CRM 100 Test 2 Prep Notes PDF

Week 7-10 25 multiple choice questions, plus 2 essay-format questions (you will have a choice from 3 questions). You will have 2 hours, and the test will cover ALL the material from Class 7 (Policing), up to and including Class 10. The presentation by the Ombudsman and the film you have been assign...

Week 7-10 25 multiple choice questions, plus 2 essay-format questions (you will have a choice from 3 questions). You will have 2 hours, and the test will cover ALL the material from Class 7 (Policing), up to and including Class 10. The presentation by the Ombudsman and the film you have been assigned are included. Final exam format: 3 questions for which you will write an essay for. WEEK 7 READINGS: What defunding the police could look like in Canada. This article explores the concept of defunding the police in Toronto, amidst global protests against anti-Black racism. The discussion revolves around reallocating police budgets to fund community-based services, particularly in mental health and social support. Instead of abolishing the police, the idea is to redistribute funds to areas that police are less suited for, such as mental health crises, social welfare, and youth services. The article features insights from sociology professor Akwasi Owusu-Bempah, who suggests creating alternative emergency services for mental health crises, potentially reducing the need for police intervention in such situations. Key Concepts: This is not about abolishment but reallocating police funds to social services. A major focus is on creating specialized emergency services for mental health crises, reducing police involvement in these situations. The article emphasizes the importance of investing in youth programs, social welfare, and education—areas previously defunded. Some funds could be redirected within the police force, for example, to implement body cameras for greater transparency. While some support defunding, others, like Ontario Premier Doug Ford, oppose it, advocating for a strong police presence with better community involvement. Main Idea: Defunding the police in Toronto would involve reallocating parts of the police budget to mental health services, social welfare, and youth programs. The goal is to address underlying social issues more effectively than through policing alone, without fully removing the police from situations where they are still necessary. Takeaway Questions:  1. How would reallocating police funding to mental health services impact overall public safety in Toronto? 2. What specific roles should the police retain, even with reduced budgets, to maintain community safety? 3. How can communities be involved in deciding how police funds are redistributed? 4. What lessons can Toronto draw from other cities that have implemented similar defunding strategies. WEEK 7 LECTURE: Policing in Canada 1) What do we mean by ‘police’? - Authority to enforce criminal law? Power to enforce the law through force? Power to use lethal force? - Police are not the only law enforcement agencies that enforce criminal law. The child welfare authority exemplifies how the police are not unique when enforcing criminal law. - Border patrol/child welfare officers and correctional officers have extraordinary power to use force or coercion/lethal force. - The police do NOT have the authority to use lethal force. Military or armed bank officers and prison officers have the authority. - “police” vs. “policing” - A teacher can police us by ensuring no one cheats or behaves badly. Peers can also police you through group work, and distraction, Parents can police you through whereabouts, and keeping track. Same thing with social media, “guidelines/violaions” “The activities of any individual or organization acting legally on behalf of public or private organizations or persons to maintain security or social order.” (Griffiths p. 69) 2) Sir Robert Peel’s Principles of Policing (1829) Credited to Sir Robert Peel, with the establishment of the first “police force”, ie London Metropolitan Police, 1829. - To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment; - To recognize always that the power of the police to fulfill their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect;  - To recognize always that the extent to which the cooperation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives; - To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolute impartial service to law; - To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public cooperation to an extent necessary to secure observance of the law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective; - To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence; - It is important to recognize that the test of police efficiency is the absence of crime and disorder and not the visible evidence of police action in dealing with them. 3) Functions of the Uniformed Public Police in Canada (what the police actually do) 3a) Crime Control - less than 25% of police time i.e. responding to and investigating crimes, patrolling the streets, arresting, catching criminals Reiss, (1971): - police processed calls from the public as “criminal matters” in only 17% of cases he found that the most common element of the patrols he observed was that they do not involve the arrest of anyone. Ericson and Baranek (1982),(in Ontario) - there were no “incidents” in over one-quarter of all shifts and roughly two incidents for every three shifts these early studies documented that the police are largely reactive, ie. they respond to calls from the community, rather than behaving proactively engaged in fighting crime - 87% of police work is citizen-initiated and rarely involves situations which the police would have knowledge of, or access to, without information from the community - Exceptions would be certain “undercover” or targeted operations, like drug offences 3b) Order Maintenance - 20% of police activity, (i.e. preventing and controlling behaviour that disturbs the public peace, including quieting loud parties, begin present at parades, demonstrations, responding to problems with neighbours, baseball games and, to some extent, patrolling the streets) - the ability to use criminal law as a last resort to asserting and maintaining order - “Who’s law? What order?” 3c) Administration/Court time - 50% of police activity - including paperwork - police are involved in producing all that information about occurrences and reports of crimes to the police, in addition to all the paperwork involved in investigations, arrests charging and appearing in court - the police as an organization have relied heavily on the production of paper -lines of accountability, as a way of documenting the activities of individual officers - the organizational aspects of policing are important determinants in what they do, which are often overlooked - Production of “paper trails” (including their notebook and UCRs) is typically the mechanism by which members of the community have found themselves in the police system esp through contacts like street checks – note the disproportionate impact on racialized communities 3d) Calls for Service -17-50% of police activity This is increasingly true as “diversification” increases, ie. police step in to respond when other organizations and agencies cannot, often due to funding cuts. - illness, collapses, disputes, finding missing children. Studies dating back to 1965 have characterized the police as “Philosopher, guide and friend”, or “Veterinary surgeon, mental welfare officer, marriage councillor, home-help to the infirm, friend and confident.” - they become involved in personal, family, mental health problems, and spend more time mediating disputes between neighbours and, landlords and tenants than between citizens and criminals - Police officers are not mental health workers, so wellness checks are controversial for police offers to do. - the only 24-hour service in the community, so they receive all calls when other social services are unavailable - Note the move to remove the police from “wellness checks” with trained community workers (eg 211) 3e)Functions of the Uniformed, Public Police CITIZEN CALLS FOR SERVICE, WATERLOO REGIONAL POLICE SERVICE, 2016 4) Impact of Crime Control Function on the Public Police As a society, we focus largely on the crime control function of the police. 