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Crim 131 (Fabian) Midterm Review

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CRIM 131
Sheri Fabian

Ch1 – The Criminal Justice System – Introduction  Criminal act enters CJS when victim/witness perceives it as a crime and contacts the police o Police determines whether it is ‘unfounded’ or foinvestigate. o If identify an accused person is ienlay charge or deal with informally (alternative measures)  If formally lay chrenters court system o At cour plea be negotiated to avoid formal court OR procee tbe found guilty or not guilty by judge/jury  Incarceration/conditional sentence/probation/fine o If incarceration under 2 eaprovincial institution, yefederal institution  Before sentence ed can apply for conditional release and reintegrate into society Diversion and Alternative Measures  opportunity for offenders to avoid conviction/record  Usually for 1 time/young offender  eg police warnings, referrals, crown cautions, apologies, community service, financial compensation o Problem: people are put into alternative measures, but their crime so minor wouldn’t have be charged anyways, some argue this is brining more people into the system Crime Funnel  Not every breach of law gets a response.  Crime Funnel: actual level  detected  reported  recorded  arrests  convictions  noncustodial punishment  incarceration. o Significant case attrition: cases drop out of the criminal justice system o Only some are reported, within some are deemed founded, of these only some gets a charge, and of these some are dropped or stayed, and many do not end in conviction  Most cases are resolved with a guilty plea and few cases go to trial Adversarial System  Premise: Truth emerges in materials presented by opposing sides (Crown & defence)  Principles: o Presumption of innocence: a defendant is deemed innocent until convicted or acquitted o The Crown bears the burden of proof: crown needs to prove guilt, not responsibility of accused to prove his/her innocence o Doli incapax (“too young for evil”): child under 12 cannot be held criminally responsible for criminal acts o Insanity: cannot be criminally responsible if one is incapable of knowing the act was wrong due to mental disorder o Attempts are crimes: those who attempt to commit an offence (beyond planning) are generally subjected to half the penalty  Concerns o Process encourages parties to present a disortorted version of events o Concern with the quality of legal representation for defendants o System is reactive rather than problem-solving approaches Foundations of Canadian Legal System Common Law  Precedent – a rule that guide judges in making subsequent decision in similar cases o Judge must follow the decision in previous case, if facts and law are similar in both cases. o Exist in past decision of judges, rather than being embodied in legal codes or legislation  Stare decisis – higher courts set precedents that lower courts must follow o This is to make sure all cases are treated alike. o Courts are organized in ac hierarchy, Supreme Court of Canada at the top, so when they make a rule, all courts below are bound to apply that ruling in subsequent cases. Rule of Law (Magna Carta UK 1215) 1. All citizens must obey law, expect punishment if break law, and look only to legal system to respond if crime was committed against them 2. Law must be fair and impartial 3. Laws are created by elected officials 4. Must be clearly written 5. Must be apply equally to all 6. Penalties must be specified Government Role & Responsibilities  Constitution Act, 1867 = Separates federal and provincial divisions of responsibilities o Federal government – define what is a crime (criminal law) o Provincial – enforcing the law, administer courts and corrections o Municipal – policing, bylaw enforcement Federal Government  Absolute power to create, amend and repeal criminal law for the entire country  Sets procedures for prosecuting and punishing crimes  Responsible for: o Federal Police – eg RCMP, police college, military police o Appoints judges and manages courts o Prosecutes some federal offences (eg narcotics) o Correctional Service of Canada - Operate federal correctional institution ( 2years+ ) Federal Statutes  Criminal Code: Federal legislation that sets out criminal laws (list of criminal behaviour), Also set out procedures for arrest and prosecution and penalties that may be imposed  Other Federal Statues: Anti-Terrorism Act 2001, Youth Criminal Justice Act 2002, Controlled Drugs and Substances Act  Canadian Charter of Rights and Freedoms: (Part of Consitution Act, 1982) guarantee fundamental freedoms, legal rights, equality rights for any persons in Canada (citizens or non-citizens), including those accused of crimes. o Provides protection for individuals and ensures fairness during legal proceedings o All components of CJS have to operate in such a way not to violate the rights guaranteed in the Charter Provincial/Territorial Governments  Responsible for administration of justice within own province  Can pass quasi-criminal legislation (eg underage drinking, speeding, text and drive)  Oversee: o Police services o Prosecute offences o Manage courthouses o Employ judges o Run programs for offenders o Operate provincial correctional facilities Municipal Governments  Enact city bylaws o Valid only within city limits - Eg smoking prohibitions o Minor penalties, mostly fines  May not intrude on provincial or federal government jurisdiction  May control police budgets, hire police chief General Categories of Law  Pubic Law: matters that affect society as a whole (Criminal law, Constitutional law, Administrative law, Taxation law  Private Law: regulates relationships between