Courts
Judges
Proportionarity
Culpability Seriousness
Criminal Mandate - promote safety and enact justice
Police
Courts
Corrections
Agents and decision makers
Criminal justice system has to meet needs of victims and offenders
Proportionality-
Rarely Reported
As people go through
the system, more and
more people get plea
bargains, very few go
through a full trial
Parole Boards
Risk to the community
Benefit
o Offender
REHABILITATION
Criminal Code
Packer(1968)
If person is wrongly accused they will be kicked out of system (set free)
o If you end up in court, you did something
o If you didn’t, the system will let you go
Public safety triumphs individual rights
Packer(1968) Conservative Crime Control
Model
Cops Protect the community
Detterance
Specific-sends message to the
offender
General-sends message to public
incapacitation-takes away
freedom (prison)
Sure, Swift & Efficient
Confidence Victims rights Public Safety Vs.
Rights of individual
Liberal Due Process Model
(innocent until proven guilty)
Limits
Cops
Prosecutors (strong case?)
Descretionary (judgements,choice)
Procedural fairness
Presumption of innocence
Proper procedures
Equal justice for all (gender,race,standing)
Supreme Court of Canada (SCC)
People believe that majority of crimes are violence, but only a small percentage is actually
violent crimes.
Laws
Criminal
Beyond a reasonable
doubt
Burden placed on accuser
Accused doesn't have to testify
Civil
Balance of probabilities
Classification errors
Convict an innocent person
Guilty go free (acquit)
What differentiates the criminal justice system from other state and administrative systems?
What is the “crime funnel”? How does it work? What other agents are involved on a contractual
basis? Who? And what role do they play? Why?
The crime funnel is a graphical representation of the Judicial System. As people go in, they’re
filtered out and only a few actually go through to trial.
Crime funnel: Basically not every criminal act goes through this process (either at all or in full)
Most are handled through plea bargaining.
Charter remedy: if you are violated
Conditional sentences: live at home
Sentencing Criminal Justice System
Soft on crime Misperception
of leniency Easy on
offenders Recidivism
rates
Education
Employment
Stake in the community
Judges are governed by the principle of proportionality
Courts are governed by the Judicial Independence principle
Anglo-Saxon, white, hetero sexual, elderly men – senators
Canada does not have a uniform court system, broken up into different levels
JP-Justice of peace
Provinces fund provincial courts, appoint judges, etc. Judges sit without juries
Young offenders, small claim courts
Federal courts hear cases after an accused successfully wins leave to appear at the federal level
Question of law – did not apply the law properly, affected your right to a fair trial
If you have a question of law and you want an appeal, you need to apply for a leave, which will allow
you to appeal the decision, they review case, 3 judges look it over, if one says there was a problem then
you go to Supreme Court of Canada.
Supreme Court is called the “Court of Last Resort” and the “Highest Court in the Land” is in Ottawa
Hears all provinces’ cases
1867-1875 to est.
Governor general appoints supreme court justice
• Federal Supreme Court of Canada
• Federal Court of Appeal
(Appeals)
• Provinces Provincial Superior
Court (Trial)
• Provinces Provincial Court
(Trial)
Parens Patriae Definition: Latin: literally, father of the country. Refers to the inherent
jurisdiction of the courts to make decisions concerning people who are not able to take care of
themselves.
Specialized Courts – Pseudo – restorative justice approach - holistic
Domestic Violence – between couples
Substance abuse - drugees
Community courts -
Mental health courts -
Circuit courts – Far away courts, random places, small places
Aboriginal courts – for aboriginals only
Therapeutic Jurisprudence
Compliance
Resources
People Lavalle 1991 – she killed him as he was leaving, she said he was going to kill her when he came back,
introduced Walker – Battered woman syndrome
Jamie Tanis Gladue 1999 – Supreme court of Canada, she was found guilty, then appealed, Lloyd was her
father, Ruban beaver is he boyfriend, started living with him in 1993, 150-160 grams of alcohol in 100ml
of blood
Daviault(1996) – raped paralized landlord and beat her almost to death, but was drunk beyond belief
s.718.2(e)-any other way to help out aboriginals other than prison
R.U. Stinchcomb (1991) – provide “full answer” and defence
‘Trier of fact’ – jurors, judge;
Criminal: proved beyond reasonable doubt, crown has to prove
Civil: balance of probability, appellant has to prove
Normative
Ontario court of Justice throws out 100,000 cases per year, backlog
‘stay’ – to have your charges thrown out
Aprox 9.2 times in court to have it resolved.
