Lecture notes Flashcards
What is a crime `
a crime is generally defined as an act or omission that is prohibited by criminal law
2 critical points of a crime are:
- the commission of an act (Actus reus)
- the mental intent to commit the act (Mens Rea)
A crime occurs when a person:
- commits an act or fails to commit an act when under a legal responsibility to do so
- has the intent, or mens Rea, to commit the act
- does not have a legal defence or justification for committing the act
- violates a provision in criminal law
Deviance vs. crime
- deviance is behaviour that is contrary to the norms and values of the larger society
- crime is behaviour that breaks the law
Deviance includes
- criminal behaviour
- a wide range of other behaviours that are not against the law
—– may be frowned upon by the larger society
—– what is viewed as deviant changes over time
crime includes
- the social construction of crime
- the notion that the legal status of behaviours is not determined by the behaviour itself but is the result of the social response to the behaviour or to the persons or groups who are engaged in it
Criminologists often conduct historical analyses in an attempt to understand
1) the factors involved in the definition of behaviours as criminal
2) an increase or decrease in the severity of the criminal law
3) the response of the criminal justice system
4) the factors that influenced the repeal of a criminal law, resulting in the decriminalization of certain behaviours
moral entrepreneurs
- often play a key role in criminalizing certain activities
- are individuals, groups, or organizations who seek action against certain groups of people or certain behaviours and bring pressure on legislators to enact criminal statues
The differing perspectives on where criminal laws come from and how they are applied via the criminal justice system are reflected in two models
- value consensus model
- conflict model
Value consensus model
- the view that what behaviours are defined as criminal and the punishment imposed on offenders reflect commonly held opinions and limits of tolerance
- through the application of laws, a society reaffirms the acceptable boundaries of behaviour and maintains social cohesion
Conflict Model
- this is the view that crime and punishment reflect the power some groups have to influence the formulation and application of criminal law
- conflict theorists see the rich and privileged as having an advantage in influencing law reform and what happens to persons who become involved in the criminal justice system
The two basic types of law in Canada are
Substantive law: sets out the rights and obligations of each person in society
procedural laws: are the legal process that protect and enforce the rights set out in substantive law
The Canadian legal system is a common
law system, with the exception of
Quebec,
which has a civil law system (based on the
French Code Napoléon).
Common Law
is law that is based on
custom, tradition, and practice and is
generally unwritten
Precedent
is a judicial decision that may be
used as a standard in subsequent similar
cases.
Statute Laws
Written laws that have been enacted by a legislative body, such as the Parliament of Canada
Case Law
Law that is established by previous court decisions
and based on the rule of precedent
Canadian courts are organized in a
hierarchy
Stare decisis is the
principle whereby higher courts set precedents that lower courts must follow
- “to stand by what was decided”
- like cases should be treated alike
- all courts below SCC bound to apply that same ruling in subsequent cases
Criminal Law
That body of law that deals with conduct
considered so harmful to society as a whole
that it is prohibited by statute, and
prosecuted and punished by the government
Functions of the Criminal Law
- acts as a mechanism of social control
- maintains order
- defines the parameters of acceptable behaviour
- reduces the risk of personal retaliation
- assists in general and specific deterrence
- prosecutes criminalized behaviour
- protects group interests
Two primary sources of criminal law
legislation and judicial decisions
- merely denoting the sources of criminal law,
however, tells us very little about the process
of law-making or the factors that influence the
creation of criminal law.
The Rule of Laws
The requirement that governments, as well
as individuals, be subjected to and abide by
the law
The rule of law can be
traced back to the
English Magna Carta
The rule of law
- accountability
- public and clear
- fair and efficient
- timely and ethical
Accountability: Government, individuals, and private entities are accountable under the law.
Public and Clear: Laws are clear, publicized, stable, just, applied evenly, and protect fundamental rights
Fair and Efficient: Processes for enacting, administering, and enforcing laws are fair and efficient
Timely and Ethical: Justice is delivered in timely way by competent, ethical, independent, well-resourced, and neutral representatives
The essence of the rule of law is that
- no one person is above the law
- all persons are bound by the law
- all are entitled to protection by the law
- the law should be observed and enforced equally
- there is a standard to which criminal justice officials must adhere and will be held accountable
The Canadian Charter of Rights and Freedoms
- guarantees fundamental freedoms, legal
rights and quality rights for all citizens of
Canada
— including those accused of crimes
-“subject only to such reasonable limits
prescribed by law as can be demonstrably
justified in a free and democratic society.”
