LECTURE 1+2 NOTES

LECTURE 1- CRIM JUSTICE POLICY

• Definition:
  A complex network of police, prosecutors, courts, correctional agencies, and parole boards.

  • Functions:

    • Prevention, law enforcement, crime investigation

    • Court processing

    • Punishment of offenders

• Characteristics:

  • Not coordinated:

    • Checks and balances, different mandates, conflicting interests.

• Formal Systems

  • Legislators

  • Bureaucracy

  • Police

  • Courts

  • Prosecution/ Crown

  • Correctional Services

  • Parole Services

• Informal Systems

  • Media Victim’s Groups

  • Defense Counsel

Crime Statistics

• Factors Affecting Crime Reporting:

  • Must come to police attention.

  • Differences between police departments.

  • Social/economic factors

  • Definitional changes.

• Limitations:

  • Not all crimes are reported.

  • Public confidence in police affects reporting.

  • Stats are political tools.

• Three Rules of Crime Stats (Gardner):

  1. Trends depend on positive/negative framing.

  2. Critics’ reactions depend on direction of stats.

  3. Violent incidents shift focus to negative stats.

Studying Criminal Justice in Political Science

• Core Insights:

  • Safety and security as core government functions.

  • Relationships between citizens, state, and institutions.

  • Unique political science perspectives (e.g., institutionalism).

• Strengths of Political Science for Studying Criminal Justice

  • Criminal justice policymaking as influenced by the political and policy process

    • elections matter

    • who is the government matters

      • the policies reflect the policy process and the politics

  • Provide insight into the relationships between citizens and the state, between government actors within the state

  • Theoretical, methodological and normative perspectives that differ/challenge those of sociology, criminology and law

    • brings a diff lens

    • institutionalism

Institutionalism

• Institutions vs Actors

  • Institutions

    • Laws

    • Rules

    • Policy

    • Structure

  • Actors

    • Politicians

    • Bureaucrats

    • Criminal Justice Actors

• Reciprocal Relationship:

  • Institutions shape actors; actors shape institutions.

  • Examples: Police powers, constitutional impacts.

• Policy Influences:

  • Westminster Parliamentary system (executive-dominated).

  • Federalism and constitutional power division.

  • Charter of Rights and Freedoms.

Authority, Power, Accountability

• Accountability:

  • Limits on actors’ power (checks and balances).

  • Mechanisms to ensure oversight (e.g., undercover policing).

• Independence:

  • Judges have significant independence but require balance.

Crime Policies

• Purposes:

  1. Define unacceptable behaviors.

  2. Strengthen formal social controls.

  3. Structure the justice system.

  4. Regulate criminal justice officials' behavior.

  5. Trigger actions leading to individual liberty deprivation.

• Characteristics:

  • Fragmented: Different goals, roles, and ideologies.

  • Symbolic: Reflects public values and emotions.

• Important to Note

  • High degree of fragmentation between courts, police, and corrections

    • All have different mandates and all different roles

• What Diff Actors are Responsible For

  • Police

    • crime prevention

    • law enforcement

    • assistance of victims of crime

    • public order maintenance

    • emergency response

  • Crown

    • prosecute, but not to gain a conviction, to enforce law and maintain justice

    • provide legal advice, not what charges to lay

    • Represent the public interest

  • Defense

    • represent legal rights of the accused

    • help the accused navigate the criminal justice system

  • Corrections

    • carry out sentences through safe and humane custody and supervision

    • assist in the rehabilitation and reintegration of offenders

Structure of Canadian CJS

• Constitution Act, 1867:

  • Federal: Criminal Code, prosecuting federal offences other than the criminal code, penitentiaries (> 2 years sentence), parole.

  • Provincial: Quasi-criminal law, prosecuting criminal code and criminal offences, sentences <2 years.

• Charter of Rights and Freedoms (1982):

  • Sections 7-14: Protect legal rights (e.g., search/seizure, fair trials).

  • Section 24(2): Judges can exclude evidence if justice would be disreputed.

    • Remedy

• Impact of the Charter

  • Defining what is criminal

  • Investigation stage

  • Pre-trial stage

  • Trial stage

  • Post-trial stage

Sources of Criminal Law

• Key Documents:

  • Criminal Code of Canada (CCC).

  • Youth Criminal Justice Act.

  • Other statutes (e.g., Firearms Act).

• CCC Principles:

  • Offence Types:

    • Indictable (serious crimes, jury trial).

    • Summary (less serious, no jury).

    • Hybrid (prosecutor chooses).

  • Proof: Beyond reasonable doubt (actus reus + mens rea).