4A) The structure of police services emphasizes catching criminals and deterring crime - military/top-down organization (“war on crime”) - reliance on patrols to respond to emergencies - training has historically relied on physical strengths and abilities. - 4B) Evaluation of police services reflects crime control: - use of response times as a measure of efficiency - emphasis on crime statistics as the primary measure of police effectiveness and efficiency (number of calls, number of reports, offences “cleared”, arrests, charges) - Implications of calls to “defund the police” – what might that mean for both the police as an organization and communities being “served”? 5) Police Discretion - does it mean? - What are the options available to the police when responding to a call? - It is a built-in, generally desirable feature of the criminal justice process - Has both positive and negative impacts on individuals and the cjs more generally FACTORS WHICH INFLUENCE THE EXERCISE OF POLICE DISCRETION - Legislation and/or Policy (eg crackdowns, diversion, the structure of individual police services may allow more/less enforcement of certain crimes) - seriousness of the incident - Perceptions of the various actors and people involved - officer factors - the police culture (of individual forces as well as more generally). available alternatives – Preliminary data from the Toronto Community Crisis Service (211) suggest it is being “successful” 6) Manifestations of Racism in Policing - racialization of crime (ie linking “race” and “crime”) - Over-policing (racial profiling) and under-policing - over and under-representation of racialized communities – among accused and criminal justice professionals - use of force (review data from Ontario Human Rights Commission on Frontburner; https://trackinginjustice.ca/ ) - poor police-community relations Cotter, A. “Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada.” 7) Revisiting Peel’s Principles - We promote the Peelian principle that “the police are the public and the public are the police,” ie, policing carried out at the local level, by members of one’s own community, and carried out largely by consent, with crime prevention as the main goal. - this model is assumed to be the pan-police model in Canada - However, police histories tend to under-scrutinize the military structures of the “new police,” suggesting that perhaps even the most basic of Peel’s Principles were overstated or incorrect For example: - “Modelled on the Royal Irish Constabulary, … the NWMP (ie the early Mounties) was created as an armed paramilitary organization staffed almost exclusively with members who were ‘lifted out’ of their localities and transplanted to impose colonial authority over a subject population…The NWMP exemplified the symbolic and material expansion of settler colonial authority into the North-West” (Monaghen, 2013, p. 126) - Royal Irish Constabulary was infused in most police forces imposed by the British in some way, especially where uprisings, treason and sedition were perceived to be legitimate threats. Monaghen found this to be the case in Quebec, Newfoundland and Victoria (regionally), and in urban vs rural tensions (across the country but especially in the east). Looking at contemporary times: - the RCMP is one of many colonial institutions that is responsible for the over-policing and over-incarceration of Indigenous people in Canada, as well as the removals of Indigenous children from their homes. - Professor Pam Palmater (2016) points out that the public police across the country have also contributed to the crisis of missing and murdered Indigenous women. - She “….highlight[s] the lesser-known problem of police-involved racialized and sexualized abuse and violence against Indigenous women and girls as a root cause of the large numbers of murdered and missing Indigenous women and girls in Canada.” - She identifies “…police actions as the instigators, perpetrators, and/or enablers of the phenomenon have been overlooked” (p. 255). Question: What, then, are the “true” functions of the public police in Canada? 8) Private Policing in Canada “With respect to the functions of policing, we agree...that non-state providers of security now perform all the tasks once reserved to the public police...They patrol, guard, investigate, respond to emergencies, monitor, collect intelligence, work undercover, constrain, ameliorate crime-producing conditions, advise about crime prevention and control disorder. The tasks of policing are increasingly being shared between public and private providers (Bayley and Shearing, 2001)” Private Policing in Canada - massive growth of private policing personnel since the 1980's - there are more private police than public police officers in Canada (3-2 ratio) - they can exercise force, perhaps deadly force - if they are licensed to do so by the province in which they are working Public vs. Private Policing - Public police typically protect public property and spaces - Act on behalf of the government and “society” to enforce laws, and are publicly accountable - Private Police/Security is generally limited to “mass private property”, ie spaces which are privately owned or operated but used extensively by the public (eg. Malls, airports, sporting venues) - in such cases, they act on behalf of their employer and not necessarily on behalf of the public - Private Policing in Canada - often public and private police forces work together, further blurring the distinction - lack of training and regulation of private security in Canada - new legislation in Ontario now does this - to whom are they accountable? “While there remain distinct tasks that are handled solely by one or the other, the task of ‘policing’ and securing society carried out by a network of public police and private security is often overlapping, complimentary and mutually supportive” (Law Commission of Canada, 2006). *Film “Two Worlds Colliding”* Two Worlds Colliding is a powerful documentary directed by Tasha Hubbard that examines the tragic events surrounding the "Starlight Tours" in Saskatoon, Saskatchewan. The film brings to light the systemic racism and neglect experienced by Indigenous people in the Saskatoon community, especially within the police force. It focuses on a series of incidents in the 1990s and early 2000s, where Indigenous men were abandoned by police on the outskirts of the city in freezing temperatures, leading to exposure, injury, and, in some cases, death. Overview  Starlight Tours: The documentary reveals how "Starlight Tours" became a horrific practice, where Indigenous men were