Dependency Theory and Criminal Justice Overview

WEEK 2 📚 Dependency Theory: Core Critique of Modernization

• Dependency theory: Argues that underdevelopment arises from the integration of Third World economies into a world-capitalist system dominated by developed nations.

  • Posits that underdevelopment is not due to internal issues but rather to external economic forces.

  • Critiques modernization theory for neglecting economic dimensions and relying heavily on internal explanations.

Approaches to Economic Development

Period / Influence

• Late 19th – early 20th c.

  • Dominant Idea: Neo-classical orthodoxy maximizes comparative advantage.

  • Key Proponents: Classical economists.

  • Main Policy: Free trade with minimal state intervention.

• 1920s-1930s

  • Dominant Idea: Economic nationalism promoting state-led industrialization and protectionism.

  • Key Proponents: Leaders from Latin America and India.

  • Main Policy: Import-substitution industrialization (ISI).

• Post-WWII

  • Dominant Idea: Development economics focusing on domestic capital accumulation and the role of state.

  • Key Proponents: Arthur Lewis (dual-sector model).

  • Main Policy: Mobilize savings, invest in industry.

• 1960s-1970s

  • Dominant Idea: Structuralist critiques of orthodox models.

  • Key Proponents: Walt Rostow (stages of growth).

  • Main Policy: State-guided development.

• Late 1970s-1980s

  • Dominant Idea: Neoliberal counter-revolution emphasizing market primacy.

  • Key Proponents: Thatcher, Reagan.

  • Main Policy: Deregulation, privatization, export-led growth.

  • Lewis’s dual-sector model:

    • Traditional: Rural, zero marginal productivity.

    • Modern: Urban, high marginal productivity.

  • Rostow’s five stages of growth:

    • Traditional → Preconditions for take-off → Take-off → Drive to maturity → Age of mass consumption.

📖 Lenin’s Theory of Imperialism

• Vladimir Lenin (1916): In Imperialism: The Highest Stage of Capitalism, he argues that monopoly capital seeks overseas investments because domestic opportunities are exhausted.

  • **Key *Factors*:

    • Concentration of capital.

    • Formation of cartels.

    • Search for cheap labour and raw materials.

  • Imperialism pacifies European working classes while intensifying anti-imperialist struggles in colonies.

  • The peasantry becomes the central force in national bourgeois revolutions, aided by a disciplined revolutionary party that compensates for a weak proletariat.

📈 Andre Gunder Frank & the “Development of Underdevelopment”

• Background: Studied economics at Chicago; influenced by UN-ECLA contributors like Prebisch, Furtado, and Paul Baran.

• Core Claim: Development and underdevelopment are interconnected; growth in the industrialized world hinges on exploitation of peripheral regions.

Frank’s Model of World Metropolis

1. Core metropolis (e.g., United States).

2. National satellites (e.g., U.S. southern states).

3. International satellites (e.g., São Paulo).

4. Provincial satellites (e.g., Recife).

5. Local haciendas/merchants.

   • Monopolistic structure leads to the misallocation and expropriation of surplus from satellites to the core.

Case Study: Brazil

Frank's Conclusion

• Autarky is impossible; genuine development demands breaking the capitalist chain, often resulting in political upheaval.

⚖️ Limitations of Frank’s Approach

• Macro-economic Focus: Treats governments, parties, militaries as mere extensions of the world system.

• State Autonomy: Ignores independent policy space for peripheral states.

• Oversimplified Class Analysis: Binary view of development versus underdevelopment overlooks diverse dependence levels.

• Critiques:

  • Henrique Cardoso: Advocates for “associated dependent development” emphasizing domestic capital accumulation.

  • Bill Warren: Points to instances of autonomous capitalist development in certain Third World states.

🌐 Immanuel Wallerstein’s World-Systems Perspective

• Wallerstein (1979): “There are today no socialist or feudal systems in the world economy; there is one capitalist world system.”

• Three Zones:

  • Core: Advanced manufacturing, banking, high wages.

  • Semi-periphery: Mixed economic activities, buffering role between core and periphery.

  • Periphery: Primarily involves raw materials extraction and weak state structures.

  • State Role:

    • Core states: Develop robust bureaucracies.

    • Peripheral states: Remain weak due to internal class conflicts and external pressures.

    • Political influences (e.g., military power, ideological stances) bolster economic advantages.

• Flexibility of the Model: Positions can shift within the world system, illustrating dynamic interactions unlike Frank’s static hierarchies.

📊 Cardoso & Faletto: A More Nuanced Dependency Element

• Three-level analysis: International economy ↔ nation-state ↔ social-class alliances.

  • State Defined: Not a mere conduit; actively mediates external domination and internal class struggles.

Developmental Paths in Latin America

1. Liberal/privately-driven (Argentina).

2. Nationalist-populist (Brazil).

3. Developmentalist state (Chile, Mexico).

Populism

• Mobilizes “humble” masses; distinguishes from Peronist populism by avoiding strong trade-union bases.

  • Focuses on political agency and class coalitions rather than deterministic economic dependence.

📉 Neo-Liberal Offensive (1980s)

• Core Idea: Asserts underdevelopment is a result of excessive state control, corruption, and insufficient market incentive.

• Key Prescriptions (World Bank, IMF):

  1. Roll back public sector (privatization).

  2. Prioritize human development over physical capital.

  3. Dismantle distortive controls (price caps, licensing systems).

• Export-led Growth: Promoted following the success of East Asian “tigers” (Hong Kong, South Korea, Singapore, Taiwan).

