LS 101 - Winter 2018 - University of Waterloo
Dr. Carlie L. Leroux-Demir
SJ 1004, MW 4:00-5:20PM
Lecture 1: Jan 3, 2018
Critical Legal Studies lens - pull back assumptions and look at how it modifies/shapes different aspects in our lives. How society/social change impacts the law. Law shapes morality, but society propel laws to change. Mother-child in prisons. The bond. Not all women have maternal instinct, want to mother.
Lecture 2: Jan 8, 2018
Law is pervasive. It permeates all form sof social interaction and represents a complex and expensive system of social control.
Cricical Legal Studies (CLS) is law in action as opposed to law in the books. Law in practice has unforeseen consequences. Law in theory is all good, but in practice... that's another story.
It's ambiguous, contradictory. Hard to define. Interpreted subjectively by different people. Activists, judges, lawyers, and victims Everyone has a different conceptualiztion. No true consensus.
Legal Realism (Early to mid 1900s) - Up until this point, it was assumed that the law just worked. It was unquestioned. But laws don't always work in practice. They examined decisions of appellant judges and juries to see if it worked. Looked at how the law truly works, not how it ought to work. There are certain rules that people don't take seriously such as Jaywalking and traffic violations.
Critical Legal Studies (1970s) - Look at how law serves certain interests and inequalities.
Problem: taken up by white males. Neglected by race and gender.
Critical Race Theory and Feminist Legal Theory - society is racist and sexist. Look at how law reproduces this and how law can change. Liberal feminists would say we can definitely change. Radical feminists would say that we're in far too deep and can't change anything.
Law is intended to bed our interests and of the state's. This is where legitimacy comes from (government).
Laws are written/codified, public, formal system of social control.
They're symbolic of power because state has means (via coercion) to pass and enforce laws.
Lecture 3: Jan 10, 2018
when a civil suit follows a criminal action. In certain cases, a civil, we can have a criminal action and civil action that follows up. Advantages and disadvantages of doing that. Financial compensation from civil suit. Certain instances where it's better to have a civil case.
Legal systems have evolved and changed because we have evolved and changed. They relied on convention and custom. Early 1100s - King henry - Western - develop a system that's centralized where there's a legal system that codified its laws according to what the state deems legal and illegal. Other forms of social control in traditional societies - family, religion. Lots of emphasis on informal social controls liek family, religion, custom. Organized cream - mafia - traditonalized - own set of rules and customs - above the law in their own sense.
We are more complex. Migratoin patterns, globalizations, not homogenous but heterogenous, way more interactions, we have different values (different groups, customs, culture, religions), beautcratization (formalized systems of governments), we have more people. We need more governance.
Maintain function of law - to r@@egulate@@ behaviour and @@maintain@@ an @@orderly@@ society. A blueprint for action to guide our behaviour. It outlines @@expected behaviour@@ implicitly rooted in power, authority and sanctions. It has to be @@visible and recognizable@@. Visible and recognizable repressive function to aid in social control. Should be able to know what the laws are and have to be clear and transparent so we know what's right and wrong, and have to see examples of punishment. Therefore @@Coercive@@ function that includes a prescription of punishments for violations.
Trying to punish an drepress wrongful acts as suggested by conflict theory. Certain societies rely on repression more than others NA: death penalty. Dictatorships, heavy military presence - use brute force to invoke the law.The law functions to make behaviour @@predictable@@ through defining roles, rights, and responsibilities.. The law has to have an element of predictability - makes it easy for the everyday person to know what' sright and wrong - helps complex societies to keep running and functioning. The legal is not the only institution that's involved in implementing social controls. The legal system is part of a @@spectrum@@.
To extent that there is @@respect for the law@@, the law offers a blueprint for dispute settlement via courts and other conflict resolution systems. Peaceful resolution in place of ware or vengeance. #BlackLivesMatter - argument: certain groups are targeted by the police, racialized.Within marginalized groups, the feeling is that the police is not there to protect them, but to undermine their communities, so there's not much respect for the law. Conflict however can result when members of society @@disagree on fundamental values@@. Trying to move away from vengeance, etc. This is explained by the pluralistic model of social order to explain disputes as result of @@heterogeneity@@.
Currently, we have laws but people still violate them.
Law as @@mechanism to engage social change@@ in complex societies. Evident in legislative initiatives that are justified by out political leaders. Laws have an @@innovative and redistributive function@@ because they can mobilize change in society and redistribute power, privileges and resources. Legalization of gay marriage - values on sexual orientation, what defines a relationship. Moving away from religious tenaments.
This is via @@coercive power@@ of the state, laws @@define duties@@/obligations to various roles. Laws also @@define rights@@ and previleges, legitimizing a [person's claim to these rights. A parent has rights and responsibilities. Parent is obligated to provide food and shelter to children and right to chose names, schools, relligion, etc.
Legal moralism. Used to preserve the moral order of society. Laws legitimate certain conduct or condemn other behaviours. Condemns or condones. Represent collective will of the people, therefore represents predominate social and moral values (law has high degree of moral authority). Educational, socialization, legitimationn function to communicate societies' moral values.
The legalization of marijuana as a case in point. Respect for law = condemnation of behaviours that violate the law. Good vs. bad and moral influence. Marijuana is perceived as less harmful, but others say it's a gateway. The respect for law means there's a condemnation of the law. IT is argued that removing the criminal prohibition of marijuana, the government is condoning its usage. Educatoinal component - illegal - don't smoke, it's bad. Is government condoning marijuana use with the legalization of marijuana? It would regulate it, help with high cost of incarceration. Sinking resources in evaluating high-ness. We could be making marijuana cleaner.
Follows our critical legal studies perspective. The law is utilized to justify and protect the status quo., prevent reforms and social change, and entrench inequities within society. The law is discriminatory and promote injustice and inequality between rich and poor. It's a weapon of oppression against the ppowerless (conflict perspective) to intimidate people into submission. It can be restrictive to people's freedoms and rights which leads to over regulation. If marijuana is overregulated, drug dealers will still sell their stuff - could create the black market again.
Goals: Overview branches of government. Demarcate True crimes vs. Regulatory Offences. Discuss adv/disadv of administrative tribunals.
True crimes are inherently wrong and harmful by the majority (murder, rape, drug use) - offense against society. Regulatory offences control activities that are considered lawful such as business or trade. Regulatory bodies set up to prevent certain activities. They control legitimate aspects of society. Not crimes.
Objective of regulatory offences - to protect the public and societal interests from harm resulting from careless or unscrupulous actions taken by businesses and industry. Regulatory states set minimum standards of conduct and care to safeguard public. Ex: dumping stuf finto lake, noise laws, false advertising. Federal, provincial, municipal scope. Essential to the smooth running of a complex.
Perceptions of regulatory offences - perceived as less serious. Easier to process. Don't need intent. Onus is on the accused to prove that they weren't negligent. Criminal offences have greater penalities and stigma. Moral culpability - not immoral, but it is an offence. The burden of proof for the Crown is less demanding, simply establish actus reus. Easier for crown to obtain conviction with regulatory offences.
They fall under administrative law and we have administrative tribunals. The role of administrative tribunals: they're quai-criminal statutes with quasi-judicial powers - you can still be punished. Governments provide authority. Tribunals are expected to have a certain level of expertise in a particular area. Landlord and Tenant Board, HUman Rights Commission, Immigration and Refugee Appeal Board. Disputes arise between citizens and overnment agencies resulting in the development of administrative tribunals. Like court. Rules are more laxed than a criminal/civil proceeding. They act according to rule of law
The rule of law - society must be governened accoridng ot sets of clear legal rules. No one is exempt from the law. Want to ensure fairness, demote self-interest, laws are enforced in an equitable fashion. Want to promote fairness and equality.
CRP: Why is it siginificant to explore the law utilizing a multidisiplinary approach? In the article,, we explore the benefits and drawbacks of civil vs. criminal suits in sexual misconduct/harassment cases. What would you identify as the most compelling argument for the use of civil trials in this case?
Why is it important to use a multidisciplinary approach to study the law? Philosophy, geography, sociology, conflict theorists, Its execution doesn't always work. Understand how the law fails. We have to question the law.
Should there be financial compensation for sexual assault? hardships. What pricetag do you put on victimization? Lengthy - costly. Deterrant or motivating incentive. Quality representation - who can afford the best lawyers? Sexual history - context. Burden of proof is lower in civil case - balance of probabilities - more likely than not that this occurred (vs. beyond reasonable doubt). Privacy Act - info on previous convictions.
Lecture 4: Jan 15, 2018
CRP: Start reading at the Bernardo Case.
What is the rule of law? Some coountries don't have rule of law. Taliban. Afghanistan doesn't have rule of law. Trying to rewrite. Scope of the law: all individuals and groups come under the rule of law. Character of the law: transparency an dligibility of law to all. Can't be so obscure that I can't follow it. Although law is obscure, messy, muddy. Insitution of the law: rules to ensure fairness. Due process. Independent judiciary (courts), written laws, the right to a fair trial.
Regulatory offences - non-true crimes that are detrimental to society. The goal is to prevent offences that are seen as less than true crime. Governed by tribunals. Set standards and regulations for individuals and corporation to follow. Regulatory bodies have power delegated to them and authority derived from statues. They de-certify, revoke licenses, deport, fine. They're supposed to function as impartial regulatory bodies. Checks and balance, where power is exercised in a fair fashion.
Made of board members of the organization/agency that want to protect certain interests -> conflict of interest. They're going to refer to a particular legislation of a particular area -> must fall within particular jurisdiction. They're going to want to protect their own organization.
Relationships between courts and tribunals: courts have supreme power - they have can overrule. There must be due process and procedural fairness. There's discretionary power in terms of decision-making. Advantage of a tribunal: they can work fast.
Advantages of administrative tribunals: To protect indiivudual rights from the state. It's faster and more efficient, less costly than form court process. There's a different type of expertise - can form well-informed decisions. They uphodl due process - fair, impartial. There's a less formal process. Transparent and open to public scrutiny.
Summary: Administrative law is pervasive and deals with signigcant issues. It's to ensure proper functioning of society. Tribunal decisions are important to orginary citizens. The decisions are impactful to ordrinary people. Some argu that tis is symbolic of how fairly the state treats its citizens in a democratic society.
Mediation: non-adversarial technique wherin a neutral third party is placed between disputants to assist in amutually agreement. Perceived as non-coercive - you can elect to mediate. Only persuasion can influence the final outcome. Mediator does not impsoe a decision of the parties. Only works if both parties are willing to work out a resonable settlement. The decision may not b binding, so they have to be persuasive. Have to persuade that the settlement is equally beneficial to both parties. It only works if you're willing to do it.
Role of a mediator: mediation is private. They have to be persuasive. They're guides/facilitators - trying to navigate you through it. They typically have specialized knowledge. Where is mediation? Third party consultants - sit with you so you guys can work together - they're going to be specialized in that particular conflict.
Disputes settled in two ways: 1. Interest-based mediation - mediator persuades you that this is the best in your interest. Best interest of your child. 2. Rights-based mediation - outlines existing rules, regulations, laws respective to each party's position - hey, this is the infraction, les be reasonable here. Laying out the law of the land if you pursue this action.
Arbitration - third party who can impose a binding decision. Parties agree before hand to a binding outcome. Mediation - don't have to accept it. Rights-based and adversarial. Although decision is binding, there's not much chance for you to appeal - you just have to accept that it's the decision. It's cost-effective an dreduces court backlog. Similar to civil trials, but held privately. Emphasis on legal rights and duties of parties.
Adjudication - courts intervene , impose a decision, and enforce a decision. Pbulic and formal method of resolving conflict. Best illistrated y the court system. Requirement - disputes be narrowed down to legally relevant facts and issues. Zero sum game with winner and loser.
