CRJS test 2 .gdoc

Chapter six : criminal law Introduction Formal written laws are dynamic i.e. always evolving responding to every changing social, political, & technological environments experienced by canadiens. The rule of law is fundamental principal of the constitution; that the law is supreme o...

Chapter six : criminal law Introduction Formal written laws are dynamic i.e. always evolving responding to every changing social, political, & technological environments experienced by canadiens. The rule of law is fundamental principal of the constitution; that the law is supreme over any individual or body government Everyone is considered equal & no one is above the law If anyone was above the law, none of our liberties would be safe Courts safeguard the rule of law by defining the limits of federal and provincial powers Understanding legal citation Legal citation is a form of legal shorthand Traditional example: R v Siptos, 2014 SCC 47 ○ R refers to Regina (which is the latin term for queen & all criminal offences are prosecuted in the name of the monarch). In this case, the crown was prosecuting an individual named Siptos ○ The number 2014 refers to the year of the decision ○ Scc refers to the Court where the case was decided (in this case, it was the Supreme Court of Canada) ○ Last, 47 refers to the number of the judgment that the court had ruled upon in that year. This was the 47th judgment made by the supreme court of canada in 2014 Evolution of Canadian Criminal Law Out law is rooted in english common-law system England's king henry II wanted a more uniform or common approach to justice after being crowned in 1154 He established legal tribunals to settle disputes between individuals that eventually led to certain creation of precedent (where judges followed each others decisions), which in turn created the legal principle “stare decisis” (courts are bound by their prior decisions and the decision if higher courts)... which formed the basis of common law. Precedent Stare decisis ○ Deciding cases on the basis of situations of similar facts. Lower courts follow decision of higher courts Common law Created by Henry II (1154-1189) Redefined private wrongs as crimes against the state Wanted a court system based on laws passed by government and applicable to all (central authority) Judges made sure “Kings law” was enforced Crimes during King Henry's time Fighting, assault, theft, murders, witchcraft Sources of common law Common law ○ Replaced laws based on custom, tradition, and practice and is generally unwritten Statute law ○ Written laws that have been enacted by a legislative body, such as the Parliament of Canada Case law ○ Law that is established by previous court decisions and based on the rule of precedent Substantive vs. Procedural Criminal Law Substantive criminal law ○ Legally defines crime (mens rea, actus reus, harm) ○ Provides framework for defining criminal acts ○ Not static entity, subject to interpretation ○ Criminal Code of Canada Procedural Criminal Law- “Due Process” (i.e. government must respect rights!!) ○ Focus is on the legal process; how law enforcement agents must act in dealing with an offense ○ Procedural safeguards designed to protect the accused (right to counsel, rules of evidence, search and seizure, etc.) ○ Charter of Rights and Freedoms Evolution of Canadian Criminal Law Common law replaced laws based on customs Common law legal systems are present in most English-speaking nations colonized by the British including Australia, New Zealand, Indian the United States, and some nations in Africa and the Caribbean Although there are some differences, some commonalities exist: the adversarial nature of the system, the presumption of a defendant's innocence, and reliance on case law. Of paramount importance in common law is that the rights of the individual are balanced against the interests of the state In addition to the presumption of innocence, there are two other key elements if the Canadian justice system 1) The burden of proof–Crown prosecutors must prove beyond a reasonable doubt that the accused person is guilty a) If guilt cannot be proven, judges or juries must acquit a defendant even if they think that he or she is probably guilty 2) The priority of the defence counsel is not to prove innocence but instead to raise enough doubt that a conviction cannot be made The poor accused who are accused of committing crimes are eligible for legal aid serviced subsidized by the federal and provincial governments  Financial costs for state-funded counsel are high Legal aid system is inadequately funded and this leads to further problems: job losses when suspects are unnecessarily incarcerated, further marginalization of people who cannot fully participate in society The canadian constitution The constitution of Canada provides the rules that Canada's government must follow – both in terms of how the government operates politically, as well as what it can and cannot do to its citizens. Not one document but several! Most important is the Constitution Act of 1867 also known as the British North America Act (BNA Act) Second is the Constitutional Act of 1982, with large section devoted to the Canadien Charter of Rights and Freedoms Other legislation that regulates things deemed to be “constitutional” matters – e.g. laws that regulate the Governor General, the Supreme Court of Canada, and the provincial parliaments. Treaties with the indigenous people of canada also have the force of constitutional law. Canadian Charter of Rights and Freedoms Relevant sections pertaining to criminal law are sections 7-14, 15, and 24 The Charter is the part of the Constitution that defines the rights and freedoms of