• Criticism: State-driven “command capitalism” in these cases contradicts pure neoliberal assertions; cultural factors (e.g., Confucian work ethic) challenge simplistic economic interpretations.

💸 Debt Crisis & Structural Adjustment Programs (SAPs)

Actors and Roles

• International Monetary Fund (IMF): Short-term balance-of-payments stabilization through macroeconomic conditions.

• World Bank: Facilitates long-term development loans, often tied to structural reforms.

• Commercial Banks: Major lenders (particularly to larger Latin American economies during the 1970s).

Drivers of Indebtedness

• Avoidable Factors:

  • Expansive state-led development.

  • Corruption.

  • Capital flight.

  • Military expenditures.

• Unavoidable Factors:

  • Oil price shocks (e.g., 1973-74, 1979-80).

  • Rising global interest rates (1980s).

SAP Impacts

• Economic Consequences:

  • Currency devaluation.

  • Public sector cuts.

  • Trade liberalization and privatization.

• Mixed Outcomes:

  • Modest growth in Chile and Argentina.

  • Severe social costs in African states (e.g., education cuts in Zimbabwe, health budget cuts in Zambia).

• Political Fallout:

  • “IMF riots” in countries like Algeria, Ivory Coast, Nigeria.

  • Rise of insurgencies (e.g., Chiapas, Mexico).

  • Weakening of patronage-based regimes.

🏁 Overall Assessment of Dependency Theory

• Strengths:

  1. Highlights the global economic dimension of underdevelopment.

  2. Offers a systemic critique of modernization’s internal bias.

• Weaknesses:

  1. Homogenizes the periphery and underestimates state diversity.

  2. Undervalues the role of state and social forces—reducing politics to economic determinism.

• Later Refinements (Cardoso & Faletto, Wallerstein): Aim to reintegrate political, state agency, and class coalitions, thus moving beyond simplistic core-periphery binaries.

WEEK 3 📜 Criteria for Recognizing Valid Laws

• Body of Rules: Laws must be known, enacted, and accessible to the public.

• Public Enforcement: Criminal statutes must be applied by public officials.

• Legitimate Formulation: Laws created via democratic processes (e.g., bills passed by elected legislators).

• State-Court Backing: Laws must have threats of punishment enforceable by the courts; sanctions are valid only if the judiciary can impose them.

• Definition of Legitimacy: The accepted right of the state to exercise coercive power, contingent upon meeting these four criteria.

🌿 Natural Law vs. Positive Law

• Natural Law: Provides moral principles (e.g., fairness, justice) that underpin legal systems.

• Due Process: A natural-law principle guaranteeing the right to be heard and to receive justifications for conviction or sentencing decisions.

• Procedural Fairness: Ensures legal actions respect inherent moral standards, not just formalities.

• Quote: “Fairness and justice are often tied hand in hand; they manifest in due process and the right to be heard.”

⚖️ Legitimacy Challenges in Contemporary Politics

• Fear Politics: Leaders (e.g., Donald Trump) employing fear tactics to undermine legitimacy by creating us-vs-them narratives.

• Questionable Actions: Incidents (e.g., Charlie Kirk assassination rhetoric, unverified boat raids) illustrate potential violations of the four validity criteria:

  • Lack of clear legislative authority.

  • Absence of transparent public enforcement.

  • Unclear democratic formulation.

  • Insufficient court-backed sanctioning.

• Such tactics raise public doubts about the state’s legitimate use of coercive power.

🎯 Goals of the Criminal Justice System (Canada)

Core Purpose Examples

1️⃣ Crime Prevention: Deter offenses through patrol policing and public awareness campaigns.
2️⃣ Denunciation of Unlawful Conduct: Publicly condemns wrongdoing to reinforce societal norms (sentencing statements).
3️⃣ Deterrence:

• Specific: Aims to prevent the same offender from re-offending (e.g., probation conditions).

• General: Discourages public at large (e.g., harsh penalties). 4️⃣ Incapacitation/Removal: Isolates dangerous offenders (e.g., imprisonment). 5️⃣ Rehabilitation: Reforming offenders for lawful reintegration (e.g., educational programs). 6️⃣ Reparation: Restoring the victim/community (e.g., restitution payments). 7️⃣ Restorative Justice: Fostering reconciliation between victims and offenders (e.g., victim-offender mediation sessions).

  • Definition of Deterrence: The use of punishment to discourage future crimes, aimed at both individual offenders and the broader public.

🛡 Specific vs. General Deterrence (Illustrations)

• Specific Deterrence: Targets individual offenders, employing tools like probation or electronic monitoring.

• General Deterrence: Aims for societal messaging (e.g., high-visibility law enforcement, publicized harsh sentences).

📚 Key Terms to Remember

• Legitimacy: Acceptance of state power contingent on adherence to the four validity criteria.

• Natural Law: The moral foundations informing legal principles.

• Due Process: Guarantees fair hearings and transparent reasoning.

• Deterrence: Strategy for crime prevention through punitive threats.

• Reparations: Compensation to victims for harm caused.

🌟 Seventh Goal of the Criminal Justice System: Responsibility

• Goal: To instill accountability that transforms offenders into responsible citizens.

• Aim: Behavioral change, not just punitive measures; “Promote responsibility or a sense of accountability in the offender.”

