Punishing Criminality Flashcards
What was Hunter v. Southam?
In Hunter v. Southam, the first criminal case before the Supreme Court following the introduction of the Charter, the court rules on the validity of a search warrant issued through the Combines Investigation Act; it was a law passed by PM King in 1923 and it regulated certain anti-competitive corporate business practices. It allowed investigators to make non-judicial search warrants and seize evidence. In this case, a newspaper was searched and documents were taken, they filled an injunction to get it removed.
Before the Charter, which includes protections against unreasonable search and seizure (s. 8) and the ability to exclude evidence gathered by breaching someone’s rights (s. 24), it was difficult to challenge illegal evidence. S. 24 allows the evidence to be included, it has some flexibility for judges
At the Supreme Court, it is ruled that the Charter had been violated (s. 8) and that the evidence obtained through the search warrant could not be used
The case is important because it is the first criminal case and it is a spring board for these types of challenges and it furthered the philosophy on interpreting the charter, they used a goal approach.
The case further elaborated on the court’s approach to interpreting the Charter as a “purposive” document:
“A statute defines present rights and obligations. It is easily enacted and easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by the Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political, and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.”
Charter as a living tree, something that grows and changes with society
The judges also included a discussion of “reasonableness” from s. 8, ruling that an individual’s privacy comes before the goals of law enforcement and government, not always but this is the ruling here
What was r. v. A.M.
S. 8 is frequently tested, including in R. v. A. M. 2008 - a high school student in Ontario gets caught with weed, mushrooms, etc. because the principle lets the police come into the school whenever they want with a drug smelling dog. This day they had no basis to suspect there is drugs. He is charged. The Ontario court ruled the search was unreasonable, it gets appealed, they agree with the ruling, the SCC rules that in a boarder sense, the police have the legal authority to use dogs but there needed to be reasonable sus. that there are drugs. Any drug dog search without a warrant, the police needed to have evidence that they had a reasonable sus. That there would be drugs. Also talks about expectation of privacy, students should have a lower expectation of privacy but backpacks should be considered the same as an adults briefcase. The court also debated if the search was based on a reasonable sus. And they decided it was unreasonable because they had no idea that there were drugs on campus. The judges weigh if the evidence should be included under s. 24; they consider the charter and expediency, the ability of police to use their resources as quickly as possible. They found the charter to be a more important factor and did not include the evidence
What is R. v. Oakes?
In 1986, David Oakes is charged with possession for the purpose of trafficking. He has a little bit of weed and money in his pocket and charged with trafficking
He challenges the constitutional validity of s. 8 of the Narcotic Control Act, which stated that a person who is proven to be in possession of a narcotic could be convicted of the more serious offence of trafficking (and the burden of proof was placed on the accused)
In R. v. Oakes, s. 8 is ruled unconstitutional by the trial judge, court of appeal, and Supreme Court who also all agree that the violation of Oakes’ rights could not be justified under Section 1 of the Charter. Lack of a rational connection between the proven fact, possession and the assumed fact, trafficking.
The gov. must prove that the infringement is justified
The Supreme Court establishes the Oakes Test:
What is the Oakes test?
- The government that infringed on the Charter right must explain the objective of its impugned law or conduct. The objective must be pressing and substantial. (R. v. Keegstra, R. v. Butler, R. v. Big M Drug Mart Ltd.)
- The government must demonstrate that the law or policy is rationally connected to the pressing and substantial objective. If the law or policy is arbitrary or serves no logical purpose, then it will not meet this standard. (R. v. Morgentaler)
- The government must demonstrate that the law or policy is minimally impairing of the Charter right. This means that the law must impair the Charter right as little as possible or is within a range of reasonably supportable alternatives.
- The government must demonstrate that the beneficial effects of the law or policy are not outweighed by its negative effects on the Charter right in question. This is generally known as the proportionality requirement.
What is the Opium and Narcotic Drug Act and what came before it?