Among the “fundamental freedoms” given to
all Canadian citizens are the following
- freedom of conscience and religion
- freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
- freedom of peaceful assembly
- freedom of association
Criminal Code of Canada (1892)
- Federal legislation that sets out criminal laws, procedures for prosecuting federal offences, and
sentences and procedures for the administration of justice
The first complete criminal code was produce in
1892 under the leadership of Sir John Thompson
- it is a “living” document and has been revised many times since 1892 to reflect changes in canadian society
Criminal Law
- Category
- Subject
- Responsibility
- Standard of proof
category: public law
subject: criminal offenders liable for wrongdoing
responsibility: government assumes responsibility for prosecution and punishment
standard of proof: guilt beyond a reasonable doubt
Civil Law
- category
- subject
- responsibilty
- standard of proof
category: private law
subject: private disputes
responsibility: disputes between individuals where the “loser” may be required to pay damages
standard of proof: balance of probabilities
The criminal justice system
The CJS contains all of the agencies, organizations, and personnel that are involved in the prevention of, and response to, crime, including
- persons charged with criminal offences
- persons convicted of crimes
- criminal justice professionals
- volunteers who work in the cjs
the CJS includes:
- crime prevention and crime reduction
- arrest and prosecution of suspects
- hearing of criminal cases by the court
- sentencing and the administration and enforcement of court orders
- parole and other forms of conditional release
- supervision and assistance for ex-offenders released into the community
Purpose of the CJS
there is no one commonly used statement of purpose of the CJS, but one would include:
- the notion of “justice” for all persons (including victims, offenders, and the community)
- respecting the rights of victims and offenders
- ensuring the safety and security of communities
Role and Responsibility of Governments in the CJS
Each level of government in Canada plays a role in the CJS
the division of responsibilities between the federal and provincial governments was spelled out in the Constitution Act, 1867
- the federal government decides which behaviours constitute criminal offences
- the provincial/territorial governments are responsible for law enforcement and for administering the justice system
Criminal Justice Administration
- The crime control model
= an orientation to criminal justice in which the protection of the community and the apprehension of offenders are paramount
Criminal Justice Administration
- The due process model
- An orientation to criminal justice in which the legal rights of individual citizens, including crime suspects are paramount
The Canadian criminal justice system is an adversarial system
- in criminal cases, the defense lawyer and prosecutor present their cases before a neutral judge or a jury
- the standard that must be met by the prosecution is proof beyond a reasonable doubt
Flow of cases through the CJS
incident - police system- criminal court system- corrections and parole system
There are a number of different facets that
can be examined in studying the operation of
the criminal justice system
- the behaviour of the criminal justice personnel, such as police officers
- the activities of criminal justice organizations, such as correctional institutions services
- the aggregate characteristics of the criminal justice system and its components in the context of larger societal issues, such as racism and inequality.
Task environments
A task environment is the cultural, geographic, and community setting in which the criminal justice system operates and in which criminal justice personnel make decisions
the foundation of knowledge that describes right/wrong or better/worse and applies to harm/care and fairness/reciprocity
- the focus on the ethics highlights the presence of moral issues in the criminal justice system
- the criminal justice system is first and foremost a human enterprise
- Combined with the discretion that is given to criminal justice personnel, it is not surprising that ethical considerations are ever-present
the criminal justice system requires that the public have confidence and trust in it to be effective
- research suggests that Canadians may have only a “moderate” level of confidence in the criminal law and that many persons have a general lack of trust in the system
- most Canadians have very little understanding of the criminal justice system and how it works.
- they also tend to overestimate the amount of crime and the levels of violent crime
Media and public attitudes
For most Canadians, news media stories are the
primary source of information about the criminal
justice system, although there are other sources,
including personal experience, movies, and shows
accessed on television or the Internet.
- These shows, however, may oversimplify complex
issues of crime and criminal justice
- They tend to be biased toward sensational crimes
and to simplify crime and justice issues, and the
public for its part tends to generalize from specific
events.