🤝 Responsibility, Rehabilitation, and Removal

• Responsibility ↔ Rehabilitation: Can coexist when aiding offenders in reintegrating back into society but may conflict with policies focusing solely on removal.

• Key Tension: Policies blend elements of responsibility, rehabilitation, and social protection but may not isolate effectively.

📚 Context-Dependent Goals & Real-World Example

• Case Study: St. Catherine’s Reef incident—individual on bail commits sexual assault.

  • Raises questions regarding rehabilitation post prior conviction and whether different approaches could have prevented the re-offense.

• Takeaway: Effectiveness hinges on context; one size does not fit all.

🧠 Three Theoretical Approaches to Criminal Justice (Overview)

1. Utilitarian Theory – Focus of subsequent notes.

2. (Other two theories mentioned but not detailed in this segment.)

• “What we hear on the news are outliers; they do not represent the everyday reality of the criminal justice system.”

⚖️ Utilitarian Theory of Criminal Justice

Core Principle

• Maximize societal utility: Broadly understood as happiness or welfare by minimizing crime.

• “Utilitarians seek to maximize utility; in criminal justice, this translates to a society where no wrongful crimes occur.”

Key Concepts

Practical Implications

• Forward-Looking Focus: Emphasizes future behavior.

• Punishment vs. Deterrence: Distinguishes that punishment serves mostly to achieve deterrence, not retribution.

• Liberty Trade-Off: More policing may limit personal freedoms for greater utility.

Cost Considerations

• Financial: Includes police, courts, rehabilitation program funding.

• Non-Financial: Concerns potential erosion of personal liberty through increased surveillance.

Summary Points

• Utilitarianism: Regards the criminal justice system as a tool for maximizing collective well-being.

• Deterrence: Serves as the primary mechanism, with rehabilitation supporting long-term utility objectives.

• Implementation: Balances resource allocation against civil liberty concerns.

WEEK 4 ❓ Questions & Communication

• Data-management tutorial: Students expected to identify questions themselves; no direct provision from instructors.

• Clarifications/Issues (e.g., missing readings): Email instructor.

• “Nothing in this course constitutes legal advice. Material covers the Canadian criminal-justice system structure, not compliance or guidance when facing charges.”

⚖️ Criminal Justice System Overview (Canada)

• System Phases:

  1. Pre-trial (investigative)—roughly 4 stages.

  2. Trial procedures—roughly 6 stages.

🗂 Stages Before Trial

• Definition: Conduct is any action legislated as a criminal offense.

🏛 Trial Procedure Stages

Canada vs. U.S. Charging Processes

• Canada:

  • No grand jury system, charges laid by police or Crown prosecutors.

• United States:

  • Grand juries may be utilized to decide whether formal charges are filed.

🚔 Arrest, Bail, and Detention

• Arrest: Police take suspects into custody based on reasonable grounds of a crime.

• Detention Period: Judge review required within 24-48 hours post-arrest.

• Bail (Recognizance): Decision for future court appearance is made, could involve financial guarantees or personal bonds.

📊 Key Comparisons

Diversion

• Definition: A discretionary decision by the Crown to withdraw criminal proceedings against an accused because prosecution is deemed unnecessary.

• Who Decides?: Sole authority rests with the Crown attorney.

• Primary Target Group: Young offenders or perceived low-risk individuals.

• Typical Conditions: Promises not to reoffend or participate in community programs; formal trial not mandated.

Example Cases Where Diversion Was Applied

• Note: Diversion does not serve as a mechanism for serious offenses; it reflects public interest considerations for prosecution.

⚖️ Bail & Pre-trial Criteria

• Legal Right: The accused may consult a lawyer within the 24-48 hour period following arrest.

• Bail Assessment: Follows Walsh criteria for evaluation.

• Police Requirements: Evaluates if the accused is likely to appear in court prior to granting bail.

Illustration of Bail Decisions

• Community service may form part of bail conditions, although it isn’t mandatory in every case.

📅 Preliminary Hearings

• Triggered when an accused does not qualify for diversion and faces a summary or indictable charge.

• Purpose: Assesses if the Crown has satisfactory evidence for a reasonable expectation of conviction.

• Standard of Proof (Pre-trial): The Crown must demonstrate a low threshold: a reasonable chance of conviction is necessary, not proof beyond a reasonable doubt.

Summary vs. Indictable Offenses Comparison

🧠 Trial Process

• If no plea deal is made, the case progresses to trial.

• Key Steps in the Trial Process:

  • Disclosure: Crown provides evidence to the defense.

  • Motions: Both sides may file motions to admit or exclude evidence.

  • Jury Instruction: The judge guides jurors on legal standards.

Outcome Possibilities

• Guilty verdict → sentencing.

• Acquittal → case closed.

🤝 Plea Deals & Incentives

• Plea deal definition: An arrangement allowing an accused to plead guilty in exchange for a lighter sentence or alternative sanctions (such as community service).

• Motivating Factors for the Accused:

  • Perceived likelihood of conviction if going to trial.

  • Desire to avoid harsher penalties (e.g., 15 years vs. 5 years).

  • Counsel advice may guide toward plea for guaranteed outcomes over trial risk.

• Lawyer perspective: Preference often lies in avoiding trial due to the risks of loss and associated costs.

Example

• Denville Washington: Sought diversion, received a plea offer instead.

  • Guilty plea → 5-year sentence;

  • Go to trial → risk of a 15-year sentence if convicted.

