week 1: Criminal Justice system
Components of the criminal justice system;
police, courts, correctional system and community
Law, the roles and responsibilities of governments: The division of power
1- federal level: BNA Act;
criminal law power (section 91 (27);
Federal Penitentiaries (91 (28)
origins of criminal law; explanatory models:
value -consensus mode;
2- provincial level: BNA Act:
Administration of justice . 92(14);
Provincial penal law. 92(15)
provincial jails/prisons. 92(6)
by-laws within city limits ( delegated by the provincial government)
Structure of the court system: is determined by the BNA ACT (Constitution Act
of 1867) relevant sections ( 96-100).
Supreme court of Canada
Federal Court of Appeal;
Federal Court; Tax court
Provincial court of appeal
Superior Trial court
The Roles and functions of the courts; Adjudication
Adjudication process can be divided into three categories;
2-settlement of dispute
obstacles to information sharing among components of the CJS;
Consequences of inadequate information sharing
Controversial issues: individual rights vs. public safety; due process vs.
crime control National DNA bank
sex offender registries
Challenges facing criminal justice system ;
aboriginal peoples ( Retributive justice vs. Restorative Justice)
Accountability mechanisms; Holding law enforcement officials accountable
1-charter (relevant sections; 7-14)
supreme court's approach : a balanced approach. accommodating the needs to
protect charter rights and public safety. infusing crime control model with
elements of due process
24(2) exclusion of evidence; Three part test;
1-the effect of evidence on the fairness of trial
2-the seriousness of charter violation
3-the effect of excluding evidence on the reputation of police
The principle of inevitable discoverability ( gathered evidence is admitted)
The conscripted evidence (manufactured evidence is excluded).
2-federal correctional investigator
3-provincial correctional ombudsmen
5- commissions and task forces assigned to investigate specific issues
6- Crime victims and offenders
7- The media
week 2: Disparities in Criminal Justice System: Alternative sentencing and
Challenges facing CJS; Over-incarceration of Minorities ( aboriginal peoples
and Black people)
State Legitimacy and the CJS
Practices that can produce racial differentials in criminal sentencing which are
likely to be viewed as illegitimate or unjust :
1- overt racial discrimination against minority defendants
2-disregard for minority crime victims
4-Economic discrimination ( is equal protection under the law a legal fiction?)
5- Institutional racism
criminal sentencing in CJS: Alternative Sentencing: towards egalitarian
sentencing and ameliorative sentencing;
sentencing process and racial discrimination;
Two factual conclusions about racial discrimination in CJS;
How can racial bias or perception of racial bias in sentencing be eliminated and how can systemic discrimination be reduced while maintaining the adherence to
the principles of sentencing? principles of sentencing( proportionality,
restraint and equality).
community sentencing; adopting utilitarian sentencing strategies which are
sensitive to racial and cultural differences.
Restorative Justice: its principles and objectives
legal basis for alternative sentencing : section 718(2) e, of the criminal
R.v. Gladue (1999)
R.v. Hamilton (2003)
Discrimination in Jury selection:
Jury and its functions:
Constitutional basis for trial by Jury: section 11 (d and f) of the charter
Division of power: both levels of government are involved in jury selection
Provincial responsibility; ensuring representativeness: pre-trial screening
eligibility criteria; creation of jury lists and random selection that would
lead to the creation of jury panels.
areas that have the potential to lead to the under-representation of minorities
lists that are being used
Federal responsibility: ensuring impartiality
in-court Screening mechanisms:
1-challenge to the array: on the grounds of partiality, fraud or wilful
misconduct on the part of sheriff or other officials by whom the panel was
2-peremptory challenge ;
3-challenge for a cause;
Relevant court cases;
R. v. Parks (1993)
R v. Williams (1998)
R v. Koh et al (1998).
The needs for reforming jury selection process; Evaluating the Proposals for
addressing the under-representation of minorities in jury panels;
proportional representation and affirmative Action
abolishing peremptory challenges
liberalization of a challenge for a cause
Broadening the lists
Questions and discussion
The term sentencing disparity refers in general to the imposition of different
sentences on offenders convicted of the same or similar crimes; or of identical
sentences imposed upon offenders whose crimes are substantially different. Disparity is not the same as discrimination: sentencing disparities may or may
not be the result of discrimination based on race, gender, social class, etc.
or of differences due to other legally irrelevant criteria
Week 3- Law, Racism and Gender
Causes of gender discrimination:
Feminist perspectives on the law; (recall the notes during the first semester);
Liberal feminism ; culture and socialization as the primary causes.
Radical feminism ; patriarchy is the root of the oppression
Socialist feminism : shifting the focus to both production and reproduction
Intersectional analysis; multiple dimensions of social relations
Women and legal reforms: To what extent have legal reforms been effective in
putting an end to gender discrimination? Despite major legal reforms, the
nuclear model of family has to a great extent remained intact.
Three major social transformations in social relations accompnaied by three
analogous transformations in patriarchal relations manifested in three
different models of family (all of which are variations of necluar family form
that has historically been premised on heterosexual marriage, sexual division
of about and private/public split).