Studies of the deterrent effect of the criminal
law suggest that the law can serve as a
deterrent only when certain conditions are
present
- people must be aware that there are legal sanctions that will be applied if they engage in certain behaviours
- there must be certainty of punishment
- the sanction must be applied swiftly when a crime is committed
Restorative Justice
Restorative justice provides an alternative framework for responding to criminal offenders. it focuses on:
- problem-solving
- addressing the needs of victims and offenders
- involving the community on a proactive basis, and
- fashioning sanctions that reduce the likelihood of reoffending
Retributive Justice
- Focus
- Stigma
- Redemption
- People
- Process
- Issues
- Accountability
- Community
-Tools
-Procedure
Focus: focus on establishing blame and guilt
stigma: stigma of crime permanent
redemption: no encouragement for repentance and forgiveness
people: dependence upon professionals; experts; non-residents
process: adversarial: state vs. offender; victim ignored, offender passive
issues: laws broken
accountability: offender accountability defined as taking punishment
community: community represent abstractly by the state
tools: punishmeny/control
procedure: fixed rules
Restorative Justice
- Focus
- Stigma
- Redemption
- People
- Process
- Issues
- Accountability
- Community
-Tools
-Procedure
Focus: focus on problem-solving, obligations and the future
stigma: stigma of crime removable
redemption: possibilities for repentance and forgiveness
people: direct involvement by participants; local participants
process: consensus: community vs. problem; victims and offenders roles recognized in both problem and solution; victim rights/needs recognized; offender encouraged to take responsibility
issues: relationships broken
accountability: offender accountability defined as understanding impact of action and helping decide how to make things right
community: community as facilitator
tools: healing/support
procedure: flexible
A key feature of canadian society is
inequality, particularly income inequality
the top __ % of the population earns ___% of the income
1%
earns 39.1%
how many children live in low-income households
1 million
gender inequality in the workplace costs canada
150 billion a year
women working full-time earn
74.2 cents for every dollar that full time male workers make
prejudice
is the unsubstantiated, negative prejudgment of individuals or groups, generally on the bass of ethnicity, religion or race
discrimination
is an action or a decision that treats a person or a group negatively for reasons such as their race, age or disability
racism
is prejudice, discrimination or antagonism directed against someone of a different race based on the belief that one’s race is superior
racialization
is the process by which societies construct races as real, different, and unequal in ways that matter to economic, political and social life
Racialized persons
are persons, other than Indigenous
people, who are non-Caucasian in race or non-white in colour
racial profiling
is any action undertaken for reasons of
safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable
suspicion, to single out an individual for greater scrutiny or different treatment
rates of self-report violent victimization are higher among
women (85 per 100,000 vs 67 per 100,000 for men)
experiences of indigenous persons
indigenous will be used to denote status and non-status indians, metis and inuit, alothough commonly used term is aboriginal
- indigenous persons are disproportionately represented as both victims and offenders at all stages of the criminal justice system
- violent victimization is more than double that of non-indigenous persons (167 vs 74/1.000)
- 27% of homicide victims in 2009 were indigenous
Many Indigenous people live on the margins of Canadian socierty. this is reflected by:
- pervasive poverty
- high rates of unemployment
- low levels of formal education and
- high death rates from accidents and violence
- on nearly every measure of health and well-being, Indigenous persons are much worse off than non-indigenous persons
The residential school system was operated by the federal government from the
1880s until the 1990s. 150,000 Indigenous children were sent to residential schools.
The “60s Scoop” saw 16,000 Indigenous children removed from their families
The intergenerational impact of residential schools was identified by the
Truth and Reconciliation commission as a major factor in indigenous persons’ conflict with the law
experiences of indigenous women
- stereotypes about indigenous women held by canadians
- gap in life expectancy between indigenous and non-indigenous women
- household crowding for indigenous women (31% of Inuit, 14% First Nations, 3% non-indigenous)
- rates of unemployment among indigenous women twice as high as for non-indigenous women
- indigenous women much more likely to live in households with incomes under the poverty line
histories of trauma in their personal lives, contributing to placing Indigenous women at high risk of victimization as reflected in the following
- Indigenous women are more likely to be affected by all types of violent victimization
- the homicide rate for indigenous women is nearly six times higher than for non-indigenous women
- indigenous women experience experience higher rates of spousal violence
- young indigenous women may be particularly at risk of sexual assault
Blacks in Canada have been subjected to
structural violence perpetrated by state-funded institutions, including the criminal justice system and, most notably, the police
- blacks were subjected to segregated and inferior schools excluded from employment opportunities, and subjected to racial stereotyping and discrimination
- black children and youth are disproportionately represented in child welfare, child protection, and youth justice systems; in the numbers living in poverty, and among those at high risk of sexual exploitation and violence
over the past decade, criminal justice expenditures have icnreased both in
real terms and as a percentage of GDP, despite the overall decline in crimine rates across the country
historically, there have been very clear boundaries between the various components of the criminal justice system
- the police focused on the apprehension of offenders
- the courts focused on prosecuting and sentencing
- corrections focused on implementing the sentences of the courts `
Needs of crime victims
- crime affects victims physically, pschologically, emotionally, financially, and socially
- after the inital trauma of the crime, victims can be made to feel worse by the actions of criminal justice officials, resulting in re-victimization
re-victimization
the negative impact on victims of crime caused by the decisions and actions of criminal justice personnel
- the canadian victims bill of rights, 2015, sets out a number of statutory rights for the victims of crime, including the right to information, participation, protection and restitution
There has been some progress since 1991 in the number of women in corrections
- judges, 36% today vs. 14% in 1991
- lawyers and notaries, 42%
- probation and parole officers 65%
- correctional and service officers 32%
- sworn police officers 20% vs 7% in 1991
policing
The activities of any individual or
organization acting legally on behalf of
public or private organizations or persons to
maintain security or social order
Pluralization of policing
The expansion of
policing beyond the public police to include
parapolice and private security
Police officers carry out their tasks within a
number of legislative frameworks that define
their roles, powers, and responsibilities
The Canadian Charter of Rights and Freedoms is perhaps the most impactful on the powers and activities of the police.