Canadians, including those accused of committing crimes The SCC resolves interpretation issues and disputes resulting from the Charter Legal rights under the Charter 7. Life, liberty, and security of person E.g. assisted suicide 8. Search or seizure Right to be secure from unreasonable 9. Detection or imprisonment 10. Arrest or detention 11. Proceedings in criminal and penal matters E.g. right to know the charges against you, tried in reasonable time, etc. 12. Treatment or punishment 13 Self-crimination 14. Interpreter 15. Equal protection for all People cannot be discriminated on the basis of race, national or ethnic origin, color, religion, sec, age, or mental or physical disability 24. Seek remedies in court if rights violated Habeas corpus: the right of a person who is being detained to challenge the legality of his or her detention before a court Top criminal law cases in canada The SCC decisions are considered to be landmarks because they set important precedents, establish a significant legal principles or change the interpretation or practice of the law Some decisions have had sweeping implications for the practice of law Elements of a crime Individuals cannot be charged with an offense if the act was not defined in the Criminal Code Three elements of a crime have to occur together ○ Actus Reus (the criminal act) ○ Mens rea (the criminal intention or guilty mind) ○ Concurrence (the actus reus and the mens rea must occur together) Mens rea is a complicated subject as it forces us to interpret an individual state of mind based on the individual's actions and statements. This may require us to understand what happened during the offense Defence An accused person has a number of possible defenses against a criminal charge in order to raise reasonable doubt ○ Alibis: where witnesses or other forms of evidence show that the defendant could not have committed the offense ○ Excuse defenses: ones criminal conduct can be excused because the accused could not form the intent to commit a crime. ○ Justification defenses: accused admits to committing an offense but the act was justified. E.g. consent, duress, entrapment, necessity, provocation and self defence Excuse defence Age : a defence that considers immaturity and recognizes that youth under 12 years of age cannot be held criminally responsible; sanctions might also be mitigated for young defendants Automatism : an unconscious, involuntary act where an individual lacks the intent to commit the crime (e.g. sleepwalking) Mental disorder : a defence based on the argument that persons suffering from a mental disorder are incapable of forming mens rea to be held fully accountable Despite publicity surrounding extreme cases of mental illness and violence, there are only about two homicide cases a year where the defendant is found not criminally responsible on account of mental disorder Mistake: a defence where accused persons claimed they were unaware they committed a crime or they committed an act that is a crime but honestly believed they were not breaking the law  Involuntary intoxication : a defence whereby persons accused of an offense argues that they unknowingly consumed an intoxicating substance. Such as being “roofied”. Accused person must demonstrate beyond reasonable doubt that their intoxication was not voluntary (Canadian courts consider drinking or drug use to be voluntary behavior) ○ May 2022 supreme court decision ○ Allows criminal defendants in cases involving assault – including sexual assault – to use defence knows as self-induced extreme intoxication ○ It means that defendants who voluntarily consume intoxicating substances and then assault or interfere with the bodily integrity of another person can avoid conviction if they can prove they were too intoxicated to control their actions. Justification defenses Consent : a defence that is sued by defendants accused of assaults where defence contends that the victim was a willing party in the offense after the accused is found guilty Duress : a defence where the accused persons claim that they acted in response to being threatened by another person Entrapment : a defence where police or government officials persuade or lure an individual into carrying out an offense that he or she would not otherwise have committed Necessity : a defence where an illegal act was committed in order to prevent a more serious harm The defence of necessity requires that : there was some type of imminent peril or danger; there was no reasonable legal alternative other than to commit the offense; and that the harm caused by the accused was not disproportionate to the harm he was trying to avoid. Provocation : a defence based on an accused claiming that he or she was provoked into committing a crime ○ This defence can only be used to argue that an act of murder be reduced to manslaughter Self defence : a defence whereby an accused argues that the harm that was inflicted on another person was carried out to ensure the defendants safety or the safety of others. ○ The US has many differences in terms of what it considers self defence in comparison to Canada Hate crimes Some offences are motivated by bias or hatred Hate crimes may have a devastating effect on victims as most of these crimes are unprovoked attacks on individuals based on who they are rather than anything specific they have done. Offenders target people based on their religion, sexual orientation, disability, class, nationality, age, gender, gender identity, or political affiliation 5 aug 2022  Canada has experienced a sharp rise in hate crimes targeting religion, sexual orientation and race since the start or COVID-19 pandemic according to data released this week by Statistics