In the 19th century, Canadians legally used drugs like opium, morphine, heroine, and cocaine. They did it for pain relief, cocaine was more recent and not at widely used (dentists, energy). They would get addicted but they were cheap and legal.
By the early 20th century, however, drug use became increasingly disreputable because of concerns over addiction, the decline of drug use amongst the middle-and-upper-classes, and the new association between drugs and immigrants. The war causes dramatic increases because of depression and bad stuff. Doctors are talking about addiction for the first time, drug use and abuse in middle and upper class decline while working class increase, so they get a reputation.
Chinese immigrants were especially targeted and described as a threat to white, moral, Christian society. This overlooks the fact that Britian fought wars over the opium trading
PM King, in the aftermath of the anti-Asian riots of 1907, introduces the Opium Act, 1908. in the riots, several opium factories were requesting money and the anti-opium organizations pushed for King to introduce Opium Act. He did not like opium and claimed that the smoking of opium was spreading to white women and girls. It made opium illegal to make, expect for meds. More legislation was made for alcohol in meds
This is followed up with the Opium and Drug Act, 1911; this prohibits making and having it expect for meds, and expands to other drugs, including cocaine and morphine. Police powers for enforcement was also increased
WWI further entrenches suspicions over “foreigners” and “others”
As a result, there are campaigns for harsher legislation regarding drugs and calls for the banning of Chinese immigration. “Drug evil”, a moral panic and racism
In 1920, the Department of Health is established and assumes responsibility for the Opium and Narcotic Drug Act while the RCMP is tasked with enforcing it
This system makes it harder to obtain drugs through legitimate channels, but the illicit market continues to thrive
In the early days, arrests rates are high because of opium dens but this change and more traditional police work is needed, more resources
What was the Narcotic Control Act?
Little was done to help users and addicts; the federal government considered this a provincial responsibility and there was little compassion as they generally did not conform to the vision reformers and politicians had for them. Treatment was said to be a provincial power (Alberta and NS, only Alberta follows through)
Harsher drug laws, strict enforcement, and more difficultly obtaining drugs meant that drug use became a lot more dangerous and harmful in this period
Maybe users went down after legislation but the users became more problematic
The association between criminality and addiction intensified in the 1940s yet, at the same time, research involving LSD is producing interesting results. Tommy Douglas brings drug researchers to Saskatchewan. They want to see if LSD is connected to schizophrenia, a lot of their findings led to hospital reforms and help care for them, and alcoholism, 50-90 recovery rate
Drug laws are strengthened in the 1960s as a result of the countercultural turn. Birth defects from Thalidomide. More drug overdoses
The Narcotic Control Act came into force in 1961, which legalized discrimination and punitive penalties against drug users. Targeted heron, weed. Got a lot of pushback, especially because of weed, racism.
The Act sees tremendous resistance from young white people and their parents, illuminating the difference in approach from earlier decades when Chinese migrants were seen as “foreigners,” “others,” vectors of immorality, and a threat to social cohesion
Gov. walks it back a little:
health minister tries to legalize weed in 1971, but it doesn’t pass
Calls a commission of inquiry, which looks into non-medial use of drugs and recommend that criminal sanctions should be reduce, weed should be repealed, and the medical treatment of those addicted to opioids should be offered, these were not implemented
What is the Controlled Drugs and Substances Act?
The Controlled Drugs and Substances Act replaces the Narcotic Control Act in 1996
The act included mandatory minimum penalties. They are not common but they are historical.
This is challenged on numerous occasions, including in R. v. Lloyd where the sentence was maintained but it is decided that mandatory minimums violated the Charter because it casted a wide net.
Later cases, like R. v. Parranto, establish “starting points” for sentencing that help the lower courts decide on appropriate sentences
What was R. v. Lloyd?