• There is also provincial and municipal legislation,
which includes a wide range of statutes such as
motor vehicle administration acts, highway traffic acts, liquor acts, and provincial/municipal police act
Perspectives on the role of the police
- social contract perspective
considers the police to be a politically neutral force that acts primarily to enforce the law and protect the public.
Perspectives on the role of the police
- the radical perspective
political policing
secretive police investigative activities and surveillance of those deemed to be a threat to the stability and status quo of the state
The Law Commission of Canada (2006) identified four key
values that form the framework within which to understand
police work in Canadian society
- Justice: police maintain peace and security in the community while ensuring that individuals are treated fairly and human rights are respected
- equality: all citizens are entitled to policing services that contribute to their feelings of safety and security
- accountability: the actions of police services and police officers are subject to review
- efficiency: policing services must be cost-effective
the principles of due process and of a democratic society require that there be
mechanisms in place to govern the police, to ensure that police services do not exceed their mandate and compromise the rights of citizens
Governs and oversight
- Police act
- policing standards
- police boards and police commissions
Police act: the legislative framework for police services
policing standards: provisions that set out how police services are to be maintained and delivered
police boards and police commissions: bodies that provide oversight of police
mnWhat is a crime `
a crime is generally defined as an act or omission that is prohibited by criminal law
MB police services act, 2009
Drafted following the recommendation of the Taman Inquiry, a review of practices in other jurisdictions and public consultations
MB police services act, 2009
- Establishes Manitoba Police Commission
- will conduct studies and provide advice to the minister on law enforcement and policing issues. Will also make recommendations on regulations dealing with the operation of police services and the conduct of police officers
MB police services act, 2009
- Police Boards
every municipal police services must operate under the general direction of a police board.
- members of the police board appointed by municipal council and Cabinet
- a majority of the board must be persons who are not members of the council or municipal employees
MB police services act, 2009
- Winnipeg Police Board
- 7 to 9 members: 2 appointed by province, 2 from city council, 3 members from public appointed by city council
- will hire police chiefs
- establishes priorities and objectives in consultation with the police chief, for the Winnipeg police service.
- directing and monitoring performance of the police chief
- reports to protection and community services committee of Winnipeg city council
two defining features of the police role are
the authority of the police and the authority to use force
- canadian police officers derive their authority from the criminal code, 1985m and various provincial statutes
- police officers also have the authority to use force. with the exception of correctional officers, no other personnel in the criminal justice system are invested with this authority
Primary activities of the police
Crime control: responding to an investigating crimes
- patrolling the streets to prevent offences
Order maintenance: preventing and controlling behaviour
- intervening in conflicts that arise between citizens
Crime prevention and services: collaborating with community partners to prevent crime
- providing a wide range of services
Legislation and court decisions
New laws and amendments to existing legislation can have a sharp impact on the police role
- behaviour that was once criminal can become legal, as occurred with the legislation of marijuana in 2018
- new legislation can give police new powers and create new crimes such as the Anti-terrorism act 2001
Core Policing
often referred to as quality-of-life policing, it involves the police playing a multifaceted role in the community including:
- developing and sustaining partnerships
- taking initiatives to improve the quality of life
- reassuring residents to reduce the fear of crime
- outreach to various vulnerable groups
- collaboration with agencies and organizations
- ensuring resources are deployed effectively and efficiently
Policing a Diverse Society
A key feature of Canada is diversity, and it is increasing
- 2/3 of newcomers to Canada settle in Vancouver, Toronto, and Montreal
- Urban centres are also attracting increasing numbers of Indigenous persons from rural and remote areas
The first full-time professional police force was created in
London in 1829 by Sir Robert Peel.
