Chapter 1
An Overview of the Criminal Justice System in Canada
Chapter Outline
Gun Crime in Canada and
in
The Criminal Justice System
Discussion of gang-related shootings and homicides
Social Control, Crime and
Criminal Justice
Definition of social control
The role of social control in contemporary society
What is Crime?
Legalistic definitions of crime
Crime as violation of moral codes
Crime as social construct
Assisted Suicide
Operation and Role of the
Criminal Justice System
The purpose of the criminal justice system--the
control of crime, the prevention of crime, achieving
justice.
What is Criminal Justice?
Fairness and its assumptions
Disparity and discrimination--systemic,
institutional, contextual, and individual.
Substantive and procedural justice
The adversarial system
The Structure of the Criminal
Justice System
Police-the levels of policing and their
responsibilities.
Courts - the Canadian court system which operates
on the basis of an adversarial system.
Concerns about “assembly-line justice”.
Corrections - community supervision comprising
various types of parole, probation, statutory-release,
temporary absences.
Processing Cases through
the System: The Formal
Organization of the Courts
Pretrial criminal procedure
- arrest, appearance notice, summons
- detention, bail or custody, fitness hearings
Canada and the political and legislative reaction to
them.
Trial procedure
- arraignment, indictment and preliminary inquiry,
trial, sentencing and incarceration
Criminal Justice “Funnel”
Informal operation of the criminal justice system
Chapter 1 Criminal Justice in Canada, 5e
The courtroom workgroup
- reporting the crime, recording of the crime by
police, laying a charge, bail (Judicial Interim
Hearing), prosecution, sentencing.
Values and the Criminal Justice
System
The Crime Control Model
The Due Process Model
Critical Issues in the
Canadian Criminal Justice System
The Anti-Terrorism Law: Crime
Control or Due Process?
Summary
Criminal Justice System in Canada: consists of three major agencies - the police, the
courts and the correctional system. They operate in a formal manner but also have an
informal side as well.
Gang-related shootings and homicides across Canada: a discussion of gang-related
shootings and homicides (mostly in the Lower Mainland of British Columbia during the
spring of 2009) and the reactions to these incidents by federal, provincial and municipal
politicians. Specifically, a discussion of the federal government’s proposed legislation
that would introduce new provisions in the Criminal Code related to organized crime
(criminal organization) related activities. These include making murder an automatic
first-degree murder charge when it is committed in connection with a criminal
organization, the creation of new broad-based offence to target drive-by and other
intentional shootings involving the reckless disregard for the lives and safety of others,
creating two new offences for assault with a weapon or causing bodily harm and
aggravated assault against a peace or public officer, and strengthening and lengthening
‘gang peace bonds.’ Finally, some concerns about the approach and potential impact by
these proposed laws are briefly presented.
Social Control, Crime and Criminal Justice: A brief introduction to the concept of
‘social control’ and its’ importance in our legal and justice system. This brief discussion
leads quickly into the next section, “What is Crime?”
What is Crime? Just as it is important for students to learn the definitions of criminal
justice (see below), it is important for them to understand that there are different
definitions of crime, all of which have some impact upon the operation of our justice
system. Three definitions are introduced to students in this section, followed by a
discussion of the issue assisted suicide.
- Legalistic definitions of crime – a brief introduction to the two main legal definitions of
crime and some of the criticisms of them.
- Crime as violation of moral codes – the importance of looking at other criteria to define
a crime, most notably the ‘modified legalistic’ approach pioneered by Edwin Sutherland
in his work on corporate crime. In particular, the importance of the two abstract criteria
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that he used in this definition of crime, ‘social injury’ and ‘social harm’ are introduced
and briefly discussed.
- Crime as social construct – the importance of including social interaction between
offenders and the various agents of the criminal justice system in the study of crime and
criminal justice.
Each of these three definitions of crime can be applied to the feature, ‘assisted suicide’ in
order for students to understand the strengths and limitations of each of them.
Operation and Role of the Canadian Criminal Justice System: how the agencies are
related and how they are linked by a common goal which is to bring offenders to justice.
Due Process: emphasizes the “justice” in criminal justice by focusing upon the legal
rights of the accused. The most important goal is to protect the rights of the accused even
though they may be factually guilty. Legal guilt must be proven in a court of law.
Crime Control Model: shows the appropriate goals for the criminal justice system, and
goes on the assumption that most individuals who are arrested are in fact guilty. The most
important goal is to reduce crime by incarcerating criminals for lengthy periods of time.
If a defendant is factually guilty, then it is easy to prove legal guilt.
What is Criminal Justice?
• Fairness and its assumptions
• Disparity refers to a difference, but not one that necessarily includes discrimination.
•
Discrimination refers to the differential treatment of individuals based upon
negative judgments about their perceived or real membership with a group. There
are four types of discrimination:
1) systemic-discrimination existing in all aspects of the criminal justice system,
2) institutionalized-discrimination in the outcomes of decisions in established
policies,
3 contextual-discrimination in certain contexts or situations, and
4) individual-discrimination by a member of the criminal justice system against
the members of certain groups.
• Substantive justice refers to laws that define some conduct as criminal and specifies
appropriate punishments.
• Procedural justice focuses on the fairness of the procedures used to arrive at a verdict.