No longer thinking about custom or convention.
Want to look at the role of the lawyer, how are the regulated and governed. What rules do they have to abide by? Is it cut and dry?
The Oath: upon graduation, you take an oath to uphold moral standards - fulfill responsibilities in a good and virtuous manner. DAting back to Rome's Theodesian Code, Anglo-Saxon England.
'Of Good Character' - refusal for being of 'low character' - they can't really determine to. Aspire to non-low character. Little consensus on what is required to have good character. The assumption is that applicants are suitable. General understood as having traits of honest, integrity, and reliability. But they face ethical dilemmas on a daily basis that are not clear cut.
The Provicial Bar Association - they barely deny applicants. No standardization of application of th eterm. No background checks, it's just an application. Unless clear evidence of contrary, admission granted. You're not going to be disbarred. Maybe something on your record, can't practice in a certain area, or for a certain amount of time.
Public Perception of Lawyers - admired and reviled. Lawyers are honorable - defenders of rights. They're there because they think there's some injustice in the world - but then the reality sets in that the law has technicalities. Always deal with ethical dilemmas. They're trained by their clients, who they defend.
The Legal Monopoly - provincial statutory framework that prohbitis unaithorized person from practicing law. Who can Intended to ensure confidence for clients. The legal world is a monopoly - it determine swho has access to the system, who is denied - marginalized groups, people withmoney and power, gov't, officials, lobbyists. Upside: paralegals may be able to do more in terms of handling a case, but there are gonna be heavier regulations on what they can do.
The Candian Bar Association Cod eof PRofessional Conduct - a body that sets ethical standards that laqyers ought to follow. They are key plaers in the administration of justice. There is a code that establishes specific behaviours and expectations that employs prohibitive language - thou shall not, you are encouraged to. It legitimates what lawyers do. Cannot undermine public trust.
Ruels of the code:
What is the traditional role of lawyers? There's a theoretical model: the lawyer is a higher hand. They're professionally trained to work on your behalf - you hired them. Lawyers should/may identify as neutral - could be prosecuter or defence attorney. Nobody wants to be a defense attorney - have to fight for heinous people. Prosecutor - on behalf of the state.
The Role of Crown Attorney - representative of the government. They ensure due process. They cannot proceed with a criminal charge unless there is a substantial likelihood of conviction. So a lot of cases don't go to trial. Power and discretion to: continue with charges, drop them, trial tactics, stay proceedings, accept plea bargains.
Plea bargaining - securing a plea via guilt - in exchange for lenianct in charge/sentence. Crown might drop certain charges. 95% of criminal charges never go to trial. Risky. Defendants give up the righ tto go to trial. What is the likeliood this jury is going to decide in your favour? The public doesnt like plea bargains because the crown compromises for a lesser sentence just to get them sentenced - there might not be enough evidence. Typically, worked out between crown and defence and judges are remove dfrom the process. They have to come up with something that is mutually satisfying.
Advantages of plea bargaining: Trying to avoid a lengthy, costly trial - trials with uncertain outcomes, avoid revicitimization and trauma. Make it quick. Crown ought to consult with victims and explain need for plea - transparency. Defense ought to explain pros and cons of plea to client without undue influence - can't go back. Must satisfy to judge that accused's consent to plea is voluntary and informed - appeals are permissible but unlikely. If you wanna get someone off the streets - gotta move quickly. Language might be hard to follow.
Crown: Fairness, Impartiality - represent's public's interests: fair and impartial. They should not be there to rack up convictions, but to seek truth and due process - ensure that the accused has a fair trial. If they don't do this, then it brings everything in disrefute. They should only prusue a line of argument that they believe to be true (unlike the defence counsel) - job is to poke holes.
Crown: Disclosure - have to present all credible and relevant evidence to the court so that "justice may be done through a fair trial". Have to punish for all the right reasons. Must have to disclose all relevant evidence as early as possible.
The Adversarial System - the traditional role of lawyer rooted in this system that forms the base of our justice system. Hisorically linked to trials by ordeal and battle with a clear champion - the idea that someone is going to win and someone is going to lose. Complex societies - different resources, groups, power structure between groups. This system does not work for everyone.
Sometimes it works (in cases of true crime), but not always. Movement in going to ADRs. Restorative justtice.
Rationale for adversarial system - supposed to facilitate with the search for the truth. Protect sbasic rights and freedoms from being infringed upon by other groups. Satisfies litigants by giving them their day in court. These points are contested by critics.
Critiques of the adverserial system: the system obscures rather than illuminates the truth. It fosters injustice. It undermines respect for the system and creates cynicism. It's not a justice system, it's a legal system.
Lecture 5: Jan 17, 2018
Ethical Norms when dealing with clients
Obligations to clients: Partisanship, competence, loyalty, candour, pro-action, and confidentiality.
Clients are not treated the same (money). Law is a business, clients with money. It represents the interests of rich. Poor under-represented and overwhelmed in the legal system. There's an ambiguity to the legal system that doesn't allow certain people to gain legal help.
Difference between Rich and Poor:
Law as Instrucment for Rich and Poor: Advantaged clients want lawyers to use the system to remedy a discrete conflict. Poor people want change to the system toescape continual round of legal difficulties and bureaucratic hassles. Law is therefore not a neutral exercise - not there to mobilize change, it's to supplant the interest of the elite. Change vs. resistance to change. The rich wanna maintain the status quo, use a lawyer to keep their position in tact. The poor try to change society (social justice) with lawyers. => Law becomes an instrument.
Law as status quo: Lawyers are custodians of the status quo. They renounce through ttheir actions responsibility. They maintain false image as independent and impartial. We know in reality, they're not independent and impartial. That's why we see scandals, corruption. Enforcing/entrenching the status quo. Incarceration of African-Americans + various social groups. Disproprotion application of laws which targets a particular group more than others. Racialized groups are targeted by law enforcement, higher arrest rates. Law masks its true intent. Through judicial interpretation and law enforcement practices that creates this inequality.
Law as ineffective in democractic societ - it prevents meaningful social change that would beenefit the poor. a) It also wastes energy and undermines effciency. Cases take years to process. b) It fails to involve citizens as democractic participants in the process of change. You can't involve people who don't have the resources to be involved.
Role of the lawyer and regulatory bodies in guiding the practice - reg bodies rarely have teeth, not going to prsecute fellow members, mgiht do slap on the rist. Effect of adversarial system on lawyer/client relationship. Outlined the principles of ethical norms between lawyer and client. Different perspectives guide our understanding of legal ethics and the practice of law (ex. Conflict perspective) - trying to see how the legal practice is used by different groups of society.
Exploring Legal Thics: Ken Murray and The Paul Bernardo Case.
The Legal Definition of Obstruction of Justice: Extremely serious offence. Everyone who wilfully attempts...to obstruct, pervert or defeat the courts of justice is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years.
What is permissible - can we take physical possession of item to defend client? Yes. Temporary removal of vidence of a crime for purpose of preventing seizure by police: No. You can obtain evidence, but taking the evidence before police have had a chance to catalog it -> obstruction. Defence attorney are not supposed to impede in an investigation or a trial. Not protected under lawyer-client privilege. Grey area. Professional obligation of a lawyer: obligation to bring evidence forward. Very rare that a regulatory body will discipline in a case where they do hold onto evidence.
When a defense attorney disocvers evidence and is unaware of its contents, they have an obligation to bring the evidence forward. Very rare that defense lawyers are charged with obstruction of justice under the CC For holding onto evidence. Not a convention, nor common reaction.
Murray case - what are the fundamental ethical issues at play here?
You're not there to assist them in the prosecution.
Two fundamental elements of the relationship between criminal defense lawyer and his/her client pertinent to Murray Case:
1) Solicitor-client privilege - not to assist the crown.
2) Duty to confidentiality - limits to confidentiality - not party to an offence (ie obstruction). You cannot become party to offence.
Core questions: 1. Whether privilege extends to physical evidence or whether there is a duty to disclose such evidence. 2. How to achieve a balance between respecting basic rights of he accused in a criminal process while upholding the rights of society (and legitimacy/authority of the legal system?
As a lawyer, am I there to seek the truth? My job is to get the best result for you. You may be guilty, but maybe I can get you a more lenient sentence. No answer.
Debate in Murray Case - most controversial aspect: possession of physical evidence of tapes and the duty of disclosure. They don't have an obligation to assist an investigation against his/her client. A disagreement about lawyer's obligation when possession of inculpatory evidence (evidence showing guilty). On one hand, you have the right to hold evidence for a reasonable period. But there's little guidance by regulatory bodies (LSUC) on set limits - no rules on what a reasonable period is.
Murray's rationale for keeping the tapes: It was legal strategy of Murray's. Argued that there was tactical value of the tapes - it was going to demonstrate Homolka was equally involved in the torture and murder of the three victims. Brought forth after the preliminary to negotiate a plea for Bernardo or used during trial to undermine Homolka and raise doub t as to who murdered two of the victims. They said Homolka had battered wife syndrome, but the tapes revealed that she was an active participant - debate because how can you judge - years of abuse or she was a strange cat.
Murray did not have knowledge of what was on the tapes. Judge said it was damning evidence - no denying guilt.
Is it a valid tactic. Some would say tapes were damning. It was so damning, that it would've been 1st rgree murder easy. Would reasonable doubt. They said that the first degree murder case would be detrimental to the family. How much should you be directed by their own client of their own defence?
Murray's Acquittal - did Murray have the requisite mens rea (intent)? Did he willfully obstruct justice? The crown had to show beyond a doubt that the suppression of the state were intended to obstruct. They could not show beyond reasonable doubt that there was intention. Misconduct charges dropped in 2000.
Communications between Lawyer-Client: Privilegel is issential to the relationshop but not absolute. Lawyers are not disclose any communication as a direct result tof the accused seeking legal advice. There's tapes and there's communication about the tapes. Privilege does not extend to communications that constitute a criminal offence or intent to commit offence. It must be broken when lawyers must defend his/her self against criminal charges. Communication is privileged, but communication about privileged evidence is not. Tapes are constituted as non-cimmunications but physical evidence. But there was a lack of intent there.
Problematic about this case: what if the tapes had surfaced? They would not have had to make a plea bargain wtih Homolka. People pissed off that this woman had engaged in heinous acts and did not received enough punishment. If tapes surfaced, could've prosecuted both of them.
What would you do?
Your client has been charged with murder and advises you that there are tapes. Your client directs you to get those tapes when the time is right. You do not know the exact content of the tapes but know that they could a) help in your defense or b) if never found result in a lesser charge. Should consider that communication between you and your client confidential? YES or NO
Should you allow your client to dictate the terms of finding/disclosing the tapes without knowing the content? Should you, to avoid obstruction charges and breaking the law, simply hand the tapes over?
What was the delay?
CSR 2: Where is the line to be drawn betwen counsel's duty to the administration of justice and his/her duties to client? Explain: it does not follow that because concealment of incriminating physical evidence is forbidden there is always a corresponding positive obligation to disclose. Should Murray have been found guilt of obstruction? Why or why not?
Lecture 6: Jan 22, 2018
Results of CRP: Guilty: 85, Not Guilty: 6. N=91. Reasons for guilty: Professional obligation, time lapse (highest), for purpose of concealment. Not guilty - strategy, tapes fall under communication.
Objective: overview 3 major thoeireis of social order: consensus, pluralistic, conflict model. Understand basic principles and critiques. Illustrate the continuum on which they fall.Explore relationship between social order and shifts in crime control logics. What are the impacts on crime control logics - how we deal with offenders. Guiding question: How do societies maintain social order? By which mechanisms ensure social order? How do theories of social order explain deviance and or criminal offending.