R. v. Lloyd where the sentence was maintained but it is decided that mandatory minimums violated the Charter. He had a previous conviction so he was supposed to get the minimum sentence of 1 y. judge said this is what Lloyd deserves but minimum mandatory violates the Charter. BC court of appeal says you don’t have the power to do this there’s nothing to talk about here. It gets appealed to SCC, who says it violates the charter because they cast a really wide net. Needed something to work around the mandatory minimums for specific circumstances.
What was R. v. Parranto?
Later cases, like R. v. Parranto, establish “starting points” for sentencing that help the lower courts decide on appropriate sentences. Two drug dealers were given sentences of 7 and 11 years, the crown wants higher so they appeal and get higher sentences, 10 and 14 years. The Court of appeal talks about setting a starting point for this offence and the minimum was 9 years. But the SCC says the trial sentences were appropriate.
What did the historical context look like for rifles?
Levels of gun ownership/use fluctuated in the colonial period so there was not much attention given to them by the state. Gun levels go up and down, personal gun use for protection isn’t needed at some points. Violate offenders were not interested in committing crimes with guns but other weapons. Halifax was a crime city.
Regulation was attempted only to prevent the discharge of guns in urban spaces; the use of firearms at polling places and public meetings; and perceived threats to the state or its goals
Legislators typically sought to limit possession/use of guns by groups deemed dangerous and these measures were usually only temporary. Not regulating all guns but some. They were only doing this on a peace mill bases.
Following Confederation, the government is hesitant to further regulate guns due to fear over an American invasion, the creation of a federal militia - militia act 1858, and their sanctioning of rifle associations, as a form of defense.
Yet, even now, the state remained invested in suppressing the use of rifles only by those they deemed dangerous to the state and it’s goals: Indigenous Peoples, ethnic minorities, labour activists, and the unemployed. Gun control was about citizen control rather then gun control
When this butted up against the rights of Canadians/ British subjects to bear arms, however, it was diluted or not enforced
It would be hard to fully limit guns at the time because of the US and how hard criminal law is to enforce at this time
What was the historical context of revolvers (pistols)?
In the 19th century, the tech behind pistols change because they are mass produced and cheap. This leads to more shooting accidents, especially around child and youth because there were no age restrictions or safe storage of them. People are worried about broad issues, like men and alcohol and how well suited these guns were for crimes, easy to conceal and lots of firepower. Gun of choice for suicides and murder suicides.
While Canadian politicians were relatively soft on rifles, reservations were expressed about revolvers (pistols) and, by the 1860s, there were calls for better regulation - or even an outright ban
Regulation is attempted by the Liberals in 1877, 1878 because it was used in instances of collective violences, but these were ultimately further attempts to police working-class people, Indigenous peoples, and ethnic minorities. It restricted carrying a pistol unless they could prove they had reasonable fear for their lives or safety. Young men were reckless and adding pistols to their fragile masculinity was a problem. It did not solve the problem which leads to the 1978 Blake act.
What was the 1878 Blake Act?
The 1878 Blake Act eliminated an accused person’s right to a trial by jury, orders the licensing of gun owners, and allows for the search of persons suspected of carrying weapons. If the act was proclaimed it banned carrying weapons, other then police, military, or licensed people.
The act was, as in the past, temporary; it remained on the books until 1884. this doesn’t really solve the problem and calls for stronger gun control remained. Records did not need to be kept and people could get them quick easily.
What was the first Criminal Code section on Firearms?
Further gun laws waited until Macdonald dies.
In 1892, the first Criminal Code includes a section on firearms
It outlined:
Punishment of up to 5 years for carrying an offensive weapon
Summary offence to possess firearm if disguised
Raised penalty for carrying pistol without justification to fine and up to 1 month in jail
Identified who could carry a revolver
Prohibited sale or gifting of pistols to anyone under 16
Demanded record of sale
This marked a more proactive approach to gun regulation in Canada. It was on the offensive because it was the only way to make this stop. Significant increase in the state control of guns but also marked that “nice normal men” could still be armed.
It did, however, fail to solve the pistol problem because we start to see new kinds of handguns, that are cheaper and easier to get.