picked up by police, driven to remote areas, and left to fend for themselves in freezing weather. This practice was widely unknown until the deaths of Neil Stonechild and other Indigenous men brought it into public attention. Testimonies of Survivors and Families: The film includes powerful interviews with the families of victims like Neil Stonechild, as well as testimonies from survivors who recount their traumatizing experiences with the police. These firsthand accounts serve as a chilling reminder of the discrimination that Indigenous communities face. Police Accountability and Racism: Through the exploration of police misconduct, the film critiques the lack of accountability within the Saskatoon Police Department at the time. The refusal of authorities to take responsibility and the systemic racism within the force are brought to light, prompting viewers to question the fairness and integrity of law enforcement agencies. Cultural and Community Impact: The documentary highlights how these events created a deep mistrust of the police within Indigenous communities and sparked calls for change. Indigenous leaders and activists featured in the film stress the need for reconciliation and justice for those affected. Notable Quotes from the Film “It’s like they had no value for his life. They treated him like he didn’t matter.” – A family member of a victim, reflecting on the attitude of the police towards Indigenous individuals. “They took him for a ride, and he never came back.” – A chilling statement that encapsulates the horror of the Starlight Tours. “Justice was supposed to be blind, but in our case, it seems to have eyes, and those eyes are closed to our pain.” – An Indigenous leader commenting on the lack of justice for Indigenous victims. General Notes Director’s Perspective: Tasha Hubbard, herself an Indigenous filmmaker, presents the documentary with a focus on storytelling from the Indigenous perspective. This approach allows viewers to understand the emotional and cultural impact of these events on the Indigenous community. Impact and Legacy: Two Worlds Colliding had a significant role in raising awareness about police brutality and racism against Indigenous people in Canada. It led to further investigations and calls for police reform in Saskatoon, helping to bring the conversation about Indigenous rights and justice to the forefront. Cinematography and Tone: The film uses stark imagery of the cold, desolate landscape of Saskatchewan to emphasize the vulnerability of those left in these remote areas. The tone is both somber and urgent, urging viewers to confront uncomfortable truths about institutional racism in Canada.  Educational and Activist Role: Two Worlds Colliding is often used as an educational resource to discuss Indigenous issues, systemic racism, and the need for police accountability. It continues to serve as a call to action for justice and equality within the Canadian justice system Notes on Mr. Kwame Addo, Ombudsman of Toronto: - Ombudsman Toronto listens to and investigates complaints and concerns about unfairness in the City. We are independent and impartial. Our services are free and confidential. - “We promote fairness in City services. We help the public resolve problems with the City. We help the City serve the public better. We investigate, mediate, find solutions, and recommend system improvements.” - “We help the City to hold itself accountable in its duty to provide services that work for people.” - “Our work makes Toronto a better place to live, work, play and do business.” WEEK 8 - Guest Speaker Who We Are One of the City’s four accountability offices, holding the City accountable to ensure fair treatment for all in Toronto. Assists people in navigating local government when experiencing problems. Vision: A City of Toronto that treats all people fairly. Our Team What We Do The Role of Ombudsman Toronto ○ Works independently, impartially, accessibly, and confidentially to ensure fair service from local government. ○ Investigates public complaints after regular complaint mechanisms are exhausted. ○ Can investigate concerns without a formal complaint at the Ombudsman’s discretion. ○ Assists people in resolving problems with local government. Our Responsibilities ○ Holds the City accountable, ensuring fair treatment for all. ○ Aids the public in navigating the City’s services. Who We Oversee Jurisdiction covers: ○ All City divisions  ○ Most City agencies, corporations, adjudicative boards Exclusions ○ Does not oversee the Toronto Public Library. Our Scope Services and areas within jurisdiction include: ○ Animal services, building permits, by-law enforcement, child-care, electricity, fire safety, garbage & recycling, insurance claims, long-term care, parking disputes, parks/forestry & recreation, police policies/procedures, property standards, property tax, public health, roads/sidewalks/bike lanes, shelters, social housing, social services, transit, water bills, winter maintenance. What Ombudsman Toronto Does Resolves complaints and provides lasting improvements in City systems to enhance public service. Offers consultations and educational resources for City staff to understand and deliver fair service. Conducts public outreach to inform people of their rights and encourage accountability. What Ombudsman Toronto Does Not Do Does not act as an advocate for a complainant or defend the public service. Lacks authority to enforce actions beyond requiring cooperation for inquiries and document requests. Does not manage City departments or direct the public service’s operations. Generally does not review complaints from City employees. Does not oversee Councillor conduct. Our Independence Operates independently from City administration. Services are confidential, free, and accessible to all. Legal Powers Staff can issue subpoenas to interview witnesses and obtain documents. Findings and recommendations are final and cannot be appealed. Legal Protections Work is confidential, exempt from FOI requests under the Municipal Freedom of Information and Protection of Privacy Act. Staff have immunity from liability and cannot be compelled to testify about their work. Our Process/Our Approach Complaint Intake and Early Resolution Investigations Administrative Fairness Fair Process Fair Outcome Fair Treatment How to Make a Complaint Who Can Make a Complaint? ○ Any individual personally affected by City interactions can file a complaint. ○ Complaints can be made on behalf of others with written consent. What Types of Complaints Can Be Made? ○ Complaints must fall within legal mandate and involve efforts to resolve directly with the City first. ○ If unable to assist, referrals are provided when possible. Our Priorities Creating Positive Systemic Change ○ Investigation into City’s denial of refugee claimants’ access to shelters outside the refugee program. ○ Collaboration with Toronto Police Services (TPS) to examine the fairness of TPS policies and procedures. ○ Engages meaningfully with the public, focusing on reducing access barriers and building trust. Reducing Barriers to Access ○ Targeted groups include Indigenous communities, African, Caribbean, Black communities, seniors, new immigrants, adults with diminished capacity, TCHC residents, unhoused individuals and advocates, and residents outside the downtown core. WEEK 9 READINGS: Cant access due to restrictions - tell prof WEEK 9 LECTURE: The Criminal Courts in Canada 1) GOALS AND FUNCTIONS OF THE COURTS - to hand down “justice” according to principles and purposes of the criminal law as established through the various mechanisms, ie. determine guilt or innocence, impose an appropriate sentence, make rulings on legal/constitutional issues. - to protect the rights of individual accused - to hear appeals from certain courts within its jurisdiction - to exercise a monitoring function over the activities of the police and Crown -no other component in the CJS has as much of this particular responsibility or burden as the courts Structure of the Courts in Canada 1. Supreme Court of Canada – The highest court, overseeing all lower courts. 