Recent CCC Developments

• Bill C-51 (2019):

  • Removed “zombie laws” (e.g., dueling, witchcraft).

  • Focused on bail, jury selection.

  • Reclassified offences.

• Need for Reform:

  • Criminal law reflects societal values but lacks systematic reviews.

LECTURE 2- EXECUTIVE AND FEDERALISM

Executive and Federalism

• Policy environment: contextual factors that influence actors in the system and decision-making about the system

  • Structural and demographic factors

  • demographics shape policy

  • regionalism shapes policy

  • social attitudes/ opinions

    • political ideology

  • social movements

• Federalism, the most pervasive constraint on what governments can and cannot do

  • shapes almost every aspect of canadian politics

  • federalism- system fo two orders of government, that have their own specific constitutional jurisdiction

• Executive, the core source of power

  • Political and bureaucracy

  • political exec in canada- prime minister, cabinet, provicial premeiers and their cabinets

Executive Branch

• Administration and execution of government functions

• Crown (Head of State), represented by the Governor General and the Prime Minister + Cabinet

  • responsible for putting the policy into practice

• Major decision-making and policy role

• Centralization of power

  • key decision making forum

  • power of exec important for policy making environment

Political Executive: Criminal Justice

• First minister – Prime Minister (federal) or Premier (provincial)

• Attorney General/Minister of Justice

• Solicitor-General – Minister of Public Safety (federal) or Solicitor General (Ontario)

  • Federal (Minister of Public Saftey)- David Mcginty?

    • Provicial (Solitcor General)- Michael Curtsner

  • In some provinces, the Solicitor General and the A.G./Minister of Justice are housed in the same department (e.g. Nova Scotia, New Brunswick)

Solicitors General

• Created in 1966

  • was not a formal member of cabinet until then

• Primary responsibilities: domestic security; RCMP, parole and correctional services

  • CSIS was added in 1984

• Significant restructuring in 2003

  • Now, Public Safety Canada

  • Response to 9/11 and SARS outbreak

    • important times for canadian emergency response

    • respond to natural disasters, public safety systems, resources

• should the RCMP have to wear body cameras? should police have province wide systems? interjurisdictional policing for bigger issues?

Public Safety Canada

• CBSA- canadian border services agency

• CSIS- canadian security intelligence service

• CSC- correctional service canada

• PBC- parole board of canada

• RCMP- royal candian mounted police

• review bodies

  • CRC for RCMP

  • OCI

    • conduct independent investigations related to correctional services

    • inmate complaints for ex

  • RCMP ERC

    • labour relations

    • union

Canada Border Services Agency (CBSA)

• Created in 2003

  • Combined the Customs and Revenue Agency with Citizenship and Immigration and Canadian Food Inspection Agency

  • admin legislation that govern the admissability of people and goods in canada

• 1,200 service locations in Canada and 39 other countries

• Detention centres in Laval, Toronto, Kingston and Vancouver

• Since 2006, some officers are armed

• Main Responsibilities:

  • Criminal Investigation and Prosecutions

    • lay charges

  • Intelligence

  • Border Watch

• responsible for more than 90 diff types of laws

  • regulation, legislation, international agreements

Canadian Security Intelligence Service (CSIS)

• Created in 1984

  • Response to the McDonald Commission on RCMP activities in the 1970s

• Pre-CSIS: RCMP Security Service

  • Involved in many illegal and unsavory activities

  • 1970 FLQ/October Crisis and proactive strategy

  • had a lot of problems

    • started in the 1970s, the october crisis

      • FLQ kidnapped a prov cabinet minister and a british diplomat

        • one was murdered

      • domestic terrorist organization

      • radical thing to happen in a democracy

  • RCMP did some illegal things in response

    • broke into political office and stole things

    • burnt down a barn where a meeting was to be held

    • committed 400 illegal break ins that were not ordered by the government

    • spied on individuals, Tommy Douglas (father of universal healthcare in canada, considered a socialist)

      • they gathered info on him illegally

• Institutional problems with the RCMP Security Service

  • all the powers of police, but a large degree of independence

    • removed from the other parts of the RCMP

Canadian Security Intelligence Service (CSIS)

• Responsible for collecting, analyzing, reporting and disseminating intelligence threats to national security

  • Covert and overt

    • covert- undercover

  • Domestic and international

    • work within canada and international

  • CIVILIAN AGENCY

  • cannot investigate lawful activity, do not hold the same powers as the police

• No restriction on where CSIS can collect information

• Over 2,000 employees, 85 languages spoken

• CSIS subject to criticism:

  • Aggressive tactics

    • federal court critized for not being transparent or being aggressive to get what they want

  • Excessive secrecy

    • often dont know what they are doing

    • lack of transparency

• national security and _______ of parlimentarians

  • review a lot of what CSIS does

Ministry of The Solicitor General Ontario

• Created in 2002

• Correctional services

  • Provincial facilities (< 2 years)

  • Probation and parole offices

• Public Safety and Security

  • Fire and emergency services

  • Scientific investigations, coroner

• Policing Services

  • All municipal police services in Ontario

  • Ontario Provincial Police

  • Regulation of private security individuals/agencies

Solicitor General: Issues

• How much influence should the Solicitor General have over the operations of the police and correctional facilities?