individual, resolve disputes between private citizens (tort laws, property laws) Criminal vs Civil Law Criminal Law: crime  Government prosecutes offender  Court determine guilt/innocence of offender  Court impose sanction, may include prison or fines  Prosecutor has to prove defendant guilty “beyond a reasonable doubt” Civil Law: disputes between individuals (Eg divorce, disputes over inheritance, breaches of contract)  All statute law but criminal law  Wronged person brings suit in civil court (the victim)  Wronged party seeks financial damages from wrongdoer  Proof on reasonable probability or belief Criminal Law  The body of law that deals with prohibit damaging behaviour to society as a whole, and is prosecuted and punished by the government. o Defines which act/omissions are against the law o Specifies penalties o General principles re:criminal responsibilities o Defences to criminal charge o Establishes rules that police/courts/corrections must follow Proposes of Criminal Law  Mechanism of social control  Maintains order  Defines acceptable behaviour  Reduces personal retaliation (vigilantism, people taking the law into their own hands)  General and specific deterrence  Punishes wrong-doing  Criminalizes behaviour  Protects interest groups  Prevents crime/deters crime What Is A Crime?  Definition: an act or omission that is prohibited by criminal law - with no legal defenses/justification  Components: Actus reus ( the act ) & Mens rea ( the intent )  Mala in se – the act is wrong in itself is inherently wrong – eg murder  Mala prohibita – only criminal because they violate a law Origins and Application of Criminal Law  Consensus model – assumes: o Law reflecting society’s ‘core’ values shared by majority o Law serves everyone equally  Conflict model – assumes: o Society as different groups in conflict o Those in power has greater influence in defining criminal behaviour  Law is seen as a tool to maintain power o Highlights inequity in society Classification of Offences  Summary conviction offences o Less serious offences, max penalty = 6 months in jail, 2000$ fine o Eg impersonating police officer, waterskiing in the dark, injuring animals  Indictable offences o Serious criminal offences, prison 14+years to life, eg murder, robbery, coutnterfeit money, hostage, etc  Hybrid (elective offences) o Offences that can be prosecuted either summarily or by indictment o Crown makes the decision of which to charge o Eg driving while disqualified, uttering death threats Models of CJ Administration  Ever-shifting balance between individual rights vs public safety o 1) giving power to CJS, that apprehend offenders and o 2) protecting citizens from potential abuse of that power.  Crime Control Model (Eg police mostly identified with CCM) o Paramount (primary purpose): Protects community and apprehend offenders o Focus on rights of victims rather than protect rights of accused o Strong assumption of guilt o Conservative values o Favor giving police more power to gather evidence, question, interrogate suspect  Due Process model (Eg courts mostly operating within DPM) o Paramount: Protect rights of citizens o Emphasizes procedural fairness o Presumption of innocence o Liberal values o Provides innocent with defence against a false accusation Is CJS really a ‘system’?  A system is when individual components work tgt in an organized manner with agreed-upon principles and they share a common goal. But the CJS does not always do so. They work independently, not always consistent, lack coordination and cooperation. Goals conflict each other sometimes. Various factor prevent CJ Agencies/personnel from operating as system:  Multiple mandates: they have different goals, differ in their view as how to accomplish their objective, eg police thinks judges are too lenient in sentencing, eg due process vs crime control  obstacles to information sharing: many system use their own database – cant share data, eg pickton, Clifford olsen – police departments not speaking to each other so don’t catch them soon enough ; privacy law hinder info sharing, barriers can affect completeness of info available to key decision maker, o interoperability: ability of hardware and software from multiple databases of multiple agencies to communicate with one another – so everyone uses common data standards –  INABILITY to do so. communication is flawed/reduced because programs cant connect to each other, info sharing becomes difficult  diversity/complexity of system: system is complex and has enormous amount of info, new research findings every month, law changes, new judicial precedent, etc Restorative Justice  Approach to justice based on the principle that criminal behaviour injures not only the victim, but also the offender, and the community  Six main objectives: o Address needs of victims o Enable offenders to assume responsibility o Create ‘community’ support (assistance for victim/offender/community) o Alternative to adversarial system o Avoid escalating cost, delay, legal justice o Prevent reoffending through reintegration (because of community component)  Effectiveness of RJ: research shows: o Most effective for serious violent crimes o Much higher victim satisfaction – if victim willing to meet offender, get past anger & repair harm o Reduced recidivism rates o In some jurisdictions – reduce court costs & processing times Criminal Justice / Restorative Justice CJ  Crime = violation of law & state  Violation = creates guilt  Justice = establishing guilt and impose pain that fits  Central focus: punishment fits crime (retribution/vengeance)  Victims peripheral (irrelevant) RJ  Crime = violation of people and relationship  Violations = create obligations, taking responsibility  Justice = Involves