- introduced the concept of community police stations
-prior to this, policing was a community responsibility
- peel formulated principles for law enforcement, which are viewed as the basis for policing
- new police were to be proactive rather than reactive and were to engage in crime prevention activities
Principles of Sir Robert Peel
Evolution in Policing in Canada
the early municipal police forces generally had a three-part mandate
1. to police conflicts between ethnic groups, and between labourers and their employers
2. to maintain moral standards by enforcing laws against drunkness, prostitution and gambling
3. to apprehend criminals
The North-West Mounted Police (NWMP) was founded in 1873 to maintain law and order in North-west territories
- During its early years, the force was beset by integral difficulties and resented by both settlers and federal legislators
- the north-west mounted police was replaced by the royal Canadian mountain police (RCMP)
Snapshot of policing today in Canada
- policing is the largest component of the CJS
- the number of police officers in Canada has declined in recent years
- diversity in police services is increasing
- the number of women police is now 1 in 5 officers
- the number of civilians working in police services, particularly at the managerial level, continues to increase
Public policing occurs at 4 levels
-. federal
- provincial
- regional and municipal
- indigenous
Royal Canadian Mounted Police
1985
- the RCMP enforces most federal statutes and provisions of various legislative acts
- about 60% of its personnel are involved in contract policing:
—- an arrangement whereby the RCMP and provincial police forces provide provincial and municipal policing services
Provincial Police
Three provincial police forces
- Ontario Provincial Police (OPP)
- Surete de Quebec (SQ)
- Royal Newfoundland Constabulary (RNC)
Regional Police
Regional police forces serve multiple communities within a geographical region
- more effective at providing a full range of policing services to communities
- less expensive than having a number of independent municipal departments
- may be too centralized and not offer the opportunity for effective community policing
Municipal Police
Have jurisdiction within a city’s boundaries
- municipal police officers enforce the criminal code, provincial statutes, and municipal bylaws as well as certain federal statutes such as the controlled drugs and substances act
- municipal police officers constitute the largest body of police personnel in the country - Toronto police has more than 5,000 officers
Indigenous Police
- indigenous communities can negotiate agreements for police services that best meet their needs
- within the framework of federal First Nations Policing program (FNPP)
- autonomous, reserve-based police force
- Indigenous officers from the RCMP or OPP
- full powers to enforce the criminal code, federal and provincial statutes, and band bylaws on reserve lands
Police services have divisions or sections
- operational patrol
- investigative
- support services
- administrative
- human resources
- research and planning
- operational patrol: patrol division, canine unit, identical squad, traffic
- investigative: general investigation, major crimes, special crimes (sexual offences)
- Support services: information, report, communications centre, victim services, community services
- administrative: finance and payroll, property office
- Human Resources: development, recruitment, training
- research and planning: strategic planning, crime analysis, audit
Two main types of security services
- private security firms
- company-based, in house-security officers
- private security personnel have no more legal authority than ordinary citizens
—- but they can arrest and detain people who commit crimes on private property
- in canada, private security officers outnumber police officers by 4 to 1
Canadian police services are making efforts to increase the diversity in their ranks
in 2016 women comprised 21% of all sworn police officers
Police Training
There are several different models of police training in Canada
- municipal police recruits may be trained “in house” at a residential or non-residential training academy, or at a combination of both
- RCMP cadets are sent to the RCMP training depot in Regina for six months of training prior to being sent to a detachment for 6 months of field training
operational field training
instructing the recruit how to apply principles from the training academy in the community
CWhat is a crime `
a crime is generally defined as an act or omission that is prohibited by criminal law
Charter of Rights and Freedoms and Police Powers
- the Canadian Charter of Rights and Freedoms has had a significant impact in defining the powers of the police
- Charter rights, combined with pre-existing legal rules, are designed to provide legal safeguards against the unlimited use of police power
Charter of rights and freedoms and police powers
- section 7
- section 8
- section 9
- section 10
- section 11
Section 7:
- everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice
Section 8:
- everyone has the right to be secure against unreasonable search or seizure
section 9
- everyone has the right not to be arbitrarily detained or impirsoned
section 10
everyone has the right on arrest or detention
- to be informed promptly of the reason therefor,
- to retain and instruct counsel without delay and to be informed of that
- to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful
section 11
any person charged with an offence has the right
- to be informed without unreasonable delay of the specific offence
The Charter gave those accused the right to challenge the actions of the police
- the police must have a search warrant to get information from internet services about the identity of subscribers who are under investigation
- there are limits on the use of “Mr.Big” stings whereby suspects are placed in the position where they have “confessed” to committing a crime
- severe restrictions have been placed on the investigative strategy of placing an undercover officer in a jail cell to elicit evidence from a criminal suspect
- all relevant information gathered during a case investigation must be disclosed to the defence counsel
- in crafting policies for strip searches, the police must consider the indigenous women and other minorities may have a fear of strip searches and, due to their life experiences, may experience a strip search as a sexual assault
The Charter has also led to SCC rulings giving the police significant powers
- the SCC have ruled in favour of the police practice of using thermal-imaging technology deployed for aircraft to detect high levels of “heat” from homes, a key indicator of weed grow-ops
- the court reaffirmed the principle that the police can continue to question a suspect at length, even if the suspect repeatedly tries to involve his or her right to silence
- the SCC held that the charter does not require the presence, upon request of defence counsel during a custodial interrogation
- the court has given police the authority to use a warrant to obtain DNA from a suspect, by force if necessary
Principle of accountability
the actions of police officers and police services are subject to review and there are formal channels that individuals can use to lodge complaints against the police
- historically the police investigated themselves
- the increasing visibility of the police and a number of high profile incidents have increased media and public scrutiny of the police
- this has led to the rise of civilian oversight and the emergence of models of accountability that include civilian involvement in investigations and, in several jurisdictions, independent civilian investigations and oversight
Canadian police officers are required to adhere to codes of conduct and ethics. these are contained in
- various provincial police acts across the country
- provincial policy documents
- manuals of individual police services
Discretion
the power or right to decide or act according to one’s own judgement
Bias-free policing
the requirement that police officers make decisions on the basis of reasonable suspicion and probable grounds rather than stereotypes about race, religion, ethnicity, gender, or other prohibited grounds.