• Adversarial justice is defined as having three characteristics:
1) each party involved has the right to argue what evidence is considered by the
court,
2) a prosecutor is concerned that justice is done, and,
3) the trial is heard by an impartial party (i.e. judge).
The Structure of the Criminal Justice System:
• Police - the three levels of police forces in Canada are municipal (e.g. City of
Winnipeg Police Service), provincial (Ontario Provincial Police), and federal
(RCMP), and all have specific duties in enforcing laws.
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•
•
Courts - the three levels in the court system are provincial , superior, and appeal
courts. Provincial courtrooms have an air of “assembly-line” justice and are often
organized into special divisions such as family court, youth court, small-claims court,
family violence court and criminal court. The superior courts hear indictable offences
such as first- and second-degree murder. They also hear appeals of cases decided at
the provincial court level. The highest level of court is the appeal court which deals
with issues concerning procedural errors and sentence lengths.
Corrections - the correctional system involves many facilities, agencies and
programs which have been criticized for decisions that seem to reflect a disregard for
public safety, but they play a number of important roles in the system which deal with
what to do with offenders on a day-to-day basis. They are divided into provincial and
federal levels of jurisdiction.
The Adversarial System:
•
Benefits of this system include the clear division of labour among the participants
such as the prosecutor, defence lawyer, and judge. Also, that as much evidence as
possible is looked at in each case and thirdly, the legitimacy of the program is
promoted through the appearance of fairness of the system and neutrality of the judge.
•
Limits of this system are that the adversarial principles can be ignored or
negotiated during the daily activities of the court, time can become a factor since each
side is trying to present enough evidence to win their case and delays can occur at
each step. Our system is not a pure adversarial system. The court’s higher duty of
seeing that justice is done is reflected in the fact that the Crown has an obligation to
disclose all relevant evidence even after the trial has begun. Therefore the evidence
must be brought forward even if it supports the accused’s innocence.
Processing Cases: Criminal procedure is concerned with the way criminal justice
agencies operate; that the agencies act in an impartial and fair manner, that the defendants
are considered innocent until proven guilty. The two major parts of criminal procedure
are pretrial and trial procedure:
•
Pre-trial criminal procedure deals with arrest (with or without a warrant),
appearance notice and summons which ensure that the accused appears in a criminal
court. Once a person is arrested, decisions are made to determine if they should be
held in custody before the trial. The purpose of bail (Judicial Interim Hearing) is to
ensure that the accused appears at his trial while permitting him or her to participate
in their defence. The Justice of the Peace determines if the accused is to be released
before trial. This is such an important part of the Canadian legal process that Section
11(e) of the Charter of Rights and Freedoms guarantees the right of the accused “not
to be denied reasonable bail without just cause.” The issue of whether or not an
accused is fit to stand trial is then discussed.
•
Trial procedure begins with an accused being arraigned, that is where the accused
hears the charges brought against them and enters a plea in response. If the plea is
not guilty, a trial date is specified. If the accused pleads guilty, the judge sets a
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sentencing date and decides whether the accused is to be held in custody until
sentencing.
•
The function of a preliminary inquiry is to determine if there is enough evidence to
send the individual to trial. When the judge decides there is enough evidence to
proceed to trial, the offence is then written in the form of an indictment which
formally states the accused has committed a particular offence. If the judge decides
to discharge the accused it does not mean that the individual is acquitted, but that
there is not enough evidence at the time to go to trial. If, at a future date, there is new
evidence brought forward, the prosecution proceeds with a direct indictment.
Trial: the accused can elect trial by judge alone, or judge and jury in most indictable
offences. First- and second-degree murder charges must be tried by judge and jury.
Some indictable offences are considered so minor that they are heard by a judge alone. If
reasonable doubt exists, the accused is acquitted of all charges.
Sentencing: In Canada, the sentences most commonly used are:
• discharge (absolute or conditional)
• probation
 conditional sentence of imprisonment
• incarceration
• suspended sentences
• fines
A judge may use two of these sentences and in some cases has no choice in setting the
penalty. The judge also takes into consideration the type of charges and prior record of
the offender, a presentence report compiled by a probation officer, employment record
and family support of the offender, victim impact statement, and any mitigating or
aggravating circumstances surrounding the commission of the crime.
Incarceration: the offender can be sent to a provincial or federal institution. If they are
sentenced to 2 years less a day, they are put to a provincial institution; federal institutions
house those individuals sentenced to 2 years or more. Most offenders in Canada do not
serve the full term of their sentence. If they don’t receive full parole, most receive
statutory release after serving two-thirds of their sentence.
The Criminal Justice ‘Funnel’: Referred to as the informal operation of the criminal
justice system, it is a process that employs key decision points that move each case along.
At each point, the members of the agencies exercise discretion in their professional
capacity to ensure that the offenders are processed in such a way that the public is not
placed at risk or that an innocent person is not incarcerated for a crime they did not
commit (also referred to as the courtroom workgroup. For example, the police may not
arrest an individual involved in a domestic dispute despite a police department policy of
mandatory arrest in such cases. Crown prosecutors may decide to plea bargain with a
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defendant’s lawyer in exchange for information about another crime of the location of a
suspect wanted by the police.