⚠️ Wrongful Convictions & Plea Pressure

• Wrongful convictions can stem from coerced plea deals where defendants fear trial outcomes.

• Factors Contributing to False Pleas:

  • Fears of severe sentencing upon trial conviction.

  • Resource limitations hindering a robust defense.

  • Misunderstood legal rights or inadequate comprehension of evidence strength.

• “Most wrongful convictions arise because people take plea deals out of fear, not because they are actually guilty.”

📋 Key Takeaways

• Diversion is a tool primarily used by the Crown for young or low-risk offenders.

• Bail contingent on Walsh criteria and police confidence in the accused's court appearance.

• Preliminary hearings examine Crown evidence sufficiency, maintaining a deliberately low standard.

• Proceedings proceed to trial unless a diversion or plea deal is accomplished; motions shape evidence permitted for trial.

• Plea deals present a balance between the risk of severe sentencing versus guaranteed outcomes, often pushing innocent defendants towards guilty pleas.

⚖️ Criminal Procedure Overview

Trial Stage

• Evidence Presentation: Occurs during trial with examination processes.

• Cross-examination: Key for verifying witness credibility.

• Goal: To uncover the truth in an adversarial system.

Sentencing Stage

• Follows a guilty verdict with a separate hearing involving the judge, defense counsel, and Crown counsel reviewing aggravating and mitigating factors leading to deciding the appropriate punishment; sentencing is distinct from the initial trial.

Punishment & Post-Punishment

• Execution of the Sentence: Incarceration or other stipulations applied.

• Post-Punishment Includes: Lasting consequences from having a criminal record.

Definition

• Criminal record: Official documentation of an individual’s convictions affecting employment, education, and travel opportunities.

📅 Stages of the Criminal Justice Process (10-11 Steps)

🧾 Legal Defences in Canadian Criminal Law

Defenses of Excuse

• 
  

• The defendant admits the act but asserts a lack of criminal responsibility.
  

  Defence	Key Idea	Typical Example
  Age	Moral capacity differs with age; children < 12 bear no responsibility; ages 12-18 have diminished responsibility; 18 and over are fully responsible.
  Automatism	Conduct unconscious or involuntary (e.g., seizures).	A seizure causing loss of control.
  Other excuses	Lack of intent or awareness (further examples not detailed in transcript).
  Quote: “Automatism refers to unconscious or involuntary behavior. The defendant must be so impaired that they have no voluntary control over their actions.” — Harvey Stone (1999)
  Defenses of Justification

  • The act, although unlawful, becomes necessary to prevent greater harm (specific examples not detailed in transcript).

  👶 Age-Based Criminal Responsibility

  1. Under 12 years: No criminal responsibility.

  2. 12-17 years: Diminished responsibility (youth court jurisdiction).

  3. 18 years or older: Full criminal responsibility.

     • Rationale: Ethical accountability emerges with age; children do not possess capacity to fully acknowledge wrongfulness.

     • Policy Questions: Initial thresholds set at ages 12 and 18 attract scrutiny; ongoing discussions about potential reductions tied to rising youth crime rates.

  📜 Criminal Record Implications

  • Economic impact: Limits employment opportunities.

  • Educational impact: Potential restrictions on access to specific schools or programs.

  • Travel and residency limitations: Certain offenses may prohibit entry to certain nations or regions.

  Removing a Criminal Record

  • Possible under the Criminal Records Act if criteria are met:

    • Individual has completed the sentence.

    • Offense qualifies for a record suspension (formerly term “pardon”).

    • Quote: “If you have been charged, convicted, and served punishment, you may apply to have your record not published, according to the offense’s nature.”

  ⚖️ Exoneration & Re-Trial

  • Exoneree: A person wrongfully convicted later cleared of charges.

  • Re-trial: Not necessary; conviction overturned resulting in acquittal.

  📚 Summary of Key Terms

  • Cross-examination: Questioning a witness by opposing counsel during trial.

  • Beyond a reasonable doubt: Standard for conviction proof.

  • Aggravating factors: Elements leading to harsher sentencing.

  • Mitigating factors: Conditions that may lessen sentencing severity.

  • Automatism: Involuntary conduct due to a state of unconsciousness.

  • Record suspension: Process aiming to obscure a criminal record from public view.

  ---

  🛡 Mistake of Fact Defense

  Definition

  • A mistake of fact involves a defendant committing an act that is illegal under a subjective belief about a factual circumstance that later proves incorrect.

  • Key Aspect: The defense rests on factual misunderstanding, not on ignorance of the law.

  • Potential to Excuse: When a mistaken belief negates any necessary mental element (e.g., intent or knowledge).

  • Limitation: Rejected in sexual assault instances; ignorance regarding age of consent does not qualify as a valid excuse.

  🚫 Mistake of Law Defense

  Definition

  • Mistake of law occurs when a defendant contends ignorance of legal regulations.

  • General Rule: Not a valid defense in criminal law; ignorance does not excuse actions breaching legal statutes, regardless of personal belief in legality.

  • Example: Claiming “I didn’t know assault was illegal” is not a permissible defense.