victims, offenders, community  Central focus: victim needs and offender responsibility (repairing harm and the relationship that was violated, not about punishment) o Outcome depends if responsibility are assumed, needs are met, healing of individuals/relationships Ch2 - Challenges in Criminal Justice High Cost of Crime and Criminal Justice  Annual operating cost CJS – 13$ billion  Mostly expenses on policing  Value for service? (more safety and security?) o Generally no = no evidence that there is increase effectiveness/efficiency of CJS  Potential solution: increase expenditures + development of problem solving capacity within CJS, rather than reactive (eg restorative justice) Ensuring “Justice” in a Multi-Cultural Society  Need to ensure rights of all citizens are protected  Recent challenges raise: o Political, cultural, Freedom of religion, Legal issues o Accommodating practices of various religious groups Responding to Organized crime/Terrorists Treats  CJS – designed for ‘traditional’ crimes (assault, break and enter, robbery, homicide)  Increase in new, sophisticated, ‘non-traditional’ crimes o Eg international drug/human trafficking o Organized crime syndicates, some extend to international level o Increased security threats/costs Special Groups of Offenders  Offenders with unique needs - Required coordinated/informed responses o Eg sex offenders o Offenders w/ mental/development disorders o Drug addicted offenders o Dual diagnoses Administration of Justice to the task environments of criminal justice  A task environment is setting in which the CJS operates  The characteristics of TE influences: o types of crime and social disorder o Decision-making options available o Effectiveness of policies/programs o Potential for developing community-based programs/services o Community expectations re:enforcement o Community capacity to address issues Public Perceptions of Crime & CJS  Lack confidence / trust in CJS  Overestimate: o Levels of crime o Rates of recidivism o Rates of parole release  Reoffending rates of parolees  Underestimate severity of punishment  Media – primary source for crime & CJS o Sensationalize heinous crime – which are statistically rare – skews people’s perceptions of crime o More violent offenders, do not explain cause of crime (poverty, abuse experience ,etc) o Usually report negative outcomes o They do so because of ratings, $$, crime and chaos CJ issues for Indigenous peoples  High rates of crime and victimization in many aboriginal communities o Overrepresentation of aboriginal peoples – in all stages of justice process  Historical trends support same – why? o Assimilation – blend them into our culture/society/tradition o Colonization o Residential school legacy Increasing community involvement in the prevention and response to crime Developing Effective Criminal Justice Policy  CJS cannot prevent crime, reduce crime, meet needs of victims & rehabilitate offenders  Need multi-system approach  Need comprehensive review/reform of CJS  Difficult b/c of political ties in CJS - Eg “get tough” approaches of governments, new legislation and policy not premised on sound research, often allowing public pressure to impact CJ policy Criminal Justice Policy/Programs  Focus should be problem-solving and not reaction to problems  Use empirical research / best practices -- > we base too much on gut reaction, rather than empirical research eg they keep saying the need for tougher sentences, even tho all research shows that it does not reduce crime rate  Be receptive to innovative practices, to new ideas. (eg jails does not as work as effective as we would assume) o Often more effective/efficient Consequence of public overdependence on CJS  Public fails to take responsibility  Public fail to learn what role it can play  Public fails to understand the limitations on what the CJS can realistically achieve Consequences of Unmet expectations  Crime  Dependence on the police and JS  Expectations of safety being delivered Expectations not met   Clamour for more justice interventions, including tougher sentencing  Fear persists Crime Answer – Community Involvement  Current CJ = reactive system (Cj professionals respond to crime  Community involvement = more proactive = Could prevent more crime o Develop more effective intervention strategies o Adopt problem-solving approach to community issues (eg helping special kids rather than judging them ) Victims of Crime  Crime traumatic for victims however CJS can re-victimize – simply by going through the process, victims made to feel worse by actions of criminal justice officials  Victims : heterogeneous, diverse needs (different culture, background, crime experience)  however common themes in complains/concerns  find CJS complex/confusing, little support, little information about developments in the case, too much delays, absence of protection from retaliation by offender Victims of Crime today  Services/programs: Physical / Emotional / Financial consequences (limited availability)  More involvement o VIS – victim impact statement – (only works if offender is convicted) o Victim attendance at parole hearings  Major funding cuts affect services Financial Compensation – Victims  Property offences  Most common way is through private insurance  Criminal injury compensation = financial remuneration paid to crime victims o Can apply to Provincial government (can apply, not guarantee) o To cover Expenses/damages (lost wages, medical fees) o Pain/suffering can be awarded (in some provinces, but most provinces must get from civil suit, which means need to hire lawyer to sue)  Restitution = court-ordered payment that the offender makes to victim to compensate for loss/damage to property o Mostly for property-related