LAWS 2301 Lecture Notes - Selective Enforcement, Adversarial System, Strip Search

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November 6th 2012
Lecture 8
Review: YoungOn exam
Adversary process and the Charter
- Young not supportive of the Charter being used for criminal law reform within an adversarial
- 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
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: EvaluationHow to measure a good exercise of discretionWhat
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 policingState takes over in policing role
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