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