one manifestation of biased policing is
racial profiling
Racial profiling
- relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin rather than on reasonable suspicion
- may result from police officers internal implications, which stems from unconscious stereotypes or explicit bias, which arises from conscious stereotypes
- may be a consequence of over-policing and pretext policing
criminal profiling
- based on objective evidence of wrongdoing by an individual
- particular attention to signals and “unusual fits”
the issues surrounding racial profiling are illustrated by
the ongoing controversy over the police practice of street checks, also referred to in some jurisdictions as carding
many Canadian police services have taken measures to address the issue of racial profiling and the practice of street checks/carding including
- upgrading training for officers
- identifying officers at risk of engaging in racial profiling and
- improving community relations
Police treatment of Indigenous Persons
A key feature of Canadian criminal justice is the overrepresentation of indigenous people at all levels of the justice system
- high rates of indigenous arrests in many regions of the country have raised the question as to whether police officers discriminate against indigenous people
Police use of force
:
The legal authority for the police to use force is found in the criminal code, which sets out the following principles
- officers exercising force must be performing a duty they are required or authorized to do
- they must act on reasonable grounds
- they may use only so much force as is necessary under the circumstances
- they are responsible for any excessive use of force
The Force Options Framework
- Officer presence
- Dialogue
- Empty Hands
- Compliance tools
- Lethal force
Officer presence: the mere presence of a police officer may alter the behaviour of the participants at an altercation, thereby enabling control of the situation
dialogue: verbal and non-verbal communication skills may resolve the conflict and result in voluntary compliance
empty hands: physical force is used to gain control
compliance tools: equipment or weapons are used to gain control
lethal force: the situation requires complete incapacitation of the subject in order to gain control, and lethal force is the only option available to reduce the lethal threat
Use of force: one plus one
The generally accepted use-of-force standard is one plus one, meaning that police officers have the authority to use one higher level of force than that with which they are controlled
Less-lethal force options
A less-lethal force option can be described as a force option that is highly unlikely to cause death or serious injury to an individual when properly applied by a police officer
- pepper spray
- tear gas
- conducted energy weapons
entrapment
a person ends up committing an offence that he or she would not otherwise have committed, largely as a result of pressure or tuning on the part of the police
The SCC in R v. Mack (1988) provided guidelines:
- the line is crossed when a person is persistently harassed into committing an offence that he or she would not have committed had it not been for the actions of the police
- people cannot be targeted at random
- there should be a reasonable suspicion that the person is already engaged in criminal activity
The “Mr.Big” technique
- an investigative strategy designed to secure confessions from crime suspects through the creation of an elaborate scenario
- involves police undercover officers making contact with crime suspects who are subsequently introduced to “Mr. Big,” a purported organized crime boss
- Target(s) then invited to join the criminal group, but only if they admit to having committed a major crime
- technique has a 75% confession rate and a 95% conviction rate
The Mr.Big technique
The SCC in R v. Hart (2014) provided guidelines
- confessions obtained via the Mr.Big strategy rely on coercion, threats and financial inducements and should be presumed to be inadmissible in court
- evidence gathered from Mr.Big stings could be admitted in court if the prosecutors are able to convince the presiding judge that the reliability of the evidence outweighs any prejudicial effects of the strategy
Search and seizure
Section 8 of the charter protects
all citizens against “unreasonable” search or seizure
- evidence obtained during an illegal search may be excluded from trial if, as indicated in section 24 of the charter, its use would bring the justice system into disrepute
The Supreme Court of Canada has held in R. V. S.A.B (2003 SCC 60) that for a search to be reasonable:
a) it must be authorized by law
b) the law itself must be reasonable, and
c) the manner in which the search was carried out must be reasonable
generally for a search by the police to be lawful a search warrant must be issued. the Supreme Court of Canada has decided that warrants are required in the following situations
- where there is to be secret recording of conversations by state agents
- in cases involving video surveillance
- for perimeter searcher of residential premises
-before the installation of tracking devices to monitor people’s movements
The power to arrest is provided by the criminal code and other federal statutes as well as by provincial legislation such as motor vehicle statutes. an arrest can be made to:
- prevent a crime from being committed
- to terminate a breach of the peace
- to compel an accused person to attend trial `
there is a distinction between arrest and detention
the SCC has held that a detention occurs when a police officer “assumes control over the movement of a person by a demand or direction that may have significant legal consequence and that prevents or impedes access to legal counsel”
in an arrest is warranted,
and if there is time to do so, a police officer can seek an arrest warrant by swearing an information in front of a justice of the peace
- An information: a document that permits a police officer to arrest a specific person for a specified reason
arrest warrant
a written statement sworn by an informant normally a police officer, alleging that a person has committed a specific criminal offence.
