PPAS 2200 2nd Test Review.doc

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Department
Public Policy and Administration Studies
Course
PPAS 2200
Professor
Khashayar Hooshiyar
Semester
Winter

Description
PPAS 2200 Test Review Identifications Prerogative remedies – - are all discretionary are all discretionary - Certain cases judges use their own discretion for not granting remedies (remedies are granted for judges – can send back, question, crush or damage) - ^ this discretionary include: a) before the appeal, the person accepts their appeal and the procedures and remedies are not available b) unreasonable delay (time limit – done in a particular time frame {have 10 days to appeal}) c) applicant conduct – judges look at the applicant (how he/she is behaving) and if the applicant at some point (has lied, improper motive – acted in bad faith) the judges might not grant any remedies d) might not grant new remedy e) granting their remedy would not change anything (futile) f) come to the decision that they have to send it back to the administrative agency and if the cost of having another meeting is very expensive, there will be inconvenience, they will not provide remedies g) prejudice or unfairness, and must be substantial - ^ therefore all up to the judge if the remedies should be considered Habeas Corpus – - Latin for “you have the body” - A writ (court order) which directs law enforcement officials (police) who have custody of a prisoner to appear in court with the prisoner to help the judge determent whether the prisoner is lawfully in prison or jail - ^ writ is obtained by petition to a judge in the country/district where prisoners are imprisoned and judge sets a hearing whether there is a legal basis for holding the prisoner - Habeas corpus is a protection against illegal confinement = such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman or probation has been summarily terminated without cause ‘Security Certificate’ 1 - Security certificate process within the Immigration and Refugee Protection Act is not a criminal proceeding, but an immigration proceeding. The objective of the process is the removal from Canada of non-Canadians who have no legal right to be here and who pose a serious threat to Canada and Canadians. - Introduced in 1991, security certificate deployed under division 9, section 77 of the Immigration and Refugee Protection Act (IRPA) - Minister, having reasonable grounds to believe that permanent resident/foreign national are prohibited to Canada because they pose a national security threat (violated human/international rights or guilty of serious crime/organized criminal conduct) authorized to issue a security certificate - Idea that the use of defensive arrest and detainment in the IRPA has formable power for Canada’s expanding national security equipment and contribution to the US-led “war on terror” (the 9/11 attack) - security certificate functions as a moment of legal exception for the assertion of sovereign power and legitimation - ^ the security certificate compromises the rule of law by denying basic legal protection and judicial impartiality to non-citizen detainees - Prompted by the serious concerns for freedom and democracy that compel contemporary political analysis on the state of exception - this article considers the political rationality that makes possible the use of “special” legal proceedings, secret evidence and detention without charge or conviction under the elusive provisions of national security - Canada’s security certificate process is divided into three sections: a. First section addresses the mechanisms and procedures of the security certificate. Special attention is paid to the use of detention and evidentiary standards in order to illustrate the manner in which the security certificate derogates the rule of law. b. Second section considers how diminishing the rule of law opens a space of exception for the exercise of sovereign, unmitigated state power that is grounded in the discriminatory criteria of citizenship status so as to implicate foreignness in the production of danger. c. Final section addresses how the security certificate configures freedom as commensurate with the national security objectives of the “war on terror,” exposing the limitations of liberal freedom in relation to modern state power. Indictable Offence - Two types of persecutions = summer convictions (regulatory offences handled by city courts) and indictable offense (higher courts, deals with serious offences) - Is a serious offence (murder for example), all indictable offences are found in Canadian Criminal Code 2 - Criminal Code is the body of law that “prohibits” certain kinds of conduct and “imposes sanctions” for unlawful behavior - ^ certain behaviors are being illegal and constituted as offences against the state - ^ as such, the person who committed those offences can be punished on the basis on the criminal code - Criminal codes contains all the offences and all its punishments - Criminal law is based on written law * - Criminal law is the means by which the state and society reaffirms its values, denounces violators, protects the person, and maintains peace and order *** - indictable offence is a serious criminal offence, the crown reads off the charge(s) to the offender and