canada. The criminal justice wedding cake model The least attention is paid to the criminal cases in the base or lowest layer (which is comprised of minor summary offences such as property crimes, simple assault, and public order offences) The second and third layer of the criminal justice cake are comprised of serious and lesser indictable offences such as regular murder (with no distinguishing circumstances), manslaughter offences, sexual assault, and robberies The most time, energy, resources and attention are paid to the “celebrated cases” at the top. These are those anomalous but most reported-on cases Three things distinguish between second and third layers 1. The nature of the crimes 2. The suspects prior criminal record 3. The relationship between the victim and the offender Third layer of the cake generally consisted of cases of less serious indictable offences. These cases tend to be processed fairly quickly and most resolved through plea bargains Individuals in the second layer receive more attention from justice system and those found guilty are apt to receive harsh punishments Unlike what we see on TV, most of the work carried out by workers within the justice system involves managing a large volume of relatively minor offences. Incarceration is rare & many plead guilty and are fined or placed on probation Canadian and US Court Operations Most of our exposure to issues of crime and justice comes from watching US TV and films. There are significant differences between Canadian and American approaches to justices (especially the activities and organization of court systems) In canada, we have a unified system as all canadians are subject to the same law (CCC) whereas in the US, there are 50 state criminal codes and one federal criminal code resulting in considerable differences in how persons convicted of crimes are treated The canadian criminal justice reality Most people see the law as legitimate ○ They have trust in the system ○ They believe that they will be treated fairly As a result, people are more likely to follow the law The belief in the legitimacy of the system is more important in regulating behviour then is the fear of being punished Perhaps we are all equal before our courts after all… Chapter seven : criminal courts and court personnel Introduction : Most canadiens have a greater understanding of what happens in the criminal courts than they do of the daily operations of the police or corrections Reporters and the public have access to both adult and youth courts to be ablr to see that justice is being done Our confidence in our courts is changing … a lot to do with the fact that our opinions and understanding of the court come from highly publicized cases in the media (typically from the USA). This leads to a distorted and inaccurate picture of canadian courts Why do we have courts They help people resolve disputes fairly, whether they are between individuals or between individuals and the state Courts interpret and pronounce law, set standards, and decide questions that affect all spects of society Each injustice pays for the personnel and resources needed to carry out these operations Four levels of criminal court 1) Provincial and territorial courts Most of the work of the criminal courts is done by these courts (also called inferior courts) All offenders make their first appearance in these courts Most cases are resolved here Nunavut has a distinctive court arrangement as the territorial and superior courts are combined so that a single court can hear any criminal matter 2) Provincial and territorial superior courts These courts hear serious criminal matters and family law cases including divorces 3) Provincial and territorial courts of appeal Appellate courts hear criminal cases from the provincial and territorial courts of the superior courts These courts can hear commercial disputes, property disputes, negligence claims, family disputes, bankruptcies and corporate reorganizations There are a number of decisions that an appellate court can make including dismissing the appeal or ordering a new trial if the court finds that there were serious errors Appellate courts can also overturn an acquittal case or acquit an individual Sentences imposed by lower courts can also be increased or lowered by appellate courts 4) The supreme court of canada This court has jurisdiction over disputes in all four areas of the law : administrative, civil, constitutional and criminal Although they receive multiple applications, they typically hear 65-80 cases a year They only hear casses that they consider important and having a national interest  To be appointed to SCC one mosy have been a superior court judge or have a least ten years experience as a lawyer Other canadian courts In addition to the four levels of courts, there are two specialized courts : tax court or canada and military courts Federal courts hear disputes related to issues such as claims against the federal government, interprovincial disputes, matter related to immigration and refugees and cases involving crown corporations Criminal investigation and trial What happens after a crime has been committed? (from the investigation of an offense to its resolution including the possibility of an appeal) The justice system operates in a sequential manner… Note that these steps simplify the process and it might take years before a complicated case is actually resolved Criminal investigation and trial : steps Investigation An investigation is carried out by the police after the report of a crime or if the officers witness an offence Investigations may occur fairly quickly ○ If the officer apprehends a suspect shortly after the offense occurred Other