Crime & Punishment Workshop Series
presents
Martin L. Friedland
University of Toronto Faculty of Law
THE CANADIAN CRIMINAL CODE: PAST, PRESENT, FUTURE?
Wednesday, January 12, 2011
12:30 – 2:00
Solarium (room FA2), Falconer Hall
84 Queen’s Park
This paper describes a study I completed in 1980 in which I contrast the criminal code prepared in the 1870s by R.S. Wright (later a high court judge) with the code prepared by James Fitzjames Stephen, which subsequently formed the basis of the Canadian Criminal Code as well as many other codes in the Commonwealth. My study, entitled ‘R.S. Wright’s Model Criminal Code: A Forgotten Chapter in the History of the Criminal Law’, was published in 1981 in the first volume of the Oxford Journal of Criminal Studies, which is available on-line and where complete references to the R.S. Wright story can be found. The present paper, drawn from that article and the chapter on codification in my memoirs, My Life in Crime and Other Academic Adventures (2007), brings the story up to the present. I make the point that a criminal code – or indeed, any piece of legislation – reflects the philosophy of its drafter. Further, I show that law reform is affected by a great number of factors apart from the merits of the proposals. Then, as now, a combination of politics, personalities and pressure groups affect the outcome. I also argue that R.S. Wright’s more liberal criminal code would have been a better choice for Canada than Stephen’s more authoritarian code. I have also included some of the material from a chapter in the memoirs on the Charter of Rights and Freedoms where I show that the legislative process with all its faults is superior to judicial lawmaking when dealing with complex areas, such as a criminal code. The activism of the Supreme Court of Canada in attempting the reform of the criminal law over the past 25 years has, in my view, hindered the enactment of a new code and on balance has harmed the administration of justice in Canada. The task of creating a new code for Canada should be taken up again.
Martin Friedland, C.C., Q.C., is University Professor and James M. Tory Professor of Law Emeritus at the Faculty of Law and is cross-appointed to the Centre of Criminology. He holds a B.Comm., LL.B., and honorary LL.D. from the University of Toronto; an honorary LL.D from York University; and a Ph.D. and LL.D from Cambridge University. Professor Friedland taught at Osgoode Hall Law School until 1965 when he joined the University of Toronto. He served as dean from 1972-1979. He also served as a full time member of the Law Reform Commission of Canada in Ottawa from 1971 to 1972. He was appointed a fellow of the Royal Society of Canada in 1983 and in 1985 was awarded the Canadian Association of Law Teachers/Law Reform Commission of Canada Award for an 'Outstanding Contribution to Legal Research and Law Reform.' In 1987 he was awarded the University of Toronto Alumni Faculty Award, in 1990 was appointed an Officer of the Order of Canada, and in 2003 was made a Companion of the Order of Canada. In 1994 he received the Canadian Bar Association's Ramon Hnatyshyn Award and the Criminal Lawyers Association's G. Arthur Martin Award, and in 1995 was awarded the Canada Council Molson Prize in the Humanities and Social Sciences for 'outstanding achievements and exceptional contribution to the enrichment of the cultural life of Canada.' He received the Royal Society of Canada's John William Dawson Medal in 2003 for "important contributions of knowledge in multiple domains". He is currently a fellow of Massey College. Professor Friedland specializes in Criminal Law and is author or editor of eighteen books including Detention Before Trial, Double Jeopardy, Access to the Law, A Place Apart: Judicial Independence and Accountability in Canada, The Trials of Israel Lipski, The Case of Valentine Shortis and The Death of Old Man Rice, as well as many law review articles and reports. His book The University of Toronto: A History was published in 2002, on the 175th anniversary of the University's foundation. His most recent publication is his memoirs, My Life in Crime and Other Academic Adventures, published in 2007.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
