Canada’s Criminal Justice System

1. Canada’s Criminal Justice System Legal Fundamentals Canada’s Charter of Rights and Freedoms

2. Brainstorm • What comes to mind when you think of criminal justice? Friends Personal Experience Family TV and Movies (Law and Order) (CSI) Personal Interest school Rumors And hearsay News

3. Symbols and imagery: What do they mean? Think! Lady Justice

4. Legal Fundamentals • The Presumption of Innocence: • Anybody charged to a crime is presumed to be innocent. The crown (state) is responsible to prove the defendant guilty. • The Burden of Proof: • the defendant must be released unless the crown proves guilt beyond a reasonable doubt • Habeas Corpus: • the right not to be detained or imprisoned unlawfully. • If the crown can't show cause, the person must be released.

5. Legal Fundamentals continued • The Right to a Fair and Speedy Trial: • Fairness - assured by jury, unbiased judge, rules, etc. • Speed – 100 000 drunk driving cases were thrown out of court in Ontario because they had taken too long • Equality Before the Law: • “Justice is Blind” • not young/old, rich/poor, male/female, culture, religion, etc. • a.k.a. “rule of law” – no one is above the law • British common law: • Based on British law • Includes: protection against self-incrimination, protection of being tried for same offence twice (double-jeopardy), use of precedent

6. Evolution of our Charter of Rights and Freedoms

7. 1982 – enshrined in the constitution No law can violate the charter Rights and freedoms are not absolute or unlimited, but take precedence over everything else. Canadian Charter of Right and Freedoms

8. Canadian Charter of Right and Freedoms continued • Specific LEGAL rights of the charter: • Life, liberty, security of the person • Secure against unreasonable search and seizure • Not to be arbitrarily detained • On arrest - to be informed why, to a lawyer, habeas corpus • On charge – legal principles as above plus more • No cruel or unusual punishment • No self-incrimination for witnesses • An interpreter if necessary

9. Reflect • Which of the legal fundamentals do you think is most important to our justice system? • Explain why

10. Divisions of Law Criminal Law Civil Law

11. Criminal law deals with crimes considered against the community as a whole, while civil law deals with complaints between individuals. Divisions of Law

12. Criminal Law Three elements that must be present for an act to be considered a criminal act • The acts must be prohibited by the criminal code of Canada • There must have been intent • The accused must have been able to understand and appreciate the nature of the act and it's consequences

13. 3 Types of Criminal Offenses • Summary offenses • minor offenses such as shoplifting of petty theft • Indictable offences • very serious offences such as assault and murder • Hybrid offences • can be treated as a summary or indictable offence. The crown attorney decides how it shall be categorized

14. Canada's Formal Justice System 3Components Apprehend / arrest criminals 1. Law Enforcement Police To protect To prevent crime 2. The Courts Adversarial – lawyers representing the defendant compete with crown prosecutors To process people charged by the police with a crime

15. Canada's Formal Justice System 3Components (continued) • Retribution: “An eye • for an eye” • (society’s desire) • Deterrence • (individual) • (society) a) Punishment of the Offender, once convicted by the courts 3. Correctional Agencies and Institutions b) Rehabilitation (the Offender chooses not to re-offend due to their new acceptance of society’s norms c) To protect the public by jailing violent offenders

16. Sequence of Procedure – Due Process Police prepare + swear an information search warrant obtained Accused brought before the court An arrest is made Appearance before provincial court judge Bail hearing is held Disclosure (crown reveals evidence) Preliminary hearing held (enough evidence?) OR TRIAL… Plea bargaining (accuse pleads guilty to lesser charge)

17. Reflect • Why is it important to have a sequence of procedure? • A) Why is plea bargaining controversial? B) Under what circumstances do you think it is appropriate?

