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