Law and Society
One of the most historic ideas about the LAW is that it is based on human nature or reason, and therefore simply reflects what is natural or reasonable, enabling society to function in a just and effective manner. According to this conception, the law is also an expression of both the common good and the fundamental values of society. It is the same for everyone and protects everyone's interests. Lawmakers take into account the collective will and formulate the best laws possible.
The common good, however, must be defined by certain criteria and interests and does not always correspond to the interests of everyone; it is first and foremost the "good" as seen and defined by certain groups. The law is not above or outside of society; it is the reflection of society at a given moment in its evolution, the result of the balance of power between social groups and one of a number of instruments or means used to impose ideas and defend interests. The law can sometimes be an instrument of discrimination or repression and sometimes an instrument of protection. Everything depends on the power or alliances a group has when legislation is prepared, passed by Parliament and implemented. In addition, there is a difference between what is stated or claimed about law and legislation, and what actually happens.
The profound changes society has undergone since the early 20th century have occurred at an increasingly faster pace since WWII. The law has been and still is the major means by which we attempt to cope with these changes, and as a result legislation and government regulations have proliferated. Canadians can now be liable for some 350 Criminal Code offences, about 20 000 federal and 20 000 provincial offences and all those created by municipal regulations. In Québec, for example, almost as many new offences or penalties were created between 1965 and 1975 as were created during the entire preceding century.
After WWI, the federal government took its first major initiatives in health and welfare by creating the Department of Health (1919), now HEALTH CANADA. Attempts to define precisely the limits of what is healthy and unhealthy, acceptable or not acceptable, normal or pathological have led to increased legislative intervention. The developments in science and technology have also created new problems, eg, those associated with genetic research and pollution, which the law must attempt to resolve.
In 1917 individual and corporate income taxes were introduced to fund the expanding public sector, guaranteeing the bureaucracy the means it needed to grow. According to the LAW REFORM COMMISSION OF CANADA (LRCC), federally the activities of the WELFARE STATE grew considerably after WWII. The FAMILY ALLOWANCE Plan (1944), OLD-AGE PENSIONS (1952) and the CANADA PENSION PLAN (1965) were added to veterans' assistance programs and UNEMPLOYMENT benefits. The expansion of related legislation has been enormous.
Law as an Instrument of Discrimination
The law has the effect of making official, repeating and giving concrete expression to social and economic inequalities. For example, for many years the law expressly deprived women of civil, political and economic rights. It was only toward the end of the 19th century that a woman could consider her salary her own property and not that of her husband, and not until the 1950s did most provincial legislatures recognize that women had the right to the same salary as men. For a long time women were barred from certain professions; eg, in Québec women were not allowed to practise law until 1942. Women could not vote in federal elections until 1918 (and in Québec provincial elections, until 1940). Only after WWII did most provinces allow women to serve on juries, Québec being the last province to give them this right, doing so in 1971.
Indians, Inuit and other groups have also been victims of legal discrimination (see NATIVE PEOPLE, LAW). When the CHINESE came to BC to construct the railway in the 19th century, the province withdrew their right to vote, enforced restrictive hiring practices and limited their business opportunities and right to own land. The law also discriminates against those who have been arrested and sentenced or imprisoned for a criminal offence. Many provincial or federal laws deprive them of the right to vote or to run for and hold public office; they also authorize the refusal or revocation of permits or licences and of the right to exercise certain professions.
It is probably in the application of law that inequalities of power and the manner in which law can be a de facto instrument of discrimination are more evident. Until recently, the poor, unable to afford lawyers, had little access to the law. It was only in 1967 that the Ontario government established the first provincially financed LEGAL AID service. In Québec there was no such service until 1973. Only since 1972 has the federal Department of Justice contributed to legal-aid expenditures in criminal matters, though all provinces and territories now provide legal assistance to anyone who might be sentenced to prison or might lose his livelihood, and all jurisdictions, excepting NB, also provide some assistance in civil issues.