investigations can take years ○ The the crime is unusually complex, the there are multiple victims such as with financial fraud, or if witnesses are not willing to help the police Laying a charge If the police believe that a person has committed a crime, they may lay a charge The the police proceed with laying a charge, they deliver a package of information to the Crown prosecutor that contains all of the materials relevant to the case Deciding whether to prosecute In Deciding whether to proceed with a prosecution, Crown attorneys ask two key questions: ○ Is there a reasonable likelihood of conviction? ○ Is it in the public interest to proceed? If the answer is “yes” to both, the prosecutor will proceed Requiring the accused to attend court, entering a plea, and bail If charged with a minor crime, officer gives notice to appear, which advises them of the date and time to appear in court Bail will be denied if : ○ The accused is at risk of not appearing in court ○ The accused represents a risk to the public  ○ The release of the accused undermines the publics confidence in the justice system Must be brought before a justice of the peace or judge within 24 hours to determine whether the individual can be released on their promise to appear, or if they will be granted bail Types of offences Crown prosecutors have the discretion to proceed with a summary or indictable (more serious) offence Preliminary inquiry or hearing To determine whether there is enough evidence to go to trial, if so a date is set for trial, if not, case closed… Plea negotiation Most cases are resolved through plea agreements, i.e. accused agrees to plea guilty to lesser (or fewer) offences or to less severe sentence on original charge When it comes to sentencing, the crown prosecutors and defence counsel often make a joint submission where they both recommend the same punishment ○ Judges are not obliged to accept these submissions and can impose a lesser or more severe punishment Advantages - Trials are expensive and even if a prosecutor has a solid case, there is no guarantee that the accused will be found guilty beyond a reasonable doubt - Juries may also be reluctant to convict some defendants (wife kills husband after abuse) - The Crown prosecutor might be reluctant to force a witness or victim to testify (rape) Trial The accsued person is assumed to be innocent until being found guilty beyond a reasonable doubt The crown presents their case including evidence and testimony that supports the charges. They question the witnesses in a direct examination ○ Defence counsel can cross examine the prosecutors witness Then the defence counsel presents their case They may question witnesses ○ Crown prosecutor can cross-examine these witnesses After the defence is finished presenting their case, both sides summarize their cases and the reason for conviction or acquittal The verdict After the defence and crown counsel have summarized their cases, the court decides whether the crown has met the standards of guilt beyond a reasonable doubt and will either convict or acquit the accused The a jury trial, the jury decides on the guilt of the accused Three possible results  1. Guilty - accused is remanded into custody to await sentencing 2. Not guilty - accused is free to go and cannot be tried again on the same charge, unless the Crown prosecutor appeals the verdict and the appellate court orders a new trial 3. Hung jury - the jury is not able to reach a unanimous decision and they believe that a decision cannot be reached Sentencing Judges typically order a pre-sentence investigation report, which is compiled by probation officers and addresses the offenders strengths and weaknesses, including the offenders potential for rehabilitation and risk to the public In cases of plea bargaining, the crown and the defence counsel will make joint sentencing recommendation, but the judge is not required to accept those recommendations when meting out the offenders sentence Appeal Appeals are requests for a higher court to change a lower courts decision In canada, the severity of a sentence can be appealed to a higher court Crown prosecutors can appeal non guilty verdicts Assembly-line justice Most criminal matters processed by provincial and territorial courts are relatively minor offences that are dealt with quickly, which is defining feature of the justice system The adversarial system is put aside for these minor criminal cases and decisions are made on a shared understanding of punishment for various crimes. Few of these cases result in incarceration; about two-thirds result in a finding of guilt and probation is the most common sentence The facy that cases are processed quickly is not a serious limitation but because a high number of individuals are appearing without representation, the likelihood of errors occurring during the legal process increases Courtroom work group Judges Judges have the highest of visibility They have graduated from law school and practiced law for at least five years All canadian judges are screened by officials from the provincial or federal government and successful judges are then appointed by a provinces lieutenant-governor (for provincial court judges) or by the governor general of Canada (for federal appointees) The pathway to the bench are different across the globe Canadian judges are appointed by politicians and they do not have to stand for the election (like in the US) Canada's judicial appointment is lagging behind other G7 nations in terms of transparent and accountable Crown prosecutors  Prosecutors seen as acting independently of government, police or victim offences acting on behalf of community / public interest Usually start their