Social order is how society is organized - organized by values, beliefs, norms. IT prescribes what we can and cannot do, what's right/wrong. What are the consequence sif we do violate those norms. Involves various social structures, practices, and institutions to maintain and establish methods ofr relating and behaving. Correctional institutions,church. Practices and discourses.
Human behaviour/society automatically presupposes social order. Looks differently across different nations/countries/cultures/time periods. Social order is problematic - why do groups behave the way they do, motivations, patterns, how do we coexist? Different societies/groups fall into different categories. Major theoretical perspectices to explain relationship between law and society fall along a political continuum. Models explain social order. Not exclusive, can fall into all of them.
Continuum: Value Consensus/Consensus -- interests/pluralistic -- Coercion/Conflict
Conservative -- Liberal -- Radical
The Consensus Model - society is housed together by a system of common values. These values legitimate our government/state. Because there is value consensus, there is consensus on respect for the law and our institutions and their goals in shaping us, increating regulations to guide our behaviour. The law is constituted representing the collective will of people. Assumed that the law represents the will of the people. The application of rules and law enforcement measures go unquestioned (should be, in theory).
5 Basic Principles:
The Pluralistic Model - aligned with liberalism. Represents our current society. A variety of different groups, each group has their our own sets of values,norms,beliefs. At times, they come into conflict with one other. As we become more complex, we are going to experience more tension and conflict between groups because of conflicting value systems. We don't necessarily agree upon definitions of right and wrong. Gay marriage. Abortion.Even if they disagree, the one unifying factor: we have some faith and respect for the law and legal system as a mechanism to solve disputes among groups. Groups opposing one another on what's right and wrong. We get along because we have to. Business - need to profit, and be unrestricted by government.We need some peaceful mechanism by which we can resolve disputes - doesn't involve barbaric/cave methods of dispute societies -> legal system. In this society, we have an outlet - if you are not satisfied, there are avenues you can exercise dissent Voting system (unless it's rigged)
The Conflict Model - Coercian Thoery - The reason why society functions the way it does, is because of coercion (overt or subtle). It's the exercising of group power by the state. Society is characterized by constant tension, political upheavel, and chaos - dissension, conflict, hostility. For the sake of surviving this type of society, you're compelled to follow the law because there's threat. Dictatorships, North Korea
Disorder results from competition for power and scarce resources. Karl Marx. Those in power impose their will through lawsand law enforcement of those less powerful. Those with power vs. those with less power. May be fewer innumbers, but they have the msot resources. Rise in class conflict, between poor and working class and the rich/elite. Change in society results from successful struggles for power by certain groups whothen impose their will on others.
How do we conceptualize the legal system? From Conflict Perspective - it is not a neutral enterprise, it's coercive, it targets specific groups who are marginalized. The legal system becomes a way for those who have the resources to advance their own interests. Tobacco industry. Large corporations. Law is reflective of neither consensus or rely on a peaceful mechanism - simply representing the interest of the accountable/elite, who have the power to make certain laws.
Why do people commit crime? Deviate? offend? In this view, people are economically oppressed in a capitalist society. Stealing, theft, insider trading, fraud, anything money-related. I'm robbing a bank because I need money. Explains utilitarian crimes. Doesn't explain expressive crimes - murder, rape, assault. A very small elite and very large underclass. Law is passed on the pwoer of the ruling classes, legitimizaing right and itnerests of the elite. The police are a repressive arm of a repressive state.
The cultural link: Thorsten Culture Conflict Theory (1938) - Crime oriiginates because of the expectations that are put on all of us, but which effect those in the underclass more. Societal expectations of wealth and success, but you're at the bottom - limited opportunities to succeed. It's these subcultural groups that have their own sets of values/beliefs and they conflict with the broader legal system. Laws reflect the dominant group, and not the smaller communities -> tension. Tension arises, we get deviance, we have conflict between dominant legal system and small subcultural groups.
They were investigating crime in neighborhoods. Sellin was looking at the impac ton smaller groups amidst modern industrial society. Higher rates of deliquincy in urban areas, clashes between native and immigrant cultures. This conflict arises between crime norms and the norms of that particular group. Crime norms - consensus on what's legal/illegal. It's reflective of the larger society - comes into conflict with smaller groups.
We have conduct norms - those belonging to less powerful groups. These are shaped by the experience sof those particular groups when they come into conflict/contact with the law/legal system. Sellin argues that we're going to see a rise in deviance and criminal activity because we have these intercultural groups trying to navigate/exist within a larger culture, wehre there's incongruency between value sets. What happens: the more powerful groups are going to criminalize behaviours that do not align with the rules/regulations of mainstream society -- othering, otherized.
When does conflict area - Culture Conflict Theory - Splinter groupsAnglican church - whether or not to recognize gay marriage. There are groups that have splintered off from the Anglican church because they don't want to recognize gay marriage. When codes clash. When law of one cultural group is extended to cover territory of an another (First Nations - they wanna create their own justice system). When members of one cultural group migrate to another culture - children of immigrant parents born in the new countru - clashes of generation.
What's problematic of Sellin's Theory? What about agency and free will? You may belong to a subculture, but we all have agency.
He proposes that those in the less powerful group have two options: 1) assimilation - alter their culture, adapt, adopt. 2) risk further cultural clashes and conflict. Perhaps we could have a combination of both.
Critique of the models presented
Takeaway: problem with perspectives is that they're presented as mutually exclusive. We may combine elements of all three. We can show that all three apply in canadian context. Social order depends on mixture of coercion, interests, and value consensus. Culturally-dependent as to how thay are prioritized on a hierarchy or continuum.
Lecture 7: Jan 24, 2018
CRP for Monday.
Not crime control vs. due process. A paradigm. Last time: looked at the models. They operate along a contiinuum. They're models - they cahn change, be combined, used to explain different things. Dynamic in fluid.
What is social order? It's what keeps us together - it binds us, a common set of values, belief systems - there is legiticmacy in the legal system/government. Modern society - pluralist model - a variety of groups, needs, interests, norms - bbut the one thing we can agree on is the fact that we adhere to our justice system, we give some power to the state - helps dispute settlement. What happens when therea re social/cultural shifts in values?
Problem with those models: assumes one or the other. But there are shifts. There are two transofrmative processes that have occurred: 1. Social, ecnominic, cultural changes since WW2. 2. Political realignments. A modification of previously social/economic policies. This has changes because of neoliberal freemarket enterprise (deregulation of markets - least amount of inerference from the state) and socialconservativism (wealthier society on the whole) - direct impact on how we think about and conceptualize crime and how we go about managing crime. Economic policies geared toward regualting economic activity. Social policies - marriage rights, employment, welfare, dif areas of social life. We become slightly more conservative - to keep up pthe cost of the system, it takes money, money out of your pocket. Readjustment in thinking. Lower/working class are not as eager to pay taxes to keep the social welfare system going -> Conflict tension arising - welfare ideals (gov't looking after its people) vs. working/middle class interest. Welfare policies are viewed now as a luxury - they're expensive - requires large tax base.
Macrolevel social change - Society is being reorganized because of these shifts/changes. Mentality has changed. The modernization, capitalist production. Technology and comminication markets. Globalization. Manufacturing sectors no longer exist. Tech sector - only a small portion of us are going to have the skills/education to work in that sector. Closes out a lot of different groups. Economic downturn - the masses are reluctant to put any more money in the system to help people who are undeserving. You are in your position because you worked hard - but there are structural barriers that place limitations on opportunities. A change in our family unit - people are getting better educated - you have less children - women entering the work force - ripple effect - women are not home to childbear and socialize children - becomes responsibility of educaiton system. Both working - dual income - want more things, bigger houses. Whole dynamic of society changes. Emerging rights discourse - we have certain rights and privileges - entititlements. The fall of the community/family/church - they upheld social order - if you violated community, there would be shame - but once you have diversity, economic forces, and that changes, you ened other institutions to have social control.
Has an impact on how we treat crime. Positive correlation between rise of late modernity and criminal offending. We have fewer ties to communities/churches/etc that kept us in line. Those were the informal social controls that were so important/fundamental to maintaining social order - but there's a breakdown here. HOw do we ensure social order in changing times? Increase in criminal activity. Reduction in situational controls. Increase in 'at risk' population - individuals that can't take advantage of the social welfare system - marginalized groups - people are less self-reliant - consistent relaxation of informal controls. Rearrangement in social policy, cultural norms.
Major characteristic: decline of the welfare state. Our welfare system becomes a system of learned dependency because of a lack of informal social controls therefore groups relying on state and social services instead of community, family, etc. Before, we might turn to my mother/father/sister/priest/local police officer/neighbours to solve a problem, get help - that connection is no longer as strong as it was before. Compounded by a prominent rights discourse which has increased our expectations - of what the government should be doing for us. Should the goveernment bail you out because you lost your job, if you're unemployed, if you're homeless, if you hav edrug addiction, you have two children - whose responsiibility is that? Previously, there was responsibility on the state to provide a safety net - but it's not there anymore. The compounding of consumer expectations - what we're entitled to. If you had a job, you should be able ot buy this, have access to this and that. It costs money to keep systems going - it becomes unaffordable.
Because we can't afford it anymore? State will turn to you and increase your taxes - but we don't wanna be taxed - we have high expectations - fancy schmancy. Many of us has been socialized to this affluency - we deserve welath and status. Late modernity had clear impacts on how we conceptualize and organize our justice system. This is a historical production. We see a distnacing of the state/retraction of the state. They're giving power to other agencies - outsourcing to other agencies/local/community - to do crime control. State: it's a shared effort. It's a lot cheaper to outsource community justice to local groups. Charitable organizations - Salvation army - philanthropic groups - provide all kinds of services that fall under the criminal justice system. They're gonna supply you with clothes, give you employer interviews. The third tier. the privitization of services - things like food - have that services brought into jails - not cook in jail. Nexus, grassroots agencies. Commercialized Justice. Commercialized feminism - it's nice to hear, it's a wonderful thought, but you ask someone who's poor, are they empowered? Empowerment as a commodity. Justice - focusing now on efficiency, measuring outcomes - how fast can you turn that offender around + rehabilitation, waht's the best success rate for that indiividual - looking at outcomes. Not looking at root causes of crime, just putting people through the system as efficiently as possible and measuring what programs are most successful with their outputs.
Re-definition of Deviance - now preoccupied with consequence ss of crime, not root causes. We create policies that are reactive. we've reduced state responsiibility for tackling the bigger problems - structural inequalities - that lead people into conflict/crime in the first place. It's not cheap to solve the root of crime. It's a lot cheaper to focus on outcomes. Enlisted communities as strategy that combines community criminal jusitce partnership. Discourse - language and practices - how we tlak about something. Not the state, but the community to help you out. We're emmploying responsibilizatio strategies - you committed a crime, you should take responsibility, shifts entire blame onto an individual, overlooking the fact that they may be impoverished, marginalized, etc. Promoting this indiividualistic style of governance of the criminal subject. Offenders are clients now. Like students are clients and educators are providing a service. Assumes you have certain rights and deserve certain services. Proliferation of Victim centered policies - "safe streets act" - it's great, but we have to realize ethat there are certian segments of the population that deserve a look at why they're committing crimes.
This is a reactionary style system - REactionary politics - create laws/regulations/pooliicies that are in response to criminal offending. We sense a risk that is approaching upon us by criminal groups - there's also complimentary to that, emergence of protectionism through promotion of terrorism legislation. Perceived hieghtened fear aorund national security. A changing attitudes toward helping others - giving people a leg up - welfare/welfare state.