rights of suspects to remain silent
- under Canadian law, police officers have no formal powers to compel crime suspects to answer their questions
- suspects have a right to remain silent, and police officers must inform them of that right
- they must also inform suspects that any statements they do make may be used against them in a criminal trial
exceptions:
- this does not extend to situations where it would permit a citizen to obstruct a police officer from carrying out his or her duties
- a person who refuses to answer some general questions asked by the officer may raise suspicions that result in an arrest
police misconduct
- police activities are overseen by a number of commissions, boards and agencies
- incidents do occur, as a result of which citizens take issue with police attitudes and behaviour or with their failure to take action and exercise their discretion appropriately
- canadian courts have established that police officers are held to a higher standard of conduct than ordinary citizens
- police officers may be held liable for violating policies and procedures of the police service in which they work, and they are also liable, civily and criminally for their conduct
- the sanctions imposed on an officer can range from a verbal or written reprimand, forfeiture of play, suspension from the police service with or without pay, recommendations for counseling or a directive that the officer resign
Dafnos argues that, in the last few decades, there has been a notable expansion in police powers. This has occurred through developments such as:
Loosening of legal restrictions on investigative powers
• Broadening of organizational mandates to include “national security”
• Technological developments enhancing surveillance capabilities and increasing the range of
less-than-lethal weapon options available
• The adoption of intelligence-led policing frameworks
Dafnos suggests that “this expansion of police powers has arguably been most evident
in the
policing of dissent
public order policing
tasks associated with policing potentially disruptive gatherings in public spaces
- treated as a specialized function, often with specially designated units
- much of policing, in a broader and more literal sense, aims to maintain or produce public order in society
some historians mention, as Dafnos does, that the word police
once had a much broader meaning. Dafnos traces it right back to the Greek word polis, meaning city, but looking at early modern European history might be more instructive
the notion of public order assumes a
social consensus that “order” is natural and a universal good that everyone shares as a common interest.
`
order is a
political-social construct grounded in a historical context. the meaning of order is fluid and changes across time and space
- the fact that order must constantly be imposed demonstrates that there is conflict rather than consensus underlying it.
Dafnos integrates three historical perspectives in the establishment of modern policing
the orthodox, radical, and historical explanations—to argue that the
police institution was historically integral to establishing capitalist colonial order.
police played an important role in two key features of industrial capitalism
private
property (including vagrancy laws) and wage labour
modern policing regulates spaces and
people in ways that maintain particular social, moral, political, and economic relations that are constantly being contested by those resisting the imposition of this order
canada is meant to be a liberal, democratic state
Liberalism: a political and economic philosophy centred on the freedom and equality of
individuals and the pursuit of self-interests, within the free market
• We also have a Charter of Rights and Freedoms providing protection of civil and political
rights, including “fundamental freedoms” of “conscience,” “thought, belief, opinion and
expression,” “peaceful assembly,” and “association”
Dafnos says Canada has shifted from an
escalated force model to a negotiated management models of policing dissent
escalated force model:
aim is to quell contention as quickly as possible, which often entails the use of highly coercive and violent tactics to overwhelm and suppress the threat
negotiated management model
- emphasizes the protection of civil rights
- aims to avoid the use of force unless necessary, thus reflecting a higher degree of tolerance for disruption and even violation of the law
- creates opportunities for communication between police and protestors with the aim of facilitating expressions of dissent while minimizing harm to those involved and those potentially affected (bystanders)
- established designated units for this specific purpose
parallel to the development of the negotiated management model
we have seen an increasing militarization of policing
- a process by which police forces increasingly come to adopt features associated with the military and engage in more integrated exercises and operations with the armed forces
- a growing frequency of joint exercises between military and law enforcement, as well as a blurring of jurisdictions
increasing normalization of police paramilitary units (PPUs)
- mandates of PPUs have expanded as well, involving them in more and more policing activities
key feature of militarization
the adaption of military techniques
- lethal and less-than-lethal weapons, protective equipment, armoured vehicles, information and surveillance gathering technologies
intelligence-led policing
- reflects the adoption of a national security orientation, it has a preventative and pre-emptive orientation with covert operations such as surveillance, infiltration, and the cultivation of informants
responsibilization of proteststors
Negotiated management purports to uphold and respect rights, however the caveat is
that the exercise of these rights must occur in a specific manner that is defined by the
state—via the police—that emphasizes the responsibilization of protestors.
• Protesters must communicate their intentions with police prior to events and cooperate in
planning.
