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LAWS 2301 (42)

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LAWS 2301
Ronald Saunders

Pg 85119Chapter 3The Production of Criminal LawGeneral IntroductionIn regard to administrative law the effect of the multitude of administrative regulations internal guidelines bureaucratic procedures and employee manuals in important an often determining and should not be forgotten when looking at more traditional and often more formal aspects of the production of criminal lawThis is particularly true in the areas of probation parole and prisoners rightsAlthough the criminal law often appears neat selfcontained and discrete in its formal manifestations such as legislation and court pronouncements the reality for the individual involved in the criminal justice system wheteher as an accused a victim a witness or an agent of the system can be something very differentAlso such realities can be coloured by the status gender class ethnicity sexual orientation language education andor past relationship of the individuals involvedInput has several aspects to it which relate to the production of criminal lawWho it is who produces the criminal law and their qualifications is a question which was not addressed in traditional legal writingsIf the traditional assumptions are that aw is representative of society as a whole that law is merely reflective of widely held and shared values and perspectives and that law is neutral in its formation the question of who the producer is is not especially importantIf however a more critical or sociolegal stance is taken then the question takes on an important dimensionIn this light one would want to examine the class gender and ethnicity of the state agents as a group and question whether such factors have significant consequences for the criminal law which is produced enforced and appliedIt is apparent that the production of criminal law is for the most part controlled by legal professionals This might seem perfectly natural given the issues concerning and rights involved and considering what is stake in the outcome of criminal mattersIf we shift our focus away from traditional legalistic questions then our response might be different and more critical If we look at the criminal law as a matter which affects us all in society as a device which can be seen as only one instrument of social control albeit an intrusive one among many then the argument must be for the widest possible input into its production and enforcementChoices must be made as to what is to be brought within the ambit of the criminal justice system and alternatives must be examined as to their suitability or superiority and these decisions must not be left up to any one group of interests particularly one as narrowly based as the legal professionIt is not only the lack of participation of a variety of groups in society which creates problems it is also the type of approach and expertise which legal professionals bring to the job of criminal law reformLawyers are not by training and practice processoriented concentrating on the rules and procedures by which disputes are taken through the systemThis substantive policy issues and choices which lie at the heart of the process that is what activities the criminal law is meant to encompass or what it is the criminal law ought to be accomplishing are not within that area of expertise Also by virtue of their common law traditions and reasoning processestraditions and processes which consistently look backward to precedent and established practice and which defend the status quolawyers tend to be quite limited and conservative in their visionIn the work and focus of legal professionals one also sees a concentration on the formal aspects of the criminal justice system notably in regard to the centrality which they give to the trial process and the work of the judgesNot only do the overwhelming number of people charged plead guilty and thereby forgo their right to trial but such an approach ignores questions of why and how those people arrived in the criminal justice system as result of whose actions and just as importantly who did not make it there who was weeded out and by what process or according to what criteriaGiven the quickly changing nature of society and the consequent nature of the required responses on the part of the criminal law regressive formalistic and legalistic approaches do not serve well the production of criminal law What is needed is the input of criminal justice and social policy experts experts both in society and in the appropriate policy responses requiredThis is an idealized view for such experts can be wrong or the reforms can be distorted in practice but recognizing such problems does not deny the potential benefits of opening up the production process to the diversity of views and insights that are too often denied a voiceThe point of acceptability brings in another and final aspect of the issues surrounding input that of what we can broadly call democracy or accountabilityThose who make policy that affects all of society should be accountable and responsible in some manner to those who are affected by the policySince the advent of the Canadian Charter of Rights and Freedoms in 1982 we have been faced with the growing intervention by an appointed tenured judiciary in the production of criminal lawJudicial intervention did occur in the era before the Charter but it was largely restricted to issues surrounding the division of powers the interpretation of statute law and the control of the processIt is not only the judicial branch where the absence of accountability is evident Criticisms can be raised about the reality of accountability and responsibility in regard to the federal parliament and the provincial legislatures but at a minimum there is an argument that the potential for accountability exists even though it may not often be attained
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