Scholars argue that we're in a perplexing time. There are inherent contradictions at play here. Understanding of the need and desire to reimpose social order by the masses - we have to impose some sort of social order for us to survive, to reduce conflict. But how we get there becomes the question. We feel a sense of rights entitlement and not willign to give up our rights and freedoms. We want to enhance our personal security amidst risky groups, but unwilling to pay more taxes. We don't want to be taxed more because we have less disposible income. Affluent middle class group doesn't want to giv eup their luxuries. We're unhappy with egoism and antisocial attitudes - we're stressing individualism, self-interest - that has resulted from a bunch of factors - moved away from traditional forms of communication, but we're not willing to make adjustments in our needs and interests to move away from out culture because we like it. We're not creating efforts on how to console this contradictoryness. So by us not tacklign the ambiguousness/problems we're dealing with, we're putting focus onto poor groups. I can't manage my own, going to mange those beneath me. Keep people contained and in control. Culture of displacing blame - take blame away from us.
How does scholarship look differently now with these new set of conditions? Traditional criminology was interested in the rel between offender and the state. Now we're more interested in understanding other social structures in crimes. We can extend analysis of other socialculturaleconomicpolitical forces. Focus on the workings of the state - how the state creates strategies to extend control over diff groups. Gave birth to a new way of thinking - critiquing liberal pluralism. what's wrong with liberal pluralism? Its assumptions.
Critique of Liberal Pluraslism: the assumption that the law i there to punsih criminals, bu tthat there's also safeguards in place to protect the accuessed - due process. Looking at the direct relaitonship of liberal pluralism on legal system. We are now starting to think about not assuming/taking for granted that the law is what the law is, that paper translates to action, that there are hidden agendsas, different historical conditions. thinking about how the state creates Apparatuses to secure compliance and social order. Is the government doing things in our best interest - trying to figure this out, or is there a false equality trap there that's making us think we're all equal in the criminal justice system.
Question: conduct interviews with defendants. Trying to determine the authenticity of social consensus about law - that it treats everyone equally. Questining the aplicability of formal safeguards within the legal structure to protect the rights of the accused - whether procedures protect or violate the rights of the accused. Concerned with how the defendent/offender is socially transformed and becomes a powerless subject within this system that is supposed to uphold everyone's rights.
4 key observations
Legal Ideology vs. Practice/Reality - power of legal ideology works to reinforc eimage of a political system that safeguards the balance between state power and inidivdual - that you are balancing the rights of the indivudal against the state. ((The charter of righs and freedoms - you think that it may be a technique to protect yourself, but it's been imposed/dictated on us - there was no vote on it.)) Under liberal democracy, it's assumed we have power and rights and can alter legal arrangements - that we have autonomy in the system - but it's eclipsed by the diffusion of state power to deflect or co-opt grassroots initiatives. Outsource to community groups, think it's helpful, but they use those agencies to pursue their own interests. State power is mediated through community groups and community groups are mediated by state power.
Civilian review boards of police departments - Toronto Police. 1979 - shooting of Albert Johnson who emigrate dfrom Jamaica. 1981 - raids of gay bathhouses. Look at the way state agents intervene in various ways to convert the interests/agendas of grassroots orgs into instrumental vlaue for the state. The police are being criticized of using excessive force - imposing themselves in private lives of individuals. Through the use of police commissions - on the surface seeming cooperative - this actually creates the power o fthe state/discourse. It's not doing exactly what it should be doing. Despite a large group of organizations lobbying against police use of deadly force and interference in the lives of gay citizens the protests against police powers were transforme dby aauth in the police commission into coop arragenment betwen state and citizens.
People in positions of power are appointed as heads of commissions. The playing field is uneven. What seemed like an opportunity for community to come together with law enforcement, closed door meetings, appointment of officials to the police commisssion. police bodies reaffirm their power by gatekeeping.Marginalizes adbocacy and soical justice groups. Law enforcement has a better idea of what you're thinking without dislcosing their own. WE have citizens who are stilll left acocuntable to the state, but there's less and les saccountaiblity of the state tot he individual. Reform of state practicesa ctually solidifies tate control. Gatekeeping - preventing outsiders getting inside institution - reduces transparency/
Alternate solutions to crime: rethinking social order. Conservative ideoology upholds that crime is the result of a lack of discipline requiring law and order powers to increase to instill social discipline (social order). The establishment of sociallly antagonistic policies. Antiterrorism - socially antagonistic, mandatory minimums, safestreetsact. Socially antagoinistic to certain groups, provides greater discretionary power to law enforcement, harsher punishement, severer sentences, has reshaped the objective of our criminal justice instititions by utilizing community to legitimate its power. Just trying to find ways to legitimate power to rationalize certain courses of action - reactionary politics.
Response: this particlualr paradigm - does it resonate with you with your experiences? Do you think it's right, wrong, Do tou think it has merit? Is it a proper representation of society? DAvid Garland. This is what they are arguing. Does it hold true?
Lecture 8: Jan 29, 2018
Two different value orientations. Objectives: compare and contrast these two models. what justice is and what it should be.
Basic premise: A traditional outlook on royal criminal system that dates back to confederation time. Back tot he BNA act of 1867. CCM. Call it traditional - outdated at this point. Under this model, it's believed that crime and social disorder constrains our liberty, freedom of mobility. We can only be free and exercise our rights and freedoms if there is a balance between social order. Crime control places greater weight on maintaining social order at the cost of our rights and libterties. Basic trust in the ystem and the values of CCM are respectful of authority.
On continuum: very clear it's Conservative model and value consensus. Could call this value consensus, but can also see it as a coercive model as well.
Liberty vs. protection: how much liberty/rights are we willling to give up in order to be protected by law enforcement.course/legal system. Under this model: quite a bit. Or at least the state wants us to giv eup quite a bit to guarantee protection. The masses aren't took concerned about their own personal liberties because most of us are law-abiding citizens, so the concern of giving up our rights is not that big of a concern - depends of wehre you are in the social structure. Too many rights are given to the criminal offender. Going bakc to Wednesday's framework: we see the criminal offender as problematic/dangerous/deviant group that we want to put out of sigh - not interested in cause of behaviour. Just want justice solved for victims.
Libery in Democratic society - this model is construed as anti-democratic. Not interested indidivudal rights, but the whole of society, what's the best for society. Even if it means the system is given discretion to do their jobs. CCM moves away from liberal democratic stance. This holds Your freedom to throw a punch ends where my chin begins - your personal rights shouldn't infringe upon others.
Law enforcement are the good guys. Moving away from a rights-based discourse. It's not what society can do it, it's what you can do for society - upholds the legitimacy of authority. Faith in police force. (Due process underpins the legal protection - there to protect people's rights against the powers of the state) Difference in value orientation. CCM represents values of police, whereas due process represents the value system that the law profession stands for. Differences in value orientation helps to explain the underlying tensions and conflict between the two professions.
Within a CCM, th erole of the police is improtant and beneficial - then we need to provide them with the resources - whatever it is they need to do their jobs. We have to enable them - that's how we solve crime and have social order. Court orderPolice operation upon a presumption of guilty, generally, as opposed to innocence. Police power comes from the law. Laws must give the police the powers neccessary to do the job.
Means vs. the ends. How do people go about satisfying their objectives? it's not how we got the conviction, not how we obtained evidence. It's that we secure a conviction, arrest, detain, try the defendants. Officers are given quotas - obtain a certain amount of violations. Rights of the public outweight the rights of the individual citizen. Key problem: overzealousness. Not looking to limit power of court, looking to expand it.
Our system is very expensive. Some court cases take years at a high cost to the taxpayer. Long, drawn out process. Not an efficient system. With CCM - they look to efficiency as a key operational sybmol. Who cares about the means to the end, just want the end. Assembly line justice. Goal: get these people contained.
In sum, CCM is very conservative. It's harsh, punitive. Law and order, tough on crime. Victim-centered policies. Safe streets act. Bill-C36. Sex workers. Tough on crime law and order. "Throw the book at them" -
Case Example: A man stopped on 401 going WEst in a rented SUB by a police officer with 35kg of cocaine. Court of appeal held the evidence. Was admissible because the officer pulled them over without reasonable grounds. ARgument: having this person arrested with this much cocaine can be justified even though the police officer engaged in misconduct. On one hand, the weakening of one' scharter of rights and freedoms. Also seeing courts understanding that there is a greater cause. There is a massice political agenda: war on drugs. Legal scholars can argue that if we start excluding evidence on the basis that it's admissible because there was a systemic problem in misconudct, then we leave open a pandora's box. Ruled by judges that this misconduct was not connected to systemic misconduct in the police force - a one off. For the itnerest society, going to deprioritize the right sof this individual in hopes of supporting a greater good -> Example of Crime Control.
Divergent model that operates in contrast to crime control. Emerged in Canada, taking center stage. In some ways, it's overshadowing CC. Born from the US declaration of independence. PRemised upon the assumption that the greatest threats to our freedom and rights are born from the state, law enforcement. Anti-egalitarian. "Life, liberty, freedom." Lawyers subscribe to this - not what's just or fair, it's what's just or fair for the client and whether the rules are followed. Threat: misuse of power and authoriity.
Police have to have their powers limited/restricted. Too much power is not good. It leads to abuse, exploitation, misconduct. We have to make sure police officers, court are doing their jobs according to the book. POlice are viewed as a necessary evil. Our rights are paramount. We have to do whatever it takes to uphold people's rights. Sometimes comes at a cost - indiivduals may go free if they're guilty, but it's necessary in order to keep social order. The rights acts have to counterbalance the awesome powers of the state. Protect from actions by authority. REstratining police power.
Police have to follow under the strict rule of law. No one is above the law. Impedes police's process. If police give syou evidence obtained illegally, then this doesn't allow it to be brought forward. To police, impedes their job. To defendant, their right. Presumption of innocence. A possible problem: we will have people released on a technicality. It is better that 100 guilty persons go free than to have one innocent person convicted.
Demanding we have a system in place headed by an impartial tribunal, judge, and or jury. Quality Control. We know there are inherent systematic nequalities within our legal system that disporopritionately target minority groups. This model recognizes it. CCM is not apt to do the same. Expensiv,e time consuming model. Not focused on efficiency. There's a lot of red tape, bereaucracy involved to cross to get trials. That's why there's a backlog of cases. Less efficiency to prevent mistakes.
Preoccupied between legal guilty and factual guilt. Lawyers shouldn't be concerned with the client's guilt. It's whether the rules were followed in their arrest/sentencing. LAw becomes a game, a strategy. Can the crown prove the case, and are they respecting my client's rights. The law will allow a guilty person to goree if the police/courts have not acted in a strictly legal fashion. Legal formalism - courtroom procedures. May completely piss off the public.
Means vs. Ends. DP is concerned with the means. How did we get to where we are? Unfortunately, an increase in appeal cases - both British/Australia/Canadian - overun with appeal cases. People appeal cases based on the fact that their rights were violated, rules were not followed. Expensive. More laws are struck down by the Supreme Court which we may or may not agree with.
Summary: Liberal model. "Doing it by the book."
Must strike a balance between the two models. Refer to example. While not obtained on reasonable grounds, it's on the best interest on society due to the large sum of cocaine - which anyone would deduce was used for trafficking. We have to balance best interest of society and the rights of individuals. We cna't consider models as mutually exclusive. Both have arguments in support. There are advantages/disadvantages. CCM has a stigma attached to it, but it's not all bad.
Vlaue preferences. We, as a society, have clear preferences on how we like to see the law administered. There has to be a balancing act between allowing the officers to do their jobs and at the same time protecting our rights and freedoms. Noth models view the law as having different purposes. How does this become problematic in complex societies - people want different outcomes, values on diff things.