careers handling minor cases and then prosecute more serious cases when they gain experience Unlike the US where prosecutors have to be tough on crime and win at all cost, prosecutors will have to ensure that justice is done in a fair, impartial efficient, and respectful manner Defence counsel Individuals who have been accused of committing a crime and have been detained by the police have a Charter right to be represented by a lawyer or counsel These trained lawyers have many responsibilities, e.g. legal aid ○ 58% of legal aid cases are criminal matters ○ Legal aid lawyers have high caseloads and might not have as much time as they would like to prepare for a case Limitations may also be imposed on the amount of resources they can spend on a case to do things like carry out investigations… leading to the question of fairness… Support personnel judges, crown, and defence are supported by a number of other professionals in the courtroom Courts administrators are responsible for overseeing the operation of dozens of courtrooms in large cities Aboriginal court workers provide services to any Aboriginal person accused of an offense and to family members who request their help Sheriffs escort and transport detainees and prisoners serving sentences and security personnel in courtrooms Victim services The changing role of victims in canadian courts Victims often neglected in the past Since 1990s, there has been a growing interest in understanding the role of victims in the justice system, their characteristics, and what happens to them after the justice system closes a case Who is most likely to be victimized in canada? Persons aged 15-19, members of marginalized groups, aboriginals, homeless individuals, persons with mental illness, women in abusive relationships, young people with mental disorders, and individuals who place themselves at a higher risk of being victimized Rural courts and justice Court proceedings in small towns are often conducted biweekly or monthly and are carried out in makeshift facilities what were never intended to be courts Provincial / territorial circuit courts Traveling courts  ○ In remote areas Problems ○ Backlog of cases ○ Time constraints - limit case preparation ○ Language and cultural barriers Difficulties sentencing ○ Balance between culturally / community-relevant approaches and the rights and protection of victims Specialized courts These courts work with distinctive groups of offenders including persons with mental illnesses, addictions, ongoing behavioral issues, or individuals convicted of specific offences such as domestic violence They enable members of the courtroom work group to develop an expertise in dealing with offenders More cost effective than sending people to prison (but they do rely on support from community based services) Advantages : ○ Offender screening and assessment of risks, needs, and responsibility ○ Offender monitoring – such as drug testing – and supervision ○ Graduated sanctions and incentives ○ Treatment and rehabilitative services Representative juries and justice According to the SCC, what is required is a representative cross-section of society, honestly and fairly chosen and in terms of the jury roll, representativeness focuses on the process used to compile it, not its ultimate composition Recent cases question whether they are truly representative Chapter eight : sentencing Sentencing example : Canadian sentenced to 160 years in U.S. prison for non-violent robbery is now free : Darek Twyman Introduction When judges pass a sentence they consider what the latest scientific evidence says about the best way to respond to persons who commit crimes, however, there are a number of other factors influencing the judge Sentencing options Although canadiens generally want harsh sentences imposed on offenders, and judges have tried to reflect this is their sentencing, appeal court judges have often resisted and overturned sentences considered too harsh Just over ⅓ receive custodial sentences (although most sentences are short) The most common adult sentences are probation and fines Probation Probation most common sentence in Canada & refers to the release of offender to community under supervision of a probation officer There are mandatory standard conditions in these orders (keep the peace, report to the court when required, notify probation officers of changes in address or job) Optional conditions are specific to the individuals needs (e.g. addiction treatment, counseling) Some strict probationary conditions include curfews or residency, limit contact with certain individuals, etc. Judges can impose fines or community service work as part of a probation order Maximum length of probation in canada cannot exceed 3 years Fines  Fines are imposed in < ⅓ of all adult cases and restitution (where payments are made to the victime for the losses from the crime) accounts for another 2.5% Both fines and restitution often conditions of probation If these are not paid, offenders may risk being returned to court on breach of probation Conditional sentence Originally introduced in 1995 to reduce use of incarceration Permit offenders to serve custody sentences in community if they obey a number of strict conditions Judges will grant this when they believe the offender is not a threat to the community and has a history of obeying court orders Offenders sentenced to term of incarceration < 2 years serve their sentence in provincial or territorial correctional centers Most provincial sentences a median length of about one month if greater then 2 years, sent to federal prisons About ½ sentenced to less than 5 years and most are released to community prior to end their sentences Custodial