How was gun use regulated for immigrants?
There is a lot of support for the British empire in Canada, which deeply affects gun culture. They start hunting more, especially because it would help the marksmanship of Canada. So in the first 2 decades, there’s limited gun laws.
While rifle use continues to be encouraged by the “right kind” of people, pistols remain a concern and further regulation is introduced
More immigrants coming brought fear that they were bringing dangerous handguns with them and they lacked the mature Britishness to be allowed to use guns. This lead to a spike in the prosecutions of having a gun. Immigrants continue to be overpoliced (accounting for over 40% of convictions in the first two decades of the 20th century)
A series of bills are introduced to try to limit gun ownership by immigrants, but they ultimately fail. Liberals are facilitating a bunch of immigrations and then didn’t really want to turn around and say they are dangerous and cannot have guns.
The exemptions to the 1913 law make clear that legislators continued to target immigrants and the working-class – not “men of property”
Gun control between WWI & WWII represents the beginning of an important shift in state policy towards firearms, wherein the state starts walking back its interest in having average citizens be armed. They did not discourage gun use but stopped arming and training these “good men”
During WWI, the state seeks to regulate the use and ownership of guns by “enemy aliens” through the War Measures Act. They had 10 days to give in their guns after being declared an enemy alien and would be jailed if they didn’t.
After the war, the Red Scare led Ottawa to enact a temporary gun-licensing program and restrictions on immigrants. This is a foreign threat so it applies to immigrants. They were not granted licenses.
The Great Depression brings further restrictions to try to prevent social disorder by desperate people
After each of these events, they would return the weapons or buy it back if you gave it up, expect if you were an immigrant. They were generally imposed on
WWII not only reintroduces immigrant-based restrictions, but also sees a national gun registry program introduced. All guns now had to resister their guns and created a national reporting system. Marks a shift away from the state training people.
Collectively, this demonstrates the growth of state power in this period
How was the October crisis connected to gun law?
The 1970s brought renewed calls for control after the October Crisis and a spike in violent crime, school shooting, drugs
Bill C-83, an omnibus law amendment bill - package of bills, known as the “peace and security package,” passed in 1976, proposed increased penalties, provisions requiring careful weapon storage, and a new licensing system, anyone with a gun now needed a license
The bill gets watered down due to opposition; able to reduce it to only new gun owners needed a license for everything
What was Bill C-17
The École Polytechnique Tragedy (Montreal Massacre), school shooting, killed 28 women to fight feminism, this was not the first mass shooting but it was a big one. Initially triggered half-hearted changes from the Conservatives that failed to pass
Kim Campbell could not get her bill passed in 1990
In 1991, Mulroney final introduces Bill C-17 that:
Added to the list of restricted and prohibited weapons + 200 models
Placed limits on magazine sizes
Required guns to be stored separately from ammunition and hidden during transport
Minimum age raised to 18
28 day waiting period
2 references required and to complete a course in safe handling
Firearms officers granted power to interview neighbors, social workers, spouses, and dependents
Gun amnesty; if you were in possession in an illegal section you could turn it in without penalty
The next Liberal government builds on this with, Bill C-68 including the Firearm Possession Certificate, tougher penalties for using firearms to commit crimes, a requirement to justify possession of weapon, a ban on further models of handguns and assault rifles, and a national firearm registry, every gun owner registers every gun they had.
They also consolidate all legislation into the Firearms Act. Up to this point everything was all over the place, they put everything into the Firearms Act. Indigenous peoples got their own adaptations, elders could approve, under 12 could get a gun for traditional hunting, and they could informally show they knew the rules.
Constitutional and Charter challenges, like R. v. Wiles, fail. Alberta challenges because it was under the provincial but feds argue that it was for the peace, order, and good goverence of the people. R. v. Wiles, Wiles produced weed but the court says he could no longer have a weapon. He says this is unusual punishment. SCC says no and this says that weapons are not a right or freedom it’s a privilege.