  ⚖️ Comparison: Mistake of Fact vs. Mistake of Law

  Aspect	Mistake of Fact	Mistake of Law
  Basis	Misunderstanding factual circumstances	Ignorance of legal rules
  Effect on Liability	May negate intent or knowledge, potentially excusing conduct	Never excused; ignorance of the law is not a defense
  Typical Use	Cases where factual perception is crucial (e.g., ownership)	Rarely successful; limited statutory exceptions
  Key Exception	Not allowed in sexual assault cases	No recognized exceptions in criminal law
  Court Attitude	Generally accepted if belief is reasonable	Automatically rejected

  WEEK 5

  ⚖️ Defenses Overview

  Core Categories

  • Excuses: Acknowledge wrongful acts while claiming a lack of culpability (e.g., insanity, duress).

  • Justifications: Admit to performing an unlawful act but argue as being legally permissible due to preventing more significant harm (e.g., self-defense, defense of necessity).

  Definition

  • Defense of Necessity: An illegal action warranted by emergent circumstances to avert a graver evil.

  • Core Elements (three-stage test):

    1. Imminent Peril: A tangible, urgent threat exists.

    2. No Reasonable Legal Alternative: All lawful options have been exhausted.

    3. Proportionality: The avoided harm significantly outweighs the harm caused.

  • Element Requirements:

    • Imminent peril: Threat must be immediate.

    • No legal alternative: Was help or lawful assistance tried?

    • Proportionality: Does the illegal act prevent a larger disaster?

  Historical Case: R v Dudley & Stephens (1824)

  • Facts: Three sailors stranded at sea; one was killed and eaten for survival.

  • Legal Issue: Could necessity defense excuse murder?

  • Outcome: Defense rejected; murder remains illegal.

  • Quote: “The defense of necessity does not apply to murder.”

  Key Insights

  • Sentencing & Commutation:

    • Person: Dudley & Stephens.

    • Original Sentence: Death by hanging.

    • Commuted Sentence: 6 months imprisonment (due to public sympathy and moral debate).

  • Theoretical Perspectives:

    • Utilitarian View: Prioritizes overall good—saving two lives costs one.

    • Retributive View: Focuses on punishment proportional to the crime, adhering to “an eye for an eye.”

    • Example Case: Insight into the tension between strict legal codes (no murder) versus explanatory public morality (sympathizing with survivors).

  🚗 Modern Application: R v Dether-Aziers (2007)

  Facts

  • Mr. Dether-Aziers, suffering severe mental distress after a failed suicide attempt, drove impaired seeking urgent medical care.

  Defense Raised

  • Necessity Defense: Driving was crucial for obtaining medical attention and avoiding self-harm.

  Judge’s Reasoning

  • Lacked alternatives for seeking assistance (i.e., calling 911 or asking neighbors for help).

  • Imminent Peril: His life was endangered.

  • Outcome: Necessity defense accepted.

  • Quote: “The case turns on whether there was a reasonable legal alternative to disobeying the law.”

  Key Takeaways

  • Limits of Defense of Necessity: Not applicable for murder cases (Dudley & Stephens); may succeed in other contexts if adequately meeting the three-stage test (Dether-Aziers).

  • Understanding judiciary motivations: Balancing public morality against legal strictness often prompts commuted sentences despite statutory prohibitions.

  • Framework Application: Evaluating if an illegal act can be justified through various situations necessitates critical analysis of factors involved.

  ⚖️ Legal Positivism vs Natural Law Theory

  • 
    

  • Legal Positivism: Assumes law is developed from rules formulated by sovereign authority, detached from moral considerations.

    • Judicial Role: Application of law rests solely without contemplating moral frameworks.

  • 
    

  • Natural Law Theorist: Holds that law must derive from universally discernible moral principles.

    • Validity Tie: Legal legitimacy closely aligns with these moral affirmations.

  • 
    

  • Illustrative Comparison:
    

    Aspect	Legal Positivism	Natural Law Theory
    Source of Law	Legislative or authority enactments	Moral order inherent in nature
    Role of Morality	Irrelevant to legal validity	Central for determining validity
    ⚖️ Defense of Necessity & the Three-Stage Legal Test

    • Invocation: Argued when the defendant claims that illegal acts were necessary to prevent a larger harm.

    • Three-Stage Test:

      1. Imminent Peril: Immediate threat necessitating action.

      2. No Reasonable Legal Alternative: Ability to avoid breaking laws without seeking illegal action.

      3. Proportionality: Harm caused by illegal conduct must be less than that avoided.

    • Success Criteria: All three components must be satisfied for this defense form to succeed; failure at any stage leads to denial.

    📚 Criminal Process & Legal Defenses in Canadian Law

    • Key Stages:

      • Investigation & Charge: Evidence gathering and charges being laid.

      • Pre-Trial & Bail: Issues discussed including disclosures and procedural hearings.

      • Trial: Presentation of evidence leading to guilt determination.

      • Sentencing: Courts delivering penalties considering both aggravating and mitigating factors.

    Common Defenses (non-exhaustive):

    • Mistake of fact.

    • Self-defense.

    • Duress.

    • Necessity (specific context discussed above).

    • Insanity / diminished capacity.

    🔄 Criminal Justice Funnel Model

    • Metaphor: Illustrates attrition through stages of the criminal justice process, similarly represented as a wide “spout” tapering downwards.

    • Comparison: The “Wedding Cake” model denotes layered processing but is less descriptive than the funnel.

    • Stages of the Funnel:

      1. Reporting - All incidents reported to police (wide opening).

      2. Charges & Prosecution - Subset that proceeds to court.

      3. Guilty Findings - Reduction further to cases with convictions.

      4. Sentencing & Custody - Final fraction faces imprisonment (often narrow).

    🏛 Diversion & Youth Offenders

    • Diversion Process: Redirects certain offenders from formal prosecution (e.g., via restorative programs, conditional discharges).