•
•
•
Reporting the Crime: A substantial number of victims do not report crimes to the
police because they think that the crime is too minor, the police couldn’t do anything,
inconvenience, and nothing was taken. Included in the high numbers of nonreporting rates are sexual assaults against women. In a national 1993 Statistics
Canada Survey , the Violence Against Women Survey, 12,300 women were
interviewed about their experience with physical and sexual violence since their 16th
birthday. Only 6 percent of the women who were sexually assaulted reported the
incident to police.
Clearing the Crime by the Police: Many incidents can be classified as “unfounded”
which means that after a preliminary investigation into the incident, the police decide
that a crime was neither attempted nor actually committed. Some police record these
incidents as “unfounded” because they are frustrated by the complexities and the lack
of citizen assistance. Official reports are more likely to be made in incidents where
property damages or loss occurred and when no personal injury to the victim was
involved. Officers routinely deal with interpersonal troubles by informal means while
property-related troubles are more routinely processed as officially-determined
crimes.
Laying a Charge: When a suspect is identified and there is sufficient evidence to lay
an information, the incident is considered to be “cleared by charge”. Incidents may
be classified as “cleared otherwise” in cases where the complainant declines to
proceed with the charges. If a victim-complainant identifies a suspect who has left
the crime scene, an occurrence report is usually written up by a patrol officer. They
hand over the case to a detective for further investigation. Ericson (1982) found that
out of 235 cases he studied in the Toronto area, only 50 (21%) were solved by laying
a criminal charge.
•
Bail (Judicial Interim Hearing): This is one of the most important components of
the criminal justice system. Criminal lawyers cite the reasons for granting or not
granting bail (in order of importance) as:
- the necessity of ensuring the accused’s attendance in court (primary grounds)
- the accused’s likelihood of reoffending and his danger to the public (secondary
grounds)
- public confidence in the administration of justice (tertiary grounds)
•
Prosecution: the greatest amount of attrition of major or indictable cases within our
criminal justice system occurs between the time the police lay a criminal charge and
the time a prosecutor decides to accept the case and take it to court. Concern about
the quality of the evidence collected by the police leads to prosecutors staying the
charges or dropping them altogether. Sometimes victims decide not to proceed to
trial because of fear of testifying in court, fear of revenge, pressure from family and
friends, prior relationship to the offender or sympathy for the offender.
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•
Sentencing: Most accused persons in Canada plead guilty on first appearance in
provincial court because they want to get it over with, while others give a statement to
police admitting their guilt. Some believe that the police have enough evidence to
convict them anyway or that a trial will lead to a longer sentence. Others believe that
by agreeing to a guilty plea prior to the court case, they will receive a more lenient
sentence.
The sentence does not always follow the crime; that is, the perpetrators of the most
serious crimes do not always receive the harshest sentences. Aboriginal offenders are
more likely to be sent to federal prison than a white perpetrator with a similar record.
Other studies have shown that the poor may not be able to afford quality legal
representation and as a result receive harsher sentences.
Key Terms/People
disparity
peace bonds
Vera Institute of Justice (1992)
Justice of the Peace
an information
arraignment (first court appearance)
indictment
preliminary inquiry
discharge
direct indictment
substantive justice
sentencing
victim impact statement
criminal justice “funnel”
“assembly-line justice”
Ericson and Baranek (1982)
community supervision
Violence Against Women Survey
recording of the crime by police
Ericson (1982)
laying a charge
Desroches (1995)
prosecution
Petersilia et al. (1990)
Gunn and Minch (1988)
Landsman (1984)
Blumberg (1979)
Fitness hearings
Legalistic definitions of crime
Crime as social construct
discrimination
courtroom workgroup
Bail Reform Act (1972)
Travis (1990)
Senna and Siegel
Wheeler (1987)
Packer, Herbert
due process model
crime control model
trial
Donald Marshall
procedural justice
adversarial justice
appeals court
reporting the crime
Canadian Urban Victimization Survey
statutory release
temporary absences
Reed and Roberts (1999)
formal organization
warrant/arrest without
lay an information
indictable offence
appearance notice
summons
Barnhorst and Clarke (1992)
detention
social control
Crime as violation of moral codes
assisted suicide
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Learning Objectives
•
•
•
•
•
•
•
identify the major agencies of the criminal justice system and their role in processing
the accused through the system.
understand the costs involved in the operation of the criminal justice system
be able to describe the differences between the Due Process Model and Crime
Control Model
follow the court procedure in criminal cases
know how the criminal justice “funnel” operates as a process of the informal criminal
justice system.
identify the benefits and limits of the adversarial system of justice
understand costs involved in prosecuting perpetrators of crimes, costs incurred by
victims and unanticipated financial costs incurred by the criminal justice system.
Teaching Suggestions
1) What is Justice?
The term ‘justice’ is used by all societies over the world. What exactly justice is,
however, is the subject of debate. Although there is no one universal or agreed upon
definition of justice, people still expect that justice will be carried out by the criminal
justice system. The notion of justice is integrated into punishment. This is because
society expects people who violate laws will be punished. Laws differ from one society
to the next, and so do the forms of punishment that come from those violations. An
illustration of this would be capital punishment. While the United States still uses the
death penalty other countries, such as Canada, no longer use it as a form of punishment.