sentences For those serving time for more than one offense sentence their sentences can be served concurrently (multiple sentences served at the same time) or consecutively (multiple sentences one after the other) Judges can also order a sentence served intermittently, which allows the offender to serve several days a week (typically on weekends) for sentences < 90 days ○ During the days the offender is not incarcerated, tey must follow the conditions of a probation order Other sentencing options Absolute discharge (least severe sanction) finding of guilt but no conviction is registered – essentially a pardon… only available under certain conditions ○ Usually first time offenders and younger adult offenders committing relatively minor offences Conditional discharge requires offender to comply with a number of conditions, and if satisfies them discharge becomes absolute ○ If offenders not abide by conditions, judge can revoke the discharge and original conviction stands and gets criminal record Interprovincial sentencing differences Prince edward island sends > ⅔ more offenders to correctional facilities Many for impaired driving charges, sexual assault, major assault and drug offences Although they use incarceration more then other provinces, sentences are short Punishments here may be working as the crime severity index is slightly less than national average Reasons for differences are complex  Provinces with highest rates of police reported crime have highest use of custodial sentences Provinces with larger numbers of indigenous and visible minority populations had higher custody use Geography may play a factor in severity (e..g. Rural youth receive harsher punishments than urban youth) Extralegal factors (e.g. race, gender, geography, class, financial status, and membership in a marginalized group) and how they affect sentencing need further attention The principles of sentencing There are a number of principales of sentencing that influence sentencing decision-making ○ Proportionality ○ Aggravating and mitigating factors ○ Crimes motivated by bias or hatred There are also special considerations for youth, persons with mental illness, or indigenous people. 1) Proportionality Most important principles of sentencing - sentences must reflect seriousness of the crime and offenders responsibility in committing the crime 2) Aggravated and mitigating factors Section 718.2 of the criminal code allows for Aggravating factors - facts that might lead to a more severe sentence, e.g. offences involving vulnerable victims such as child or it crime was related to bias, prejudice or hate Mitigating factors - facts that might encouraged a judge to impose less severe sentence, e.g. young first time offender 3) Totality Considers the overall length of a sentence and requires that a single global sentence be imposed to avoid an unjustly long sentence There are limits to consecutive sentences… “the combines sentence should not be unduly long or harsh” The totality principle functions as a ‘limitation upon excess’ by requiring courts to ensure that an offender receives an appropriate overall sentence. The principle is a product of both proportionality and mercy “Tough on Crime” approach Despite the principles of sentencing just discussed (proportionality, aggravating / mitigating factors and totality) a “tough on crime” movement emerged in the USA in the 1980s and eventually spread to canada primarily through the framework of the former Conservative government under Stephan Harper (2006-2015)  This is a view or approach that has been very popular with politicians and right wing groups Mandatory Minimum Sentences (MMSs) are a major sentencing option intended to “get tough” on certain types of offenders or crimes… Refers to simplistic criminal justice practices such as putting more police officers on the streets, longer prison sentences.. Penal populism refers to political thought on crime policies that are used to win votes rather then serve justice MMSs remove discretion from judge i.e. everyone receives the minimum sentence regardless of mitigating factors The thinking is that all offenders will be treated the same Shifts power to crown prosecutors who determine charges & judges obliged to impose mandatory sentence There are about 40 offences under the Criminal Code for which a mandatory minimum sentence of imprisonment (MMS) must be imposed. Apart from life imprisonment for murder and some miscellaneous MMS, (1) they fall under three categories and may be summarized as follows (with year of original enactment in parentheses): a) Offences involving firearms and other weapons b) Sexual offences involving children c) Impaired driving Mandatory minimum sentences (MMS) Mandatory minimum sentences are laws that require judges to impose a minimum term of imprisonment for certain offences, regardless of the circumstances of the case or the offender. These crimes are often those deemed particularly serious, such as certain drug offences, firearms offences, and violent crimes. MMSs are a key part of the tough on crime approach, showing a focus on strict punishment to tackle crime in society. Are MMS effective?... “No reputable criminologist who has looked carefully at the overall body of research literature… believes that crime rates will be reduced, through deterrence, by raising the severity of sentences handed down in criminal courts.” Pros : mandatory sentencing Deterrence : the certainty of a set sentence can deter potential offenders from committing serious crimes Consistency : mandatory sentences promote uniformity in sentencing, reducing disparities that can arise from judicial discretion Victim advocacy: they can provide a sense of justice