2a. Court Martial Appeal Court – Handles military court appeals 2b. Provincial/Territorial Courts of Appeal – Reviews decisions from provincial and territorial courts. 2c. Federal Court of Appeal – Reviews cases from federal courts and tribunals.  3. Provincial/Territorial Superior Courts – Deals with serious cases at the provincial level. 4. Federal Court – Manages cases involving federal issues. 5. Tax Court of Canada – Handles federal tax matters. 6. Military Courts, Provincial/Territorial Courts, Federal Administrative Tribunals, 7. Provincial/Territorial Administrative Tribunals – The lower-level courts and tribunals. 2) STRUCTURE OF THE COURTS (see attachment) Supreme Court of Canada - “the highest court in the land” - hears appeals from all Courts of Appeal - does not conduct trials - does not rehear evidence Courts of Appeal - the highest court in each province, - does not conduct trials - but hears appeals from judgements and orders of the lower courts (ie. Court of Justice and Superior Court of Justice) Court of Ontario - Superior Court of Justice - the superior court of criminal jurisdiction ie hears the more serious criminal cases under the Criminal Code - hears criminal and youth criminal justice trials with or without a jury after a preliminary hearing - hears appeals from decisions in the Court of Justice (lower level) - hears family law matters, excluding child welfare matters - hears all other civil matters - hears Small Claims Court matters under $10,000 Court of Ontario - Court of Justice - lowest court of the province - hears summary conviction offences and most pre-trial proceedings (eg bail hearings, preliminary hearings) for criminal trial (which then are moved to the Superior Court of Justice)  3) STRUCTURE OF OFFENCES Summary Conviction Offences: (They are not called “misdemeanours” in Canada!!!) - less severe - reflected in lower maximum penalties and limitations on amount of intrusion into the accused life (e.g. pretrial detention) - if youre convicted of a summary conviction offense you only do 6 months. Theres a cap on jail time. - tried before a judge alone, dealt with quickly - can only be tried by a provincial court judge sitting alone - examples here are obtaining food by false pretense (pretending you can pay - dine and dash), causing a disturbance - although these are the most numerous offences, individual cases take up, on average, relatively little of the time of the provincial courts - the average summary conviction offence takes approx. 5 minutes to dispose of, 75% of all cases are dealt with in 3 court appearances or less Indictable Offences: (NB They are not called “felonies” in Canada!!!) - the most severe offences - there are more options in how the case is tried and which court tries it (e.g. with or without a jury) - more severe penalties can result from conviction for indictable offences, including life imprisonment. - Indictable offences are more serious, so there are more possibilities of intrusions into the lives of those charged with such offences (e.g. pretrial custody, being photographed and fingerprinted) - Also, afford accused persons increased protections (e.g. the possibility or the requirement, that a judge and jury try their case) - examples of offences in this category are murder, treason, dangerous driving Hybrid - MIX Offences: - the Crown can choose to proceed either by way of summary conviction or indictment. - this decision is at the absolute discretion of the Crown and has significant implications for the accused - especially in whether there is a requirement to release pre-trial, whether the police can fingerprint and photograph, the possible delay in the case coming to trial, the possible penalties upon conviction - in addition, the Crown can proceed summarily at the beginning and then change its mind at any time before the trial begins - examples of hybrid offences are impaired driving, assault, assault with a weapon, assault causing bodily harm, possession of a controlled substance and sexual assault. - This is an essential example of the significance of the exercise of discretion:  - We want the Crown to be able to evaluate individual cases or individual offenders in making fair decisions about how to proceed - But it significantly creates enormous uncertainty for accused persons since that decision can change and may create or exacerbate equity issues. 4) Bail – What’s All The Fuss About? WHAT IS BAIL AND WHAT IS ITS PURPOSE? - Bail is when a person charged with a criminal offence is released from custody while awaiting their trial sentencing. - Individuals can be released with or without conditions they must follow during their release. - Not everyone who is charged with a crime receives bail. - The Charter of Rights and Freedoms recognizes reasonable bail as a constitutional right. - https://www.justice.gc.ca/eng/cj-jp/bail-caution/docs/BailFactSheet_ENG.pdf - The law of bail, as outlined in the Criminal Code, has three main purposes: - to ensure those charged with an offence appear in court when required; - to maintain public safety by assessing and managing any potential risks if an accused person is released; and - to maintain the public’s confidence in the justice system Bail Provisions 1.. individuals remanded either pre-trial or pre-sentence: - Primary reason: to ensure the accused will appear at trial - Secondary reason: to prevent further crime by the accused - expanded grounds for pretrial detention in 1997 (s. 515) to include where “the detention is necessary in order to maintain the confidence in the administration of justice having regard to all the circumstances”... - and, in 1999, to ensure the safety concerns of victims and witnesses are taken into consideration What is the trend here? What might we expect the impact to be? - Under the Charter of Rights and Freedoms, all accused persons have the right to liberty and are presumed innocent until they are proven guilty. - This means that an individual charged with an offence has the right not to be denied reasonable bail without just cause - The SCC noted in the St-Cloud (2015) decision that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.” ONUS - when a Crown prosecutor seeks the detention (denied bail) of an accused person, they must demonstrate to the Court that there is just cause (i.e., sufficient reasons) to detain the accused, with respect to one of the criteria above - This is referred to as the “onus” - Reverse onus cases are when the burden is on the accused to show why the should be released. Examples include: - murder or attempted murder; - an indictable offence committed while they were released on bail for another indictable offence - an indictable offence (if the accused is not ordinarily resident in Canada); - drug trafficking, importing or exporting; - weapons trafficking, possession of weapons for the purpose of