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Reading 3 part 2.doc

Course Code
LAWS 2301
Ronald Saunders

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Chapter 3
The Production of Criminal Law
General Introduction
In 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 law
This is particularly true in the areas of probation, parole and prisoners rights
Although the criminal law often appears neat, self-contained 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
Also, such realities can be coloured by the status, gender, class, ethnicity, sexual
orientation, language, education and/or past relationship of the individuals
Input has several aspects to it which relate to the production of criminal law
“Who” it is who produces the criminal law and their qualifications is a question
which was not addressed in traditional legal writings
If 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 important
If, however, a more critical or socio-legal stance is taken, then the question takes
on an important dimension
In 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 applied
It 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 matters
If 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 enforcement
Choices 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 profession

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It 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 reform
Lawyers are not by training and practice process-oriented, concentrating on the
rules and procedures by which disputes are taken through the system
This 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 processes –
traditions and processes which consistently look backward to precedent and
established practice, and which defend the status quo – lawyers tend to be quite
limited and conservative in their vision
In 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 judges
Not 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 criteria
Given 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 required
This 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 voice
The point of acceptability brings in another and final aspect of the issues
surrounding input, that of what we can broadly call democracy or accountability
Those who make policy that affects all of society should be accountable and
responsible in some manner to those who are affected by the policy
Since 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 law
Judicial 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 process
It 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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Concerns surround the lack of accountability that exists in the exercise of
discretion by many criminal justice agents
The exercise of discretion can have a very great impact on the way criminal law
in practice is produced and on its real effects on individuals coming in contact
with the criminal law
The idea that the law should be knowable and understandable for all citizens, that
the law should be readily accessible
While there is a self-evident sense of fairness in this notion, unfortunately the
goal is too often not fulfilled
Criminal law remains the preserve of legal professionals with its arcane language
and rituals that allow those professionals to maintain their control
An argument can be made that statute law is inherently easier to find and to
comprehend than case law, which often encompasses a series of cases and
requires the ability to distinguish, delineate, and comprehend the various fact
situations and rulings
Judicial decisions are largely inaccessible to the layperson because those
judgements are written for other laywers and not the general population that is
subject to the rules expounded in the cases
One of the basic premises of our legal system is that citizens are subject to rules
which are set out in advance and therefore, presumably, knowable
Consistency of approach and purpose is another important issue to keep in mind
Legislative responses have proven to be haphazard and uneven
There is a call for the establishment and use of general principles to guide the
development of criminal justice policy and to avoid piecemeal reform measures
that respond to short term, expedient, political concerns
The problem of the lack of consistency can be seen not only internally within the
individual units of the criminal justice system, but also between different
components of the system
The courts often have different goals or principles in mind from those of the
legislature, correctional authorities may be attempting to accomplish different
goals again, and the same can hold true for the police, Crown prosecutors, parole
officers, and probation agencies
The failure to develop a comprehensive set of principles to guide the
development and operation of the criminal law both within and between criminal
justice institutions is a major problem that continues to cause disharmony and
The process should possess a degree of flexibility so as to allow the criminal law
to adapt and adjust readily to changing social conventions and perspectives
Broad-based policy movement is generally not seen in the courts except over a
long period of time
The questions of input, certainty, consistency, and flexibility cannot be
overlooked in the search for a critical understanding of the origins and substance
of criminal law
Criminal law is not a given, it expresses real values, and choices have been made
by real people who have been influenced by concrete structures and perceptions
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