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Lecture 3

SOSC 2652 - lecture 3 & 4 readings.docx

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York University
Social Science
SOSC 2652
Anna Pratt

CRIM 2652 – Lecture 3 readings Chapter 1: the criminal justice system: an overview - The criminal justice system (CJS) contains all of the agencies, organizations, and personnel involved in the prevention of & response to crime & dealing with those charged with criminal offences & people convicted of crimes - Includes crime prevention, crime reduction, arrest & prosecution of suspects, hearing of criminal cases by courts, sentencing & the administration & enforcement of court orders, parole & other forms of conditional release, supervision & assisting ex – offenders to get back into the community, as well as restortative justice process - CJS responds to lawbreaking with – investigation, prosecution & (when appropriate) punishment - The CJS doesn’t respond to every breach of law however – only a fraction of criminal acts committed come to the attention of the police & even smaller amount are heard in courts or lead to a sentence of incarceration - so dramatic is this reduction of cases in Canadian criminal justice that it is often represented graphically by a funnel - In reality most cases are resolved with a guilty plea (often through plea negotiation) & few cases go to trial The Structure of Criminal Justice - The CJS is operated & controlled almost entirely by governments - It is in parliament & in provincial legislatures that elected officials enact & amend laws, establish annual budgets for criminal justice agencies, etc. The role & responsibilities of governments in criminal justice - The federal, provincial, and municipal governments play a role in the justice system - Division of responsibilities between the federal & provincial governments was spelled out in the Constitution Act, 1867 - The basic division is that the federal government decides which behaviours constitute criminal offences while the provincial/territorial governments are responsible for law enforcement & for administering the justice system Federal Government - Parliament in Ottawa has the absolute power to create, amend, and repeal criminal law for the entire country & it also sets the procedures for prosecuting persons charged with criminal offences & establishes punishments that will be imposed for all federal offences - The federal government: 1) operates a national police force (RCMP) 2) prosecutes some federal offences – including narcotics offences 3) appoints some judges & manages some courts 4) operates correctional institution 5) operates a parole board for federal inmates & for provincial/territorial inmates in jurisdictions other than Quebec & Ontario (these two provinces have their own provincial parole boards) Federal offences - Behaviours considered crimes in Canada are listed in the Criminal Code – the code also sets out the procedures for arrest & prosecution & the penalties that may be imposed by a judge following conviction - Along with the Criminal Code there are other federal laws that affect the criminal justice process – like the Canadian Charter of Rights & Freedoms which is part of the Constitution Act - With very limited freedoms the Charter guarantees fundamental freedoms, legal rights, & equality rights for any person in Canada (citizen or non citizen) including those accused of crimes – provides protection for individuals & ensures fairness during legal proceedings - All of the components of the criminal justice system have to operate in such a way as not to violate the rights guaranteed by the Charter Federal prosecutors, courts, and judges - Through the Office of the Commissioner for Federal Judicial Affairs the federal government appoints judges to the various federal courts such as the Supreme Court of Canada & the Federal Court of Canada - The federal Minister of Justice appoints all of the judges in the superior trial courts in the provinces/territories - Common provincial offences include underage drinking, speeding, and in a number of provinces using a hand – held cell phone while driving - Municipal governments may enact local bylaws which are valid only within the city limits - The Canadian criminal justice system is an adversarial system, which means the advocates for each party – in criminal cases the defence lawyer & prosecutor, present their cases before a neutral judge or jury - Important principles of our adversarial system: 1) presumption of innocence: a defendant is deemed innocent of the charge (s) until either convicted or acquitted 2) The Crown bears the burden of proof: it is the task of the Crown to prove guilt, not the responsibility of the accused to prove his or her innocence 3) Doli incapax (Latin for “too young for evil”): a child under 12 cannot be held criminally responsible or prosecuted for criminal acts 4) insanity: no one is criminally responsible & liable to punishment if incapable of knowing the act was wrong owing to a mental disorder 5) attempts are crimes: those who attempt crimes (going beyond merely the planning stage) commit an offence & are generally subject to half the penalty that the completed act would draw - A basic premise of the adversarial system is that the truth will emerge from the materials presented by the defence & Crown - Accused persons cannot be compelled to give evidence in the case - Critics of the adversarial system contend that the process encourages the parties to present a distorted version of events - There are also concerns with the quality of legal representation for many defendants & the ability of the criminal justice system to solve problems rather than merely reacting to them - The attempt to improve the problem solving of the justice system has led to 2 things - the development of specialized courts – they utilize an approach of therapeutic jurisprudence in which court personnel collaborate with the police, social