trafficking, unauthorized import/export of a firearm or weapon, discharging a firearm with intent, reckless discharge of a firearm; - offences alleged to have been committed with a firearm, such as sexual assault, while threatening a third party or while causing bodily harm, aggravated sexual assault, kidnapping, hostage taking, robbery or extortion; - indictable offences alleged to involve firearms or other weapons where the accused is subject to a weapons prohibition order; - offences relating to criminal organizations and terrorism; - certain types of re-offending, such as where the accused is charged with failing to attend court or to comply with a previous bail order or summons; - an offence involving violence against an intimate partner where the accused has a prior conviction for an offence involving violence against an intimate partner (introduced in former Bill C-75). New legislation in 2019 streamlined and clarified the bail process and codified (ie put into law) guidance from the Supreme Court of Canada on the “principle of restraint.” - to ensure that release at the earliest opportunity is favoured over detention, when appropriate, and that bail conditions are reasonable, relevant to the offence and necessary to ensure public safety; and - clarify that circumstances of Indigenous accused and accused from other vulnerable populations should be considered at bail in order to address the disproportionate impacts that the bail system has on these populations. What are the issues that are part of the current debate? 5) Plea Negotiations (aka ‘bargains’, ‘discussions’) “Any agreement by the accused to plead guilty in return for the prosecution agreeing to take or refrain from taking a particular course of action” (Law Reform Commission of Canada, 1976). - Roughly 90% of criminal cases are resolved through a guilty plea, usually after negotiations between the Crown and the defence. Charge “Bargaining” : - seriousness of charges - number of charges - withdraw/stay of charges Sentence “Bargaining”: - type of sentence (e.g. prison vs. community sanction) - length of sentence - detention order - Crown will not challenge or appeal a sentence Fact “Bargaining” - the facts to be presented in court - not to enter specific facts in court BUT: - would the Crown have received convictions without guilty pleas? - what is the strength of the Crown’s evidence without a trial - what would the sentence have been had the case gone to trial? - evidence of “charging up” and “overcharging” in anticipation of plea negotiations. - The case ends as soon as theres a guilty verdict. 6) Wrongful Convictions in Canada Causes of Wrongful Convictions - Eyewitness identification error - False confessions - Police Tactics – Mr. Big, The Reid Technique, Tunnel Vision - Errors in Forensic Science - Jailhouse informants - False Guilty Pleas – see Brockman - https://innocencecanada.com - “An Offer You Can’t Refuse:Pleading Guilty When Innocent” (Brockman, 2010) Canada’s “dirty little secret..the underbelly of the justice system.” Individual factors induce the innocent to plead guilty: - almost certain conviction if he testified and risks of a much longer sentence (e.g. Cases involving (Dr.) Charles Smith) --Pressure when offences are minor – not scrutinized as closely although they constitute the majority of criminal cases - To end the proceedings, especially if detained before trial (also see Ericson and Baranek, 1982) Structural Factors:  - criminal justice workers “normalize evidence to fit their theory of crime.” - the cjs contains forceful levers to induce guilty pleas, which have expanded and strengthened over time.” - questions the role of defence counsel – are they incompetent, realistic or complicit in maintaining smooth relations with professional colleagues over clients? - The Crown is supposed to act in the public interest: it is never in the public interest to convict an innocent person” (p. 127) Sentencing and Mental Illness (2nd PP - wk 9) 1) The Sentencing Process - Occurs after an accused has been convicted of a criminal offence - It is the complete and sole jurisdiction of the judge, although both the Crown and defence will likely make presentations on what they think is an appropriate sentence - The jury has NO ROLE in deciding a sentence - it is the culmination of the entire trial process - it is here where most of what goes on in earlier stages comes together - it is where we make attempts to address the wrongs which have been committed - we apply our theories of how to address very specific wrongs which have been legally proven to have occurred and the context in which they have occurred - we also make important symbolic statements about acts, behaviours and people through the imposition of sentences - in some ways, the most public and tangible part of the process - it is sometimes the only thing about a case which is either reported or stays in our minds 2) Goals of Sentencing UTILITARIAN GOALS: ie. They attempt to change things in the future (eg. Reduce crime) Deterrence - punishment for committing a crime - General - societal level for public - Specific - individual level for a specific person Incapacitation - creating conditions where they are incapable of committing a crime (ex: curfews, house arrest, solitary) - Collective - general public - Selective - putting selected people in prison or punishing them so they dont commit a crime. - Ex: Lobotomy or giving drugs to reduce sex drives for specific assault cases or general disturbance felons. Rehabilitation - Correcting the bad behaviour through therapy or community service. NON-UTILITARIAN GOALS: ie. They do not attempt to change things in the future - Retribution - eye for an eye, getting back at someone for what they deserve - just desserts - responding proportionately to someone who's done wrong. Measured. - Denunciation - speaking against something, sentencing someone is an example of speaking against the crime they committed to show the general public. 3) Purpose and Principles of Sentencing - Purpose and Principles of Sentencing from the Canadian Criminal Code Purpose: S718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders and acknowledge the harm done to victims or the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (d) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. R. v. Gladue, 1 S.C.R. 688 - In 1995, Jamie Tanis Gladue, a 19-year-old Cree woman, stabbed and killed her common-law husband, Reuben Beaver, in Nanaimo, ​British Columbia. - Gladue was intoxicated — her blood-alcohol level was approximately double the legal limit for operating a motor vehicle in the province — and had suspected her husband of infidelity at a party earlier in the evening. - Beaver confirmed his infidelity and insulted Gladue during an argument upon returning to their townhouse. - Gladue fatally stabbed Beaver in the chest after chasing him from the home with a knife. - Gladue was charged with second-degree murder but pleaded guilty to manslaughter. - The trial judge heard that she had demonstrated remorse and that while on bail, she had attended counselling for substance abuse and completed Grade 10.  - Since she was not living on a reserve at the time of the murder, the trial judge ruled that section 718.2 (e) of the Criminal Code did not apply in her case. This section states that a court must consider “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” - The judge sentenced Gladue to three years in prison. R. v. Gladue, 1 S.C.R. 688 The Supreme Court of Canada ruled: - that the intent of the Criminal Code provision, introduced in Parliament in 1994, is to alleviate the higher rate of incarceration for Indigenous offenders and to implement restorative justice — an approach that views crime as harm done to people and that seeks to rehabilitate offenders through reconciliation with victims and the community. - The court clarified that even though an Indigenous person is not living on a reserve, the principles of S. 718 still apply. - The Supreme Court was clear in its ruling that judges may not, as in Gladue’s case, excuse an Indigenous offender from consideration based on residence. A judge must consider an Indigenous community in a broad sense, including urban or more widely spread communities and networks of support. - The SCC did not change the sentence (https://www.thecanadianencyclopedia.ca/en/article/r-v-gladue) 4) The Structure of Sentencing 1) High Maximum Prison Terms - reserved for the "worst case" ie. the worst offender and the worst offence Examples Ranked: 1. life (murder, robbery, treason, agg. sexual assault) 2. fourteen years 3. ten years (“subject to a penalty of not more than 10 years”) 4. five years 5. two years 6. 6 months for summary conviction offences 2) Mandatory Minimum Prison Terms are rare Examples (“minimum punishment of imprisonment”): - first and second-degree murder, - use of a firearm during the commission of an offence, - second conviction for impaired driving Reasons for mandatory minimum sentences:  - denunciation - general and specific deterrence - To reduce disparity in sentencing (ie variation across cases) Concerns about Mandatory Minimum Sentences - no evidence that mandatory minimum sentences prevent or deter crimes - greater use of imprisonment often increases recidivism among offenders - removes discretionary powers of the judge to tailor the sentence to the facts and to the offender - Has resulted in the over-representation of Indigenous, Black and other racialized communities in prison - offenders convicted of serious crimes already serve long sentences in Canada - we have high maximum penalties - does not reduce disparity in sentences – it is simply moved to another stage in the process - creates backlogs in the courts – more cases and more time per case - creates over-crowding in prisons - increases costs throughout the system - Induces false guilty pleas 5) Aggravating and Mitigating Factors Aggravating Factors - the abuse of a child or a spouse - previous criminal record - breach of trust or position of authority - premeditation - the offence was motivated by “hate.” - the use of force or a weapon - injury to the victim - the high value of stolen or damaged property - a victim who is a youth or a vulnerable adult Mitigating Factors - evidence of remorse - apology, remorse, emotions, - first offences - first-time offenders only - intoxication, provocation, self-defence - psychological problems - mental illness - age of the offender - under 18 - being Aboriginal - - See the decision of the Supreme Court of Canada in Gladue (above) 6. Mental Illness and the Criminal Process “No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong (Criminal Code, R.S.C 1985, c. C-46, s. 16(1)) - The law assumes everyone is “Sane” No sane person can commit a crime. “…people who commit criminal acts under the influence of mental illnesses should not be held criminally responsible for their acts or omissions in the same way that sane responsible people are. No person should be convicted of a crime if he or she was legally insane at the time of the offence … Criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong and of knowing that it was wrong.” (Winko v. British Columbia (Forensic Psychiatric Institute), 2 S.C.R. 625, 1999) Stages of consideration: - Pretrial – Fitness to Stand Trial - Trial- Not Guilty By Reason of Mental Disorder, Role of Review Boards - Post-trial - dispositions 7) Fitness to Stand Trial The law assumes that every accused person is “fit”, unless it is determined by a judge, after a fitness hearing that the accused is “unfit to stand trial.” Defined in the Criminal Code: - the accused person is unable, because of a mental disorder, to defend against the charge(s) they are facing or to tell their lawyer what they want to do with their case. - Specifically, “unfit to stand trial” means the accused is not able to understand that they are in a courtroom, who the people in the courtroom are (i.e., the judge, the Crown, their lawyer) and why they are there; - If a judge has reasonable grounds to believe that any or all those are true, a judge will likely order a fitness assessment. - An accused who is not “unfit to stand trial” is usually referred to in court as “fit to stand trial” or simply as “fit.” - It may be temporary or permanent - When reversing this ruling, a judge does not need to be convinced that the individual no longer suffers from a mental disorder; rather, that the individual is competent enough to stand trial despite the mental disorder. (from torontodefencelawyers.com) Not Criminally Responsible because of Mental Disorder - Establishing whether an accused is Not Guilty By Reason of Mental Disorder occurs in the court hearing the charges - the verdict does not constitute an acquittal; it represents a unique third option.  - An accused that is found NCRMD is diverted to a provincial or territorial Review Board established under section 672.38 of the Criminal Code. - The rationale for this separate stream is that, while the accused is not criminally responsible for his or her behaviour, the public may still require protection from future dangerous behaviour. - Under section 672.54, the court or Review Board must order the disposition that is the least onerous and least restrictive to the accused. In 1999, the Supreme Court of Canada, in R. v. Winko, ruled that if the accused does not pose a significant threat to the public's safety, the court or Review Board must order an absolute discharge. This decision reflects the basic principle that the only rationale for using the state’s criminal law power to impose restraints on an individual who has been found not criminally responsible for his or her actions is the need to secure the public's safety. The Supreme Court of Canada clarified that Section 672.54 does not create a presumption of dangerousness. In other words, while protecting society is paramount, there must be clear evidence of significant risk to the public before a court or Review Board can maintain control over an accused by imposing a conditional discharge or detention order. NCR: Not Criminally Responsible (https://www.nfb.ca/film/ncr_not_criminally_responsible/) WEEK 10 - NCR: Not Criminally Responsible https://www.nfb.ca/film/ncr_not_criminally_responsible/ Sean Clifton’s Crime: Sean Clifton, suffering from severe mental illness, attacked a stranger, Julie Bouvier, in a mall in 1999, stabbing her multiple times during a psychotic episode. Diagnosis and NCR Ruling: Clifton was found to have schizophrenia and obsessive-compulsive disorder. A court ruled him NCR (Not Criminally Responsible), meaning he was deemed unable to understand his actions due to his mental illness. Hospitalization and Treatment: Clifton was sent to a secure psychiatric hospital for treatment rather than prison. He underwent years of therapy and medication to manage his condition. Impact on Victim and Family:  Julie Bouvier and her family expressed their trauma and struggles to cope with the attack. The film highlights their perspectives, including mixed feelings about the justice system's approach. Clifton’s Rehabilitation: The documentary follows Clifton’s progress as he works toward recovery and takes responsibility for his actions. He faces evaluations to determine if he is ready for greater freedom or reintegration into society. Public Concerns and Stigma: The film addresses fears and misunderstandings about the NCR ruling, questioning whether individuals like Clifton should re-enter society. Reintegration into Society: After years of treatment, Clifton makes significant strides and begins transitioning back into the community under strict monitoring. Textbook questions Chapter 4 1. Define Policing Policing refers to the activities involved in maintaining public order, preventing and investigating crimes, and enforcing laws to ensure community safety and justice. 