Understanding Crime and Criminal Law

• The following are condensed study notes pertaining to the objectivist-legalistic definition of crime, moral entrepreneurship, carceral redlining, the Truth and Reconciliation of Canada, the British North America Act, the Black Lives Matter movement, police working personality, and the Canadian Charter of Rights and Freedoms.

Objectivist-Legalistic/Formal Legal Definition of Crime

• Views crime and punishment as a reflection of society’s commonly held values and tolerance limits, assuming consensus on what should be against the law.
• The consensus model is often considered an over simplification of factors, focusing on the individual rather than the societal issues at play.
• Functions of criminal law under the consensus/objectivity-legalistic perspective:
  • Act as a mechanism of social control.
  • Maintain order.
  • Define parameters of acceptable behaviour.
  • Prosecute criminalized behaviour.
  • Reduce the risk of personal retaliation.
  • Assist in general and specific deterrence.
  • Protect group interests.
• Crime occurs when a person:
  • Commits an act/fails to commit an act (actus reus).
  • Has the intent to commit the act (mens rea).
  • Does not have a legal defence or justification for committing the act.
  • Violates a provision in criminal law.
• Reduces crime to legal statues, focusing on why an individual commits a crime to inform policy for reduction.
• The objectivist-legalistic approach is often criticized in that it can be considered outdated and makes for poorer law enforcement because it loses focus on broader social contexts and historical factors.
• Theories of why an individual commits a crime based on the objectivist-legalistic approach:
  • Biological causes examine physical characteristics.
  • Psychological causes examine personality defects and pathologies, like the inability to feel shame or guilt.
  • Sociological causes examine criminals breaking social norms due to lack of self-control and inability to respect social consensus.

Moral Entrepreneur

• People or groups that try to influence society to adopt or enforce rules that match their moral beliefs, which can be sincere or biased.
• This is done by fostering a moral panic, where something or some behaviour is defined as a threat to moral norms, solvable with collective solutions.
• Emily Murphy, also known as Janey Canuck, part of the Famous Five influential in the Persons Case, also criminalized marijuana.
  • She called marijuana users "raving maniacs" susceptible to violent acts and used racist stereotypes, advocating for harsher penalties and deportation.
• Mackenzie King was known for his fight against the drug trade which is eventually what helped him gain credibility and influence and led him to become the Prime Minister.
  • His moral entrepreneurship ultimately aided the criminalization of many drugs, the Chinese Head Tax & Exclusion Act and his eventual seat as prime minister

Carceral Redlining/Carceral System

• Redlining historically involved drawing red lines on maps to deny loans to certain neighbourhoods.
• Carceral redlining involves certain communities being criminalized and targeted for incarceration due to racism and the belief that POC are more prone to criminal behaviour.
  • It is a tool for mass incarceration and disproportionate incarceration of Black and Indigenous people.
• The carceral system highlights the lack of justice and a system focused on incarcerating people, especially marked bodies.
  • Often analyzed critically in relation to mass incarceration, systemic racism, and punitive state control.
• The school-to-prison pipeline connects underfunded and over-policed redlined schools and communities.
  • Results in a disproportionate incarceration rate for Black and Indigenous people, despite their smaller population percentage.
  • Black people represent about 3% of the general population yet 10% of the prison population and 15% of all use-of-force incidents

Truth and Reconciliation of Canada & Murray Sinclair

• The TRC was created to gather and document the experiences of residential school survivors.
• Led by Commissioner Murray Sinclair.
• The TRC spent six years listening to the truths of Residential School survivors, determining what actions should be taken.
  • Resulted in 94 calls to action and the UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples).
• The 94 calls to action from the TRC include education of law students and lawyers in the experiences of Indigenous peoples in Canada and eliminating overrepresentation in the justice system.
• Systematic reform and legislative changes were recommended by the TRC, as well as centering Indigenous voices.
• Murray Sinclair was a highly respected Anishinaabe lawyer and elder.
  • Sinclair was the Chief Commissioner of the TRC and led the pathway for the TRC.
  • Became one of the first POC judges in Manitoba.
  • Won Canada’s 2016 World Peace Award.
  • Argued that one cannot simply reform a racist state by enacting a few more programs and delivering a few more services but must focus on truth and historical context.