in most cases he/she is given 3 choices; 1) Have the case heard in provincial court by a judge alone 2) Have the case heard in a superior court by a judge and jury 3) Have the case heard in superior court by a judge alone. “Shades of Blue” -- - In Halifax, people of Africville gather and remember their history - ^ they were decendence of slavery - ^ Africville was surrounded by undesirable facilities (like prision, garbage dump) - ^ Africville was forced (1970s) to leave their community because Halifax wanted to build complexes - From the time of the move (1970s – forced out) many people from Africville tried to remember their heritage by getting together - All former residence of Africville would not come together to remember and be with friends an family - ^ come from all over Canada to stay for the weekend (like Toronto, Calgary) - Nova Scotia was very class cautious (white on top, black on bottom) - Media also plays a big part because media depicted black people to be drug addicts - ^ people are scared in “black” neighborhoods - North Prestent to Halifax was known as black neighborhoods - In 1990s police stopped beat cops, because police closed community office - ^ once the police got rid of the “beat cops” there was a rift between the police and community - 2003, Halifax adopted Policing models (where police had to walk around community, connect with community) 3 - Idea that the police only cares about arresting not about communicating with community - ^ beat officers advocate the connection between policing and community - Police forced to choose between communicate with community and enforcing the law (because police community is hostile against police) - Main role of police is to help the community - ^ communication is KEY * (need to listen to the community) - Unlacke Square – that youth (especially black people) are discriminated against since jobs are not offered to them (due to racism) - ^ many black people drop or fail school for example - ^ the education system, is Eurocentric (youths need the money to support themselves) - ^ idea that children are not education (cannot read, therefore cannot get a job) therefore, the easiest way to get a job and make money is to do illegal actions (drugs, murder) - ^ African youths are not offered other alternative choices due to racist actions (to better themselves) - ^ idea that many people tell them they are “bad” and “garbage” these youths will then believe it and won’t bother to change it because they believe they are bad and garbage - Without better economic or social change, nothing will be changed *** (need to go beyond law and order to better the community – like trust or choice) - In Africville, there were no crimes, but once they were forced to move out to another community that has crime, the black people are then “labelled” due to geographic origin * - More of a society problem then police problem - Your appearances can affect how you are perceived * Dialogue vs. Monologue – - Dialogue – Hogg is arguing that there is no conflict between judicial v. parliament, rather, all part of the same government in different branches, they work together (and correct eachother) in the interest of society as a whole - “Dialogue” is the self-serving . - ^ Peter Hogg and Allison Thornton’s believe that dialogue is any legislative response to the judicial nullification of a statute - Dialogue  The effect of the Charter is rarely to block a legislative objective, but rather to influence the design of implementing legislation. Charter cases cause a public debate in which Charter-protected rights have a more prominent role than they would have if there had been no judicial decision. The process is best regarded as a "dialogue" between courts and legislatures. 4 - Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue. - ^ Charterencouragesadialoguebetweencourtsandlegislatures. - Courtsscrutinizelegislativemeansnotends - Monologue – one side dictating conversation, where judicial is dictating government * - ^ monologue, with judges doing most of the talking and legislatures most of the listening. They suggest that the failure of a government to respond effectively to judicial activism is a matter of personal courage, or the lack thereof, on the part of government leaders. - Section 1 and 33, the guarantee of the dialogue * (in the video) Multiculturalism Ethnicity, Race and the Criminal Justice System - The relationship between crime and race/ethnicity has important implications for Canada - ^ crime and race intersect (eg; racial profiling) - ^ connection between race/ethnicity or criminal convictions, the implication is that Canada is inherently racist - ^ specific aspect that deals with ethnicity or race, the difference between Canada and US, that Canada promotes multiculturalism, the US does not - ^ main implication is principle of multiculturalism ** (different ethnic backgrounds, and racial backgrounds, then uses those characteristics into the Charter – however, the mentality in Canada is that when a crime is committed, that the first glance is to focus on particular racial groups to be the cause of the crime) Canada’s ethic profile - S. 27 = Charter shall be interpreted in manner consistent with preservation and enhancement of multicultural heritage of Canadians - ^ horizontally, based