First wave; (maternal feminism ; fighting the legal invisibility of women).
beneficiaries of legal reforms were white, middle class and heterosexual women
Challenging the authoritarian form of patriarchy.
legal reforms did not challenge the nuclear family model but rather reinforced
Second wave; dominated by liberal feminism. promoting formal equality and
gender-neutrality in law and social policy.
moving towards egalitarian family model. However, nuclear family is still
formal equality and gender-neutrality in law and social policy do not
necessarily benefit all women
Replacing nuclear family with "social responsibility model"
Replacing "the best interest of child" with "primary caregiver presumption"
putting an end to the historical burden of the cost of reproduction on private
putting an end to "spouse in house rule". Falkiner et al v. Ontario (1999)
Establishing a national daycare
Racial inequality in Canadian legal profession:
Visible minority women in legal profession: causes of their
1-seemingly neutral practices : LSAT, law school exams, law school instruction techniques such as "Socratic method", hiring and advancement.
internalized oppression, developing strategy of racelessness persona,
Recent statistics on women in legal profession: promising picture
Patterns of inequality: visible minority women in human right cases
Race, gender and Human right system in Canada: under representation of racial
minority women complainants in human right cases;
Reasons behind under-representation.
The deficiencies of human right legislation;
Topics of debate: Questions for discussion:
1-The debate on the Sharia Law; Given the safeguards to protect women, why
this proposal generated an intense reaction in Canada?
2-The politics of Burka(Burqa)/nigab: is it a right?
3- polygamy in Canada: The ongoing debate
How and in which ways do aboriginal women, women of colour, immigrant and
refugee women experience life differently?
The intersection of race, gender and class generates a pattern of gender
inequality that is difficult to overcome. Elaborate
Week 4: Racism, Law and Recent Patterns of Immigration
Law in written words and Law in practice.
1990s: rise of anti-immigration sentiment
1992: Bill C-86. "Managing immigration"
Safe Country Provision (echoing the Continuous Journey Stipulation of 1908).
Refugee policy :
Gender-based persecution( a newly added ground ) since 1993
Immigration and Refugee Protection Act (2001).
an implicit shift from strict point system to an emphasis on labour market
contribution and income generating capacity
Tightening up sponsorship rules
Controversial aspect of the Act:
Permanent resident card,
Foreign nationals human trafficking
2002; Safe Third Country Agreement between Canada and USA.
Family member exception
unaccompanied children exception
Document holder exception
Public interest exception
Implications for refugees and immigrants.
Case of Maher Arar
Systemic discrimination in immigration and refugee policy; areas and issues
Right of Landing fee ( Right of Permanent Residence Fee)
Requirement of official document (ID requirement)
Narrow definition of family
Request for DNA testing
Sources of refugees
Visa posts accessibility
Imposition of visa requirements on nationals travelling to Canada
foreign credential gap
underutilization of immigrant knowledge and skill : the cost to Canadian economy
international brain drain
Temporary/Guest workers in Canada;
race and gender are crucial elements in the organization of quest workers in
Two factual conclusions:
1- Racialization of temporary workers by skill levels (exception)
2- there is a Gendered occupational pattern (exception)
The feminization and racialization of Temporary Foreign Worker Program
can be attributed to Canada's solicitation for both low and high skilled
Seasonal agricultural workers
Human right violation
C-High Tech workers;
skilled workers Immigration and crime;
Findings; Topics for discussion;
1- Self-selected economic migrants from many Asian cultures have lower crime
rates than the general population in the first and subsequent generation. Why?
2-cultural differences between similarly situated immigrants are crucial in
shaping the differences in crime patterns. Elaborate
3- First generation immigrants are relatively law-abiding than the resident
population but their children and grandchildren have higher crime rates. why?
4- The factors behind migration significantly shape criminality or the
successful adaptation. why?
Week 5; Law, national security and discrimination
Globalization and the role of the state:
Securitization of public sphere;
Explanations for securitization
securitization and human rights;
Substantive and procedural standards within international and regional human
The Right to seek and enjoy asylum.
The principle of nonrefoulement
procedural rights relating to expulsion of aliens
standards in Canadian charter
Erosion of foreigners' rights Through:
A- preventive measures
interception and interdiction mechanisms
B- deterrent measures;
elimination of appeals
Reduced legal aids
excessive penalty for migrant smuggling
Significant Acts that came into effect after the Sep 11, 2001: 1-Immigration and Refugee Protection Act (2001)
2-Anti-Terrorism Act (Bill C-36):
Main objectives of the Act:
Provisions of the Act
Controversial provisions of the Act; which were subject to sunset clause (to
expire after 5 years)
Secret trial (investigative hearing)
Expansive security and surveillance power
What is security certificate?
Extradition/ Deportation: Court rulings
Suresh vs., Canada (2002)
Ahani v. Canada (2004)
Charkaoui v. Canada (2007)
In 2008, the federal government brought the certificate regime in line with the
court’s ruling .
National security and Profiling;
Both acts neither explicitly authorize profiling nor expressively ban it.
Media, public opinion and profiling:
as a security measure, profiling has gained a ground of unwarranted legitimacy
Arguments in support of profiling;
1- Deter and disrupt
2- Muslim is simply part of equation
3-risk management/ efficiency
Arguments against profiling:
The difficulty with measuring deterrence
Profile evasion and substitution
it is against rational decision making Is not only ineffective but is also offensive
The impact of profiling on affected communities;
Alienation/ high social cost on society
Decline in cooperation
Complicating the proce