    Typical Candidates:

    • Youth & Children (under 12): Not criminally responsible.

    • First-time, low-risk offenders (e.g., minor theft, family assaults).

    📊 Funnel Statistics (2021)

    Metric	Figure
    Incidents reported to police	≈ 2 million
    Guilty findings (2019-2021)	189,000
    Sentences to provincial/territorial custody	69,000
    Warrants of committal to federal prisons	4,645

    • Implication: Indicates roughly 0.2% of reported incidents lead to federal incarceration, highlighting the funnel’s steep attrition rates.

    ⚖️ Disparity vs. Discrimination

    • Disparity: Differences arising from legitimate law-based factors (e.g., severity of offenses).

    • Discrimination: Unequal treatment based on information prohibited characteristics (e.g., race, gender).

      • Legitimate Factors: Include prior records, offense severity, statutory factors.

      • Illegitimate Factors: Include race, ethnicity, religion, gender, social status.

      • Acceptable Disparity: Variations by law-specific circumstances, e.g., violent circumstances penalized differently.

      • Unacceptable Discrimination: Unequal sentences on prohibited characteristics irrespective of case merits.

    📌 Key Definitions

    • Legal Positivism: Law validity is based on socially enacted norms, not moral content.

    • Natural Law: Law is grounded in universal moral principles.

    • Defense of Necessity: Justification for an otherwise illegal act in light of preventing greater harm.

    • Diversion: Non-custodial approach redirecting eligible offenders away from typical prosecution.

    • Disparity: Differences in legal outcomes based on lawful considerations.

    • Discrimination: Unequal treatment on prohibited personal characteristics unrelated to case merit.

    📊 Systemic Discrimination

    • Definition: When a criminal justice system displays bias against specific (often marginalized) groups across all functions.

    • Key Assessment Areas:

      • Arrest Rates: Disproportionate arrests within certain groups.

      • Types of Charges: Disparate charges imposed on specific groups.

      • Prosecution Decisions: Uneven discretion in case processing.

      • Conviction Rates: Are certain groups experiencing high conviction rates?

      • Sentencing Types: Does severity diverge across groups?

      • Post-Punishment Conditions: Are strictures more pronounced for particular demographics?

    • Conclusion: Systemic discrimination requires consistent disadvantage evidence across all assessment dimensions.

    📈 Institutional (Institutionalized) Discrimination

    • Definition: Occurs when established laws yield disparate outcomes despite unintentional biases.

    Example: Bail Policy

    • Research Finding: Employment status affects bail likelihood, with employed individuals having less flight risk.

    • Impact by Gender: Women often face lower bail rates due to systemic nature influence, thus unintentionally discriminated against.

    ⚖️ Disparity in the Criminal Justice System

    • Definition: Arises when legitimate factors lead to inconsistent legal outcomes based on applied discretion (e.g., criminal history, personal circumstances affecting sentencing).

    • Legitimate Factors: Include type of offense and severity.

    • Illegitimate Factors: Include features such as race or gender influencing penal outcomes.

    🏛 Institutionalized Racism / Discrimination

    • Definition: Reflects racially biased outcomes resulting from structurally neutral policies.

      • Example: Harsher sentences for individuals based on race despite identical actions.

    🌐 Contextual Discrimination

    • Definition: Bias stemming from individual agency within the criminal justice system.

    Examples

    • Police Decisions: Officer personal discretion often leads to unequal treatment.

    • Judicial Bias: Judges may enforce harsher punishments on individuals of certain demographics during sentencing.

    WEEK 6: Division of Criminal Justice Powers in Canada

    • Definition: Criminal justice powers are divided functionally between federal and provincial governments, co-operating within a political scope.

    📜 Constitutional Foundations

    Constitution Provision	Level of Government	Scope of Authority
    Section 91, Subsection 27 (British North America Act 1867)	Federal Parliament	Exclusive authority over criminal law (including procedures).
    Section 92, Subsection 14 (British North America Act 1867)	Provincial Governments	Exclusive authority over the application of justice (courts, police, judges).

    • Key Notes: Powers defined in the British North America Act (now the Constitution Act, 1867), outlining separate and distinct authorities.

    󰎟 Federal Authority over Criminal Law

    • The federal Parliament sets criminal conduct and corresponding penalties.

    • Federal Power Includes:

      • Defining crimes.

      • Establishing criminal procedures.

      • Enacting criminal statutes.

    Important Note: Provinces cannot create their crimes; they manage enforcement and justice administration.

    📜 Federalism & Criminal Law Authority

    • Shared federal and provincial criminal law powers place federal government in a determinative position for establishing criminal laws across Canada.

    ⚖️ Standard of Proof: Criminal vs. Non-Criminal Law

    Law Type	Standard of Proof
    Criminal Law	Guilt must be proven beyond a reasonable doubt.
    Non-Criminal (Regulatory) Offenses	Proof rests on a balance of probabilities (i.e., more likely than not).

    • Example: In cases where an assault charge arises, evidence must eliminate all reasonable doubts for conviction to stand.

    🧠 Mens Rea (Guilty Mind) Requirement

    • Requirement applies only to Criminal Code offenses; non-criminal offenses do not necessitate mens rea.

    Definition

    “A guilty mind is necessary only for criminal acts charged; intent must be present.”