on ethnic features or racial features, you group people and assign values to those groups of people (where Canada is composed of different ethnicity, and like a mosaic) – this mosaic is preserved to be negative (negative example 9/11, that those who are affiliated with those people are “terrorists” but in reality, this mosaic is hierarchy structured and not horizontal) - ^ Vertically, only looks at features of those groups (class position, gender and other criteria) are not homogenous groups, might have different religious background, gender, education level, experiences, therefore these people are divided and allowing those “lines” to show - (assumption that when you group people horizontally, you come up with wrong assumptions or conclusions) 5 - Multiculturalism in Canada, this implication is how “multiculturalism” in interpreted, in horizontal way is going to run into problems, but in vertical way you can establish policies and rules and can have true multiculturalism - One conception is social economic and the other is culture, social economic fabric of society, then culture finds an objective foundation (mainly subjective) - Needs to have policies and programs that addresses racism and trying to eradicate those foundation of discrimination (eg: assumption that people of different ethnic groups who are poor and blamed for certain crimes) - ^ policies needs to address the real issues of crimes, in other words, need to come up with more objective policies to address issues of racism and discrimination that are socially economic - Institutional racism influences the criminal justice system in Canada - In certain society, under certain circumstances, resort to race/ethnicity becomes the means through which, are achieve some sort of political ends through the legal system - ^ means of control (control the society – turn the majority to turn against the minority to avert the issue of crimes since it was an easy solution to turn against the minority), maintenance of order - Law enforcement gain power (controlling people, taking away rights) under the assumption that “terrorism” gives them justification Coroner – - Public officer whose primary function is to investigate by inquest any death thought to be of other than natural causes. - written law doesn’t change frequently and based on federal legislation (federal law) and applies to every Coroner of Canada (and of course certain bodies of criminal laws as other levels {eg provincial or municipal} focus on certain behavior but generally speaking, it tells us what we can and cannot do) - Criminal law is the means by which the state and society reaffirms its values, denounces violators, protects the person, and maintains peace and order ***  Administration of Criminal Justice in Canada - Substantive criminal law and criminal procedure are the same over the whole of Canada - Framework of Courts to Administer the criminal law - 1. The Coroner’s office = the office of the Coroner s, look into the case, to decide whether the person committed an actual criminal act or not. They must have some legal education and medical credentials - 2. The justice of the peace = mainly judges, and look into a case, issues warrants, and if there is enough evidence, they can consider it as an actual crime, and the suspect must be brought in to be charged 6 -  3. Provincial courts = deals with regulatory offences -  4. Supreme court of provinces = deals with severe crimes -  5. Court of provincial appeal -  6. Supreme court Mens rea -- -  actus reus = means “actuality of the crime” ** (crime as committed) the fact you committed the crime, but for the person to be charged for committing that crime, something needs to be established, you need Mens rea -  mens rea = if mens rea is not established, criminals are off the hook, because mens rea means “MOTIVE” – the guilty mind (criminal needs an alibi but if they have a motive they are guilty) - Mens rea can be established in intention, some form of negligence (could be foreseen, an outcome that can be predicted), recklessness, malicious mind - Criminal offences, there are hard offences (hard = serious offences, eg: murder) or soft offences (soft = regulatory offences, eg: traffic violations) - Two important aspects of criminal offences in terms of mens rea and convicting someone: a. not guilty until proven (every individual is considered innocent), b. trying to establish mens rea, crown must establish it “beyond a reasonable doubt” – defense is to create a gap, logical arguments to question these “beyond a reasonable doubts” - Defense before, that beyond a reasonable doubt, was to prove that the accused is innocent and the prosecutor is to cast “doubt” on that innocent, now is it the other way around ** - Mens rea has to be established but certain defenses to challenge the crown Charkaoui v. Canada – - Security certificate process within the Immigration and Refugee Protection Act is not a criminal proceeding, but an immigration proceeding. The objective of the process is the removal from Canada of non-Canadians who have no legal right to be here and who pose a serious threat to Canada and Canadians. - February 2007 ruling in Charkaoui v. Canada, the Supreme Court recognized that one of the most fundamental responsibilities of government is to ensure the security of its citizens. The Court found that additional safeguards should be incorporated into the process to better protect the rights of individuals subject to a certificate. - October 22, 2007, the Government of Canada introduced Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificates and special advocates) in the House of Commons to respond to the Supreme Court's ruling. The new legislation introduces a special advocate into the certificate process, whose role will be to protect the interests of the person subject to a certificate during closed proceedings. The Bill received Royal Assent on February 13, 2008. 