services & mental health professionals AND the development of various restorative justice approaches The exercise of discretion by criminal justice personnel - Criminal justice personnel exercise considerable discretion when making decisions – freedom to choose between different options when confronted with the need to make a decision - Many factors influence criminal justice personnel when they make discretionary decisions - At the centre of these influences is the decision maker, a human being who brings to his/her work a unique combination of education, training, personal experiences, and perhaps religious beliefs – all of which can sometimes influence the decisions made by criminal justice personnel - There’s also the factor of disparity in decision making – different justice system personnel can often make different decisions in a given situation - Disparity is due in large measure because of the considerable professional autonomy of criminal justice personnel - When looking at the history of law & authority we see that as social control became more centralized & formal, communities & their residents became less & less involved in the process of social control - The increasing centralization of the social control function resulted in the transfer of power & authorities to governments & criminal justice agencies The foundations of the legal system - The Canadian legal system is one of common law – the common law system originated in Europe & was imported to Canada in the 17 & 18 centuries th - It emerged from decisions made by judges in the royal courts & was based on the notion of precedent – a rule that will guide judges in making subsequent decisions in similar cases - Canada inherited the British system of common law & so our law is found in statutes & in judicial precedents - The courts are organized in hierarchy with the Supreme Court of Canada at the top - The principle whereby higher courts set precedents that lower courts must follow is known as stare decisis (Latin for to stand by what was decided) - Underlying this principle is the idea that like cases should be treated alike – especially when the law is not precise, judicial interpretation can add clarification so that all courts are playing by the same rule book - All legal systems in Canada are governed by the principle of the rule of law & the rule of law has several components: 1) all citizens are supposed to obey the law , expect punishment if they break the law & to look only to the legal system to respond to cases committed against them 2) the legal system in turn has to be fair & impartial it its responses 3) only elected officials can decide what is against the law 4) a law must be written clearly so that everyone (or at least lawyers) can understand which action/activity is being referred to 5) a law must apply equally to everyone – for ex. to men & women & to rich & poor 6) to give the law “teeth” a penalty must be defined for breaking the law Criminal Law - Two general categories of law: public law & private law - Public law – deals with matters that affect society as whole in its interactions with governments - Four types of public law: criminal law, constitutional law, administrative law, & taxation law - Criminal law can be defines as the body of law that deals with conduct considered so harmful to society as a whole that it is prohibited by statue, prosecuted & punished by the government - The criminal law defines which acts (or omissions) are against the law & sets out available penalties - Also sets out rules that police & judges must follow in criminal matters – including procedures for making arrests, gathering evidence & presenting evidence in court - Private law on the other hand regulates relationships between individuals other than the state & is used to resolve disputes between private citizens - In Canadian society, criminal law: 1) acts a mechanism for social control 2) maintains order 3) defines the parameters of acceptable behaviour 4) reduces the risk of personal retaliation (that is people taking the law into their own hands) 5) assists in general & specific deterrence 6) criminalizes behaviour 7) protects group interests & 8) prevents crime & serves as a deterrent to criminal behaviour Criminal law vs. civil law - Civil law – general category of laws relating to contracts, torts, inheritances, divorce, custody of children, ownership of property, and so on - When a crime is committed – criminal law violation 1) the government assumes the responsibility for prosecuting the alleged offender 2) on behalf of the victim & community, the criminal courts undertake the task of determining the guilt or innocence of the offender 3) the criminal courts impose a sanction – it can either involve supervision of the offender in the community or a period of confinement 4) and there may be a financial penalty attached to this deposition handed down by the judge to the offender - civil law however is concerned with disputes between individuals – includes all statue law other than criminal law (such as divorce & human rights law) - in civil suits, 1) the person who feels wronged by the alleged behaviour brings suit in civil court & 2) the wronged party seeks damages, usually involve the payment of monetary compensation by the wrongdoer if there is a finding of liability - Most common types of civil suits involve divorce, disputes over inheritance & breaches of contract however recently, the civil law is being used to combat crime as well & civil courts can seize & freeze any assets that were obtained as proceeds of crime - One significant difference between criminal law & civil law relates to the standard of proof required to convict a person of wrong doing – in a criminal trial, the prosecutor has to prove the defendant guilty “beyond a reasonable doubt”, in civil trial, liability is determined by the standard of ‘the balance of probabilities’ – that is reasonable probability or reasonable belief rather