Ch.1 The Criminal Justice System: An Overview
What is the Criminal Justice System?
Only a fraction of the criminal acts committed come to the attention of the police, and only a much
smaller fraction of these are heard in the courts or lead to a sentence of incarceration.
The Structure of Criminal Justice
In Parliament and in provincial legislatures that elected officials enact and amend laws, establish
annual budgets for criminal justice agencies, determine fiscal allocations, and-where necessary
conduct investigations and inquiries into various activities of the justice system.
NGOs (nongovernmental organizations) and other not-for-profit groups deliver a variety of services
on a contract basis –for example, they supervise offenders on bail, assist victims, provide
community-based and institutional programming, and supervise paroles
The Role and Responsibilities of Governments In Criminal Justice
The division of responsibilities between the federal and provincial governments was spelled out in
the Constitution Act, 1867
The basic division is that the federal government decides which behaviors constitute criminal
offences, while the provincial/territorial governments are responsible for law enforcement and for
administering the justice system.
The federal government plays a major role in policing through agreements with the RCMP, which is
involved in federal policing as well as provincial and municipal policing under contract and Native
The municipal governments of cities and towns play a lesser role, primarily related to policing and
Because of the Constitution, Parliament in Ottawa has the absolute power to create, amend and
repeal criminal law for the entire country. It also sets the procedures for prosecuting persons
charged with criminal offences and establishes the punishments that will be imposed for all federal
The code also sets out the procedures for arrest and prosecution and the penalties that may be
imposed by a judge following conviction.
The Portfolio of Public Safety and Emergency Preparedness
Includes the key federal agencies responsible for public safety and security
Department of Public Safety and Emergency Preparedness which provides strategic policy advice
and a range of programs and services relating to public security and safety; the Royal Canadian
Mounted Police; the Correctional Service of Canada; and the National Parole Board.
The RCMP operates as a federal police force across Canada. It also operates the Canadian Police
College, the Canadian Police Information Centre (CPIC).
Federal Prosecutors, Courts, and Judges
The federal prosecution service (fps), located in the department of justice, is staffed by full-time
prosecutors and lawyer agents recruited from the private bar.
Through the Office of the Commissioner for federal judicial affairs, the federal government appoints
judges to the various federal courts, such as the Supreme court of Canada and the federal Court of
Canada. The federal Minister of Justice appoints all of the judges in the superior trial courts in the
Provincial and Territorial Government
Provisions in the Constitution Act make the ten provinces and three territories responsible for the
administration of justice, although (as noted earlier) provincial legislatures are increasingly active in
passing quasi-criminal legislation.
Provincial/territorial governments pass laws, oversee police services, prosecute offences, manage
courthouses, employ some judges, run programs for offenders, and operate correctional
The first priority for any money that is recovered is compensation for victims
Provincial governments also oversee independent municipal police departments wherever they
Provincial police statutes set out policies that address training standards, the public complaints
process, and other aspects of police practice.
Provincial Prosecutors, Courts, and Judges
Every province and territory has an attorney general, the chief law enforcement officer, who is
responsible (figuratively) for laying charges and prosecuting cases.
Provincial/territorial governments operate institutional and community corrections. Non-custodial
programs include probation, fine option programs, and victim-offender reconciliation programs.
There are provincial institutions for offenders whose sentences total less than two years.
Municipal governments may enact local bylaws, which are valid only within the city limits. Minor
penalties –principally fines –are levied for violating these bylaws. Note that no municipally enacted
bylaw can encroach on the jurisdiction of another level of government.
The Flow of Cases Through The Justice System
The Canadian criminal justice system is an adversarial system. The advocates for each party –in
criminal cases the defense lawyer and prosecutor present their cases before a neutral judge or a
Adversarial System: A justice system in which advocates for each party present their cases
before a neutral judge or a jury.
Presumption of Innocence: A defendant is deemed innocent of the charge(s) until either
convicted or acquitted.
The Crown bears the burden of proof: It is the task of the Crown to prove guilt, not the
responsibility of the accused to prove his or her innocence.
Doli incapax (Latin for “too young for evil”): A child under twelve cannot be held criminally
responsible or prosecuted for criminal acts.
Insanity: No one is criminally responsible and liable to punishment if incapable of knowing the act
was wrong owing to a mental disorder.
Attempts are Crimes: Those who attempt crimes (going beyond merely he planning stage)
commit an offence and are generally subject to half the penalty that the completed act would draw.
Critics of the adversarial system contend that the process encourages the parties to present a
distorted version of events. There are also concerns with the quality of legal representation for
many defendants and the ability of the criminal justice system to solve problems rather than merely
reacting to them. The Exercise of Discretion by Criminal Justice Pesonnel
The Criminal justice personnel carry out their tasks within the framework of written laws and
policies: but they also exercise considerable discretion when making decisions. This can lead to
inconsistencies in how laws are applied, how cases are processed in the courts, and what
decisions are made about offenders by correctional officers, parole boards, and parole officers.
Discretion: The freedom to choose between different options when confronted with the need to
make a decision.
It would be naïve to think that life experiences and community pressure do not sometimes influence
the decisions made by criminal justice personnel.
From Community Control to State Law: The Centralization of Authority
Transgressions were no longer responded to on a personal, group, or village basis but were viewed
as acts against society as a whole.
The increasing centralization of the social control function resulted in the transfer of power and
authorities to governments and criminal justice agencies. Despite the continued growth and
proliferation of criminal laws and criminal justice agencies and personnel, there is evidence that
formal social control mechanisms are less effective than informal mechanisms in controlling
behavior and maintaining order in society.
The Foundations of the Legal System
Canadian system is a common law. It emerged from decisions made by judges in the royal courts
and was based on the notion of precedent: “whenever a judge makes a decision that is said to be
legally enforced, this decision becomes a precedent: a rule that will guide judges in making
subsequent decisions in similar cases.
The principle whereby higher courts set precedents that lower courts must follow is known as stare
decisis “to stand by.”
All legal systems in Canada are governed by the principle of the rule of law.
Rule of law: The foundation of the Canadian legal system.
1. All citizens are supposed to obey the law, to expect punishment if they break the law, and
to look only to the legal system to respond to transgressions committed against them.
2. The legal system, in turn, must be fair to impartial in its responses
3. Only elected officials can decide what is against the law.
4. A law must be written clearly so that everyone –or at least lawyers can understand which
action or activity is being referred to.
5. A law must apply equally to everyone –for example, to men and women, and to rich and
6. To give the law “teeth,” a penalty must be defined for breaking the law.
There are two general categories of law: public law and private law.
Public law deals with those matters that affect society as a whole in its interactions with
There are four types of public law: criminal law, constitutional law, administrative law, and taxation
Criminal law can be defined as “that body of law that deals with conduct considered to harmful to
society as a whole that is prohibited by statute, prosecuted and punished by the government”
Private law, by contrast, regulates relationships between individuals other than the state and is
used to resolve disputes between private citizens.
In Canadian society, criminal law:
1. Acts as a mechanism of social control
2. Maintains order
3. Defines the parameters of acceptable behavior
4. Reduces the risk of personal retaliation (that is, vigilantism, or people taking the law into