Obvious benefit sof Due process: many changes to different acts: Mental Health Act. Reduce discrimination, protec them on both sides. People in positions of authority - there is some level of accountability - tribunals, diff adminsitrative bodies. Trying to protect those who have less power in those institutions.
Problem of Due Process: perceived from non-legal actors. Obstructionist and expensive model. Right sof idinidivduals piority over rights of society. Allows offenders to get off on technicalities. Allows for rights to be extended to non-citizens (R vs. Ng - sexual predator, killed 5-7, not sent back to US for death penalty). Extradition todeath penality countries unpermitted in this case. Rights of victims ignored. There is an extension of judiciary powers - there's discretion, means more power. The courts have more power to make very important decisions about the courses of our lives. Courts do not have a real pulse on what it is that canadians value. By not extraditing Ng, a sadistic serial killer, base don the fact that he might face death, then it's not upholding the values of society, or is it - whether or not we believe in the death penality. People are lead off on tchnicalities/evade death penality.
We have also seen a rise in vigilantism. Mexico - because of violence perpetrated by drug cartels - they monopolize most of the country down to the local businessman on the corner, utilize children as falcons - watch out for police, permeate every aspect of life in Mexico. Within pedophelia. Raises issues of civil liberties, accusing people without having sufficient evidence - a mock trial. A bounceback into a feeling by the public that the court systems are not doing what they're supposed to do. Groups taking justice into their owns. How to curb? Put money back into the system so they can be more througough, culturally competent, that they're better at what they do, so we cna avoid ad hoc justice.
[Are 'Paedophile Hunters' Getting in the Way of the Law? | Good Morning Britain] - How is this an example of CCM and DPM? Argument: Vigilante are interfering with due process. CC: vigilante groups are prioritize the best interest of society. Not enough resources/money going to police - no special forces. "Hands are tied" - due process is longer. This is much more efficient. DP: It could be used if it was obtaine din a lawful fashion. How could vigilantes help the police? Disemmination issue: how are you disemenating the issue? If you give to courts, they can do their job -> du eprocess. If internet, not the best, internet/privacy laws.
Lecture 9: Jan 31, 2018
Midterm: cover everything up today. 30 t/f questions - 30%. Lecture-based. Core concepts, ideas.
We've seen a shift in values in respect to the two models. A US style. Americanization of the legal system. Past: while certain procedures were overlooked by the police, now there's a focus on minimizing the bending of rules. Shifted in cultural values to a rights discourse. How we protect our individual rights - less of a collective focus than the past. We have a greater acceptence of due process.
Is it possible to bring together due process and crime control? Research out there that they're not as different as we think, they can complement one another. Question: whether we can safely reduce wrongful convictions that are a result of overzealousness without risking too many wrongful acquittals. They're models - they change in application. They're ideal types. How they're applied may look very different. Each has a unique value orientation, but they can be combined and complimented. CCM: presumption of guilt. DP: quality over efficiency.
We work on creating a system of reform to ensure that one level there is some level of efficiency, but also ensuring quality at the same time. Create a set of best practices - what works vs. what doesn't work - make changes on the system. Balancing rights with public safety through the restrategizing of procedural safeguards --> The Reliability Model
Under the reliabilit ymodel, the idea is that due process and CC are two sides of the same coin. Look at the innocence movement - 1920s at B law school by 2 legal students - advocating for the pursuit of exonerations of people who were wrongfully convicted. Growing evidence that fairer proceedings are not incompatible with CC. Outcomes on cases - rise of DP has not necessarily translated into the accused actually exercising their own rights. Even though we're in a rights discource, it doesn't mean we can actually exercise those rights. Soemthing about the legal process that impedes for us to do so: the use of plea bargains and no contest. 95% of cases don't go to court. Much is done behind closed doors - plea bargains - cheap way out. Also seeing an increase in administrative quality of criminal justice systems -> improve efficiency.
Conclusioin: we have the reliability model where CCM and DPM are viewed as compatible. Due process for the innocent and the guilty because they help establish culpability levels. By improving investigative procedures, this new udnerstanding of due process protect defendants rrights. Improving reliability and efficiency of the adminsitrative systems, The Relatibility Model satisfies most fundamental demands of the CCM.
CRP #4 - ways CCM and DP is done here. How could reliability model improve here? Based on lecture notees, what techniques of obtaining evidence could be reformed? WAs the defence counsel correct that this was an oppressive tactic to garner evidence from the accsed?
Lecture 10: Feb 05, 2018
Divison of powers, vairious branches fo government, evolution of common law (where does it come from).
BNA Act. 1867. It's from here that we became repatrioted(?). Development of two tier system where we have federal and provincial powers. Allowed for us to create a common currency system - the canadian dollar, a criminal code, and for us to assemble a military that was unified by a sovereign power and powers over other imporant areas. Division of powers.
Constiturtionalism is considered supreme law. It trumps the criminal code. The point of it is that it limits the powers of the state to invoke certain laws that may be deemed unconsitituiotnal, harmful, violates rights/freedoms. Important to understand that the authority of the state, its legitimacy, is derived by how well it aligns itself with the charter. This is what gives the state legitimacy. Government can and should be legally limited to its powers. Authroitity of the state depends on its observing these limitations. Consitiution conststs of a set of rules or norms, creating structuring and defining the limits of govt power or authority. Checks and balances on our lawmakers.
It's purposive (has a purpose). Intervenes in the state. Limit authority. Scope - whether or not a specific area falls under a federal/provincial jurisdiction. Mechanism - procedural requirements to uphold, to govern the form and manner of legislations, and cibil rights (charter of bill of rights).
What is the meaning of republic? It is the will of the people, sometimes interchangably used as the same thing as democracy. But democracy infers that people are equal. A republic is where you have a system of government in which this will of the people is mediated through an electoral process. The point of having this type of system is to have a government that creates laws and regulations, should be a reflection of our interests and needs. They should represent us and we choose/vote for someone that aligns with out beleifs+systems. They make new lines, take down old ones.
Scholars are looking at crime control logics - how truly democratic we are.
Section 91 & 92 in the BNA Act. It's the Constitution of Canada. When are system became patriated so that we had more organizations in terms of dif jurisdictions. The criminal law system is upheld by federal - who makes our laws. It's exclusively governed by the federal system. A consititution is a set of rules regulating the operation of a coutnry's government. These two sections deal with the specific responsibilities of the federal and provincial governments. Division of power because every province has its own needs - doesn't make sense for federal govt to intervene in certain areas because of the regional differences/context. Land-wise, it's big.
Section 91 Federal powers Part 1-7. To make laws for the peace, order and good government of Canada. Armed forces, defence, postal service, taxation, employment insurance, trade between countries,. 9-27 - naturalization laws, criminal, jails (provincial), penetentiaries. Patents.
Section 92 - provincial taxes, provincial employees, maintaining jails, hopsotials, licensing shops etc. Communications and transportation
Any matters not covered are automatically considered a federal power. Prov and fed laws evolve as a result of court decisions that sometimes widen the powers of one level of government.
Too much violence in video games - CRTC. Software - federal. Marry high school sweetheart, eugh, but you're not sure whether you are old enough to get married - provincial.
The consititution places limits on the scope of power of the state. It has to be somehow entrenched in our system -we codify it. Before that, it was based on custom/convention. Complex society - have to codify. There are some other consitituional elements - we don't have anywehere where you would have it written down exactly what the Prime Minister does - symbolic figure - it's understood what they do - we have an idea that they have great influence in matters. Idea: entrenching your constitution, somehow codifying . Principlle of Writtenness. Unwritten consiituion exists through precedentand cultural custom of a nation. What happens if it's not written? There's disagreement over how to settle a dispute. In traditional society, there was more custom/convention - people knew what was acceptable/unacceptable. but complex, not really. By law or by constitutional Convention.
Unwritten constitution - another aspect is judicial review (power of the supreme court) - the most imporant power of the Supreme Court. To find in certain cases that someone's rights were violated, that the law was inconsistent with the constitution/charter. It also serves as a check and balance on the laws passed by the government. Making sure they're not stomping all over our rights. The point there is constistency so that laws are not arbitrary, vague, or overstretching, overbred or grossly disporoproionate. When it comes to interpreting court cases, it's up to their discretion (judges) on how they want to rule.
Supreme court have to determine whether or not a law is arbitrary. There is a significant disconnect between the limit on liberties (place on someone) and the actual objective of the prohobition/law that's being placed by the state. Whether or not sexual predators should be allowed to hang around shopping malls/plazas - would it for sure capture a few people that are doing waht they're not supposed to be doing, but is it worth squashing the rights and freedoms and sending that message out to society just for the sake of catching one or two violations? Is the law Vague? Important that we understand our laws. If not clear, then you can't expect the average citizen to follow them. Is the law overboard? Overstretching its purpose. Is it grossly disproportionate - law causes more harm than the objective that the law seeks to address. Prostitituion laws - they're victims of extreme violence, so does it make sense to contain prositituion. Should this goal override the safety of prostitutes/sex workers.
The impacts/implications - *Arbitrary laws - capricious. It could lead to governments creating laws at their own will - demonstrate power and coercion. It has no rational basis. The government wants to force everyone to wear pink on wednesdays - absurd. Dicratorship putting severe limitations on their people. * VAgue Law - guessing game. If I can't readit, I don't know if I'm offending or not. It's hard to know where something falls - is it criminal or civil? If I don't know consequences, can't read, then it makes you feel vulnerable - not secure to know what is right and wrong, what's legal and illegal. *overboard laws - overbreadth. In can obscure state's improper regulatioon of expression. Speech bubbles. They start to say what we can say and what we can't say. Advances state interests. Implicit and obscure. What to say, feel, think. *Grossy disproprotionate laws - ignores context. sex workers - ignoring the fact that they're highly marginalized. Ignoring their counterparts - non sex-workers. Affects dif minority groups and women. May bring harm and injury to people. Objective of the law is grossly disproportionate.
Our constitution - it provides stability, accoutnability in our society. It allows us to be free of overregulation, the government intervening in our private/family lives/matters. It provides an Amending formulae which can be triggered when we feel our rights have been violated. We have to be able to amend the constitution and we can do that through an electoral process - referendums. Core to providing stability, social order, and a smooth-functioning society. Enough flexibility to have change.
Current challenges: BC 15% tax on land for foreign buyers. It's making housing unaffordable. 1mil dollar mortgages. Intergenerational mortgages. Wages are not rising poroprotionally. How is it a constitutional issue? Should we place limitations on what people can purchase? Bill C 14 right to die - natural death has become reasonably foreseeable. Ther ight to decide what you do with your own person, how you wanna end your own life. Right to life doesn't necess mean you have a right to death. Counterintuitive element. Coercion - under duress - others forcing them to kill themselves. Rights to access private healthcare - should we have greater access? Should it be a right? Should it be the right of the healthcare system/governemnt to uphold monopoly over healthcare? If I have money, can I pay for better service? It could undermine the public heatlhcare system. There has to be consistency between the two.
Constitutional law OR Consitutional convention. We elected our governments - we allow them a certain degree of power. Much of their legitimacy is resultant from us giving them power. They may embark on a course of action. They may have their own set of criteria and objectives. It may be to come down hard on drugs, eradicate prostitution. Are these laws consistent with the constitution?
The legislative branch - we have a parliamentary system. Inherited from British parliamentary tradition and based on prunciple of parliamentary supremacy. Adopted our laws from common law, based on British experience. This is the most powerful branch of government, the most supreme. Through electoral system, we vote in parties and representatives. Through electoral system, we can have change. It can create laws, pass bills. If found unconstitutional, will be challenged and repealed.