for victims and their families, knowing that certain crimes carry guaranteed consequences Public safety : by ensuring that serious offenders serve time, it may contribute to public safety by removing dangerous individuals from society Cons : mandatory sentencing  Lack of flexibility : mandatory sentences do not allow judges to consider individual circumstances, potentially leading to unjust outcomes for specific cases Overcrowding : they can contribute to overcrowding in prisons, as offenders who may have otherwise received lighter sentences are incarcerated for longer periods Ineffectiveness : studies have shown that mandatory minimums do not significantly reduce crime rates and may fail to address the root causes of criminal behavior Disproportionate impact : they can disproportionately affect marginalized communities, leading to systemic inequities within the justice system Other tough on crime practices… Truth in Sentencing Act, 2009 Increasing the severity of life and indeterminate sentences Truth in Sentencing Act, 2009 The time spent in remand (for example, you are in jail awaiting your trial date) has been increasing since 1990s Considered harsh because overcrowding, few programs etc. so judges would often grant 2 for 1 credit for example, if sentenced to 3 years in prison and served 1 year in remand, the judge would subtract 2 years from sentence. It was believed that a tactic of defence lawyer was to deliberately delay sentences of their clients so they could receive more time served credit on term of incarceration The truth in sentencing act reduced it from 2 for 1 to 1.5 for 1 and they need to justify it Increasing the severity of life and indeterminate sentences Conservative government made it harder for offenders serving a life sentence to be granted parole & extended parole eligibility for offenders convicted of multiple murders There is no formal release date for offenders serving a life sentence (“lifers”) or for dangerous offenders serving an indeterminate sentence… both will remain under correctional supervision for the rest of their lives Major problems with the “tough on crime” approach Plea bargain : this typically refers to the actual deal or arrangement between the defendant and the prosecutor. It usually involves the defendant agreeing to plead guilty to a lesser charge or to receive a lighter sentence in exchange for their plea Plea-agreement : this is the formal document that outlines the terms of the plea bargain. It details what the defendant is agreeing to, what the prosecution will offer, and any other conditions Plea Negotiation : this refers to the process of discussion and negotiation that occur between the defense and prosecution before reaching a plea agreement. It involves the back-and-forth talks to arrive at mutually acceptable terms In summary “plea negotiation” is the process, “plea bargain” is the deal itself, and “plea agreement” is the formalized document. Plea agreement Plea-agreement is another factor that can influence sentencing decisions  The Law Reform Commission of Canada defines a plea agreement as “any agreement by the accused to plead guilty in return for the promise of some benefit” Spratt calls them an “essential lubricant” of the justice system Judges do not have to accept those submissions but it is rare that they do not If every defendant wanted his or her case argued in court, the CJS would collapse Although there are criticisms directed at plea bargaining (especially by victims because they have very little input into the decisions that prosecutors make), we need plea bargaining Over 90% of criminal cases end after a plea has been negotiated between the Crown & defence attorneys These arrangements usually involve defendant entering a plea of guilty in return for less severe punishments or the reduction in number of charges to one all inclusive charge Pleas of guilt are negotiated before a sentencing hearing happens & Crown and defence attorneys enter a joint submission to judge Pre-Sentence Reports (PSR) Ordered by judges prior to sentencing to provide an overview of an offenders strengths and weaknesses, and whether prior justice system interventions were successful Usually ordered if judge is deliberating whether a community-based or custodial sentence is the mosy appropriate sanction A PSR may be used for release planning, to make parole decisions, and to conduct research Criticism of PSRs Victim impact statements Statements read to the court by victims describing the physical or emotional harm, property damage or economic loss they suffered The formal recognition of the victim's role in sentencing came in response to a growing awareness that the plight of these individuals was not given enough attention Latest research on VIS Usefulness: judges find them useful, especially in violent crime cases, as they provide insights into the harm caused that might not be covered elsewhere Influence on sentencing : they rarely affect the severity or length of sentence and mainly provide additional context Challenges : inconsistent submission exists across jurisdictions, with some victims not fully informed about their rights to submit them Victim expectations : victims often expect their statement to influence sentencing more than it does, leading to frustration when their recommendations are not followed. Judicial perception : judges generally see them as helpful but note that they rarely contain critical new information for determining sentences Indigenous offenders  Significantly overrepresented in both federal and provincial correctional systems in canada Federal system: as of 2023, indigenous individuals make up about 32% of the federal prison population, yet only