    🏛 Types of Criminal Offences

    • Summary Offences: Less severe, lighter penalties (e.g., petty theft, public intoxication).

    • Indictable Offences: More serious offences with greater penalties (e.g., assault).

    • Hybrid (Dual) Offences: Prosecutor may elect to pursue as either summary or indictable, contingent on the context.

    📚 Federal Legislation with Criminal Effects

    Legislation	Scope	Criminal Impact
    Criminal Code	Federal criminal law	Defines various offenses and penalties.
    Controlled Drugs and Substances Act (CDSA)	Regulates drugs, trafficking, production	Criminalizes conduct outside Criminal Code, detailing penalties.

    CDSA Schedules & Penalties

    Schedule	Example Substances	Typical Penalty for Possession
    Schedule I	Opium, morphine, heroin, cocaine	Indictable offence – up to 7 years imprisonment.
    Schedule II	Cannabis (pre-legalization)	Indictable offence – up to 7 years imprisonment.
    Schedule III	Certain precursors, less-potent drugs	Indictable offence – up to 7 years imprisonment.

    Purpose of the CDSA (stated preamble):

    “An act respecting the control of certain drugs, their precursors and other substances… to amend certain other Acts.”

    📝 Key Definitions

    • Summary Offense: A less serious crime leading to reduced penalties, often trialed within provincial courts without jury.

    • Indictable Offense: Serious crime potentially prosecuted in superior courts, carrying heavier sanctions.

    • Hybrid Offense: Chargeable as either summary or indictable, at Crown’s discretion.

    • Balance of Probabilities: Standard used in civil and regulatory cases; likelihood of truth must exceed any alternatives.

    • Beyond a Reasonable Doubt: Highest proof standard required for criminal convictions, leaving no reasonable doubt among the trier.

    WEEK 8

    📚 Sentencing & Probation

    Brief Overview

    • Outline of probation, conditional discharges, conditional sentences, guiding sentencing principles, and controversies surrounding mandatory minimums in Canada.

    Key Points

    • Overview of probation and mandatory conditions set.

    • Differences among conditional discharges, conditional sentences, and traditional probation.

    • Discussion on sentencing principles: least restrictive options and proportionality.

    • Examination of mandatory minimums, their legal frameworks, and subsequent sentencing disparities.

    📚 Probation

    • Definition: Court-imposed order obligating an offender to adhere to certain conditions while remaining free in the community under supervision of a probation officer.

    Mandatory Conditions (minimum):

    1. Maintain peace and good conduct.

    2. Appear before the court as required.

    3. Notify court or probation officer of any changes in:

       • Name or address.

       • Employment or occupational status.

       • Contact information.

    • Violation: Breaching any of these leads to potential imprisonment.

    Additional Conditions

    • No contact with the victim.

    • Compliance with counseling, treatment programs, or community service as ordered.

    🏷 Conditional Discharge

    • Definition: Granted when an offender is found guilty but records no conviction.

    • Probationary Conditions Attached:

      • Similar mandatory conditions as outlined in regular probation.

      • Conviction status if conditions are met:

      • None recorded if successfully fulfilled; conditions failure may result in formal conviction.

    🏠 Conditional Sentence

    • Definition: An order serving custodial sentences within the community rather than in correctional facilities.

    Typical Conditions for Conditional Sentences

    • House arrest with ankle monitoring.

    • Curfew requirements maintaining residence by specific hours.

    • Commitment to community service or other reparative actions.

    • Prior court approval is mandatory for special events or travel.

    When Applicable

    • Usually reserved for sentences under 2 years and offenders who pose no significant public threat.

    ⚖️ Sentencing Principles

    Core Principles Govern Sentencing Decisions

    1. Least Restrictive: Options available that limit incarceration should be favored.

    2. Proportionality: Penalties aligning with the offense severity and offender’s culpability.

    • Such principles inform differentiations among probation, conditional discharges, and conditional sentences.

    📊 Comparison of Probation, Conditional Discharge, and Conditional Sentence

    Feature	Probation	Conditional Discharge	Conditional Sentence
    Conviction on Record	Yes (conviction registered)	No (conviction absent if conditions meet)	Yes (custodial sentence recorded)
    Custodial Component	No	No	Yes – community served, jail time included.
    Supervision	By probation officer	By probation officer	Via probation officer + potential ankle monitor.
    Typical Duration	Varies (often months to years)	Fixed period defined by court	Usually < 2 years.
    Mandatory Conditions	Peace, court appearance, notifications	Same as probation	Curfew, house arrest, community service, etc.
    Consequences of Breach	Possible imprisonment	Potential conviction & harsher sentence	Revocation leading to jail time.
    Typical Use	Standard community supervision	For first-time or low-risk offenders	Custodial sanctions for low-risk cases who avoid full imprisonment.

    📝 Key Takeaways

    • Probation: Freedom under supervision with conditions imposed.

    • Conditional Discharge: Found guilty with no convictions, contingent on compliance with conditions.

    • Conditional Sentence: Custodial punishment served communally, typically involving forms of monitoring.

    • All forms rely on mandatory conditions; breaches trigger escalated punishments.

    • Judicial discretion must reflect least restrictive principles while ensuring proportional outcomes.

    📋 Conditional Benchmarks & Creative Discretion

    • Conditions determined must be coherent and directly relevant to the case.

      • Example of weak conditions: Attendance invitations lacking relevance (e.g., “Attend AAV, alcoholic phenomenon.”).