2. What is the Pluralization of Policing? The pluralization of policing includes, multiple organizations—public, private, and community-based—working alongside traditional police services to maintain public safety and order. 3. Define and Contrast the Social Contract Perspective and the Radical Perspective The social contract perspective sees police as neutral protectors of society who enforce laws fairly to maintain order and safety. In contrast, the radical perspective views police as instruments of the state, upholding systemic inequalities and protecting elite interests over marginalized groups. 4. What is Political Policing? Political policing involves actions by police aimed at monitoring, controlling, or suppressing political dissent or opposition, often prioritizing state interests over individual rights. 5. Discuss the Role of Police Acts, Standards, and Boards in Governance Police acts define the structure, duties, and authority of police services. Policing standards are guidelines to ensure accountability, efficiency, and fairness in policing practices. Police boards and commissions oversee police services, manage budgets, and address community concerns to ensure accountability. 6. Describe the Components of Core Policing Core policing involves several key components: crime prevention and investigation, maintaining public order, assisting victims, community engagement, and addressing social issues such as mental health crises. 7. What is the Royal Canadian Mounted Police Act? The Royal Canadian Mounted Police Act establishes the RCMP’s mandate, powers, and responsibilities, along with processes for discipline, accountability, and governance of the force. 8. Define Contract Policing Contract policing refers to arrangements where police services, such as the RCMP, are hired by provincial, territorial, or municipal governments to provide policing in specific jurisdictions. 9. Identify the Basic and Preferred Qualifications for Police Candidates Police services require basic qualifications, including minimum age (18 or 19), a high school diploma, good physical fitness and moral character, and no criminal record. Preferred qualifications include post-secondary education, knowledge of a second language, and work or volunteer experience in related fields. 10. Why is Operational Field Training Important for New Officers? Operational field training is crucial for new officers as it allows them to apply theoretical knowledge in real-world scenarios, learn from experienced officers, and develop decision-making skills and confidence. 11. Define the Working Personality of Police and Its Components The working personality of police includes traits shaped by their job, such as authoritarianism (a need for control), cynicism (skepticism about others' motives), and hypervigilance (constant awareness of potential danger). 12. Discuss Operational Stress Injuries in Police Officers Operational stress injuries are mental health issues caused by repeated exposure to traumatic events. These can manifest as anxiety, depression, emotional exhaustion, or difficulty maintaining personal relationships. 13. What is PTSD and Its Symptoms? Post-Traumatic Stress Disorder (PTSD) is a mental health condition triggered by experiencing or witnessing trauma. Symptoms include flashbacks, nightmares, emotional numbness, difficulty concentrating, irritability, and anger. Chapter 5 1. What is the Principle of Accountability? The principle of accountability ensures that police officers and services are answerable for their actions and decisions. It emphasizes transparency and oversight, requiring police to act within the boundaries of the law and maintain public trust. Mechanisms such as civilian oversight boards, internal reviews, and public inquiries are essential to enforce accountability and address misconduct. 2. Define Discretion and Its Role in Police Decision-Making Discretion refers to the authority police officers have to make decisions based on their judgment in specific situations. This flexibility is essential in policing, allowing officers to adapt to unique circumstances, prioritize resources, and balance enforcement with community needs. However, the use of discretion must align with principles of fairness and justice to avoid abuses of power or biased decision-making. 3. What Are Typifications and Recipes for Action? Typifications are generalizations or assumptions police officers develop based on their experiences and training about what constitutes "normal" behavior or suspicious activity. Recipes for action are routine procedures or strategies used to respond to specific situations. Together, these concepts shape police decision-making by guiding how officers interpret situations and determine appropriate actions. While they can enhance efficiency, they may also reinforce stereotypes or lead to biased policing. 4. Define and Discuss Bias-Free Policing, Over-Policing, and Pretext Policing Bias-free policing involves treating individuals fairly, regardless of their race, ethnicity, gender, or other personal characteristics, ensuring impartiality in law enforcement. Over-policing refers to excessive surveillance or enforcement in certain communities, often leading to strained relations and mistrust. Pretext policing occurs when officers use minor infractions as an excuse to investigate more serious offenses, often targeting marginalized groups. These concepts highlight the need for fairness and equity in policing practices and the importance of addressing systemic biases. 5. What is the Mr. Big Technique and Why Is It Controversial? The Mr. Big technique is a covert police investigation strategy where officers pose as members of a criminal organization to elicit confessions from suspects. While it can uncover critical evidence, it is controversial due to concerns about reliability, coercion, and the risk of false confessions. Critics argue that the technique can exploit vulnerable individuals and undermine the integrity of the justice system. 6. Use of Search Warrants and Arrest Warrants in Policing Search warrants and arrest warrants are legal documents issued by a judge or justice of the peace, authorizing police to search a location or arrest a person. They are fundamental tools in policing, ensuring actions are lawful and rights are protected. Search warrants must specify the location and items to be seized, while arrest warrants must identify the accused and the offense. Both require police to provide reasonable grounds and uphold constitutional protections against unreasonable searches and seizures. 