The champion of codification in England was Jeremy Bentham.

Bentham never wrote a codification but he argued relentlessly on its merits:

"... to set forth the whole of the penal law with such simplicity and clarity that the average citizen would be able to understand it and the average judge would be unable not to."

But England resisted all attempts at criminal law codification.

Meanwhile, it's colonies experimented with criminal law codification. India passed a Penal Code in 1860. So, too, did the colonies of British Honduras, Tobago and St. Lucia. Jamaica approved a penal code but it was rejected by England's colonial office.

In 1878, a codification written by James Fitzjames Stephen made it to Second Reading in the United Kingdom House of Commons but never advanced past that stage as it died a peaceful death at the hands of a moribund Royal Commission.

When the Provinces of Canada were confederated in 1867, the first Prime Minister, Sir John A. Macdonald was adamant that Canada would not suffer the disparate criminal law system inherited from England for long (at that time, each province had its own criminal law).

Sir John ThompsonMacdonald believed strongly in the need for a single, uniform regime of criminal law for the entire country. In fact, the Canadian constitution which he helped write, gave the federal government the explicit authority to codify the criminal law. An initial set of nine statutes was passed by the federal House of Commons in 1869 to at least consolidate the law for coinage offences, forgery, offences against the person, larceny, malicious injuries to property, perjury and procedure.

A complete Criminal Code was finally achieved in July, 1892, under the leadership of the Minister of Justice and later-to-be prime minister, Sir John Thompson.

This was a major event in Canadian legal history.

Wrote one judge to Prime Minister Thompson:

"Just think of it, Canada in the van! The first to enact a complete codification. It is far and away the best measure of the kind ever submitted to any legislature."

Some samples from Canada's first Criminal Code:

  • "If a sentence of death is passed upon any woman, she may move in arrest of execution on the ground that she is pregnant. If upon the report of (medical practitioners), it appears to the court that she is so with child, execution shall be arrested until she is delivered of a child, or until it is no longer possible in the course of nature that she be so delivered.
  • "Whenever whipping may be awarded for any offence ... the number of strokes shall be specified in the sentence and the instrument to be used for whipping shall be a cat-o'-nine-tails unless some instrument is specified in the sentence. Whipping shall not be inflicted on any female.
  • "In all cases where an offender is sentenced to death, the sentence shall be that he be hanged by the neck until he is dead."

John Thompson, Canadian Prime Minister and one-time Minister of JusticeThe 1892 Canadian Criminal Code copied much of the English 1878 bill and it has since been revised numerous times, to accommodate the needs of changing times, such as amendments for gun control, the elimination of the death penalty and of abortion offenses and the creation of drunk-driving offences. In 1955, a major reform was carried out and the Code was reduced from 1100 sections to 753.

One of the advantages of a codification is the implementation of a constitutional principle that no person can be convicted of an offence unless it has been specifically provided for in a statute. This is pivotal if the expression "ignorance of the law is no excuse" is to have any meaning. But in spite of the original intentions of the Canadian codifiers to include all criminal offences, many other federal laws now establish criminal offences as well. A good example is the Narcotics Act which covers drug offences such as the possession of cocaine.

The Code also sets out the procedure to be followed in criminal cases but, again, recourse has to be made to other laws in special cases such as the Extradition Act or the Young Offenders Act. Peculiarly, while the Code is a federal law, the administration of the criminal law justice system is left to the provinces. It is the latter that hires and supervises the work of public prosecutors and court officials.

There have been many calls for comprehensive reform of Canada's Criminal Code. The most scathing is from the now defunct Law Reform Commission of Canada which, in the words of a former president of that institution:

It is too complicated. It is too illogical. It is poorly organized. It is not comprehensive and it is too intrusive. Our Code is no longer worthy of Canadians. We deserve a Criminal Code that is modern, simple, logical, coherent, comprehensive, organized, understandable and restrained.

It is true that the present Criminal Code is extremely complex, a challenge even for lawyers to understand and to wade their way through during the course of a criminal trial. Along with the Income Tax Act, it is the longest of all federal laws.

But some of the proposals of the Law Reform Commission are quite controversial and this, more than any other reason, probably explains why the project for reform has not been pushed by federal politicians. In the meantime, the federal Department of Justice, which supervises all amendments to the Code, continues to alter Canadian criminal law by bringing amendments to the existing Criminal Code.

So it's business as usual with the Criminal Code. Any massive reform such as that envisioned by the Law Reform Commission may never occur except by the political will of a future Minister of Justice that espouses the cause or by a slower process of piece-meal legislation.

That, unfortunately, appears, to be the Canadian way.