Whatever the differences between countries, they all have in place a system that they feel
connects the appropriate punishment to a crime. This is what is referred to as the
‘principle of proportionality’, specifically the idea that the punishment is not arbitrarily
imposed, but that the ‘punishment fits the crime.’ (For more information see Sandra
Walklate, Criminology: The Basics, Taylor & Francis, 2005)
It is this ‘principle of proportionality’ that the criminal justice system takes into
account when developing new policies. Laws and policies are what connect punishment
and justice. The connections between the two, however, are not easily determined and, as
a result, there exist are a variety of different ways in which this relationship might be
established. The following concepts illustrate the different ways in which justice and
punishment coincide:
 Revenge
 Retribution
 Restitution
 Reparation
 Restoration
These terms demonstrate that no criminal justice system approaches punishment in quite
the same way, and this point is reflected by the policies developed by each society. Each
criminal justice system uses different principles when developing policies. These
principles are as follows; ‘natural justice ’, ‘due processes, ‘crime control’, and ‘social
justice’.
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Natural Justice
Natural justice can be defined as emphasizing those basic principles necessary to
ensure fairness in legal proceedings; principles of justice deriving from the nature of
humanity; and principles of justice which would obtain in a state of nature and which are
independent of social relationships. (B. Hudson, Sage Dictionary of Criminology, 2001)
The distinctive features of natural justice imply that the accused should not act as
a judge in their own case, and that they are entitled to representation before the court.
Both of these elements lead to the belief that fair procedures will be used in determining
ones guilt or innocence. All societies have different ideas about what fair procedures are.
Natural justice has lost its popularity in the last decade or so. Natural justice is
beginning to become more popular as a result of the support given to it by human rights
theories and politics. More importance has been placed on helping those in oppressive
regimes and to campaign for human rights. Feminists and those in the fight against
discrimination also advocate human rights ideas (for more information on this model, see
B. Hudson, Sage Dictionary of Criminology, London, 2001, pp. 181-182).
Due Process
Due process is defined as the need to administer justice according to legal rules
and procedures which are publicly known, fair and seen to be just. One of the distinctive
features of this model includes the importance of the criminal courts role to act as an
impartial arbitrator between the state and the people. Another feature is that it attempts to
prevent the state from abusing its power by advocating innocence until proven guilty,
formal procedures, and judicial equality to all. This means implementing strict rules
within the justice system that are mandatory for all criminal justice personnel to follow.
An example is that the police must inform the accused of their rights upon arrest. The due
process model has been used in many areas of the criminal justice system to ensure
fairness in decision making and equality to all.
The due process model has been successfully used in situations when various
criticisms have been directed toward the criminal justice system. Examples of these
include giving suspects legal protections during police interrogations and the right to a
legal counsel. However, this model is not without its critics. Many argue that while the
concept of ‘due process’ demonstrates how the system operate ideally, in reality it
doesn’t always operate in this fashion. Others argue that this procedural model should not
be the focus of concern, and instead important attention should be paid to substantive
justice (for more information on this model, see L. Gelsthorpe, Sage Dictionary of
Criminology, Sage, London, 2001, pp. 104-106).
Crime control
A crime control model stresses that the primary function of the criminal courts is
to punish offenders and by doing so, control crime. The main goal of ‘crime control’ is to
put an end to crime and uphold the law. It is therefore the job of law enforcements
agencies to catch criminals and ensure the public that disorder is minimal. An essential
part of this model is that the criminal justice process guarantees social freedom. For the
crime control model to achieve this goal, the focus should be upon the efficiency with
which the criminal justice system catches suspects, determines their guilt, and attaches
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the appropriate punishment” (H. Packer, The Limits of the Criminal Sanction, Stanford
University Press, Palo Alto, CA., 1968) Priority is given to convicting the guilty by any
means necessary, even if it means infringing upon civil liberties. The key meaning of the
‘crime control’ model relates to the mechanisms employed by the state to control and
reduce crime. This includes hiring more police to control crime, implementing crime
prevention programs and involving the community.
The ‘crime control’ model is closely related to ‘get tough’ policies and ‘zero
tolerance’ policies, both of which have been introduced in recent years. Critics argue that
this model leads to unjust and harsh punishments. Many also claim that this model is
adopted solely for political purposes only and that this model of justice is criminogenic.
Others argue more attention should be paid to the deep social and economic structures
that lead to crime in the first place rather than on punishment (for more information on
this model , see L. Gelsthorpe, Sage Dictionary of Criminology, London, 2001, pp. 6163).
Social justice
Social justice is defined as the fair distribution of opportunities, rewards, and
responsibilities in society. Institutions are established for the distribution of meaningful
social goods- income, shelter, food, health, education, freedom to pursue individual
goals. In this model, the criminal justice system is believed to be a social good that
everyone should benefit from. However the question of fairness comes into play. This
means that the criminal justice system takes into account social inequalities when
contemplating punishments. The most influential theory of social justice over the last few
decades has been that John Rawls’ belief in ‘justice as fairness’. He argues that in order
for rules and laws to be fair they must be developed by individuals who are unaware of
their social position in society. While Rawls does acknowledge that this isn’t possible in
today’s society, he suggests that the fair distribution can only be achieved with
procedures designed to secure impartially as much as possible. His solution to inequality
is found in his difference principle: ‘social and economic inequalities are just to the
extent that they benefit everyone’. This permits for some inequality while at the same
time protecting the least well-off. Rawls concept of justice as fairness has many
similarities to welfare-liberalism.