than beyond a reasonable doubt – thus there is a much lower standard of proof in civil cases What is a crime? - A crime is generally defines as an act or omission that is prohibited by criminal law - Two critical ingredients of a crime: the commission of an act (actus reus) & the mental intent to commit the act (mens rea) - A crime occurs when a person: 1) commits an act/fails to commit an act when under a legal responsibility to do so 2) has the intent or mens rea to commit the act 3) does not have a legal defence or justification for committing the act & 4) violates a provision in criminal law Principles of Canadian Law - There are a number of principles that provide the foundation for Canadian law 1) An act does not make a person guilty unless he/she has a guilty mind - to be convicted of most crimes (not all) a person must have done something criminal & usually (but not always) must have intended to do it - a few offences impose absolute liability in that the Crown need not prove mens rea – examples like children under 12 & the criminally insane are deemed unable to form mens rea & therefore will not be held responsible for their actions 2) no crime with a law, no punishment without a law - rules cannot be change in the middle of the game – laws cannot be applied retroactively 3) ignorance of the law is no excuse - formal expectation that every citizen be familiar with all the laws & therefore able to differentiate between legal & illegal behaviour – although law is constantly changing & there is debate about different interpretations, defendants claiming they had idea their alleged offences were illegal is ridiculous 4) no one is compelled to incriminate himself - criminal suspects & defendants have the right to remain silent during the police investigation – if they are forced or threatened to make a statement that statement will be inadmissible in court – also a criminal defendant may choose not to testify in his defence – this is listed in the Charter 5) no one should be twice troubled by the same cause - concept of double jeopardy – an alleged offender cannot under most circumstances be tried twice for the same offence - an alleged offender can be retried after being acquitted if the Crown successfully appeals the decision by claiming problems with the application of the law at trial but cannot be tried twice for the same crime The origins & application of criminal law - Two main explanations of the origins & application of criminal law – value consensus model & the conflict model - Value consensus model: views crime & punishment as reflecting society’s commonly held values as well as its limits of tolerance - This view assumes that there is a consensus on what should be against the law - Some offences are wrong in themselves – perceived as so inherently evil they seem to violate the natural law (ex. murder, incest), other offensive acts are considered criminal only because they violate a criminal statute (ex. narcotics were once widely used in medicines & soft drinks available at the local drug store & now the situation is reversed) - The conflict model: view that some groups are better able than others to influence which behaviours are criminalized – the rich & privileged are seen as having an advantage in influencing law reform - Conflict theorists highlight some of the inequities & paradoxes in the system – our attention is wrongly focused on street crime when the greater risk to most people lies in the actions of elites, including corporations that dump toxic waste, fix prices, etc. The classification of offences - There are three categories of offences: summary conviction offences, indictable offences, and hybrid (elective) offences - Summary conviction offences: generally less serious offences (ex. impersonating a police officer, keeping or being found in a common bawdy house (brothel), waterskiing in the dark & injuring animals other than cattle - Indictable offences: serious criminal offences that may carry maximum prison sentences of 14 years or more(ex. murder, robbery, aggravated sexual assault, breaking out of prison, hostage taking, etc. ) - Number of differences between summary & indictable offences – summary conviction proceedings must begin within 6 months after the offence occurs, no such time limit for indictable offences except that there is a right to a speedy trial under the Charter - Summary conviction offences can only be tried by a provincial court judge sitting alone while indictable offences can be tried in any a number of courts – depending on the seriousness of the alleged offence & the court chosen by the accused (person charged with an indictable offence generally has a choice of being tried by a provincial court judge or a superior court judge with or without a jury) preliminary hearing is held to determine whether there is sufficient evidence to proceed to trial - Hybrid (or elective) offences: fall between summary offences & indictable offences in terms of their seriousness (ex. sexual assault, driving while disqualified, uttering death threats, selling used goods as new) - Once such a charge is laid the Crown attorney decides whether to proceed summarily or by indictment - Many factors influence a prosecutor’s decision regarding how to proceed a hybrid offence 1) the seriousness of the alleged offence is considered 2) limitation period – summary conviction prosecutions must be commenced within 6 months of the alleged offence & if more than 6 months have elapsed, a Crown attorney who wants to pursue the matter must proceed by indictment Where do criminal laws come from? - Most of Canada’s criminal law was inherited from Victorian, England & many of those offences can be traced even further back some to biblical times or earlier - The criminal law is not static & almost overnight, legislative enactments of judicial decisions can render illegal behaviours that were previously merely deviant - Similarly a law or judicial decision can render once – illegal