account for about 5% of the total Canadian population. This figure has been steadily increasing in recent years, with particular overrepresentation among indigenous women who make up over 50% of the female federal inmate population Provincial system : similarly overrepresented. For example, in provinces like Manitoba and Saskatchewan, indigenous individuals make up 75-80% of the incarcerated population Challenges of indigenous sentencing The overrepresentation is tied to broader systemic issues, including colonialism, systemic discrimination, and socio-economic disparities Community-based services that might help some indigenous offenders are not readily available in many remote and rural locations ○ People living in these areas are at a disadvantage compared with city residents Efforts to reduce the overrepresentation of indigenous persons in the justice system have fallen short of the SCC, expectation Chapter nine - Provincial Corrections, Probation, & Short-term Incarceration Basil Borutski murder case Basil Borutski was involved in a series of violent crimes committed in Ontario. While he was on probation, he murdered three women: Carol Culleton, Anastasia Kuzyk, and Nathalie Warmerdam. All three were former intimate partners or acquaintances of Borutski. He had a history of domestic violence and was known to law enforcement. Borutski's actions and the failures in monitoring him while on probation led to a national conversation on domestic violence, femicide, and the effectiveness of the Canadian probation system. He was sentenced to life in prison without the possibility of parole for 70 years. Immediately prior to murders in 2014 he had been sentenced to 17 months jail followed by probation for variety of domestic violence related offences He was well known to police with previous convictions many for domestic violence related offences After he was released after only serving 5 months Although placed on probation with a condition requiring him to attend anger management classes he failed to attend Probation vs Parole? Probation : ○ Considered an alternative to jail; that is, it is something you get instead of jail with conditions ○ Only for sentences less than 2 years (i.e. provincial offenders) Parole : ○ Considered a form conditional release; that is, you are released early with conditions ○ Available to both provincial and federal offenders Introduction Probationary and conditional sentences allow sentenced offenders to: ○ Remain in school ○ Maintain their employment ○ Care for their families Imposing harsher punishments, such as incarceration, might further disadvantage or discourage these individuals and push them further into criminality Probationers can be supervised in the community at a fraction of the cost of incarcerating them An important fact of probation is that supervising offenders in the community reduces the use of incarceration Majority of public are in favor of community based sentencing: ○ Most canadians support community-based sentences for non-violent crimes ○ Over half of respondents believe too many people are sent to jail  ○ Most believe thay responding to offenders problems (e.g., substance abuse or job training) would reduce crime ○ Most believe community-based interventions would increase public safety History of Probation Probation was founded in Boston by John Augustus in 1850s ○ Used his own money to bail individuals accused of minor crimes and then he took responsibility for them in the community ○ This was successful but his efforts were not always well received Probationary sentences and conditional releases from prison were introduced around 1880 in canada In 1889, parliament passed An Act to Permit the Conditional Release of First Offenders in Certain Cases There were few community supports for probationers Prior to 1921, probationers received no formal supervision and even by 1950, there were fewer than 20 probation officers in the entire nation Overview of probation Today, probation can be imposed on an individual for up to three years Probation or parole officers typically develop a case plan with their probationers which acts as their roadmap for their rehabilitation ○ These plans focus on issues like substance abuse, education and employment, and the probationers progress is monitored and reassessed by the officer ○ Some critics have argued that these case plans do not challenge the offenders criminogenic attitudes and beliefs Overview of community supervision On any given day in 2022, there were about 37,000 adults in provincial, territorial and federal custody and another 105,000 offenders were serving some form of community sentence (which includes probation, parole, and conditional sentences). This reflects an increase in community-based sentences over the years as the criminal justice system increasingly emphasizes alternatives to incarceration such as probation and conditional sentences, for less serious offences. Overview of probation in canada Each probationer in Canada is required to meet three standard conditions on their probation orders: 1. Keeping the peace and being of good behavior (which may include a ban on communicating with witnesses, co-accused, or victims) 2. Reporting to the court when required 3. Notifying the court or probation officer of any significant changed such as getting a new job or residence  In addition to these conditions, there are a range of additional restrictions that can be placed on the individual, for example: ○ Prohibiting alcohol / drug use / firearms ○ Abiding by a curfew ○ Attending counseling ○ Making restitution ○ Completing community service hours There are various levels of intensity when it comes to supervising probationers