What Is a Crime?

What Is a Crime? Legal Dimensions Series This series stems from an annual legal and socio-legal research initiative sponsored by the Canadian Association of Law Teachers, the Canadian Law and Society Association, the Canadian Council of Deans, and the Law Com- mission of Canada. Volumes in this series examine various issues of law reform from a multidisciplinary perspective. The series seeks to advance our knowledge about law and society through the analysis of fundamental aspects of law. The essays in this volume were selected by representatives from each part- ner association: Dorothy Chunn (Canadian Law and Society Association), John EcEvoy (Canadian Association of Law Teachers), Beth Bilson (Cana- dian Council of Law Deans), and Steven Bittle and Nathalie Des Rosiers (Law Commission of Canada). 1 Personal Relationships of Dependence and Interdependence in Law 2 New Perspectives on the Public-Private Divide 3 What Is a Crime? Defining Criminal Conduct in Contemporary Society LAW COMMISSION OF CANADA COMMISSION DU DROIT DU CANADA Edited by the Law Commission of Canada What Is a Crime? Defining Criminal Conduct in Contemporary Society © UBC Press 2004 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), www.accesscopyright.ca. 15 14 13 12 11 10 09 08 07 06 05 04 5 4 3 2 1 Printed in Canada on acid-free paper National Library of Canada Cataloguing in Publication What is a crime?: defining criminal conduct in contemporary society / edited by the Law Commission of Canada. (Legal dimensions series) Includes bibliographical references and index. ISBN 0-7748-1086-6 1. Criminology – Canada. 2. Criminal law – Canada. 3. Sociological jurisprudence. I. Law Commission of Canada. II. Series. HV6025.W475 2004 364.971 C2004-901786-1 UBC Press gratefully acknowledges the financial support for our publishing program of the Government of Canada through the Book Publishing Industry Development Program (BPIDP), and of the Canada Council for the Arts, and the British Columbia Arts Council. UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 604-822-5959 / Fax: 604-822-6083 www.ubcpress.ca Contents Introduction / vii Nathalie Des Rosiers and Steven Bittle 1 What Is a Crime? A Secular Answer / 1 Jean-Paul Brodeur, with Geneviève Ouellet 2 Undocumented Migrants and Bill C-11: The Criminalization of Race / 34 Wendy Chan 3 Crime, Copyright, and the Digital Age / 61 Steven Penney 4 Criminalization in Private: The Case of Insurance Fraud / 99 Richard V. Ericson and Aaron Doyle 5 From Practical Joker to Offender: Reflections on the Concept of “Crime” / 125 Pierre Rainville 6 Poisoned Water, Environmental Regulation, and Crime: Constituting the Nonculpable Subject in Walkerton, Ontario / 155 Laureen Snider Contributors / 185 Index / 187 Introduction Nathalie Des Rosiers and Steven Bittle On the surface, to ask “what is a crime?” seems to warrant a straightforward answer in that one can simply suggest that “crime is something that is against the law.” For those who adopt such a strict definition, or a legal-consensus approach to crime (see, for example, Tappan 1947), studying the law as it is written is sufficient for understanding what society considers harmful behaviour. However, if we take a step back from this literal interpretation to consider the broader social processes that help give meaning to crime and its control, it quickly becomes apparent that there is much more to the question than simply referring to what is written in the law. As Comack and Brickey (1991, 15) remind us, “[l]aw can be said to have a distinctly social basis; it both shapes – and is shaped by – the society in which it operates” (emphasis in the original). Indeed, before a criminal statute is even contem- plated, there are a whole host of social forces and events that both shape how we conceive of a particular behaviour and influence our decisions on how to respond. In addition, many of these social forces continue to shape our response strategies well after the social wrong becomes part of our legal lexicon. How society thinks about crime and the individuals deemed to be responsible for criminal behaviour influences law enforcement practices and the penalties administered. Why is it that certain behaviour is deemed suf- ficiently problematic to warrant being labelled a crime? Why is certain behaviour considered a crime while other behaviour is not? To ask “what is a crime?” is certainly not a novel endeavour. For decades academics from numerous disciplines (such as law, sociology, and criminology) have struggled to understand various aspects of this question. From studies that examine the factors contributing to the enactment of certain prohibitions or the impact of law and its enforcement, to studies that focus on the events that precede the decriminalization of certain