Constructing Crime: Contemporary Processes of Criminalization (review)

I have a soft spot for law commissions. The Law Reform Commission of Canada (LRCC) gave me my first law-related job. In the summer of 1983, I was hired as a research intern. I spent an instructive three months examining the ambit of police powers, a topic that had been thrust into news headlines by evidence of systematic and systemic abuses of power by the Royal Canadian Mounted Police.¹ It was my first sustained exposure to the significant differences between law in theory and law in action—a theme that was largely ignored in my primarily black-letter legal education. As most readers will know, the LRCC survived for more than twenty years, producing, in its early years, a substantial array of independent research,² before becoming, in the words of Roderick Macdonald, "increasingly duplicative" of policy work undertaken by the Department of Justice.³ Four years after the closure of the LRCC, the Law Commission of Canada (LCC) was created.⁴ Under the successive presidencies of Macdonald and Nathalie Des Rosiers, the LCC embarked on a series of research projects that reflected the inclusive and multidisciplinary values of its mandate.⁵ Sadly, in 2007, a mere ten years after its founding, the LCC was abolished by a brutally expedient and cowardly political decision to simply cease its funding.⁶ By doing so, the government avoided the full debate and vote in the House of Commons, which would have been required by a decision to repeal the enabling legislation. Constructing Crime is the final publication emanating from the LCC's traditionally named, but radically conceived, "what is a crime" project. The project began in 2001.⁷ In both form and substance, it reflected the LCC's commitment to "democratization of law reform . . . through an enlargement and rebalancing" of stakeholders.⁸ In 2004, six multidisciplinary research studies commissioned by the LCC were published in a collection entitled What Is a Crime? Defining Criminal Conduct in Contemporary Society.⁹ As a collection, the studies raised a host of important issues and drew critical attention to the existence of a "culture of criminalization" in Canada.¹⁰ It is that culture of criminalization that is the animating focus of Constructing Crime. In a manner consistent with its multidisciplinary agenda, and its focus on the normative underpinnings of legal and social structures, the LCC commissioned a second round of case studies to examine the ways in which society defines unwanted behaviour and the impact of the chosen responses. The commission's underlying hypothesis was that the "reflex" to criminalize, a reflex that continues unabated today, was a "dangerous strategy," inconsistent with our democratic values.¹¹ The untimely demise of the LCC prevented it from making a report to Parliament. Of course, in the current political climate, it is likely that any such report would have been hastily shelved. Instead, we have this collection—and what a wonderful collection it is.

Editors Janet Mosher and Joan Brockman bring a wealth of relevant expertise to their role as editors, an expertise that is immediately deployed in the introductory chapter. Far more than an overview of the contributions to follow, Mosher and Brockman offer the reader a theoretical lens through which the collection can be understood. The focal point is the actual process of criminalization in the varied research locations . . . social housing, aboriginal communities, the health care profession, gambling, and social assistance recipients. Brockman and Mosher suggest that criminalization processes can be theorized in three different but overlapping ways: (1) as a result of the formal legislative categorization of unwanted behaviour as crime; (2) as an example of "law in action" in which conduct is criminalized as a result of the kinds of enforcement, detection, and surveillance strategies that surround its occurrence; and (3) as an act of governance through which the state identifies, predicts, and ultimately governs the marginalized and vulnerable populations that threaten its practices.¹² It is these three processes that structure the introduction. Mosher and...