The executive branch - agencies, boards, commissions. Pwoers are determined by legislation. Can run various government programs. Regulatory/administrative tribunals. Assembled because they have people inside with certain expertise. They create rules and regulations. They have the force of law. Powers handed down to each branch. The civil seervice. Implement and enforce various laws passed by the legislative branch.
Judicial Branch - courts, and judges. They don't make laws. They interpret laws. At the supreme court level, they can determine whther or not laws/regulations are consistent with the constitution or not. ARe supposed to be concerned with the law, not politics and impartial legal actors. Responsible for making most of our laws through creation of the common law system. Supreme Court of justice - appointed symbolically - they're well educated, some kind of status, highly respected. In the US: they campaign - popularity, sensationalized, more media - people know mroea bout the system.
The Evolution of Common Law - Common Law evolved in Britain over hundreds of years. Circuit court judges - this is wehre ideas come from. Small, rural communities - villages. judges would have to travel the circuit and hear cases at set dates and times. Developed through the use of judges appointed by the King to manage conflicts arising betweem subjects. They would govern disputes that would rise between individuals. Laws weren't necessarily codified - much of the decisions made by judges were based on local customs/convention. This changes as societies become more complex.
Absense of Written Laws - judges role was to enforce law, not crerate it. Only guided by local customs, traditions, religious values, adn their own sense of fairness and proprotionality. The law was common because it reflected the traditions and customs of the common people. They did not have written laws to guide them.
As society becomes more complex, we can no longer run a system like this. Law becomes more complex. The professional class of attorneys emerged to advocate for clients. Population, grousp, etc. Surge of professional attorney class - lawyers and legal actors. Start to operate on precedence - basing a court outcome that is predecated on outcomes in court cases of the past. People were generally not well versed in legal jargon (most of us today find it complicated), people were illeterate. Precedence was important because it gave people a sense of what they could expect -> stability in the system. Laws became less indeterminate, vague and more clear cut and written down. LEgibility is key.
We move traditional to complex. Use british law as a guide for actin.
19th century to present day - Case Precendence never trumps the constitution - the constitution always takes presedence - even if a judge has decided something case after case, if someone challenges it and they win, precedence does not hold anymore. Our system is based on British experience - same principles of ooperation. But we deal in statuatory law, not common law. Statutes. Precedent evolved into strict rule of law. Still rooted in British law, but replaced common law with stauatory laws.
Lecture 11: Feb 12, 2018
Breakdown of the Canadian Court System. How our 2 tier system operates. Various functions of dif courts. Then Charter of Rights and Freedoms.
The Role of the Courts - part of our adversarial adjudication process. Win/lose. Pitted agaisnt each other. Downside. Looked at models that suggest that law does not operate well for all. The courts - one of the most traditional systems for dispute resolutions. We now have alternative dispute resolution methods. Assumes each party has equal standing - equal representation on each side. There should be rules in place that ensure that people have the quality of the law - treated w dignity and fairness.
Judicial Decision Making - fact finding. Search for truth and fair and just resolutions. In theory. There should be proper interpretation of our laws to determine whether or not they are constitiutinal, align with the charter. There is a system of checks and balances so the courts can strike down the law that is unconsititutional - accountability strucuture built in. Proper interpretation of statutes - divided into 2 - we have purposive reading (charter - law is interperted more broadly. Allow for an understanding of context, conditions, factors that are gonna influence the judge's decision. This typically in Canada, because we like judicial interpretation. Case by case reading) vs. strict construction (simply abide by the text. text-only interpretation of the criminal code.Less room for interpretation. Stick to the books. TExt-only approach. Very narrow and might violate rights. Doesn't allow for contextualism). If judge doesn't know after a purposive, they will go to a strict construction. Purposive dominates in canada.
Levels of Courts - 2 tier system. Each province has 2 levels of trial courts and a provincial court of appeal. Judges at the lowest level of the court system are appointed by our provincial governments. Supreme Court judges at the federal level are appointed by the federal government - they are distinguished citizens, longstanding success, high status, well-educated, represent our values.
Inferior and superior tier
Provincial Inferior Courts - based on British experience (common law). Have several divisions: criminal, civil, family, tyouth, traffic, privincial/municipal offence division, drug and mental health (embrace a system of diversion). Reduce the backlog of the system - reroute into dif court rooms. Follow a system of therapeutic juurisprudence. If you're drug addict, gonna look at record - reroute into treatment center. Mental health - condition puts them into conflict with the law - not gonna throw in jail, put them into treatment. Prositution - find her some community support to get her on her feet. Domestic Violence - allow for a family focus - try to alleviate the causes of domestic violence. Look at the root cause. Intent: not to criminalize people, not to put them in jail, reroute them into positive directions.
Small claims courts are example of lower level ccivil courts of claims less than 10k (higher claims proceed to superior courts).
Manage less serious summary conviction offences and preliminary hearings. Not gonna deal with inditable offences
Provincial Superior courts - highest trial level in the province. Jury trials, representation by council. Judges are appointed and paid by federal government. Court of Queen's Bench, Suprior Court, Divisional Court. Two levels of high provincial court: trial and appeal court. Deal with different branches of law. Surrogate division - wills, estates. Family - divorce, custody. Criminal - criminal offences and some appeals from lower court.
Appeal Courts - What is the function of an appeal court system? the crown was unhappy with the outocme of a trial hearing or a defence. The onus is on the appellant to satisfy the court that the decision by the judge was made in error. Not that the crime didn't happen or mistakes around facts, not substantive issue, procedural issue. The judged err'd somehow. Need to prove that to be heard in the appeal court. Perhaps judge misinterpreted subjectively a legal concept. Consent - ruled implied consent, well, the crown can come back and say that does not make sense. That's not that the law says.. Either in choice of precendent or in the interpretation of principles established in the precedent or statutory provisions (source of law). Just cause you want to appeal, doesn't mean court of appeal will hear it. Risky chance you're taking. Court of appeal is not gonna overturn a decision if the trial was conducted correctly. If the rules were violated and the judge err'd, the court of appeal swill overturn that decision and a new trial will be ordered. Concerned with due process and errors in application of law.
Supreme Court of Canada - they're going to hear appeal cases and hear them if there's some kind of substantial and pressing issues that has the bearing on the best interest on canadian society. Of national importance. Very selective on which cases they hear. They don't have to justify why they choose or choose not to hear a case. We're not privy to their reasoning. Cases where there's an issue or constitution of a particular law. Given power to interpret law - to strike it down or revoked/rebuked.
Our constitution in Canada (charter of rights of freedom) gives much power to the supreme court in determining the constitutionality of certain laws. CRF gives power to SCC. Great political importance. Appppointment on status and prominence within the community and stance on particular issues. There is room for bias - they have their own value perspectives - views on abortion and civil liberties.
Important features of our court systems: has to be transparent. Has to have legititimecy. We have to knwo what's happening within our courts. Key becaise it legitimizes the power of the courts. Can't have faith if we don't know what's going on. Impartiality. Courts are open to the public - anyone can walk into the court and view. Unless there has been a ban. A) see what's going on. B) make sure that people can actually see that justice is being served. Courts may rule that certain people are excluded from a case - certain witnesses (don't want their testimony to impact someone elses). Judges may place media bans - sexual assault cases, third parties, government. Sexual assault victims and children - separate victim from perpetrator. Speak to child in closed quarters. Moral element - dont want to subject people to harm.
Principle behind media ban. To ensure fair trials. To protec tthe safety of those involved. Want to protect victims. Mitigate bias - we don't want to have too much publication out there - may impact the jurors - reduce expsoure to information in advance for jurors. Reputiation or ommission of details that are deemed as inconvenient truths are not sufficitent to satisfy the request for a ban.
The Ashley Smith Case - committed suicide in cell. Long history of mental health disorders. comorbidity. CSC wanted a media ban until evidence had been brought forward. Problem: was possibly gonna damage the reputation as security guards looked on as she killed herself. They wanted to defend themselves, but they're represented by a union - between inmates and prison adminsitration. Prison admin did not want public to know what's going on. CSC was adamant of maintaing reputation. Administration dont look so good. People get fired. They wanted this media footage banned to save their skins. Media have the right to freedom of expression - have right to this information. Weigh pros and cons - could we bring correctional instution in disrefute or should we protect until trial over? If only reputation, not enough to justify it.
Summary: overview of court tier system, explore the types of cases each system hears. Understahdn the prunciple behind public hearings - transparency. undetrstand the function of media bans. Ashley Smith Inquest as case exmaple.
Background Pre-Charter Era - before 1982. The only group that could change our constitution was the monarch - British Parliament. There was nothing preventing the govt from passing fiscriminatory legistlation or from violating rights and freedoms. They could've done what they wanted with our laws. Canada sought (Prime Minister Trudeau) wanted to bring canada home. Patriated. To haave autonomy, soveriegity, authority over its own country. After 1982, the Queen's royal ascent - signed the Constitution Act making Canada a fully sovereign nation and enshrining the Charter as the highest law in Canada. Before was the British North America Act in 1867. Every law created by an executive/legislative branch have to fall in line with our constitution. Canada seeking its own independence and cutting ties with mother.
What's the purpose of the charter? To regulate our relationships between government and individuals to ensure that the public's basic rights are protected. That it doesnt' squash our rights and freedoms, and doesn't create arbittraty laws. Keeps government in check. It covers federal, provincial, and territorial governments. Has respective sections within it. It's there to function as an accountability structure. It has an amending formula to it. It allows for the SCC to go in and change laws. To rebuke, repeal, put moratiriums on them. Requires courts and govt to take the Charter into account when deciding on issues that affect people's rights and freedoms. A dictatorship - if they can just create laws all willy nilly. We have a democracy.
The Interpretation of the Charter - the Chart is a pruposive document. It does not follow a strict construction approach. You have to interpret it in light of its overall purpose and objective - to protect rights and freedoms. As part of the purposive approach, that it's generous enough that it allows for felxibility in the system, allows for change as ooposed to being purely legalistic/text-only. Not just about laws. IT's about broard issues that face society and protecting different groups that face different conditions.
Limitations - The reasonable Limits Clause - Section 1. Going to apply to every single section within the charter. IT permits for there to be limitations to be placed on our rights and freddonms when the issue is pressing enough to do so. If the limitation can be justified by the government. Rights and freeedoms are not absolute. Just cause you're here, doesn't mean your rights and freedoms are absolute. Your mere existence does not justify them. You have freedom to say what you wanna say, but can't have hate speech. It must be a Lawful Limitation - for a right to be lawfully limited, has to be demosntrabily jsutified in a free and democratic society. The limitations we put on peopl ehave to be reasonable. IT must address an issue of pressing or substantial concern, done in a legal or lawful manner, and that it cannot have a disproprotionate impact or effect.
Case Examples: R v Keegstra. High school teacher telling his students that the Jews were solely responsible for the holocaust. Holocaust was a way to get attention. Then tested on this theory. Someone in position of authority, impressionable teens. Brought on charges with promoting hate speech. K defense: that he has a right in section 2b) right of freedom of expression. You might not like it, but I have a right. (art vs. pornography - people argued that certain forms may have sexual elements but not porn). K is saying it's an unjustified limitation on 2b. Without section 1, K' would hav ebeen successful. That he had every right to say anything he wanted. Then the Crown had to prove that what K was doing was harmful. What he was doing was harmful to society. Impact of limitiong section 2b was not as severe as the damage caused by K's hate teaching. He was fined.
Lecture 12: Feb 14, 2018
Keegstra: we invoked reasonable limits clause. Greater interest of society. Limiting Keegstra's anti-semitic views. The charter keeps our system in check - for interest of individual and in the interest of the government and general public
Key Charter Sections:
Section 2: Freedom of Conscience and Religion. Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association.