The question here is how far the criminal justice system should take into account
social injustices. Social inequalities are connected to high crime rates. This leads
criminologists to argue that more attention should be paid to social policy rather than to
penal policy in the fight against crime (for more information on this model, see B.
Hudson, Sage Dictionary of Criminology, London, 2001, pp. 278-279).
When discussing justice it’s important to remember that there are many types of
justice. All types may be found within a criminal justice system or only certain elements
may be found within a particular society. Justice takes many forms and means different
things to different people and groups.
2) Social Control
Social control is oftentimes used today used to refer to some form of organized reaction
to criminal and/or deviant behaviour. This approach is based upon the work of Stanley
Cohen in his book, Visions of Social Control, where he defined ‘social control’ as “those
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organized responses to crime, delinquency and allied forms of deviant and/or socially
problematic behaviour which are actually conceived of as such, whether in the negative
sense (after the putative act has taken place or the actor been identified) or in the
proactive sense (to prevent the act). Cohen’s work in this area was to give more precision
to the concept of ‘social control’ that had, to that time, been used in some many ways that
it lacked precision in the area of sociology (Meier 1982; see below). In recent years,
however, Cohen’s definition of social control has been criticized. Some argue that that
control-type technologies and processes are no longer restricted to focusing upon those
activities defined as criminal. These individuals believe that social control is embedded
within our the main institutional forms of our society, with the result that we are all
subject to different types and combinations of social control as we go about our daily
lives.
See, for example, the following:
•
R. Meier, Perspectives on the concept of social control. Annual Review of
Sociology, 8, pp. 35-55 (1982). This article summarizes the 3 major uses of social
control used by most criminologists until the 1980’s, that is, social control as a
description of basic social processes or conditions, as a mechanism for ensuring
compliance with norms, and as a method by which to study social order.
•
S. Cohen, Visions of Social Control, Cambridge: Polity Press (1985). In his book
Cohen forwards the idea of “dispersal of discipline”, that is, control mechanisms
are removed from custodial institutions and placed into the community. As a
result, there is a “blurring of boundaries” between criminals and noncriminals. A
“punitive archipelago” then emerges as new resources are put into the system to
deal with the increasing numbers of ‘clients.’ Private agencies are formed and
communities are invited to participate as voluntary control agents. Also in this
book Cohen outlines (pp. 15-16) the ‘Master Changes in Deviancy Control’ in
three phases that he feels best describes the changes in social control in western
nations: Phase One occurred prior to the 18th century, Phase Two which occurred
between the 19th century to the middle of the 20th century and Phase Three, which
started in the mid-20th century.
•
D. Lyon, Surveillance Society. Buckingham: Open University Press (2001). Lyon
believes that surveillance involves the purposive monitoring of conduct in order
to allow for the identification, acquisition, and classification of information with
the intention of modifying that conduct in some manner. John Muncie, in his
entry ‘Surveillance’ found in the Sage Dictionary of Criminology, London, 2001
gives a brief review of the Lyons work (see p. 299).
3) What is Crime and Who is the Criminal?
I have found that one of the best initial lectures is to ask students to define
“crime” and the “criminal”. In both cases students are likely to come up with answers
that are about as good as saying, “I know it when I see it”. In most cases, they have no
foundation in law and this can be misleading to the study of criminal justice. This is a
good time to tell students that not everyone agrees upon one definition, and that there are
2 main ways to define “crime” and “criminal”: the legalistic and sociological. Both are
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valid approaches, and can be used to sensitize students to the fact that each of these
approaches can be used to ask questions about criminal justice.
•
The legalistic definition of crime states that a crime is an act that violates the
criminal law.
Two points should be made here:
1) crime involves the actual act of doing something, or failing to do something as
required by law; and
2) the act in question has to be specifically identified as a crime by criminal law.
A criminal is defined as a person who is legally capable of behaviour and who has
broken the law and who has intentionally engaged in that behaviour.
•
In contrast, supporters of sociological definitions of crime believe that the legalistic
approach is too narrow because it fails to consider that many socially harmful acts
actually have similar or worse consequences in terms of actual harm to people (the
current debate over tobacco companies and their knowledge of the harmful impact of
smoking cigarettes is a good example to use. There are three sociological approaches
to defining crime and the criminal
1) the modified legalistic
2) the normative
3) the “new”
Probably the best description of all these approaches (including the legalistic) is to be
found in Stephen E. Brown, Finn-Aage Esbensen, and Gil Geis, Criminology: Explaining
Crime and its Context (3rd Edition), C.J. Anderson, Cincinnati, 1998, pp. 17-24).
In terms of crime, the sociological approach focuses upon four meanings:
1) The creation of criminal labels - an approach that looks at why (or why not) certain
laws are passed and how they are interpreted. Since there are different sociological
approaches, it is best to define both crime and criminal in general terms:
- crime is given to behaviour by those who create and administer the criminal
law, and
- criminal refers to those individuals who are labelled criminals by those who
create and administer the criminal law.
2) The application of criminal labels through enforcement. This looks at the use of
discretion in the criminal justice system.
3) The confirmation of criminal labels through conviction. When defendants are
convicted, they are now criminals, but is everyone who is charged for the same offence,
given the same facts of the case, always convicted? Who is, and who isn’t?
4) The application of punishment - are all those who are punished given similar
penalties?