  • where do we draw the line?

• Problems with transparency and reform

  • Jahn v. Ministry of Community Safety and Correctional Services (long title for sol. general)

    • human rights violation in 2012

    • held by ottawa detention center

    • alleges removed from gen pop for the entirety of her sentence, over 200 days

    • in 2013, agree to a settlement

      • some had to do with changing how they treat people with mental illness

        • ont agreed expect as a last resort

    • 2018, have to issue a consent order to force the ministry into the agreement

      • shows the challenges of forcing the ministry to make changes

      • challenging to monitor their administration

• Is there a distinction between policy and operation?

  • department is respon for policy

  • where to draw the line from creating policy and the operation of that policy

  • dont want the government telling police who or what to investigate

    • police could be used for political inquiry

• Should the Solicitor General be held responsible for actions of front-line officers?

  • the reverse

Attorney General & Minister of Justice

• Political member of Cabinet

• Chief legal officer

• Federal- ??

• Provincial- Doug Downey

• department that helps coordinate between departments

  • privy counsel office for ex

• DOJ is the oldest, 1968

Political Role: Minister of Justice

• Develop criminal justice policy

  • amendments to the CC

• Represent views of DOJ at Cabinet, including funding/budget

• Communicate overall direction from Cabinet to department

• Answer to Parliamentfor policy and administration of criminal justice

Legal Role: Attorney General

• Offer legal advice to government and provide legal defence

• Administration of justice, including Crowns and courts

• Justice – wrongful convictions, conviction review, pardons

• Advise Parliament on the constitutionality of government legislation

• two roles vs having just one → makes sure that the attorney general has a place on the cabinet, legal issues are heard in cabinet

Department of Justice Canada

• first female lawyer on DOJ- 1939

Ministry of Justice/ Attorney General

• Section 92(14) of the Constitution Act, 1867: prosecution of the criminal law is the responsibility of provincial attorneys general

  • Offences not in the Criminal Code

  • Controlled Drug and Substances Act, Firearms Act

• The Minister of Justice/A.G. Canada does not personally conduct litigation

  • delegated to federal crown attorneys

• Director of Public Prosecutions and Public Prosecution Service of Canada (established in 2006)

  • even more delegated by ^

  • appointed for a 7 year term, cannot be reappointed

  • just because it is seperate, odes not mean there is no influence from the attorney general

  • Section 13 notices

    • must keep AG informed on cases of significance

      • for the AG to become involved

      • most of the time they dont get invovled, just to keep them informed

Ministry of the Attorney General Ontario

• Same dual roles as federal: legal and political

• Criminal prosecutions

  • S.92 Constitution Act, 1867

  • Carried out by the Crown Attorney

• Does not direct charges to be laid

  • The decision to proceed with a charge is the power of the Attorney General

  • once the police lay the charges, it is transfer to the attorney general to decide if they will be charged

  • screening(most important part of the AG’s job)- stage in prosecution where they can decide to withdraw charges, decide it someon eshould be released or if they shoul dgo back into custody after trial

  • crown may provide advice for what charges to lay, but police lay the charges

• Administration of justice

  • Court services

  • Legal Aid (operated via an independent board)

Arms- Length Organization

Importance of Justice Portfolio

• One of the most senior portfolios in Cabinet

• Canadian practice of bijuralism (the practice of two legal traditions, in canada= common and civil law)

• Justice ministers have become prominent members of cabinet when governments undertake large-scale reform

  • John Turner during Criminal Code reform in late 1960s

  • Jean Chretien during constitutional negotiations in the early 1980s

• Expansion of role in post-Charter era

  • we rely of the ministry of justice to ensure constitutionality

  • provide legal advice on how strong the cases will be in court

  • Section 4.1 of Department of Justice Act

    • empowers the MOJ to issue a report if a governments propsed legislation is unconstitutional

    • no MOJ has ever issues this report

      • poltical role and legal rule conflicting

• Respect for the constitution before policy considerations

• Department of Justice has an important role to play in every piece of legislation

  • Responsibility of resolving legal or Charter based conflicts between departments

SNC- Scandal: What Happens When Roles Conflict?