2a) has to do with religion. 2b) freedom of expression. Protecting rights of individuals and values/beliefs within the greater society. We are heterogeneous. Stores were closed on Sundays. It's a day of rest for them. What about people whose holy day is not sunday? This protection includes protection from having to participate in another's religion. REcognizes that those holding a min religious view are often inf by or expected to participate in jaority religious culture.
Limitations to 2a. It's not only your right and freedomt o exercise a partic religious view, but also free of having others' views imposed on you - absence of coercion and constraint to particpate in another practice. Tricky. Freedom of religion is limited, or restricted by the rights of others. It becomes a conundrum. What if my views impose on yours, but mine are on the minority/majority? Where do we draw the line? Actions are not protected by s.2a if they infringe on other people's right to fundamental freedoms or protection from discrimination. Having to say prayer in school
2B - Freedom of Expression. Everyone has the following freedoms: b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media communication. Yeah, the internet is a breeding ground for crap. The internet - who are you going to align with? Align with people with same views. Where do you draw the line?
Section 8 - Search and Seizure. Everyone has the right to be secure against unreasonable search or seizure. Protect a reasonable expectation of privacy. Police have to have the appropriate go ahead to search you. Police and other government agents cannot, without sufficient reason, invade the personal privacy of individuals. We do have a right on privacy. They cna't simply exercise overzealousness. Can't do it without probably cause - has to be obtained through court system. What consistutes a 'reasonable' search depends on the surrounding circumstances.
They have to obtain a Search Warrant - preauthorized. Law enforcement has to justify to the courts why they believe this is important, why they need the search warrant. has to be done beforehand. If not properly obtained, it's considered illegal and anything that the officer would have obtained through the search and seizure would be inadmissible. If no warrant -> unreasonable. If warrant -> reasonable. The searched has to prove it was unereasonable if they think it wasn't reasonable.
Reasonableness of Search - The court has to balance the rights of the accused/individual against the interest of the criminal justice system. Look out for people's right to privacy and balance against interest of ccj. State's interest vs. individual's interest. Look at:
Police must have reasonable and probable grounds to believe a search will uncover criminal activity. Simply police thinks/has intuition that it is probable, there has to be a system that creates accountability and safeguard people's rights.
Section 15: Equality before the law - 15(1). Every individual is equal, everyone has equal right to protection, equal benefit to the law without discrimination, without discrimination on race, etc. Establish that technically we are equal under the law.
Section 15 - exists to protect the dignity and worth of individuals. No other provision is as intertwined with the notion of human dignity as s.15. Often referred to as the equality provision it can be divided into two sections: accomodation of difference and protection from discrimination. Sometimes equality issues cannot be divided up in such a simple matter and instead require interrelated responsed. Not just equality under the law, it's looking at how groups are disproportionately marginalized and how do we react to that and create policies/laws to reflect/address/remediate that. Rights of minority vs. majority. Opening a story on sunday - say a minority religious group wanted to close stores -
Substantive Equality equality under the charter does not mean merely equal treatment: equality in its substantive meaning is aimed at eliminating treatment which, though equal, has a disproprotionately neggative effect on certaing roups of people who have suffered a historic disadvantage. Because groups don't start out on equal footing, equal treatment can serve to maintain and exacerbate existing inequality. farmer charged with 2nd degree murder. Acquitted. Extreeme backlash form first nations community. Pissed off. Issue: had to do with jury selection. The crown and/or defense that they can exclude a certain amount of jurors and dont have to justify it - why was there not any form of representation of first nations? Objective of diversity within panel: have to take into consideration that there are multiple perspectives. Key: preemptory selection strategy in court system that allows prosecution/defense to eliminate without justification. All white jury acquits this farmer.
This implies that govt who enact rules that discriminate against groups who have had a historical advantage (white/anglos) over others who, because of their race, sex, disability have been unable to participate fully in society, will not offend s.15.
Conversely, rules which apply equally to all indivudlas, but which have a disporoprtionately adverse effect on a historically disadvantaged group can be struck down by the court under this provision. We're trying to equal the playing field.
To demonstrate a violation of Section 15. There has to be criteria that the courts determine that there is a base for a claim of discrimination. Have to consider:
Somehow a distinction was made by the law in question. Somehow you were denied the equal protection or benefit of an existing law. Signing something that says you're Pro Choice. Some dont agree, some want a consensus.
A determination of discrimination will focus on the impact of a rule on individual with consideration give to the broader historical, economic, and societal context. Some kidn of context.
Second, the inididvual must show that they are among one of the designated groups and the above denial was a result of their membership in that group. You have to show you are one of these groups.
The above groups - race, sex, disability, etc. are not exhaustive and other grounds of discrmination such as unequal treatment based on sexual orientation, have been included as analogous. Those groups are not exhaustive. People can fall into multiple categories.
What's the point? Technically, ues. WE have a charter. If you want to demonstrate you have been violated, there is a system there.
Summary: Overview of pre charter era, explain how charter was born, explore the purpose and significance of the charter and respective sections, main concepts - reasonable limits clause, purposive document, constitution, substantive equality, search and seizure, freedom of expression/religion, Keegstra.
[TED Talk] - What Rights and Freedoms? Laurence Watt TexxUBCO. One perspective.
Anti-terror legislation and political apathy. World is full of fear. Governments have been passing anti-terror laws. Bill C51 - Anti Terrorism Act. It's not primarily antiterror legislation - any behaviour that can undermine or is perceived to be a threat to Canadian security. 1. Canadian information sharing act - collect and share any info on Canadians. 2. Amends criminal code - lowering threshold of preventive detention from will commit a crime to may commit a crime - can arrest/detain someone without due process and without ever committing a crime. 3. expand power/scope of CSIS. Originally was only collect intelligence, but with pwoer will be able to physically disrupt. All govt agencies to collect/share info on people. Will to may commit a crime - can arrest/detain someone up to 7 days without right to due process and without them actualyl committing a crime. Allow CSIS to physically disrupt - usd to just collect data. Can be used to target First Nations, environmentalists, political descent. More likely to die from not terrorism. Terrorist attack thwarted without mass surveillance. Political apathy - dont raise our voices, dont vote - hand over our right to governance. Become a politically engaged public. Should be taught to memorize our charer of rights and freedoms. Not how law works, but how we can change our laws. Taught to live in an efficient deomocracy. Politically engaged public that knows the means to make change. Reforming education. Technology to politics - online voting system. Use social media to set up polls. We should know what govt is up to. People in parliament use snapchat. RateMyRepresentative. Invest on smart fruit, not smart weapons. End poverty. Intention: inform, to raise awareness, not to win. The power to say no -> freedom.
OUr rights are being eroded. Not issue between you and me, issue between state and public. Relationship between charter and political apathy and the development/implementation of particular laws that we've seen that are targeting particular groups.
Lecture 13: Feb 26, 2018
Avg: 70%. 11: 90-100. 16: 80-89. 22: 70-79. 28 < 59.
TedXTalk: Our rights, freedoms are being eroded. Even though our society has a rights discourse, but it's being eroded. Main point: bill overextends discretionary power to agencies (CSIS). Agencies: traditionally to gather information, but now powers include interrogating, adminsitrating the law. Powers have changed- given them more authority, leeway, leads to certain violations. Other broad impacts: environmental protestors fall under terrorists, first nations trying to protect their land. Anyone protesting could be found terrorists. Political apathy - people are starting to care less and less about politics - that affect you on a day to day basis. Solutons: having CR+F indoctrinated into school system, technology and politics - electronic voting, social media to engage. Social media - tending to solicit others with the same mentality - not open to diverse ideas. Doesn't spur critical thinking -> spurs groupthink. Have to understand charter. Are people apathetic or disenfranchised?
Civil vs. Criminal system.
Obbjectives: outline all steps in a civil action/litigation. Explore key concepts. Identify/discuss the basic principles underlying tort law.
The majority of civil cases actually never make it to trial with the exceptions of small claims cases where damages are under 10k. It's very costly and time-consuming. It can put you out a lot of money. Will you get paid? 1999 - gentleman attacked by 2 men, got damages of 70k. Problem: the perps filed bankruptcy - how do you get money from bankrupt. Could not get the 70k. Courts have changed it now - it doesn't matter if bankrupt, you still have to pay it. If you're gonna file civil suit, file it based on principle. Might be dif if vs. agencies. Chances are you won't get paid. Most often or not, the goal is to get that case solved, finalized, with some kind o fresolution before you go to trial. Expidite, make system efficient, decrease backlog. Case is either gonna be screened out. Forced to come to some kind of settlement. System also screens out cases, forcing plaintiffs and defendants to settle.
Steps in civil litigation process(Superior court level) :
2 ways to try to dissuade parties from proceeding:
May have in-chamber meetings. Each party comes to discuss the case. Much of the process happens before you enter a courtroom.
In-chamber meetings: lawyer can approach the judge. Judge will look at all information available. A settlement cannot be obtained, so lawyers have to explain why. Judge will question the merits of the case, point out weaknesses, and pressure both sides to come to an agreement. This is not a trial. Just trying to not go to court. Settlement is always better. Judges may request payment to the court by one or both parties to covr the costs of the other parties legal fees - used to discourage people from proceeding and to settle. Criminal is invasive and traumatizing - judges will discourage. Cut down number of cases.
Another option: defendants can make payment to the court if they admit to lesser damages than claimed by the plaintiff. If the judge rules that the damages are what the defendant has agreed to pay, they may award the costs to the defendant.
want to proceed on principle, as you're not going to get any money.
Lecture 14: Feb 8, 2018
Courts discourage backlog. Make sure you have legal resources and time. Discovery: want to be transparent, don't want any surprises.
Two alternatives: 1) In-chamber meetings/A settlement conference - judege looks over merits of the case - whether or not will proceed with the case. 2) judge looks at: how has the defendant responded to the claim, has either party been fair in understanding/open to a settlement. What happens when there's a rejection of an offer? Judge: let's be fair, if someone is willing to settle with you, settle. You're punished if you reject a fair settlement. Rejecting offer to settle pre-trial: The judge may order extra costs against a defendant who rejects an offer to settle when the judgement at trial is as favourable as, or more fourable than, the platiff's offer to settle, or.. the judge may order costs against a plaintiff when the judgement is as fabourable as or less fabourable than, the defendant's offer to settle. Case example: defendant makes an offer to settle for $850 plus costs. Defendant is the respondant. Look, I am willing to come up with the costs and pay you a certain amount of money to settle this, settign aside guilty or not. Offer is made in writing and is served on the plaintiff more than 7 days before trial. The plaintiff does not accept the offer to settle. At trial, gonna give the plaintiff $750, then the defendent shows the judge his offer to settle, the judge awards the defendant costs of $100. Punishing the plaintiff for not accepting the settlement.
At this point, everything up to the trial.
If 2 options not possible, go to trial.
The trial - similar to criminal trials - testimony, cross examinations. Can be heard in provincial, appeal, and supreme court. Heard by judges unless a personal injury case and then a jury can hear the case. In a civil case, compared to criminal (12 jurors), only 8 jurors. In order to have an outcome, 6/8 of people have to be in agreement after 3 hours. There are strict rules of evidence that have to be folllowed - your lawyer may not use leading questions by the other laqyer can while oding cross examination. Hearsay evidence is not admissible - not allowed - anything that's discussed outside of the court/case that cannot be included - "I thought I heard Doug say this. My uncle said this" - It has to be what you said specifically. He said/she said doesn't count. "mary said that bob said". It has to be direct communication with the other party.
The Trial: a formalized procedure.
