Religious Studies 1033A/B Lecture Notes - Aggressive Panhandling, White-Collar Crime, Selective Enforcement
23 May 2018
School
Department
Professor
Lecture 6- Mind the Gap~ Law and Social Class
• Talk vs walk
• Central concern for legal scholars: need to see gap, why we need to see gap
• See how law affects lives of ordinary people
• Law that matters is law in action
Where do we see the gap between law-on-the-books and law-in-action
1. Routine non-enforcement
• Historical example:
o vagrancy laws: hasnt been enforced since th century~ not applied
to everybody, usually applied to poor/working class people, shift to
agriculture
• Contemporary example (Legal advice but difficult to find evidence of
conviction and how to proceed with conviction)
o Downloading copyrighted material without paying
▪ File sharing is ramped, dont see a lot of charged, new
copyright law- easier to go after people for downloading
▪ Artist reactions: some removed music, some gave it away for
free and didnt care
o Jaywalking
o Environmental law
▪ Often about penalizing corporations, white collar crime
▪ Only enforced when something becomes very public, usually
mild punishment
o Health law: BC government deliberately and consciously decided not
to enforce laws that protect patients from user fees charged by
doctors for services covered by public health insurance
2. Selective enforcement
• Ability to enforce the law against some people and not others- often racial
and/or class bias
• Historical example: vagrancy laws motivated by class and race
• Contemporary example
o Loitering: protesters, racialized groups, G20 video, -Group of young,
white men tried to get convicted of loitering, couldnt
o Ontario Safe Streets Act, 1999- banned all aggressive panhandling,
aggressive charge ~purpose of law was to hide poverty, eliminate
public view that social problems exist
o Drug laws
▪ Look at rationales for why particular types of laws are put
into place for some people and not others, reaction, hide
something, control… ex. Asian girl gangs- protect society
from Asian women, all fabricated, push for surveillance
▪ Unequal enforcement of racially drug laws~ black and
Latinos
3. Structural-institutional dilemmas
• E.g., U.S. Immigration and Customs Enforcement
o Widely criticized
o Sits between competing interests – Economic (cheap immigrant
labour) and Political (national security)
• Canadian Environmental Law
o Bad international reputation
find more resources at oneclass.com
find more resources at oneclass.com
o Conflicting interests – Economic (job creation/economic growth)
and Environment
o Canadian immigration plan implemented last week, 1 million
immigrants over next 3 years
o Sits between competing interests; economic interest (ex. cheap
labour) and political interest (border control)
o Immigration officials are damned if they do, damned if they dont;
accountability, careful about who they let in, same with parole
boards
o Economics and environment- symbolic law; the fact that they exist
has an impact on society, still serves purpose
• Symbolic Law: policies that have little impact on objective conditions but
serve the purpose of placating the public
o Political gestures to illustrate support but not necessarily taken up;
something is being done, fix loopholes, gives impression that they
are active, but often become symbolic and not implemented
o Legislation concerning teachers bargaining rights~ should they be
allowed to go on strike
o Profound effect on public, think about impact of laws
4. Police Work
• Discretion: enormous discretion in interpreting ambiguous statutes
• Variation of how police interpreted hate crimes~ what is the meaning, legal
meanings, codified into each jurisdiction
• misconduct/corruption
o )nspectors who make inappropriate remarks to coworkers
o Driving under the influence
o Improper use of government credit card
o Abusing police-officer status
o Publicly criticizing the force
o Mishandling prisoners
• How institutional actors effectively make law
• Pickton case: suspects s of aboriginal women were killed, didnt look into
it because they were prostitutes and Aboriginal women, unworthy, internal
report revealed that 56 formal cases and 231 informal cases of misconduct
(listed above)
• Police and Discretionary Power
o G20 in Toronto (June 2010); Occupy Toronto (October 2011 -
ongoing
o Guaranteed Charter Rights: 2(b) and (c) of the Charter – freedoms of
expression and peaceful assembly
o Laws regulating protest in Canada give the police a lot of discretion
in deciding what assemblies count as peaceful and when peaceful
protests are not allowed
o Laws that regulate street protests:
▪ S. of the Criminal Code prohibits unlawful assembly
(disturbing the peace)
▪ S. 31 of the Criminal Code gives police power to detain
people for breaching the peace what counts as a breach of
the peace?)
find more resources at oneclass.com
find more resources at oneclass.com
▪ Municipal by-laws can prohibit street protests that are not
peaceful because the interfere with local interests (e.g.,
excessive noise? After 11pm?)
▪ Common law powers – such as S. 42 (3) of the Ontario Police
Services Act - gives the police powers that are necessary to
discharge their duties, such as preserve the peace
o Give the police enormous amounts of discretion. Is this acceptable?
Are institutional interests always the same as public interests? What
needs to be done?
▪ Clear guidance by courts and legislatures
▪ Clear notice to public of what is and is not lawful
o Pamela George case~ kids were not convicted, silly mistake
o Looks formal but what does each term mean, how do you determine
this
o Some discretion can be positive, groups who need different response
than incarceration
o RCMP harassment class-action lawsuit
5. Constitutional principles and practice
• Fundamental freedoms
2. Everyone had the following fundamental freedoms
a. Conscience and religion
b. Thought, belief, opinion and expression
c. Peaceful assembly
d. Association
• Myth of free speech
o Broadcast television: censorship
o Can you really say what you want?
o Speech that is not protected
o Speech that creates harm is not protected
o US have different limits
o Howard Stern: broadcasting company got rid or him for being too
uncensored
o Censored: What they can say, what they talk about, how they talk
about it, prompted and prepped before
o Every show is reviewed before airing
o What mass audiences values are, whats appealing
o What they think is selling feature and what is appropriate
o NO SUCH THING AS FREE SPEECH: MYTH
o No absolute tolerance written anywhere, PROTECTED SPEECH
o Unprotected speech: things you cannot say, consequences- hate
speech, harassment in form of speech- fighting words,
declamation/defamation of character, threats, massive propaganda,
chil pornography, blackmail. Solicitation to commit crime,
plagiarism, common thread: infringe on other peoples rights, cause
harm ~ Stanley Fish
o Continuum: X (US can say anything)------Canada------ Y Cant talk
Calavita Chapter 6- The Talk versus the Walk of Law
• Cliffs of Moher sign that says do not proceed past this point, many continue on, no
enforcement
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Asian girl gangs- protect society: sits between competing interests economic (cheap immigrant labour) and political (national security, widely criticized. Structural-institutional dilemmas: e. g. , u. s. immigration and customs enforcement, bad international reputation and environment, canadian immigration plan implemented last week, 1 million, conflicting interests economic (job creation/economic growth) Police work: discretion: enormous discretion in interpreting ambiguous statutes, variation of how police interpreted hate crimes~ what is the meaning, legal, misconduct/corruption meanings, codified into each jurisdiction. After 11pm?: common law powers such as s. 42 (3) of the ontario police. Services act - gives the police powers that are necessary to discharge their duties, such as preserve the peace: give the police enormous amounts of discretion. Constitutional principles and practice: fundamental freedoms, everyone had the following fundamental freedoms. Solicitation to commit crime, plagiarism, common thread: infringe on other people(cid:495)s rights, cause: continuum: x (us can say anything)------canada------ y (cid:523)can(cid:495)t talk(cid:524) harm ~ stanley fish.