18. The Trial - Sequence of Procedure Jury selection An arraignment is held The Crown presents its case The Defense presents its case Closing statements Jury sequestering and deliberation Judge’s charge to the jury Verdict is announced Appeal (if desired) Sentencing

19. Issue • Cameras are not allowed in Canadian courtrooms • Agree: Can distort proceedings, victims more reluctant • Disagree: Public’s right to know, jury represents community Courtroom artist sketch

20. Reflect • What do you think are the strengths and weaknesses of the legal process? • Do you think cameras should be allowed in Canadian courts?

21. When contemplating a punishment the judge must consider: protecting society punishing the offender rehabilitating the offender issuing a deterrent Punishment

22. The 6 types of punishment • Suspended Sentence • If crime is minor or first offence is committed no actual punishment is given, but the person must stay out of trouble for a certain period of time. At end of period, record is wiped clean • Probation • During a certain period of time a person will have to stay out of trouble, regularly check in with a parole officer and may be prohibited from travelling. May be prevented from certain activities or associations • Fine • The accused must pay the court a fine

23. The 6 types of punishment continued • Restitution and Community Service • A person is ordered by the court to compensate a victim or city for the crime – repairs for damage done or volunteering. As appropriate to fit the crime. • Imprisonment for 2 years less a day • Accused is sent to a provincial jail to be removed from society. Minimum and medium security prisons • Imprisonment for more then 2 years • The accused is sent to a federal penitentiary. After 3/4 of their sentence they can apply for parole. • Max. sentence in Canada is life in prison, with no parole for 25 years. • Recidivism is the rate at which offenders repeat crimes after release. • The rate of recidivism in Canada is 75%. This is very high.

24. The Faint Hope Clause • Normally, murderers are allowed to apply for parole after 25 years in prison • The Faint Hope clause allows them to ask a judge for the right to try and get parole after 15 years • There are no guarantees that parole will be granted

25. Restorative Justice • Attempting to correct the recidivism rate • Pioneered in Aboriginal “sentencing circles” • Involves offender, victim, their families, community members, elders, judges, lawyers and others • Often involves the offender apologizing to the victim and the victim forgiving the offender – has a profound impact on both parties.

26. Youth and Justice • Premise that people between the ages of 12 and 18 are not mature • enough to be held liable for their actions. Criminal Justice Act (YCJA) 2003 Builds on the strengths of the YOA and introduces significant reforms that address its weaknesses The Young Offenders Act 1984 Established in 1984 to replace the Juvenile Delinquency Act of 1908 Under the act a youth was treated "not as a criminal, but as a misdirected and misguided child." Youths were not charged with specific offences, but with delinquency Juvenile Delinquency Act 1908

27. Youth Criminal Justice Act Highlights • An end to transfers to adult court. If the offender is found guilty in a youth court, the judge has the authority to impose an adult sentence. • Lowering the age of presumption to 14. Under the YOA, it was presumed youths aged 16 and over convicted of a serious offence such as murder were transferred to adult court. The new act lowers the age to 14, but individual provinces can adjust the age to 15 or 16. • Less emphasis on custody as a sentence for non-violent or less serious offences. Custody is to be reserved for violent and repeat offenders. • Emphasis on alternative youth sentencing methods (out of court), such as referrals to community programs, formal letters of warning to parents, meetings with police. • Access by victims to youth court records, and notification of victims if the offender is sentenced out of court. • Imposition of a new mandatory period of intensive supervision on all young offenders following their release from jail.

28. Youth and Justice • Premise that people between the ages of 12 and 18 are not mature enough to be held liable for their actions • They are prone to making mistakes • Brain development • Emphasis on rehabilitation and reform, not punishment and deterrence • Concessions: • Same legal rights as adults • Protected identities (no photos/media names released) • Court records are kept confidential • Even if guilty, after 3 years following conviction of a summary offense, and 5 years following conviction of an indictable offense, record will be destroyed if youth is not found guilty again. • A judge only, no jury

29. Youth and Justice • Emphasis: • the rehabilitation and re-entry of a young offender into society • Much public outcry - not tough enough • young offenders (and crime rings) take advantage of the legislation