In summary, the main points of the two approaches are:
Legalistic Definition:
• Identifies both crime and criminal in terms of criminal law
• Focuses upon legal elements in actions
• Focuses upon responsibility and the “guilty mind” - intent, knowledge and
recklessness
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•
Looks at these situations where responsibility may be challenged (e.g. self-defence)
or is not applicable (e.g. age)
Sociological Definitions:
• Look at the similarities between acts or events that are illegal and those that aren’t
• Realize that the “law-in-action” can be different from law written in a criminal code
 View crime as not just an act, but rather a label that can be attached to certain
persons, actions, or events
• Focus upon variables such as race, ethnicity, social class, and gender in the creation
and administration of criminal law
4) Case Processing and the Informal Justice System
The ‘ideal’ view of our criminal justice system follows a formal model, that is, the
system follows administrative procedures and is controlled by an overarching sense of
rule of law. As most of us know, it is simplistic to believe that our system works
according to this model in every case.
There is a large amount of literature that argues that most criminal cases are the
result of cooperative activities between all members of the legal system. In essence, they
work together to get the “best deal” - and this is referred to as the informal justice system.
This group operates to streamline the system of justice through plea bargaining and other
types of techniques.
This leads to two areas where a discussion of the informal justice system can be
developed in terms of case processing.
•
The first involves the courtroom work group. This refers to a group of people who
cooperate, day after day, and this constant interaction leads to norms concerning how
to handle cases. These norms define the characteristics of typical cases (or “normal”
cases) which can be dealt with quickly, without much discussion or controversy.
Normal cases receive normal sentences (See D. Sudnow, “Normal Crime”, Social
Problems (1965), pp. 209-215; and M. Heumann, Plea Bargaining (1977), The
University of Chicago Press). One aspect of the courtroom work group is the local
legal culture which refers to the fact that those individuals involved in processing
cases through the criminal courts share similar feelings about how cases should be
handled. However, the local legal culture varies from community to community,
such that court delays may be tolerated in Vancouver but not in Halifax (See T.
Church, “Examining Local Legal Culture” (1985), American Bar Foundation
Research Journal, pp. 449-518).
• In the second approach, referred to as the Wedding Cake Model Criminal Justice
(see pp. 34-44 in S. Walker, Sense and Nonsense About Crime and Drugs (6th
edition, 2006) Thomsen/Wadsworth). In this model, criminal cases proceed through
the criminal justice system can be handled with a significant degree of consistency.
What varies is the type of case being processed. If it involves a murder charge, a
wealthy defendant can hire an expensive lawyer and have the finer points of the law
argued in the court, while someone who is homeless probably ends up being
processed without much legal assistance, and might end up pleading guilty on first
appearance in court.
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Chapter 1 Criminal Justice in Canada, 5e
Walker identifies four levels of the justice system:
1) Level 1 of this model involves the most highly publicized cases of our
criminal justice system - the Paul Bernardo case, for example. In these trials some of the
best defence lawyers in the Canadian legal system are hired by the accused and their
actions during the trials are watched closely by the press. As a result, the public is
informed about the testimony of expert witnesses and the arguments over seemingly
minor legal points. Since these cases are so well publicized - books are written about
them and movies may yet be made about them - the public considers them to be
representative of the everyday world of the court system for all Canadians. But this is not
the case.
2) Level 2 of the criminal justice system includes crimes considered to be the
most serious indictable offences, notably crimes involving violence and crimes
committed by repeat offenders. Most murder trials are included in this category, and so
are those cases involving major drug dealers, the most serious cases of sexual assault and
robberies among strangers. These trials are often decided by a jury, and the accused, if
convicted, can expect a lengthy term of incarceration. The Donald Marshall case is a
good example of this layer of the wedding-cake model.
3) Level 3 of the model includes indictable offences, usually violent crimes
viewed as “nonserious” or property crimes involving very little damage, and usually
committed by first-time offenders. The cases are disposed of quickly when they enter the
criminal justice system. Most of these offenders do not retain private legal counsel but
are represented by, at best, legal aid lawyers. The accused plead guilty at their initial
appearance in court, and the Crown prosecutor usually recommends a light sentence, such
as probation.
4) Level 4 of the wedding-cake model is where the bulk of the offences are
processed through the court system. These cases involve summary conviction offences
only. Most of these cases involve a plea of guilty when the accused enters a plea, as in
Level 3 cases, but the punishments are less harsh. Generally they involve such sanctions
as fines or court orders to stay away from certain people or places. Rarely does a
sentence at this level include a period of incarceration.
5) The Anti-Terrorism Act
Roach (2008), in his article, ‘The Role and Capacities of Courts and Legislatures
in Reviewing Canada’s Anti-Terrorism Law’ (Windsor Review of Legal and Social
Issues, March, 2008) proved an excellent critical review of the roles of both Parliament
and the courts with respect to the review of Canada’s omnibus anti-terrorism law, enacted
in 2001. He discusses the different but complementary roles of the courts (they are
“required to examine specific anti-terrorism measures with a focus on values such as
freedom of expression and the rights of unpopular groups”) and the federal government
(they “have the ability to develop policy and placed specific issues raised by Charter
litigation into a broader policy framework). His presentation is clearly laid out and
presented (see the outline of his article below), providing a significant amount of
information to develop a number of lectures about the Canada’s Anti-Terrorism Act and
discuss issues related to the relationship between protecting the public and the legal rights
of individuals.
