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LAWS 2301 (138)

Desiree Hayward

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LAWS 2301
Saunders- Carleton University

November 6 2012h LAWS2301A Lecture 8 Review: Young—On exam Adversary process and the Charter - Young not supportive of the Charter being used for criminal law reform within an adversarial process - Main point: Charter not a good fit - There is not much of a role of the state in using the Charter to formulate criminal law - There have been isolated instances of success within the Charter; but not major structural reform; Any existing victories are of a symbolic value - The adversarial system is in fact standing rights; it leads to the defense to bring up these Charter conflicts; not recognized by prosecution--PROBLEM: Many people do not have the means to bring their case to the courts to challenge the existing criminal law - This undercuts the foundation of constitutional rights; it relies on a party who has limited funds to take these rights forward - There are no supervisory powers over the courts; therefore you either must accept what has been done to you, or you must continue going back to the courts to have your rights enforced (strip search laws)--Need institutional mechanism for supervisory, quality control over process, and clear comprehensive rules re-rights - All players should bear the burden to progress rights - Too often procedural rights seen as an obstacle to finding guilt/innocence; at the lower court levels judges have not been receptive to Charter arguments as they do not relate to guilt/innocence – Rights are muddling up the process - Quote made by Young about Charter development being hindered by assumptions/ideology of adv justice - Note for paper: How do processes affect the quality of criminal law? –Think potential crushed in nature of the adversarial process Police Issues around discretion: -inevitability?—How, why - Control and accountability of individual v. organization/law - Issue: How do we make the courts/police accountable for what they do - Due process: - democratic concern - Discretion doesn’t mean that there are not rules to follow; what is at issue is the range of opportunities - Problem of judging discretion: Evaluation—How to measure a good exercise of discretion—What standard should we use??? History: Mitchell - Parliamentary organizations which grew out of citizen’s policing as society came more diversified:-- led to systems of state policing - Mitchell talks about the reasoning for the lack of private enforcement; increase in vigilantism, retribution, citizens forced to take turns serving - Breakdown in private policing- society becomes more complex. No one wants to volunteer for private policing—State takes over in policing role 1 > functions > selective enforcement: how/why? > powers, duties, realities > review/accountability mechanisms Assignment due next class; Discuss purposes and principles; not looking at chapter two perspectives (critical, liberal) - You must look at both sides of the argument before making a conclusion - NOTE: Were assuming that the issue is charter proof; try not to use Charter arguments in responding to the question Functions of police •maintain law & order, and to protect •prevent crime •detection/arrest •charging responsibilities—some provinces the crown lays the charge •traffic •witnesses •give advice, assistance, and support Brannigan Summarizes roles; -law enforcement - Maintenance of order - Social services (75%) of role—traffic, responding to emergencies etc. Selective enforcement: how/why? •practical grounds—we have selective enforcement arising within agencies for practical purposes When looking at practical grounds, were looking at administrative decisions by upper echelon- Police Chiefs (Am I going to send officers to market tonight because it’s Halloween) Very few resources are devoted to governing white collar corporate crimes rather than street crime On what grounds do we select enforcement on the practice of certain t
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