activities deviant - As society changes, behaviours can be criminalized - In Canada there have been ongoing efforts to ensure that the criminal law reflects changes in technology, some new offences in the Criminal Code: 1) destroying or altering computer data 2) using the internet to distribute child pornography & to communicate with a child for the purposes of facilitating the commission of certain sexual offences 3) deliberately misappropriating cable television service - A key role in criminalizing certain activities is often played by moral entrepreneurs – persons who lead moral crusades against certain groups of people or certain behaviours & bring pressures on legislators to enact criminal statues - Historically & recently moral entrepreneurs have tended to be most active in the area of victimless crimes such as drug & alcohol use & prostitution Lecture 4 Readings Chapter 1: Criminal Justice In Canada: An Overview – pg. 23 – 34 Models of Criminal Justice Administration - When looking at the operation of the criminal justice system, a number of different facets can be examined: 1) the behaviour of criminal justice personnel ex. police officers 2) the activities of criminal justice organizations ex. correctional institutions services 3) characteristics of the criminal justice system & its components in the context of larger societal issues - There are two competing value systems that underlie the administration of criminal justice: 1) crime control model – the protection of the community & the apprehension of offenders are paramount 2) due process model – legal rights of individual citizens, including those suspected of committing a crime against the State are paramount - There is a fundamental & ever – shifting balance to be struck between the two Crime control looks at giving criminal justice agencies such as the police & prosecutors the unfettered power to apprehend & prosecutors Due process looks at protecting citizens from the potential abuses of that power Crime Control Model - Crime control model views the primary purpose as the protection of the public through the deterrence & incapacitation of offenders - Criminal offenders are considered to be responsible for their actions & the administration of justice should be swift, sure, & efficient - Criminal justice system should focus on the rights of victims rather than protecting the rights of defendants - There’s also a strong presumption of guilt & confidence that an efficient justice system will screen out innocent persons at the police or prosecution stages - There is also an emphasis on compensation for victims of crime Due Process Model - Emphasizes procedural fairness & a presumption of innocence – onus is on the criminal justice process to prove guilt & agencies & decision makers are required to follow proper procedures in making such a determination – includes liming the powers of the police - An accused person may be factually guilty but legally innocent if the proper procedures & rights of the accused have been violated - Also concerns with the structuring & confining the discretionary power of criminal justice decision makers & ensure equal justice for all citizens regardless of wealth, social status, or political connections - The crime control model incorporates conservative values while the due process model reflects liberal values - Because of their location in the process different components in the criminal justice system may lean toward one perspective or the other – for ex. the police have long been identified with the crime control perspective while the courts have traditionally been viewed as operating within a due process approach - At various points in time, the political climate of a jurisdiction may determine which model is st predominant – in the early 21 century, the Canadian federal government has emphasized a crime control approach with legislative proposals to increase the number of mandatory minimum sentences & limiting the use of conditional sentences (house arrest) for offenders convicted of serious & violent crimes The Deterrent Effect of the Criminal law - The deterrent effect of the criminal law suggests that the law can serve as a deterrent only when certain conditions are present: 1) people must be aware that there are legal sanctions that will be applied if they engage in certain behaviours 2) there must be certainty of punishment 3) the sanction must be applied swiftly when a crime is committed - When applying these requirements to the CJS it’s visible that there may be limitations to the deterrent value of the criminal law - Most Canadians have little knowledge of it & of the criminal justice system – the information they do have is learned from mass media & is often distorted or inaccurate - Neither is there certainty or swiftness of punishment – the catch rate for many types of crime is quite low, punishment is often far from swift Whose law? Whose justice? - Questions of “whose law” & “whose justice” assume greater importance in a multicultural society such as Canada where there is the existence of visible minorities - The justice system has been slow to address the challenges presented by enthnocultural diversity - Racial profiling of visible minorities by the police has been the subject of considerable debate in recent years - Most recently arrived immigrants & long – term residents who are visible minorities tend to settle in urban centres – the language barrier hinders the development of police – community partnerships, the supervision of youth & adults on probation, & the implementation of effective treatment programs - Observers have identified “gaps in justice” – gaps between what the justice system provides & what the members of ethnocultural minorities expect - Strategies for bridging some of the more significant gaps include public legal education & information to increase the accessibility of the justice system Law Reform -
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