British North America (Constitution Act), 1867

• The BNA Act of 1867 (later named the Constitution Act) outlines the roles and responsibilities in the federal system.
• Under this act, the federal government determines what is a criminal offense and is responsible for the Criminal Code
  • In cases of conflict between federal and provincial laws, federal laws prevail due to federal paramountcy.
  • The provincial/territorial governments administer the justice system and are responsible for law enforcement.
• The BNA Act assigns jurisdiction of Indigenous peoples to the federal government, violating previous treaties and legislation and reducing Indigenous peoples jurisdiction.
• Arthur Manuel argued that the Canadian government requires a completely new deal because racist legislations are still a part of governmental legislation and that the BNA Act puts settlers in control of Indigenous land.

Black Lives Matter Movement

• The Black Lives Matter Movement gained traction in 2020 after the death of George Floyd by police officers.
  • Led to large-scale protests throughout North America.
  • Demands reallocation of funding away from the police and into community-centered forms of safety.
• Movement emphasizes that issues are systemic and not isolated to a few "bad apples" and argue that the current system was never designed to protect Black people.
  • BLM can be seen as a form of resistance to police violence and carceral systems.
• Contributed to a shift in public discourse and debate.
  • Many cities pledged reductions in spending on police in 2020, indicating increased public support for the movement.
• BLM is not a new phenomenon, but rather a continuation of a historical movement under different names.

Police Working Personality (“Working Personality of the Police”) & Culture

• A set of attitudes and behaviours that develop as a consequence of the unique role and activities of being a police officer.
• Includes traits that draw some people to the career.
• Can involve:
  • Preoccupation with danger.
  • Excessive suspiciousness.
  • Protective cynicism.
  • Difficulty exercising authority that balances citizens' rights with maintaining order.
• Influenced by the pressure and demands of police work.
  • Shiftwork, fatigue, and a lack of work-life balance are challenges, which can also lead to occupational stress injuries including PTSD.
• The normative order is an informal structure of norms, values, and practices that structure police subculture.
  • Maintained by hegemonic masculinity, which includes aggression, rigid in-group/out-group distinctions, and a strong resistance to change.
  • Can result in police subculture that values being "big, strong, macho, and resistant to change" and leads to a lack of diversity within police.
• Being Indigenous, female, a visible/cultural minority, or LGBTQ2S+ can put one at greater risk of poor treatment.
• Public expectations promote police officers showing physical and emotional strength.

Canadian Charter of Rights and Freedoms

• The primary law of the land in Canada.
• Guarantees fundamental freedoms, legal rights, and equality rights for all citizens of Canada, including those accused of crime.
• Provides protection for individuals designed to ensure fairness during legal proceedings.
• All parts of the criminal justice system and laws in Canada are required to operate in a way that does not violate the Charter.
  • The notwithstanding clause has become more prominent to override Charter rights and judicial decisions.
• The Charter defines and puts limits on the powers of the police.
• Examples of the rights enshrined in the Charter include:
  • Section 7: The right to life, liberty, and security.
  • Section 8: Protection against unreasonable search and seizure.
  • Section 9: The right not to be arbitrarily detained.
  • Section 10: Rights upon arrest or detention, including the right to be informed of the specific offense without delay.
• An example of how the Charter operates in practice is that while it outlines freedom of speech, certain bills restrict child pornography or hate speech.

Explore the objectivist-legalistic definition of crime, the role of mens rea, and perspectives on crime. This lesson will help you match perspectives on crime with their core assumptions. It enables you to understand the impact of historical context.