behaviour, there are countless examples of scholarly work dedicated to exploring the nature of crime and its control. In the last half of the twentieth century, various scholars noted that crime is not an objective phenomenon and that the viii Nathalie Des Rosiers and Steven Bittle way in which certain behaviour is understood and responded to is more a reflection of how society is structured than an indication of any inherent problems with those individuals regarded as criminals. In the 1940s, for example, Edward Sutherland introduced the concept of “white-collar crime” to draw attention to crimes committed by the upper class and corporate elite, thereby challenging the common perception that crime was committed primarily by those in the lower class. Other critical scholars built upon Sutherland’s work by continuing to ex- plore definitions of crime and its enforcement. The 1960s produced a considerable body of literature within this tradition. Howard Becker’s (1963) pioneering work on moral entrepreneurship highlighted the process by which the perceptions and claims of certain groups (often criminal justice officials) were shaped by law and law enforcement, emphasizing that, in many instances, there was an absence of empirical evidence to substantiate the level of concern associated with a given problem. Using the emergence of antimarijuana legislation in the 1930s as an example, Becker illustrated how criminal justice officials effectively manufactured a crisis over the nature and extent of drug use, when in actuality drug consumption was rare. According to Becker (1963, 9), “[f]rom this point of view, deviance is not the quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to an ‘offender’” (emphasis in the original). Stanley Cohen’s work on the sociology of deviance also brought to light the idea that definitions of crime were not objective, by revealing how crime can be produced through “moral panics.” In essence, Cohen revealed that if we deem a group and its behaviour to be a threat, and if this belief is supported through media accounts and professional claims, then we are likely to respond as such even though the nature and extent of the concern may be more perceived than real (see, for example, Cohen 1980). In more recent decades, a new generation of critical criminological, legal, and socio-legal scholars has discussed and debated the nature of crime and law in society. Various feminists, for example, have brought to light differ- ent forms of gender bias within notions of law and its enforcement. As Comack et al. (1999, 44) suggest, over the last twenty years, “feminism has made considerable inroads in challenging us to reconsider the traditional approaches to understanding the law–society relation as well as the claims that law itself makes in its Official Version.” Critical race scholars have also drawn our attention to racial biases within criminal justice processes, not- ing that conceptions of crime and its control are rooted primarily in the experiences of white men (see, for example, Neugebauer 2000). Finally, in Canada, scholars (both Aboriginal and not) have pointed to the importance of understanding the colonization of Aboriginal peoples when examining their overrepresentation in the criminal justice system (see, for example, Introduction ix Williams 2001). In addition to reminding us that crime and law are not objective phenomena, these critical feminist, race, and Aboriginal litera- tures reveal the troubling differences between how the law is written and how it is enforced. The late 1970s and early 1980s witnessed a recognition by government agencies that a reflex application of criminal law had become common- place and that this might not be the most appropriate approach for dealing with complex social issues. In Our Criminal Law, for example, the Law Re- form Commission of Canada (LRC) argued that criminal law ought to be “pruned” to better differentiate between what the commission considered “real crimes” and public-welfare, or administrative, wrongs. The label of crime, the LRC argued, should be reserved for “wrongful acts seriously threat- ening and infringing fundamental social values.” Similarly, in 1982, the Department of Justice, in The Criminal Law in Canadian Society, suggested that criminal law should be reserved for the most serious harms and that we need to consider whether other, less coercive response strategies would be more appropriate. Of course these are only a few examples from the range of scholarly works and government reports that have, over the years, taken issue with the no- tion that crime is objectively defined and controlled and that have cau- tioned against a reflex application of criminal law to deal with what are often complex social issues.

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