7. Role of Information in Police Response to Accused Persons An information is a formal statement sworn by a police officer or complainant outlining the alleged offense and facts supporting it. It serves as the basis for laying charges and initiating legal proceedings. The information guides police response, ensuring actions align with the legal framework and providing transparency in how accusations are handled. Chapter 8 1. Difference Between Summary Conviction Offenses, Indictable Offenses, and Hybrid Offenses Summary conviction offenses are less serious crimes with lighter penalties, such as a maximum sentence of six months or a fine. They are tried quickly in provincial courts without a jury. Indictable offenses are more severe crimes with harsher penalties, such as life imprisonment, and may involve jury trials in higher courts. Hybrid (elective) offenses allow the Crown to choose whether to proceed as summary or indictable based on the circumstances, giving flexibility in prosecution. 2. Role of the Preliminary Hearing A preliminary hearing is a pretrial procedure in serious criminal cases to determine whether sufficient evidence exists to proceed to trial. It ensures that weak cases do not unnecessarily burden the court system and allows the accused to learn about the Crown's evidence. 3. Judicial Interim Release (Bail) and Surrounding Issues Judicial interim release, or bail, allows accused individuals to remain free while awaiting trial, often with conditions to ensure public safety and their return to court. Issues include the potential for unequal treatment of marginalized groups, the use of strict conditions, and concerns about public safety versus the presumption of innocence. 4. Describe Remand and Its Significance Remand refers to the detention of an accused person in custody while awaiting trial or sentencing. It is significant because it often results in overcrowded facilities, impacts the accused’s ability to prepare a defense, and raises concerns about fairness, especially for individuals presumed innocent. 5. Controversy Surrounding Security Certificates Security certificates are used in immigration cases to detain individuals suspected of being threats to national security. They are controversial due to their use of secret evidence, lack of transparency, and potential infringement on rights, including the right to a fair trial. 6. Issues Surrounding Plea Bargaining Plea bargaining raises concerns about fairness, as it may pressure innocent individuals to plead guilty to lesser charges. It can also result in inconsistent sentencing and reduce public confidence in the justice system, despite its role in streamlining court proceedings. 7. Open Court Principle The open court principle holds that legal proceedings should be open to the public and media to ensure transparency, accountability, and public confidence in the justice system. Exceptions, such as publication bans, must balance public interest with the rights of participants. 8. When a Crown Counsel May Enter a Stay of Proceedings A stay of proceedings is entered when continuing a prosecution is not in the public interest or if there are concerns about the fairness of the trial, such as insufficient evidence, delays, or procedural issues. 9. Defense of Not Criminally Responsible on Account of Mental Disorder (NCRMD) The NCRMD defense applies when an accused was unable to understand the nature or wrongness of their actions due to a mental disorder. It is controversial as it balances public safety with compassion for individuals with mental health issues and raises concerns about accountability and the stigma surrounding mental illness. 10. Difference Between Restitution and Criminal Injury Compensation Restitution is court-ordered payment from the offender to the victim for losses caused by the crime. Criminal injury compensation is government-provided financial support for victims of violent crimes, independent of the offender’s ability to pay. Chapter 9 1. Proportionality in Sentencing and the Principle of Restraint Proportionality ensures that the severity of a sentence corresponds to the seriousness of the offense and the offender's degree of responsibility. The principle of restraint emphasizes minimizing the use of imprisonment and imposing the least restrictive sentence necessary to achieve justice. 2. Suspended, Conditional, and Intermittent Sentences A suspended sentence delays punishment while the offender follows probation conditions. A conditional sentence allows the offender to serve time in the community under strict conditions instead of prison. An intermittent sentence permits imprisonment in intervals (e.g., weekends), often combined with probation. 3. Define Probation Probation is a court-ordered period of supervision in the community, with conditions the offender must follow, such as reporting to a probation officer or attending rehabilitation programs. 4. Concurrent vs. Consecutive Sentences A concurrent sentence is served simultaneously for multiple offenses, while a consecutive sentence is served back-to-back, extending the total time in custody. 5. Judicial Determination and Its Role in Sentencing Judicial determination requires offenders to serve a specific portion of their sentence, typically half, before becoming eligible for parole. It emphasizes accountability and ensures a significant portion of the sentence is served. 6. Dangerous Offender and Long-Term Offender Designations A dangerous offender designation applies to individuals posing a serious threat to public safety, often resulting in indefinite detention. A long-term offender designation focuses on prolonged supervision after release, addressing ongoing risks while allowing reintegration. 7. Gladue Decision and Reports The Gladue decision (1999) mandates courts to consider the unique circumstances of Indigenous offenders, such as systemic disadvantages and colonial impacts. A Gladue report provides detailed information about the offender’s background, helping courts apply culturally sensitive alternatives to incarceration. 8. Sentencing Disparity Sentencing disparity occurs when similar offenses receive inconsistent sentences due to factors like judicial discretion or bias. For example, racialized offenders may face harsher penalties, and regional variations in sentencing practices can lead to unequal outcomes. 9. Collateral Consequences of Sentencing Collateral consequences are unintended effects of a sentence, such as loss of employment, housing difficulties, family separation, or social stigma, which can hinder rehabilitation and reintegration. 10. Case Law Precedent in Sentencing Case law precedent provides guidelines based on prior judicial decisions, ensuring consistency in sentencing and helping judges interpret laws and apply them appropriately to similar cases. 11. Victim Impact Statement (VIS) A victim impact statement (VIS) allows victims to describe how the crime has affected them emotionally, physically, and financially. It plays a role in sentencing by giving the court a fuller understanding of the harm caused and ensuring the victim’s voice is heard. 12. Circle Sentencing vs. Traditional Criminal Courts Circle sentencing is a restorative justice practice where community members, victims, and offenders collaborate to decide on appropriate consequences, focusing on healing and accountability. In contrast, traditional courts emphasize punishment and deterrence, often without active community involvement or victim input.