offences, eg fraud/theft o Pay as part of sentence  Civil litigation o 1) Sue alleged offender – if acquitted in criminal court, can still be sued for damages  Lengthy process – if suit fails, victim pay defendant’s court costs, but in civil courts, victims are more involved  Focus on damage done rather than defendant’s culpability  Court awards are usually higher than criminal injury compensation boards o 2) Third party  Eg aboriginal people sued federal government forcing them into residential schools (Physical and psychological mistreatment)  Eg sue bar owners for continuing to serve alcohol to patrons who drank and drove and caused an accident in the death of another driver/pedestrian o 3) Justice system  Victim may sue CJS for not fulfilling their mandate to protect them eg parole officer not performing their duty  Offender may sue actions of CJ personnel  Eg excessive force by police, wrongful conviction by criminal courts Crime Trends & Statistics  Crime Rate: Number of criminal incidents reported to police as a ratio to the size of the population o Why a ratio? – in order to compare with other jurisdiction of different population size o Collected by police, influenced by reporting practices, complied by Statistics Canada  Crime severity index – each offence is assigned a weight, more serious = more weight  Dark figure of crime – difference between how much crime occurs and how much is reported to/discovered by police o Public survey reveals this – estimated half of all incidents (even serious like sexual assault) do not come to attention of police – especially among aboriginal communities How stats are useful  Describe nature & extent of crime o Crime-prevention policies – need to know what when how frequent about crime inorder to develop good policies  Provide empirical data for theory development – big theories or simple explanation  Assist w/ social policy and program evaluation – eg 2% correction funding on inmate programs – not effective at all.  Provide picture of risk Sources of Crime Stats  Uniform Crime Reporting UCR / UCR2 (police data)  Victimization Surveys  Self report studies – own criminal activities  Court data (Collect limited data because not every case goes to court)  Prison data (Reflects official decision – not actual crime patterns) Uniform Crime Reporting (UCR)  Standardized system for collection of police data o UCR – aggregate (collective/total) data o # of incidents reported o # actual offences o # offences cleared o # and sex of adults/youths charged  UCR2 – incident based o Above plus Details re:victims/accused/circumstances of incident Shortcomings – police data  Include officer discretion (May not record crimes consistently with different officers)  Not everyone arrested is guilty  “counting” issues – only count the most serious offence eg break and enter & theft – only counts break and enter  Inconsistent legal definition across jurisdiction  Majority crimes never reported to police – why? o ‘dark figure’ of crime o You might be the offender o Might have connection with offender – partner, child o People who don’t trust the CJS, don’t think they can help o Concerns about retaliation o Need to know about crime – stolen or lost? Influences on Crime Rates  Demographics o Age - most likely victim OR offender – young men 15-24 o ethnicity – cultural background, may not report/recognize as offence because of their culture o socio-economic status – financial state o level of education o demographics in a certain community – northern, more remote, so more young men go there to find jobs = more crime  Technological change o New kinds of crime, different fraud, complexity of some crime, influence detection of crime  Police enforcement practices o Policy decision, eg manadatory arrest for domestic violence  not more crime, just more arrest  Victim responses to crime o If know there is more crime, we are more careful, go out less, more cautious of wallet o If they think is safe, they are less careful with their stuff  Community-based policing o increase crime rates? More likely to report o decrease in crime rates? Better relationship with police, find alternatives  Other factors – changes in population, changes in attitudes (increase public tolerance to marijuana over time), changes in law Crime Trends  Crime rate steadily declining  Volume and Severity of police reported crime decreasing o Population is aging – smaller proportion of 15-24 years old – less violent/property crime o Vancouver “4 percenters” - few offenders who commit large number of reported offences – eg drug addicts who commit property offences  More property crime in Vancouver  4/10 cases solved (cleared by charge/otherwise) Clearance rates  Proportion of actual incidents known to the police that result in the identification of a suspect (where or not suspect is charged/convicted)  Reported incidents o Cleared by charge – laid by the crown in BC - police present enough evidence to crown, and crown decide to lay charges or not o Cleared otherwise – cases solved but no charges cant be laid (immiscible evidence, accuser is dead, victim unwilling to provide evidence, offender under age 12, diplomatic immunity) o Unfounded – reported, but not really a case, eg car parking wrong floor  Clearance rates has remaind relatively stable – however depends on type of crime o Crimes with direct victims/witness and reported quickly are more likely to be cleared – thus violent crimes have hgiehr clearance rates than property crimes Police Data  Approx.. 60,000 police officers, ~20% lower than US or england o 1 per 529 Canadians o steadily increasing ~ number of officers 9% higher than a decade ago o Increase in female off
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