CRIM 2652 NOV 14 READINGS.doc

CRIM 2652 NOV 14 READINGS POLCE POWERS AND DECISION MAKING Police discretion & decision making - Discretion: the ability of a police officer to choose among several possible courses of action in carrying out a mandated task - Discretion is an essential component of policing because no one set of laws or regulations can prescribe what an officer must do in each & every circumstance - It is impossible for officers to enforce all laws all the time – they practice selective or situational enforcement - As the seriousness of the incident increases the amount of discretion an officer can exercise decreases - For police personnel the authority to use discretion is set out in statues such as the Criminal Code - In cases of domestic violence some jurisdictions have “mandatory charge” or “zero tolerance” policies that curtail police discretion - These policies require police officers to arrest the suspect when it appears that an assault has occurred even if the alleged victim does not want an arrest to be made - Even under today’s zero tolerance policy it is difficult for the Crown to proceed without the victim’s testimony – ironically zero tolerance has resulted in victims being charged with an offence - Patrol officers uses a conceptual shorthand consisting of typifications & recipes for action to tailor their decision making to the particular area and population being policed - Typifications – constructs based on a patrol officer’s experience that says what is typical about people & events they routinely encounter - Recipes for action – the actions typically taken by patrol officers in various kinds encounter situations Factors influencing patrol officers’ decision making 1) the setting in which the encounter occurs - police officers posted to small detachments in remote areas of the country must cope with isolation & cultural & language barriers - policing in rural & remote communities is “high visibility – high consequence’ policing – the activities of the patrol officers are highly visible to the community & the consequences of their decisions for the victim, the offender, and the community may be more pronounced than in larger communities where there is a greater degree of anonymity & where the police enjoy more resources 2) the priorities of the police service - in carrying out their tasks the patrol officers are influenced by the priorities of the department , the philosophy & management style of the chief & senior police administrators & the resources available 3) the policing style of officers - the policing style of individual patrol officers may influence how they exercise discretion in encounter situations - studies have shown that the age, gender, length of service, ethnicity & level of education of patrol officers can influence the decisions they make in any given situation - ex. as a group, female patrol officers are less likely than male officers to provoke violence in encounter situations, make fewer arrests than their male counterparts, are less likely to be involved in serious misconduct & may be more effective in their interactions with their general public than male officers 4) complainant preferences & suspect characteristics - the wishes of the complainant have a significant impact on the decision making of police officers in encounter situations – similarly the characteristics of the suspect may influence police decision making 5) seriousness of the alleged offence - the seriousness of the alleged offence is strongly related to the action taken by police officers in encounter situations - as the seriousness of the alleged crime increase the amount of discretion available to officers is diminished The police & visible/cultural minorities - Police services are under pressure to increase the number of visible & cultural minorities in their ranks to provide effective policing services to visible minority communities - Two flashpoints between the police & visible minority communities are bias – free policing & racial profiling - Bias – free policing – requires police officers to make decisions “based on reasonable suspicion or probable grounds rather than stereotypes about race, religion, ethnicity, gender or other prohibited grounds” - Bias – free policing requires the equitable treatment of all people of diversity - In contrast, racial profiling is most commonly associated with police encounters with visible minorities - Racial profiling – the targeting by police of individual members of a particular racial group on the basis of the supposed criminal propensity of the entire group - A key feature of the Canadian criminal justice is the overrepresentation of Aboriginal people at all stages of the justice system - High rates of Aboriginal arrests in many regions of the country have raised the question of whether police officers systematically discriminate against Aboriginal persons – although there is no evidence for this serious incidents in a number of jurisdictions have subsequently been found to be the result of discriminatory actions on the part of police officers - A number of high – profile incidents have occurred in Saskatoon where observers eventually coined the term “starlight tour” to describe the police practice of picking up impaired Aboriginal people in the city, transporting them to outlying areas and dumping them - A number of police services have developed specific initiatives to improve the delivery of policing services to Aboriginal communities & to reduce the conflict that has often surrounded contacts between the police & Aboriginal peoples - They have operated province wide advisory groups – the national Aboriginal Advisory Group, the Aboriginal Policing Program, and