System is so backed up because there isn’t enough money, not enough judges, money isn’t being used
properly, and more complicated cases
Mitigating factor – remorseful, counselling, drug therapy, young, health conditions, admit guilt
Aggravating factors – people are traumatized, other victims
Role of:
Crown
o Determine charge to be laid
o Decide on bail
o Submitting evidence on sentencing
o Have a position they are going to argue to the court about what should happen to the
accused
o Represent the public or state.
o They look at the likeliness of getting a conviction
o Preparing and prosecuting cases
o Criminal Code
o Plea bargaining
o Draft documents
o Advice to:
Witness
Cops
General public
Related agencies
o Rules
o Procedures
o Evidence
o Charter-protects you from the state.
o Trials process
o Fair trial
o “Come to a just result born out of the evidence”
o Typical things a prosecutor does in a week:
Change screening(most difficult decision)/disclosure
Bail hearing
Sentencing
o Diversion programs-better to send alcoholics to get treatment.
o Discretion.
o Is it necessary to deny bail:
Necessaryappear?
Necessarypublic safety?
Necessaryjustice administration is respected?
o ‘Conditional sentencing’ – Controversial from 1996,
Accused has to have less than 2 years.
Offender cannot be a danger to the community.
No mandatory minimum.
Defence
o Accused side against the state.
o Their job starts way before you even end up in court.
o Look out for the best interest of his or her client.
o Don’t have to tell the Crown anything (witnesses, evidence etc.)
o Defence attorneys – stand up for people accused of committing crimes
o Section 10b of charter, everyone has the right on arrest or detention to retain and
instruct counsel without delay and be informed of that right.
Cops
Right to lawyer
Phone
Phone book
mouth closed/remain silent
must see you within a day or two of arrest.
o Surety – Money, will be sure you’ll show up for trial
o Judges
Context – Untouched issued/ the bigger picture/ social conditions
Issues of inequality
Institutions like the family (domestic violence/child abuse)
Nature of educational system
Sensational media
Lack of political will in seeking genuine remedies
Unemployment, underemployment
Unequal opportunities
Under-funding of pre-emptive social services
Over-representation of minorities
Pervasive culture of violence
It’s rarely if ever helpful to answer police questions while in custody.
Section 718 of the code – Sentencing purposes
To denounce
To deter
To separate (when appropriate)
To rehabilitate
To provide reparation
To provide a sense of responsibility
Restitution – money, pay fee
Intermittent sentence – part time jail – Friday nightMonday morning, less than 90 days served on the
weekends
Conditional discharge - where a person is found guilty, instead of convicting the person, the judge grants
a conditional discharge and when the conditions are satisfied, the discharge becomes absolute
Concurrent: (of two or more prison sentences) To be served at the same time.
Consecutive: served one after another
Judicial determination = ½ 1/3
Judicial Restraint order s810
Restraining orders states you are able to lay information to jp if you believe someone will injure you,
your family, accused doesn’t have to have a criminal record
If you break 810 then you go to jail- based on reality
Diversion – alternatives to confinement
Youth justice – net widening
Beyond reasonable doubt
Cops
s718.1 principle of proportionality
Gravity Responsibility
Pre charge
Post charge
Post sentencing
Diversion programs tend to target first time low risk offenders
YCJA- leanient, didn’t give judges enough power
Was replaced by the YOA because people thought they were getting off too easy
$3 billion – more than spent on education, healthcare
75% prisons/jails
5% incarcerated –
o 3 billion to hold 5% of offenders
o Only spend 13% of budget on people not incarcerated
Punitive(harsh)
100% of provincial inmates will be released
95% of federal inmates will be released
Rational theory – humans are rational
o Humans aren’t rational
Most historical penalty- death penalty
o Murderpetty theft
o Branding – labeling, for everyone to see
o Transportation – literally take you and drop you off somewhere. Banished
They would shame and humiliate people
o Boil people, decapitate, hang people, set them on fire in downtown Toronto
First penitentiary - Kingston Pen 1835 (came from NY)
o Separation of:
Age
Gender
Offense
o Later they got:
Bedding
Food
Clothing
o Known for:
Hard labour
Silence
Rules
o Everything was ruled by the bell
Based on ‘Auburn Model’
Silent & separate
Eat and work together
Slept in separate cells
Used in the US and Canada
The Pennsylvania Model
Worked, ate, slept completely separate from other inmates
Completely isolated
Out of eyeshot of everyone else (except guards)
Used in Europe, South America, and Asia
o 1840’s
Excessive use of corporal punishment
Effective of reform
Ignored complaints and build more prisons
o Early 1900’s
Started improving conditions
Level of effectiveness is questionable
o 1990’s
Huge fundamental shift
Designed and operated
Led to the redesign of many prisons and construction of new ones
Small – group settings, responsibility, and try to change the dynamics of
traditional models
Birth of community corrections
o Now…
Big box prisons
Jam people together
Costs less
“slavery”
o 41.8% remand, pre-trial custody
o 22.9% providence
o 22% probation
o 4.7 candition sentencing
o 0.4% parole
o 1.4% federal custody
Confederation
o 2 year rule
o ↑ 2 years federal
o ↓ 2 years provincial
160 facilities
o Max security
o Med security
o Min security
Correctional Service Canada
Corrections & Conditions Release Act
Typical offenders are:
o Men
o In their 30s
o Have been convicted of a property offense
o Single – weren’t married at the time
o Parent
o disproportionally aboriginal and black
o substance addicted
o suffer mental impairment
o FASD – majority of offenders’ mothers were drinking while pregnant with them
Women and Corrections: From morally Fepraved Moster, to Errant Child, to Political Chess Piece
Women in prison – Boritch
The history of women’s prisons in Canada
Kingston Pen for women
Historically… small numbers of women have been housed in often unsuitable accommodations,
under regimes stressing the domestic role of women in society and providing little access of
programs or training.”