• There is a downloading of social regulation to protesters who are to police themselves and
others in order to remain within the realm of acceptable behaviou
Good Vs. Bad protestors
Good Vs. Bad protestors
GoWhat is a crime `
a crime is generally defined as an act or omission that is prohibited by criminal law
Good vs.bad protestors
Good protestors:
- known to police; particpate in negotiations; have goals that are clearly defined and concrete; use predictable and institutionalized tactical engage in self-policin g
bad protestors:
- engage in “transgressive contention” with goals that seem highly abstract or radical; reflect unpredictability and therefore increased risk not well known to police or are known to employ innovative tactics aimed at circumventing police control; failure to participate in negotiations is perceived as a challenge to authority
bad protestors tend to provide a
rationale for deployment of overt and covert militaristic policing to find out what the plans are and to deal with the risks posed by unanticipated disruptive actions
the chilling effect- militarization
- increasing use of militaristic language “enemies” and “battle”
- expanded national security mandate raises concerns about net-widening and rights violations as domestic “Crime” issues are represented as threats to national security
- increasingly rationalized through security discourse as necessary to protect “our” liberty
- dissent becomes embedded within dominant structures of the state, rather than transforming social relations and structures
- people may be less willing to engage in public protest out of fear of potential consequences
Proect Sitka
- The RCMP created the Aboriginal Joint Intelligence Group (JIG) in 2007, composed of
members of the force’s National Security and Criminal Intelligence divisions.
As early as 2007, Indigenous and Northern Affairs Canada (INAC) had been given a lead role
on spying on First Nations’ communities to identify leaders, participants and supporters of
protests.
RCMP compiled intelligence on dozens of Indigenous individuals and organizations—and
some sympathetic non-Indigenous organizations—who have been monitored because of
their possible affiliation with Indigenous protests
In January 2014 the RCMP designated Indigenous rights demonstrations as a National
Tactical Intelligence Priority.
Project Sitka was launched in early 2014 and completed in 2015 by the Mounties’ National
Intelligence Coordination Centre.
• It focused on providing “a snapshot of individual threats associated with Aboriginal public order events for the
year 2014” as well as mapping out the potential networks among Indigenous groups, identifying protesters and
events they attended. (Jeffrey Monaghan, Carleton University)
Clearance rates
the proportion of the actual incidents known to the police that result in the identification of a suspect, whether or not that suspect is ultimately charged and convicted
as measures of effectiveness, both crime rates and clearance rates are problematic in multiple ways
- they suffer from problems of interpretation
- they exclude other useful measures of police performance
- much of waht police do has little to do with crime rates
- police may have little impact on the reasons crime occurs
- not all police work in the same types of communities
crime displacement
the relocation- due to effective crime prevention and crime response initiatives- of criminal activity from one locale to another
professional model of policing
a model of police work that is reactive, incident-driven, and centred on random patrol
professional model of policing
based on the 3 R’s
- random patrol
- rapid response
- reactive investigation
community policin g
a philosophy of policing centred on police-community partnerships and problem-solving
Community policing
- based on 3 P’s
- prevention
- problem-solving
- partnerships with the community
- the police assume a proactive role in addressing issues in the community
community-based strategic policing
a model of police work that incorporates the key principles of community policing with crime prevention, crime response, and crime attack approaches
- community engagement and police services being strategic in their policies and operations
Crime analysts use
sophisticated statistical programs to create crime maps and to provide intelligence to police officers in patrol and investigative unit
Intelligence led policing
policing that is guided by the collection and analysis of information that is used to inform police decision-making at both the tactical and strategic levels
compstat
a strategy designed to increase the effectiveness and efficiency of police services while holding police personnel accountable for achieving crime reduction objectives
predictive policing
the use of statistical analysis to identify the time and location where criminal activity is likely to occur
- many police services have only a limited analytical capacity and are not able to provide their officers with real-time information on a crime, its location, and who the perpetrators might be
biased policing may
contribute to certain areas, and persons, being identified as important for police attention in the predictive policing model
the strategies used in the community-based strategic policing include
- recruitment and deployment of volunteers in community police stations and storefronts
- food and bike patrols
- team policing
restorative justice approaches
an alternative for addressing and resolving crime, and the needs of victims, offenders, and the community
- victim-offender mediation
- circle sentencing
- community holistic healing programs
- family group conferences
Police- community partnerships
community surveys have consistently found high levels of public support for the police and an expectation that police services will engage in proactive, preventive policing as well as reactive, enforcement-related activities
Guardians of justice or vigilantes?
- the rise of groups attempting to address what are percieved to be the shortcomings of the CJS
anonymous
- death of Amanda todd
- death of rehtaeh parsons
creep catches
crime prevention programs are generally aimed at
reducing crime, generating community involvement in addressing general and specific crime problems, and heightening citizens’ perceptions of safety
primary crime prevention programs
identify opportunities for criminal offences and alter those conditions to reduce the likelihood that a crime will be committed