As late as 1974, however, observers were claiming that divorce was the prerogative of the rich, while the poor, unable to afford such a luxury, simply abandoned their families and lived common law, with all the legal problems such a situation entailed. In testimony before a special Senate committee on POVERTY (1971), the chairman of the Clinical Law Program at the Faculty of Law at Osgoode Hall stated that a study of the Family Allowances Act and other post-WWII legislation preceding it would reveal that these Acts have not been the subject of litigation until recently, that the poor, whose material life is regulated by financiers and whose life is conditioned by many difficulties, have never had the chance to have their rights interpreted or to make these same rights the subject of litigation.
Given the behaviour for which they are condemned, the criminal-law system most often and most severely affects the deprived, blacks, native peoples and disadvantaged groups. In a study conducted some time ago the LRCC found that the prison population contained a disproportionately large number of poor or disadvantaged persons and native delinquents. In 1976, men with 10 years of schooling or less were 45% of Canada's male population 15 years of age and over, but 77% of those admitted to penitentiaries. Many economically disadvantaged people go to prison simply because they have not paid fines. In 1974, the LRCC found that the practice of imprisoning for default of payment had for a number of years been the reason for about 50% of admissions to provincial and local detention centres in certain parts of Canada. In some provinces, native people are particularly affected by this sentencing.
Law as an Instrument of Protection
The law can also be an instrument of protection and advancement. In Canada, these advances have been fairly recent, and possible largely because of the socioeconomic situation and changes at political and economic levels. Only in the last 30 years have antidiscrimination provisions appeared in legislation, and not until 1947 did a province (Saskatchewan) pass the first Act dealing with human rights.
In 1960, Parliament adopted the Canadian Bill of Rights. All provinces have now adopted antidiscrimination legislation and established human rights commissions. The Constitution (1982) now contains an entrenched CANADIAN CHARTER OF RIGHTS AND FREEDOMS which applies to federal and provincial jurisdictions. Other Acts have been passed as well to protect the interests of some traditionally disadvantaged groups. In the 1970s legislation regarding health and safety at work (see SAFETY STANDARDS) was revised in most provinces to give workers more protection, and consumers successfully lobbied for laws to protect their interests. Elsewhere in Canada, legislation governing relations between LANDLORDS AND TENANTS was adopted, as was the Small Loans Act, which protects small borrowers, particularly the poor, from excessive interest rates, deceptive methods regarding credit costs and loan sharking.
However, the rights and interests of the disadvantaged are not automatically protected simply because new legislation has been passed. The first antidiscrimination laws were not very effective, because their enforcement depended largely on the initiative of the victims themselves. There was no way to publicize the laws or educate the public; therefore most people did not know the legislation existed. The creation of human-rights commissions to administer this legislation was a major step forward. Unfortunately, although in principle legislation can protect the rights and interests of the powerless, a very large percentage of this group cannot afford to take advantage of it. The Canadian Charter of Rights and Freedoms guarantees that any person arrested or detained is immediately entitled to the services of a lawyer, but no practical procedures have been established for this purpose.
Although social legislation passed to reduce inequalities or their effects has undoubtedly helped the most disadvantaged Canadians, it is generally very difficult for them to have it changed, passed, challenged or even adequately enforced. Legislation in fields such as social assistance, the MINIMUM WAGE, social and health services and family allowances often leaves users at the mercy of impersonal decisions made within government BUREAUCRACIES. OMBUDSMEN, whose job it is to ensure that citizens' rights are not violated through injustice, error or negligence arising from administrative action, and whose positions have been created by legislation in several provinces, have helped to improve this situation. Another useful mechanism is the SMALL CLAIMS COURT, established in a number of provinces in the 1970s. According to the Québec minister of justice, the purpose of these courts is to make justice accessible to citizens, strip it of its formal nature, procure a means of reconciliation that will provide social order, guarantee the coercive force of the law and ensure that justice is inexpensively and promptly meted out.
Legislation and its enforcement, even if designed to protect the interests of the most disadvantaged groups, are always subject to shifts in the power relationships of a society at a given time. Thus legislation may be stripped of its content or rendered inoperative by subsequent legislative changes. Sometimes political decisions, or lack of them, will virtually paralyse enforcement mechanisms. This will happen, for example, if a chairman or members of a commission are not appointed, or if their budget is not adequate to enable them to operate effectively.