7 Administrative Law – - Administrative law – their objective of policies is used to highlight government (government implement policies based on enabling regulations) - All expectation of objectivity is regulated by law - Everything is regulated – need to be certified (eg: pass test to get drivers test) - Administrative laws deals with administrative issues (legal issues – common law issues) {has to be a case and taken to court, and court decide if it is administrative law} - ^ about making sure those implementations treat everyone equally - Administrative justice – fairness, that the government is on the constitutional obligation to treat everyone equally based on the principle of fairness - ^ eg; get hurt at work (from doing something from work), you can apply for workers compensation, and those in charge reject your compensations, but you think you are denied that because of your race, gender, or class, therefore not “fair” What is administrative law? - Regulating state society relations - Legal limitations on the actions of the government officials - Increasing regulations, increases government activities, therefore government becomes more intrusive in our private activities - ^ to that extent, we need more defined laws, frameworks to make sure the government is not taking advantage of its authority – the abuse of power - Arises from common law, through judicial decisions, but combinations of parliament and regulations to make administrative law - Administrative law is the “legal rules and institutions used to regulate and control the conduct of the state in its relations with citizens, deals with legal limitations in terms of freedom of what they have and bound by certain laws arising from common law” - ^ to protect citizens in Actions Essay 1. Critically discuss the relationship between crime and race/ethnicity in the Canadian Context. - The relationship between crime and race/ethnicity has important implications for Canada - ^ crime and race intersect (eg; racial profiling) - ^ connection between race/ethnicity or criminal convictions, the implication is that Canada is inherently racist 8 - ^ specific aspect that deals with ethnicity or race, the difference between Canada and US, that Canada promotes multiculturalism, the US does not - ^ main implication is principle of multiculturalism ** (different ethnic backgrounds, and racial backgrounds, then uses those characteristics into the Charter – however, the mentality in Canada is that when a crime is committed, that the first glance is to focus on particular racial groups to be the cause of the crime) Canada’s ethic profile - S. 27 = Charter shall be interpreted in manner consistent with preservation and enhancement of multicultural heritage of Canadians - ^ horizontally, based on ethnic features or racial features, you group people and assign values to those groups of people (where Canada is composed of different ethnicity, and like a mosaic) – this mosaic is preserved to be negative (negative example 9/11, that those who are affiliated with those people are “terrorists” but in reality, this mosaic is hierarchy structured and not horizontal) - ^ Vertically, only looks at features of those groups (class position, gender and other criteria) are not homogenous groups, might have different religious background, gender, education level, experiences, therefore these people are divided and allowing those “lines” to show - (assumption that when you group people horizontally, you come up with wrong assumptions or conclusions) - Multiculturalism in Canada, this implication is how “multiculturalism” in interpreted, in horizontal way is going to run into problems, but in vertical way you can establish policies and rules and can have true multiculturalism - One conception is social economic and the other is culture, social economic fabric of society, then culture finds an objective foundation (mainly subjective) - Needs to have policies and programs that addresses racism and trying to eradicate those foundation of discrimination (eg: assumption that people of different ethnic groups who are poor and blamed for certain crimes) - ^ policies needs to address the real issues of crimes, in other words, need to come up with more objective policies to address issues of racism and discrimination that are socially economic - Institutional racism influences the criminal justice system in Canada - In certain society, under certain circumstances, resort to race/ethnicity becomes the means through which, are achieve some sort of political ends through the legal system - ^ means of control (control the society – turn th
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