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Chapter 1 Criminal Justice in Canada, 5e
As Roach points out, the bill which ultimately became the Anti-Terrorism Act (as
well as its subsequent amendments) was closely scrutinized by the federal Department of
Justice in order to make sure that its’ provisions were consistent with the Canadian
Charter of Rights and Freedoms and not invalidated by the courts. At the same time,
given that the bill was “quickly drafted” permanent legislation, it was required that there
would be a three year review of the Acts’ provisions and operation by various
Parliamentary Committees. As well, Parliament placed renewable sunset clauses on two
of the Acts’ most controversial provisions: (1) the powers to compel reluctant witnesses
to reveal information relevant to terrorism investigations in investigative hearings and (2)
the power to make preventive arrests in terrorism cases. The three year reviews were
delayed largely because of the federal elections in 2004 and 2006; they were completed
in early 2007, at about the same time that the renewable sunset clauses were under
debate.
Roach notes that Parliamentary debate is not the only way to review anti-terrorism
laws. Another way is for the judiciary to review anti-terrorism laws. Although Parliament
‘charter-proofed’ the legislation prior to its enactment in 2001, there have been a number
of Charter challenges to a number of the Anti-Terrorism Acts provisions. Roach notes
that the Supreme Court has upheld investigative hearings under the Charter; however,
they have also “extended the use and derivative use of immunity protections in the
legislation” and that “investigative hearings would be held in open court.” In addition, the
Supreme Court has also held that security certificates issued to non-citizens under
suspicion of being involved with terrorism violated the Charter as they failed to provide
for disclosure and adversarial challenge in an open court.
According to Roach, Parliament has not been content with allowing the Supreme
Court to have “the last word on these provisions.” The article by Roach critically reviews
“the role and capacities of courts and legislatures in reviewing Canada’s anti-terrorism
law.” In his article, Roach covers and provides an extensive review of the following:
I. The Definition of Terrorism and Terrorist Activities.
A. The Bill C-36 Debate.
B. The Bill C-36 Debate about the Definition of Terrorist Activities.
C. The Supreme Court’s Definition of Terrorism in Suresh.
D. The Partial Invalidation of Parliament’s Definition of Terrorist Activities
in Khawaja.
E. The Senate Committee’s Approach to the Definition of Terrorist Activities.
F. The Commons Committee’s Approach to the Definition of Terrorist Activities.
G. The Rights of Minorities: A Comparison of the Senate and Commons.
H. Summary
II. Investigative Hearings and Preventive Arrests.
A. The Supreme Court’s Decisions in the Air India Investigative Hearing Cases.
B. The House of Commons Committee Interim Report on Preventive Arrests and
Investigative Hearings.
C. The February 2007 Parliamentary Debate over the Renewal of Preventive
Arrests and Investigative Hearings.
D. The Senate Committee’s Approach.
E. Evaluation of the Committee’s Work.
F. The Government’s Response.
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Chapter 1 Criminal Justice in Canada, 5e
G. Summary.
III. Secrecy Provisions.
A. The Bill C-36 Debate.
B. Litigation over Secrecy Provisions.
C. Overclaiming of National Security Confidentiality.
D. The Senate Subcommittee on Secrecy.
E. The Parliamentary Committees and Special Advocates to Challenge Secret
Submissions.
F. Summary
IV. Immigration Law Security Certificates.
A. The Original Debate.
B. Suresh.
C. Charkaoui.
D. The Parliamentary Committees and Special Advocates.
E. The Parliamentary Committees and the Need for Reliable Evidence in
Security Certificate Cases.
F. The Parliamentary Committees and Deportation to Torture.
G. The Government’s Response in Bill C-3.
H. Summary.
V. Conclusion.
In another article that can be used, Roach discusses the “dialogue between the
courts and legislatures” in the area of criminal justice as well as security issues. He
provides much excellent information about the issues relating to the different positions
taken by Parliament and the Supreme Court since the enactment of the Charter. See K.
Roach, ‘Is There a Tyranny of the Charter in Criminal Justice and Security Policy?’, pp.
94-98 in Policy Options, Volume 28, No.2, February 2007.
6) Criminal Justice Spending and Revenues in Canada
One issue students generally enjoy discussing is how much it costs to operate our
criminal justice system. Most are surprised when they find out that the total cost of
operating the criminal justice system in 2000/2001 was $11 billion (or $362 per
Canadian). Almost $7 billion was spent on the police, $2.5 billion on the adult
correctional system and just over $1 billion for the courts. A further $512 million was
given to legal aid, $510 million to youth corrections, and $335 to prosecutions.
A reason why it is so costly to operate our justice system is the number of people
employed in it. At the present time, there are over 250,000 people working in the criminal
justice system, including over 90,000 in law enforcement (just over 65,000 police officers
and 25,000 civilian staff in 2008), and, in 2006, approximately 160,000 in the courts and
24,600 in adult correctional agencies. The number of individuals employed by each
province varies considerably across Canada. Not surprisingly, Ontario and Quebec
employed the most individuals while Prince Edward Island and the Yukon employed the
smallest number.
