1.2 Crime in Canada

Crimes are transgressions that violate the laws a society holds dear. These laws may be formally written down, held by knowledge keepers, or commonly known to all members of the group. To commit a crime is to break the rules a society views as the moral limits of acceptable behaviour. Crimes are an offence against society, not just an individual. In Canada, one can see this in the way crimes are prosecuted; it is the Crown (denoted as R. for rex or regina within legal citations) that charges a person, not the victim of the alleged crime.

Canadian criminal law is mainly codified within the Criminal Code of Canada (CCC) which sets out the various offences a person might commit and the range of punishments that they might receive. Criminal lawyers in Canada define crime largely in relation to these laws, and some criminologists (such as Edwin Sutherland, 1949) have argued that the criminological study of crime should be restricted to violations of state criminal codes like the CCC. This view is known as a legalistic approach to crime because it focuses strictly on violations of the legal code.

Under Canadian criminal law, a person may be charged with two main types of criminal offences: summary and indictable. A summary offence is the less serious of the two and therefore carries a lesser punishment. An example of a summary offence is causing a disturbance or theft under $5,000. In the United States these types of offences are known as misdemeanors. More serious offences in Canada are known as indictable offences. These include crimes such as murder or piracy (on the sea, that is) and can carry stiffer penalties, including life in prison. In the United States these types of offences are known as felonies and are commonly the focus of crime dramas like CSI and Law and Order.

In legal terms, to be found guilty of a criminal offence in Canada, a person must have committed a guilty act (i.e., actus reus) and be of a guilty frame of mind at the time of the offence (i.e., mens rea). It is not enough that a person commits an act that contravenes the CCC; they must also be of a certain state of mind, such as intending to commit the act or behaving with recklessness, negligence, or being willfully blind to the outcome (McElman, 2000).

For many offences, the state of mind and the action naturally occur together. Someone might want an item that belongs to another person (e.g., a car) and takes that object without having the right. The person, therefore, violated the law and intended to do so to satisfy their desire. In some cases, however, the lines are not so clear, such as when someone is sold a stolen car without knowing the car was stolen. Furthermore, some people, such as young children and people suffering from certain forms of mental illness, are thought to not possess the frame of mind necessary for mens rea and therefore may receive treatment rather than punishment for their actions.

Codified laws are no doubt important for understanding what crime is and they can be found as far back as 4000 years ago, with the codes of Ur-Nammu and Hammurabi representing some of the oldest surviving examples of codified laws (Fairlie, 2019) (see image below). Thinking of crime in terms of the violation of codified laws is useful as it provides an objective standard for knowing crime when we see it. Reported crime rates, such as those generated by the Uniform Crime Reporting Program (see 5.6 Sampling), capture this legalistic definition of crime, and treat crime as something real that can be classified and counted.

We need to be careful, however, about limiting our understanding of crime to a set of codified rules. For one, it is likely that many of the earliest known legal codes, such as the codes of Ur-Nammu and Hammurabi, were more akin to visions of stately order (i.e., the way the rulers would like things to be) rather than codes used for adjudicating cases (i.e., the practical settling of disputes). In early history, the latter would likely be determined according to local custom rather than the rules set by a distant ruler (Pririe, 2021). Of course, once the rules are set down in stone (quite literally in some cases), they can be used by the weak to press claims against the strong. This is what we mean when we talk about the rule of law; it applies to all.

Thinking about written law as visions of stately order is useful for understanding the role it has played in the expansion of colonialism in Canada. Indigenous peoples were subjected to laws they often had no knowledge of while continuing to deal with crime in their own communities using local systems well after the territories were claimed by European colonists. Was the function of law in such cases to solve local disputes? Or was it more like the stately visions of ancient rulers?

While a legalistic approach to crime (i.e., one based on codified laws) is important, many contemporary criminologists find this way of thinking about crime problematic in that it limits our ability to engage with the subject of crime in a critical way (Quinney & Wildeman, 1991). Law is an historical and cultural product; that is to say, it is a social construct. Legalism, however, encourages us to think of crime in a reified way–as a “thing-in-itself”–rather than in terms of its social nature. While some laws do emerge from consensus (with all or most members of a group feeling the same way), the conflict perspective proposes that laws may serve the interests of one group over those of another.

The significance of the conflict perspective can be seen in the case of the Indian Act, a piece of Canadian legislation that clearly serves the interests of settlers over those of Indigenous people. An amendment in 1927 to the Indian Act, for example, made it illegal for anyone to assist Indigenous peoples in asserting their legal rights (Monchalin, 2016). While it might be interesting to know how many people were charged for violating this law, the figure would hardly seem sufficient for understanding the position of law within the context of settler-Indigenous relations, or for getting at the issue of why Indigenous peoples were being denied legal representation in the first place.

As the example above also demonstrates, a limit imposed by a purely legalistic understanding of crime is that it gives the dominant group the power to define what constitutes crime and, by extension, the scope of criminology as an academic discipline (Quinney, 1970). Criminologists have recognised this problem for decades, particularly in the case of corporate crime (Chambliss, 2001) (see 15.3 Corporate Crime), where corporations have the power to lobby governments to change laws in their favour, and crimes related to the environment (see 13 Green Criminology), where we see laws being changed to allow corporations to threaten the flow of rivers (Graveline, 2012). Therefore, we should recognise that the term crime is not limited to criminal law, and that thinking about “crime” broadly in terms of harm and injustice continues to shape contemporary discussions around human (and non-human) rights.

A legalistic approach to defining crime risks privileging the perspective of the state over that of society. It also fails to adequately capture the power dynamics at play when the law is applied unevenly, as is frequently the case for Black, Indigenous, and People of Colour living in white settler-colonial states like Canada (Maynard, 2017). The focus remains instead on the criminalised individual, rather than why the rule exists or the effects that being labeled a “criminal” might have on a person or entire group of people.

Some criminologists have therefore advocated for the need to decriminalise criminology by expanding the scope of study to include a broader range of harms, such as racism, sexism, classism, and ableism (Shearing, 1989). Focusing on harm, rather than the letter of the law, allows us to understand the process through which some harms are criminalised while other social harms remain unaddressed (Ferguson, 2020).