• prosecuted for bribary, charged with fraud and corruption (crim charges)

  • if convicted, they would be blocked from competing for fed government contracts for a decade

• Deferred Prosecution Agreement (DPA)

  • available to corps, spares them a trial and possible conviction to just pay a penalty

  • escapes the criminal consequence

  • reasons

    • when a corp is prosecuted criminally, could have major repercussions on people who had no idea about what was happening

    • cause a lot of financial impact

  • Director of Public Prosecutions

    • decided they were not eligable

  • MOJ at the time gets invovled

    • because the company is a huge company mainly in quebec, and quebec is an important province for the liberals

      • JT was calling and meeting with the MOJ who was also a liberal

      • MOJ came out with it and said she was being pressured

Shawcross Doctrine: Attorney General and Cabinet

• SNC demonstrates the challenging of the political and legal role of the MOJ conflict with eachother

• constitutional convention

  • holds that the AG must be guided by public interest

  • cabinet cannot direct, only provide advice

SNC-Scandal: Separating Justice From A.G?

• Prosecutorial Independence

  • Quasi-judicial role

  • Shawcross doctrine

• Should the Minister of Justice and the Attorney General be two separate people?

  • delibrate choice at confederation

  • they have perspective over the entire justice system

Federalism and Criminal Justice Policy

• Division of powers: shared sovereignty between a central governing authority and constituent political units

• Inter-state federalism: relations between two equal, autonomous and independent orders of government

• But not isolated actors!

• The delivery of many programs and services require partnership and cooperation

Division of Powers Disputes

• Provinces are responsible for funding a large portion of the criminal justice system

• Federal government responsible for creating legislation that have large impact on the provinces

Federalism and Criminal Justice Policy Cont

• Central area for dispute in criminal justice:

  • Federal government - criminal law

  • Provincial governments - administration of justice; property and civil rights

• Provinces can enact legislation for public order and safety

  • Impose fines, penalties and imprisonment

• Firearms registry

National Uniformity vs. Local Justice

• Competing ideas at Confederation:

  • National uniformity in the criminal law

  • Local justice

• Some practices and systems already in place at Confederation

  • Prosecution

  • Municipal police

    • local police pre date the constitution

• Criminal law seen as a unifying force

  • john a mcdonald

• Creation of a check in the system

Federalism and Prosecution

• Historically, prosecution deemed a local matter

  • Private prosecution until 1857

• Avoiding American practice substantive criminal law at the state level

  • each state has its own crim code

• Definition of crime to be uniform across Canada, but balanced with local prosecution

  • crim law is the only policy area where functional separation is seen between federal and provincial law

Provicial Power To Not Prosecute?

• What happens when a provincial government does not agree with federal created criminal law?

• Wynne government in Ontario disagrees with Bill C-36

  • Response to Supreme Court decision in Canada v. Bedford (2013)

• Could a government avoid prosecuting a law it did not support?

• Provide an important check and balance on federal power

• Provinces do not prosecute federally created criminal law in a mechanical way

• Prosecutors have wide discretionary powers

• Objections?

  • Increase arbitrariness

  • Violate the rule of law

  • Introduces politics

• Already considerable variance across provinces

• Federal criminal law as a baseline

• Shawcross Doctrine

  • Reasonable likelihood of conviction

  • Public interest

• Powerful example of the checks and balances made possible through the federal division of powers and criminal law

Federalism and Policing

• Provincial jurisdiction

• Ontario and Quebec only provinces to exclusively provide policing on a provincial scale

  • Ontario Provincial Police est. 1909

  • Sûreté du Québec est. 1870

  • all other provs rely on the RCMP in some capacity

RCMP Contract Provincial Policing

• Based on a cost share between province and federal government

• Benefits

  • National presence and standards

  • sovereignty

    • used to stake the govs claim on land?

• Drawbacks

  • Bureaucracy

    • does not do things quick, slow to adapt to tech and other changes

    • hard time filling positions

  • Lack of local connection

    • trained in one specific area, regina

    • not effective policing, dont understand the community

• Surrey, B.C.

  • voted to get rid of the rcmp as its muni police force

    • got rid of them in november of 2024

• Alberta

  • Grande Prairie, did not want the rcmp as the muni, able to adjust much faster than surrey

    • concerned about their crime severity rating

  • getting rid of rcmp as its provicial police force, too expensive

  • empowering alberta sheriffs

Federalism and Policing: The RCMP

• National policing functions

  • International crimes

  • Matters that transcend provincial borders

  • CPIC

• Tensions with contract policing

• History of RCMP and Indigenous peoples