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POLS 3561 (3)

Lectures Notes From Prof (week 1-11)

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Department
Political Science
Course
POLS 3561
Professor
Sirvan Karimi
Semester
Winter

Description
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; Conflict model: 2- provincial level: BNA Act: Administration of justice . 92(14); Provincial penal law. 92(15) provincial jails/prisons. 92(6) 3-Municipal level: 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 level: Federal Court of Appeal; Federal Court; Tax court Provincial level:: Provincial court of appeal Superior Trial court Provincial courts The Roles and functions of the courts; Adjudication Adjudication process can be divided into three categories; 1-impartiality 2-settlement of dispute 3-Adversarial system 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 organized crimes/terrorism hate crime Challenges facing criminal justice system ; gender issue multiculturalism 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 4-the courts 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 Jury selection 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 3-class discrimination 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 code. 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 mechanisms; 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 summoning procedures language requirement 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 returned. 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 http://ssrsbstaff.ednet.ns.ca/aripley/Law12/CriminalLaw/THE_ROLE_OF_THE_J URY_1.rtf. 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 Gender discrimination: 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 spheres 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 it. 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 prevalent formal equality and gender-neutrality in law and social policy do not necessarily benefit all women proposed Reforms: 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 sphere (family). 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 under-representation 1-seemingly neutral practices : LSAT, law school exams, law school instruction techniques such as "Socratic method", hiring and advancement. 2-internalized dominance: psychological tolls: internalized oppression, developing strategy of racelessness persona, loneliness 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; Recent reforms Topics of debate: Questions for discussion: 1-The debate on the Sharia Law; Given the safeguards to protect women, why has 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 "Sanitary coding" 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). Objectives: 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 identity misrepresentation 2002; Safe Third Country Agreement between Canada and USA. Exceptions; 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 Criminality check Detention decision Sources of refugees Visa posts accessibility Imposition of visa requirements on nationals travelling to Canada Accreditation; Road scholar foreign credential gap underutilization of immigrant knowledge and skill : the cost to Canadian economy international brain drain Temporary/Guest workers in Canada; historical background; race and gender are crucial elements in the organization of quest workers in Canada 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 (TFWP) can be attributed to Canada's solicitation for both low and high skilled workers A-Agricultural labour: Seasonal agricultural workers Human right violation B-Domestic workers; live-in caregivers 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; protective mechanisms: Substantive and procedural standards within international and regional human rights systems The Right to seek and enjoy asylum. The principle of nonrefoulement procedural rights relating to expulsion of aliens Equality provisions standards in Canadian charter Erosion of foreigners' rights Through: A- preventive measures visa regime carrier sanctions interception and interdiction mechanisms B- deterrent measures; elimination of appeals Reduced legal aids increased detention 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) Preemptive detention Secret trial (investigative hearing) Expansive security and surveillance power Security certificates; What is security certificate? Its history 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 . Special Advocate: its deficiencies 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 since 9/11 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
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