      • Suitable conditions should link rationally to the case context (e.g., “Avoid narcotics or alcohol for 60 days.”).

    ⚖️ Sentencing Discretion & the “Art, Not Science” View

    • Judges harness wide discretion in setting sentences, which blend statutory guidelines and case specificity.

    • Discussions produced by Justice Welch and Mr. Ozelsky highlighted that sentencing intermingles art, judicial experience, and legislative limits.

    • After evaluation, instructor may reveal judicial decisions during class ensuring synergy between theory and practice; discretion allows a tailored approach for individual circumstances while respect legislative frameworks.

    📚 Mandatory Minimum Sentences

    Core Categories of Mandatory Minimums

    Category	Typical Offense Examples	Rationale
    Murder	First-degree, second-degree murder	Reflects societal condemnation for taking a life.
    Firearm-related Crimes	Breaking and entering or robbery with firearms	Responds to elevated risk and intimidation.
    General Firearm Offenses	Possession of a prohibited firearm, trafficking	Prevent proliferation of dangerous weaponry.
    Sexual Offenses involving Youth	Child sexual exploitation, production of child pornography	Protecting vulnerable populations.

    Specific Mandatory Minimums Outside Core Categories

    • Impaired Driving (Criminal Code § 320):

      • Second offense: 30 days mandatory jail term + 2-5 years driving prohibition (judge determines length).

      • Third offense: 4 months mandatory jail term (still under § 320).

    • Child Pornography (Quebec Attorney General v. Senneville, 2025 SCC 33):

      • Mandatory minimum of 1-year imprisonment found unconstitutional as violate Section 12 of the Charter prohibiting “cruel and unusual punishment.”

    The Controversy: Arguments For & Against Mandatory Minimums

    Supporting Arguments:

    • “Crime does not pay” mantra ensures guaranteed consequences for offenders.

    • Predictability for victims and citizens emerges.

    • Designed to dissuade notably violent or harmful behavior.

    Opposing Arguments:

    • Risks disproportionate sentences that infringe Charter rights (as denoted in Senneville).

    • Limits judges’ discretion, necessitating non-fit penalties in unique cases.

    • Over-incarceration consequences leading to elevated systemic costs.

    Crisis Center: The debate exists in reconciling uniform deterrence with individualized justice.

    🍽 Classroom Interaction: Poll Example

    • An informal food poll emerged in class to stimulate engagement regarding meal preferences; students expressed varied interests (e.g., Laziz, ramen, sushi) showcasing cohort diversity.

    • Reinforces the instructor’s teaching strategy: Interlacing substantive discussions with relatable illustrations aids in attention retention and community integration.

    🏛 Supporters of Mandatory Minimum Sentences Core Arguments

    • Deterrence: Intended to push potential offenders into reassessing consequences pre-offense.

    • Cost to Offenders: Fixed terms augment the burden embodying committing violent acts.

    • Removal from Society: Serious violent offenders (murder, firearm related, child-vulnerable offenses) are taken off streets, enhancing public safety.

    • Reduction of Sentencing Disparity: Establishes a uniform baseline reducing variation arising from judicial discretion.

    • Public Accountability: Counters societal outcry surrounding offenders receiving leniency, demonstrating accountability via incarceration.

    • Deterrence: Preventing crime through perceived substantial costs (prolonged prison terms).

    ⚖️ Critics of Mandatory Minimum Sentences: Negative Consequences

    1. Entrenchment in Criminal Careers: Long sentences limit economic opportunities, social relations, raising recidivism likelihood.

    2. Limited Effectiveness: Some studies suggest minimal to no impact in decreasing violent crime.

    3. Inflexible Structure: With reversing judicial discretion, new forms of disparity may arise.

    4. Shift in Decision-Making Power: Transfers that power from judges to Crown attorneys can strategically pressure defendants into plea bargains.

    5. Wrongful Conviction Risk: Pleas related to mandatory minima may prompt innocent defendants to plead guilty.

    📊 Sentencing Disparity

    What It Means

    • Definition: Variation in sanctions applied to similar offenses, frequently arising from judicial discretion.

      • Stare Decisis: Judges obliged to treat analogous cases similarly and uphold prior rulings .

      • Disparities Documented: Racial groups (especially Black, Indigenous) experience substantial variances stemming from penalties imposed by differences across gender or judicial attributes (gender of the judging officer may influence outcomes).

    Factors Influencing Disparity Examined

    | Racial Bias | Higher sentences reported among Black/Indigenous individuals.|
    | Gender of Judge | Differential outcomes noted particularly in sexual offenses.|
    | Type of Offense | Variations present in treatment of violent versus non-violent offenses.|

    📚 Key Reading: Crutcher & R. (2007)

    • Article: Public Perceptions and Attitudes Towards Mandatory Minimum Sentences (Canadian Journal of Criminology, 2007).

      • Important Sections:

        • Pages 81-82: Introduction and pertinent research questions.

        • Pages 88-95: Critical findings concerning public attitudes.

      • Expected Task: Identify author’s arguments, list research questions, and summarize primary findings from highlighted pages.

    🔎 Child Pornography Offense (Criminal Code s. 163.1(4A))

    Element	Detail
    Offense	Accessing child sexual abuse material
    Statutory Provision	Section 163.1(4A)
    Maximum Penalty	Years imprisonment
    Mandatory Minimum	Year imprisonment (“floor”)
    Statutory Text