Canadian costs can be compared with the costs found in the United States, where
it is estimated that in 2001 the criminal justice system cost approximately $167 billion
per year, including over $72 billion for policing, $57 billion for corrections and almost
$38 billion for the courts. Over 1.8 million people are employed by the U.S. criminal
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Chapter 1 Criminal Justice in Canada, 5e
justice system, including 850,000 in law enforcement and 370,000 in corrections. One of
the greatest increases in criminal justice system costs in the U.S. over the past two
decades is due to the large number (in 2004, about 2.3 million) of people who are
incarcerated in both the federal and state correctional systems. On January 1, 2004, the
prison incarceration rate was 482 prisoners for every 100,000 U.S. residents. Put another
way, 1 out of every 140 U.S. residents was locked up on that date. In addition, each year
in the United States, about 170,000 adults are convicted of a violent crime. Overall,
about 15 million people are arrested each year; 3 million of these being arrested for
offences which could lead to them being incarcerated in a state prison. (For Canadian
sources, see Andrea Taylor-Butts, Justice Spending in Canada, 2000/01, (2002),
Canadian Centre for Justice Statistics); S. Besserer and J. Tufts, Justice Spending in
Canada (1999), Canadian Centre for Justice Statistics, Ottawa and R. DuWors, The
Justice Data Factfinder (1990), Canadian Centre for Justice Statistics, Ottawa. In
addition, a recent publication, ‘Aging of Justice Personnel’ documents the aging of
justice personnel in Canada-see Mathieu Charron, Racha Nemr, and Roxan Vaillancourt,
Aging of Justice Personnel, (2009) Canadian Centre for Justice Statistics (see Topic 7
below).
7) Aging of Justice Personnel
An interesting lecture could involve a discussion with students about the career
goals in the justice system. In particular, there could be a discussion about what they
know about the current ages of the personnel working within the various justice agencies
and how that may impact upon them in the near future as they begin their careers.
Information about the ages of the individuals working within our criminal justice
system can be found in Mathieu Charron, Racha Nemr and Roxan Vaillancourt, Aging of
Justice Personnel, Canadian Center for Justice Statistics, Ottawa, 2009. In their
publication, they document a number of fascinating facts about this issue. Some of the
highlights of their findings include the following:
 The number of workers in the Canadian justice system increased by approximately
60,000 between 1991 and 2006, which represented a growth rate of close to 20
percent. This increase is higher compared to all workers in the country, which was
14 percent over the same period. In 2006 workers in justice represented 2 percent of
all Canadian workers.
 In 2006 the median age of justice workers was comparable to the rest of the
Canadian labour force (41 years). Even though the median age of justice personnel
was similar to the rest of the Canadian labour force, a greater proportion of justice
workers were 50 years old or older (30 percent). One reason for this has to do with
education and the qualifications required to enter justice positions. Most of the
justice related positions require specific qualifications that take time to accomplish.
Due to this fact only a very small portion of workers in the field are younger than 25,
while most are 50 and over.
 In 2006, nearly 80 percent of all police officers were between 25 and 49 years of age,
while the rest of the Canadian labour force as a whole was only 57 percent. Almost
half (47 percent) were between the ages of 25 and 39 in 2006, with an increase of 2
percent in this age group between 1991 and 2006. This amount may seem small at
first glance, however, it’s significant considering that during this period, the baby
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Chapter 1 Criminal Justice in Canada, 5e



boomer cohort moved from the ages of 25 to 39 in 1991, to the ages of 50 to 64 in
2006. The majority of police officers in 2006 were in their forties, which is close to
retirement age. Few police officers work past the age of 50 compared to the rest of
the work force since they are encouraged to retire younger with the incentive of full
pensions after 25 years of service. These statistics raise issues about the amount of
police officers retiring and the amount and educational qualifications of new police
officers needed to be recruited and trained to replace them.
In 2006, more than one quarter of private security officers (27 percent) were in their
20’s or aged 55 and older (25 percent). This may be due to the similarities between
police work and that of private security officers. For example, many of the younger
private security officers may obtain training that would transfer over into the
policing profession. Many of the older private security officers may have acquired
training from the police force that is transferable into private security jobs after
retirement, like monitoring or surveillance techniques.
The median age of court personnel increased from 36 years in 1991 to 43 years in
2006. This amount of growth can be explained by the fact that the number of court
workers younger than 40 declined by 20 percent, while that of workers aged 40 and
older rose by 91 percent. This increase in the age of court workers can be explained
partially by the level of expertise needed to excel in certain areas of court positions.
These levels of expertise rarely are achieved at an early age and require years of
training. An example of this point would be the levels of education required to
become a lawyer. For instance it is very rare for individuals to practice law younger
than 25 due to the amount of schooling needed. The more sophisticated the position
in the courts (judges) the older one usually is before he/she meets the requirements
of the position.
The growth in the number of correctional services workers (18 percent) was slightly
higher than that of the Canadian labour force as a whole. However, one must
understand that the growth in correctional officers coincides with the need for them.
The number of correctional officers rose by 6 percent from 1991 to 1996. This was
followed by a 3 percent decrease between 1996 and 2001, followed by a 7 percent
increase between 2001 and 2006. This illustrates the point that correctional officers
are needed more or less when there is a fluctuation in the amount of people in
custody. The same rule applies for probation officers. The amount of probation
officers needed flows with the need of the capacity to accommodate those who
require their services. However the need for correctional officers has increased over
time due to the high rates of individuals in remand centers.
© 2011 by Nelson Education Ltd.
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