the First Nations Summer Student program – provides Aboriginal youths with the opportunity to be employed as supernumerary special constables Responding to intimate partner violence - Violence against intimate partners has become one of the most important problems that the criminal justice system is attempting to address – only in recent years with the creation of victimization surveys such as the “Violence Against Women” survey conducted by Statistics Canada have Canadians come to appreciate the full scope of the problem - Intimate partner relationships refer to marital or common law spousal as well as dating relationships including same sex relationships - Aboriginal women experience more severe violence & more serious consequences – spousal homicide rates are almost eight times higher for Aboriginal women than for non Aboriginal women - Domestic violence & sexual assaults in intimate relationships were historically viewed as private matters that did not necessarily warrant intervention by the criminal justice system - Over the past few decades a wide range of interventions have been implemented by federal, provincial and municipal governments as well as by community organizations in Canada to respond to the problem of intimate partner violence Addressing criminal harassment - The offence of criminal harassment commonly known as stalking was enacted in 1993 – the criminal harassment offence under section 264 of the criminal code enables police to intervene if the behaviour is repetitive or threatening and causes the victim to fear for his or her safety or that someone known to him or her - The offence is particularly relevant in circumstances of intimate partner abuse where the risks of violence or the escalation of violence are often heightened during or immediately following separation - Women have a heightened risk of spousal homicide after marital separation - Additional protections for stalking victims have been introduced since 1993 – a homicide committed in conjunction with the commission of an offence of criminal harassment became first degree murder regardless of whether the murder was planned & deliberate - In 2002 - the maximum penalty for criminal harassment upon indictment was doubled from rive to ten years - Ex partner stalkers were found to be more dangerous & threatening than other categories of stalkers Battered women & self defence - The law permits the use of reasonable force to defend someone else from harm or death - Prior to the supreme court of Canada’s groundbreaking decision in R.v. Lavallee – the law of self defence in Canada was difficult to apply successfully in cases where battered women killed their abusive partners in self defence - Lyn Lavallee was charged with the murder of her violent partner Kevin Rust who had regularly physically abuse her, she shot him in the head as he was leaving the room after he beat her & told her that if she didn’t kill him, he would kill her when the guests left - Evidence was introduced to show that Lavallee had been terrorized by Rust & that her actions were based on a reasonable belief that she had no other option but to shoot him- expert referred to the battered women syndrome - There’s three phases of the cycle of domestic violence: 1) tension building phase – a series of minor assaults & verbal use 2) acute batterring phase – the batterer is unable to control the rage & severely beats the women 3) kindness & contrite loving behaviour phase – the batterer behaves kindly toward the woman, asking her forgiveness & promising never to repeat the violence - this final phase provides the woman with positive reinforcement for staying in the relationship - The reason why women remain in violent relationships - battered women are psychologically paralyzed because they have learned from the repeated beatings that they cannot control their circumstances – known as learned helplessness - Lavallee’s actions constituted the final desperate act of someone who sincerely believed that she would be killed that night – the decision was appealed to the Supreme Court of Canada which decided unanimously to acquit her the charge of murder - The Lavallee ruling was significant for a number of reasons: 1) it made admissible expert evidence related to battered women’s syndrome which it turn helped dispel myths about why battered women remain in violent relationships 2) this evidence affected the imminency requirement (the requirement that the risk of attack must be imminent) 3) the Court accepted that women’s experiences & perspectives in relation to self – defence may be different from those of men & that courts must now make their judgments based on the objective standard of the actions of a reasonable person rather than on the actions of the traditional legal standard, the “reasonable man” - Some feminist scholars have expressed concern that it might lead to the syndromization of women’s experiences - The concerns regarding the battered women’s syndrome included the risk that this would portray battered women as dysfunctional, deviant & even pathological - It might even create a new stereotype of the authentic battered woman thereby restricting the applicability of the syndrome evidence to women who fought back or did not otherwise fit the passive victim profile - The supreme court was careful to indicate that the battered women’s syndrome is not a defence in itself, but rather a tool for understanding the reasonableness or a battered woman’s actions Preventative measures - Section 810 of the criminal code allows a judge to issue recognizances (peace bonds or protective court orders) - These require alleged offenders to abide to conditions – such as staying away from the victim’s residen