely, the decline of church attendance particularly in Quebec, and disregard for Catholic teachings on contraception and sex out of wedlock by those who still count themselves among the faithful, is closely connected with resentment at the enormous involvement of the Catholic Church there in provincial and federal politics in the years before and during World War II. Politicians elected to represent the views of their constituents have a duty to represent those constituents, not their spiritual advisors.

Churches can certainly tell their members and the world that they have the key to successful living, happiness, eternal bliss and a healthy society for those who adopt their way of life, and that is quite possibly true. They can certainly tell the world that it is going to hell in a handbasket unless people respect certain rules of behaviour. That is very different from using the power of government, rather than that of the Holy Spirit, to bring it about.

– Gemini, 2003*

A Clergyman Looks at the Law

I belong to a rather unusual fellowship that meets at a member’s home once a month. It is a support group connected with the Caveat organization, for a number of people who have lost children, siblings or spouses to violent crime.

If there is one theme that is common to the discussions we have, it is a sharing of the anger we have at the workings of the criminal justice system. Why does it always seem to be on the side of the criminal? Why does an obviously guilty person get bail? Why do we have to go through the harrowing procedures of the criminal trial? Why, at the end of it all, are the victims no better off than at the start? Why, years after it all ends, do we have to go back and relive the horrors we have been through, when the offender applies for early parole? Although, as a lawyer, I can often understand and explain what a judge is doing, the fact remains that the criminal justice system as we have it today is for the most part a re-infliction of the pain of the crime on the family of the innocent victim, rather than anything to bring them comfort.

Why do we have the justice system we have? A lot of it comes from history. Two basic legal systems exist in the world. One is the ‘top down’ system of Roman Law, prevalent in the countries of Southern Europe that once were part of the Roman Empire, reaching Canada through France in the Quebec Civil Code. The other is the democratic, ‘bottom up’ Common Law, received in the English speaking nations from the Saxon tribes that spread across Northern Europe from the Caucasus area during the period of the Roman Empire. If we believe the book of Esdras, they originated when the people of Israel, taken captive by the Assyrians in 722 B.C., moved across the Caucasus mountains, bringing their customs with them, based on the laws of Moses, that ‘government should be of laws, not men’.

Saxon criminal law was far less punitive than our criminal law of today. When a crime had been committed, the families of the criminal and victim would meet together and decide on an amount of ‘bote’—compensation to be paid by one to the other to make up for the damage done—without the Crown necessarily being involved.

With the conquest of England by the Normans in 1066, came the importation from the Roman system of two elements that didn’t square with Saxon tradition. First was the seizure of all land by the Crown under the feudal system—under which Barons held their estates in exchange for services to the Crown, and commoners held land from the Barons, in exchange for forty days of annual compulsory service by them. Hence the origin of the ‘fee simple’ of our modern Land Titles system.

Second was the treatment of criminal law as a matter of an offence against the Crown—‘against the King’s Peace’—as an act of rebellion against the conqueror, rather than an act requiring compensation to the victim. And there our criminal law has stayed ever since, even though, as in the O.J. Simpson case, in theory civil remedies are available for victim compensation, after punishment has first taken place. Not many criminals are worth that amount of trouble!

A third importation from Roman law came later: the mercantile law of the bankers and the traders of the Continent. In each of these cases, the elaborate mechanisms of the law of Moses, to provide all with a stake in the land, to give compensation to victims of crime, and to avoid the accumulation of debts, have been sidestepped—with the results we see in our Western world of homelessness, accumulating debts, and dissatisfied victims of crime.

It is interesting and encouraging to see that there is now a move on in the administration of the criminal law, to minimize the role of the State, and give more emphasis to compensation of the victim, rehabilitation of the offender, and victim/offender reconciliation. This involves programs of diversion of offenders out of the criminal justice system, community mediation, introduction of victim impact statements, victim/offender reconciliations programs, and so on.

Crime destroys the unity of the community. There is a definite course to be followed in restoring that unity—from retribution by Society, to restitution to the victim, to rehabilitation of the offender, to reconciliation between offender and victim: from punishment, to compensation, to reform, to forgiveness. Not all criminals travel the whole way back. Not all victims will be willing to restore relationships with the offender. It is encouraging, however, to see these beginnings being made. The need is there.

– Law Now, April 1997