In Canada, traditionally women prisoners have been treated with a “mixture of neglect, outright
barbarism, and well-meaning paternalism.”
“The conditions under which women prisoners at Kingston Pen (the men’s prison) were forced to
live were considerably worse than those of male inmates, and their suffering was commensurately
greater.”
“Women offenders frequently were depicted as mentally subnormal, emotionally disturbed,
sexually deviant, and more unruly and difficult to manage than male inmates… since they seen as
more morally depraved than male criminals, they were also considered less capable of being
redeemed.”
“…prison officials felt little compunction about subjecting females to the most abominable
conditions including infestations od insects and rodents, filth, inadequate nutrition, disease, total
idleness or meaningless labour, harsh punishments for prison infractions, and sexual abuses by male
guards.
The attitudes of correctional officials were that these were “fallen women”, a nuisance to be moved
around and warehoused.
The Brown Commission
Public concern led to the appointment of a royal commission to investigate prison conditions in
1848, this was the Brown Commission.
“…the commission documented a range of abuses perpetuated against female inmates including
cruel and excessive discipline, starving, and sexual abuse by prison guards, and the warden was
subsequently charged with numerous offenses.”
“…the central recommendation that a suitable separate facility be built for the women was
ignored.”
Separate Women’s Prisons
Little changed for women prisoners well into the 20th century until they were eventually housed in
makeshift accommodations.
It was Ontario provincial officials who were first to establish separate facilities for female offenders.
The first reformatory, the Mercer Reformatory opened in Toronto in 1879 to house women serving
sentenced between two months and two years.
Errant Child
The reform program consisted of basic education, religious, moral and domestic training.
The emphasis was on teaching women to “know their place in society”.
Women were “treated as stubbornly disobedient children in need of strict supervision and severe
restrictions on their autonomy.”
Essentially the reformatory was simply a place of detention to house the women inmates.
Stereotypical sex roles for women were reinforced and perpetuated.
“Women offenders were seen as victims of a poor upbringing who lacked proper moral guidance
and restraint.”
A female Unit in Kingston Pen
In 1913 separate quarters were built for women prisoners within the existing penitentiary walls of
men’s Kingston prison.
Concern shifted, and the prominent and controversial issue became the centralization of federal
women prisoners in a single institution.
In 1914 the Macdonnall Commission recommended “the female unit be disbanded and the inmates
be dispersed the provincial institutions”.
The Prison for Women (P4W)
The recommendations were based on the idea that the decentralization of the small number of
women inmates, their low risk to public safety, and the “special hardships” endured by women who
were geographically separated from their families and communities” was detrimental.
This recommendation was ignored and instead a recommendation by the Nickle Commission in 1921
that a separate penitentiary be built across the road from the men’s penitentiary in 1934.
In 1938 the Archambault Commission was appalled at the inferior conditions of the facility and
concluded that it should be closed down.
More than a dozen government reports have concluded that there are serious limitation,
inadequacies, and inequalities taking place at the P4W. (ie. 1977 MacGuigan Report “unfit for bears,
much less women”).
Serious attention was not given to the problems until the 1970’s.
A strengthening women’s movement emphasized women’s right to equal treatment with men in
various spheres of life including incarceration.
The exchange of service agreements in the 1970;s between federal and provincial governments
helped to reduce the problem to geographic dislocation.
It allowed some federal female inmates to serve their sentences in their home provinces --- although
this process was not applied equally.
The Prison for women in Kingston --- D.L. Martin
Pressure to close P4W came to head in the late 1980s
A coalition of feminists and feminist organizations joined together to produce a report that finally
led to the closing of the Prison for Women.
Decision was hailed as a victory for women, for feminist reform, and for prison reform
But tensions were high
Escalade they did, in April 1995 one of the most disturbing prison scandals ever…
The Arbour Commission (1996)
Madame Justice Louise Arbour: “there had been a brief and violent incident of assaults by prisoners
on guards”
Justice Arbour: “the society in which many women offenders live is neither peaceful nor
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