Small Claims Court - typically looks at claims of $25k less (used to be 10k less). Plaintiff is goign to file an action against the defendant. A broad statement of the complaint. Document is served to the defendant, they have 20-21 days to respond back. Otherwise you end up with a default judgement. Defendant responds and a coure appearance is scheduled. Small amount, don't need legal representation/lawyers. Judge takes active role in question and cross-judgement made on the spot. The civil system mimics criminal law. If we don't like a decision, can file an appeal.
Appeals - have to do with whether or not there was a misunderstanding of the law itself, including the procedural elements of the law. Appeals only made on qurstions of the law but not based on questions of fact. If error in law has occurred, then an appeal may be granted. Costs of appeals are prohibited since transcripts alone can run into the thousands of dollar. The appellant launches the appeal and the respondent replies to the action. Courst do not have to rationalize their reasoning for turning down an appeal - same in criminal system. Appeals can be turned away and not heard. If they hear an appeal, 3 options: uphold the decision, order a new trial, or overturn the decision. "This is not actually what the law is saying." The substantive element within the law - not how the law was applied/carried out, but what was in the actual nature of the law. "Well the law doesn't explicitly say this."
Enforcement - how do we guarantee enforcement? Make sure people get their money. What if they go bankrupt? If your defendant is broke, no assets, no wages. It's difficult to get money from them. The winner mus ttake steps to get their money. A certain amount of your wage from employment is taken off of paycheque (garnished wages) - but courts also have a thing where people have to have money to sustaint hemselves. Cost of action may not be worth the reward if the defendant avoids payment. Even in million dollar civil suits, if you divide between all of the people, you're not getting much. Erin Brokovich chromium 6 in water - 30-100mil, break down on townspeople - a) how do you put value on people's lives, b) divide between all, it's not enough. Great for sending a message, but for compensation, nah.
Basic principles underlying Tort Law: A tort refers to a breach of legal uty with libaility for damages. A private action between 2 parties. Torts are used in absence of a contract. A tort action is an attempt to use the civil law to bring a private action to seek compensation for the injuries/harm suffered. They're compensatory - compensating with money. Torts are attempts to compensate for private wrongs between two parties. Criminal system - state against accused. Civil - party against party. Not looking at how indiivdual has offended the entire society, we have a lesser degree of punishment/sentence and a lesser degree of proof - balance of probabibilities.
We have different types of liability. Strict, vicarious, and joint liability. All we need to establish in order to prosecute/convict somebody is actus reus - only have to establish that someone committed the actual act. WE use objective fault - use reasonable persons test to determine the liability. Some behaviours are governed by statutes that do not require the plaintiff to prove that the defendant was at fault. Simply committing act makes the person guilty. These offences are known as strict liability. Subjective fault - we ourselves should realize that the nature of our conduct produces certain risks. Objective fault - not what they intended to do, but what they should have done.
Vicarious liability - individual is responsible for the action of others. I'm living vicariously through you - living/action through another person. Staff in your employ or under your command. One of your employees who works for you contacts a coworkers 2nd employer to discuss their disability. Breach of privacy act. You can't discuss disability with anybody. The employer is responsible - both connected to same employer, a matter to do with work.
Joint Liability - several people are held jountly responsible for the harm committed. You're responsible for them, they're responsible fo ryou.
Court Judgements - REmedies - If a defendant is found responsible for plaintiffs injury/guilty, the victim can receive damages - financial reward or compensation to redress harm or loss suffered by plaintiff.
Part 2: Tort LAw
We have soemthing called unintentional negligence. There's a less severe penalty. There is a lack of moral culpability there. Claim of intentional or unintentional negligence. Conversion - found innocent of murder in criminal court (no jail time), but guiilty of wrongful death in civil court ($$$). Defree of fault: lower burden of proof, balance of probabilities - likelihood that something happened or didn't happen.
Types of Torts: Intentional and Negligence. Intentional Torts refers to actions that are willful, deliberate, and conscious. The person need only intend the act and not the harm that results for them to be liable. It's only necessary to establish they intended to do something. Pushing someone and they break arm - irrespective of what broke.
Inadvertent Negligence - actions that are inadvertent rather than willful or deliberate. It still happened so you'll still be prosecute. We're seeing a rise in criminal negligent cases. 5 core elemtnts that must be present for a negligence suit to be successful.
Defenses to torts - in certain incidents, defendant could not reasonably ofresee the tanger - accident. Had no control over the incident. Event could not have been avoided with the greatest care and skill. Even if you were a pro, you still couldn't prevent it form happening.
Contributory negligence/prejudicial conduct - it was th evictim's fault. Mary was really drunk and was standing by the pool, and there she goes.
One did exercise due care. Accidents happen, ok.
Necessity - self preservation of the reservation of others. E. trespass t o avoid physical threat. I had to run onto property to escape a serial killer.
Lack of causal connection - muddier. Novus actus. Intervening act. Sometimes something happened in between that makes it difficult to establish whether or not there was guilt.
Lawful authority - as defense to assault when police officer uses force to make arrest
Self-defense/defense of property - i can shoot you if you're on my property
Consent - exempt liabiltiy when the victim consents to the actions of defendent. Boxing match.
[reasonable person test] - what is this? i missed it. lol
Voluntary assumption of risk - a list of exceptions where you cannto seek damages. Victims disqualified from seeking damages.Courts relectant to use this against a vicitm unless he/she also gives up any claim to damages. If you are with a person in a stolen car for a joyy ride and get injured, you may still sue the driver unless you actively encourage him/her to drive dangerously or fail yo complain about their driving. You voluntary assume risk.
A civil case starts when one person files a complaint with the court. That person is called the defendant. FALSE
The case would be written as Plaintiff (Jones) versus Defendant (Smith) TRUE
The burden of proof in a civil case is on a balance of probabilities which means that it is mor eporbable that one side is right. TRUE
The penality in a civil case is imprisonment rather than a monetary award in the form of damages. FALSE. We dont' typpucailly imprison.
Claims of 10k or less are heard in small claims court. TRUE Now 25k.
Last week: Question of fact vs. question of law - in terms of an appeal. When you want to appeal, it has to be a question of how the law was interpreted, now how the evidence was interpreted. I murdred somebody (I'm relaly violent, obviously). I give my friend Billy carpet burn. I drag my friend Billy across the carpet. It's terrible, isn't it? Billy develops sores on arms/back, leads to infection, he gets sick. Would that constitute 'assault'? Question of fact: did you really drag billy across the carpet? Did he really receive those wounds from carpet - cannot use for appeal. Question of law: is this constitutive of assault? Negligence? careless driving? sexual assault? strict liability offence?
Lecture 15: Mar 5, 2018
What constitutes a contract?
Objectives: What is a contract? Elements, compoenents, principles underlying transaction? What do we need to be able to say something is a contract. What are the elements to make it valid? Might have one that's not valid. What if you breech the contract? What are the damages?
Definition of a contract - It's an agreement between two or more parties that is binding in law. It's better to have written than verbale contract. It generates rights and obligations/responsibilities that may be enforced by courts. It's a transaction, reciprocity. How do I make you stick to it? I'm gonna punish you if you don't. If you don't fulfill, I will recuse my services or ask for money. An action for financial damages for breech of contract. In som ecases, it's not tha tyou have to give monetary damages, but that you have to complete the job - compel performance. Jduge orders you to finish the job - non-monetary.
2 Types of contracts: Simple a transaction. Go to store, agree to purchase item, pay for it, receive it.
Principles that underly a contract. 6 basic principles:
Components of a contract - TErms - statements, promises, stipulations made. These have to be present in order for this to be a proper contract. We may have exclusion clasues - developed to minimize or exclude one party's liability. Exclude or financially limit one party's liability for breach of contract, misrepresentation, or negligence. husband and I have prenup - if he has an affair, he will not get a fortune of my wealth. Exluded from obtaining any assets/wealth. If somehow you contributed to your own negligence, contract with Mary - I'm going to purchase this product, if it's damaged, i"m gnot going to accept that. What will be included is Discharge - how is it going to be ended/finalized. Discharged through performance (perform what you agreed upon), agreement (come to some kind of settlement), frustration (contract has expired, terms have been exhausted), breach.
5 elements of contract to signal validity. Having components doesnt make it valid
Vulnerability and Undue Influence - Validity - most of us are passive agents, can't change/modify a contract. Segments of society are vulnerable to exploitation and require special protection. We don't all have access to resources. Our ability to bargain are nullified/limited. Their freedom to bargain and enter into legally binding contract has been limited or elminated completelyy. Undue influence and misrepresentation of fact are considered a wrongful act and affects valididty of contract - gun to head. Vinvoles one person having power over the other - equity principle. We're trying to create equal playing fields.
Cellphone companies- contracts. Penalize you for breeching.
Remedies - Damages ($$$) - Quantum Meruit - claim for reasonable remuneration as much as he/she deserves. You can claim for unusual or unexpected lossess - have to be reasonably foreseeable (by breeching party) a tthe time of signing the contract. If not, then it will not be included in award. Damages can be adjusted if the plaintiff fails to limit lossess - you contributed to your own negligence, brings contract to disrefute, courts are going to adjust accordingly. Common in cases of contributory negligence - plaintiff contributes to losses themselves, contributed to this particular outcome.
Remedies - Nonmonetary damages - Injuction - Used to make that person stop doing something that is an activity, conduct that is inconsistent with the terms of the contract. Prohibition of continuting in certain actiities such as Producing goods without patent/license, advertising another person's song or iamge, trespassing on private property. Twsift claim Kanye used an image in one of his videos. Kim found a message that proved that she did give consent. The lives they lead. Injunction on Kanye that you can't use this image. May seek compensation because made money off of music video. You need to stop walking on someone's property.
Specific performance - nonfinancial/compensatory scheme. PArties are ordered to finish the work. Mike Homes - contractor takes partial payment, starts job, leaves. Judge could order them to finish the job. Typically used when hard to place a monetary value on someone. When damages are not an appropariate remedy. Exceptions for when you cannot use specific performance: If that performance causes hardship (George can't finish cause lost 2 legs), contract is vague or onesided (ambiguity - don't even know what the job entails, what were the activities in question), lack of mutuality between parties (did both partis come to an acceptance), plaintiff acted in bad faith. How do you ensure quality of work?
Summary: Learn to define and udnerstand the various compojnenets of a contract. What elements are required to make if valid. What are the guiding principles? The types of remedies disposted by the courts (damages, injunctions (4 types), specific performance).
Objective: principles, explore categories/division of offences. Undersrand the requisities to convict. Examine core legal tests, Activity - Case Law 1 and 2.
The Criminal Law and Criminal Code of Canada -The CCC is a Federal statute that applies uniformly throughout Canada. Deivided by categories. All categorized. There are offences that can be committed outside Canada as well (treasin, genoicide, terrorism, child sexual abuse). Criminal record - get by violating the law. CCC, Controllled Drug Act. We also have juvenile legistlation, the youth Criminal Justice Act. Iniidvudials from age 12-17 would be incarcerated under the juvenile system. 17 - Homocide 1 - can be transferred to an adult court. Can be transferred if it's serious.
Division of Offence Categories:
1) Summary Offences - Tried before a provincial/terrotorial court. The max penalty is usually 2k fine or prison sentence of 6 months of less. Processed much faster and efficiently than an inditable offence (more violence to begin with - investigate, review evidence, etc.). Include offences such as motor vehicle theft, fraud, public nudity.
2) Indictable Offences - typically seruous category. Involves an indictment - a document that's going to detail all the charges against the occused, which is signed/authorized by Attorney general. Because of seriousness of offence, they may elect to have their trial heard by privincial or a superior court. There is a preliminary inquiry - hearing where we establish who has got what evidence - scope of evidence.
5 categories of seriousness by length of prison sentence available (2, 5, 10, 14, life). Most prison sentences listed in CC are maximum sentences and there are a few minimum sentences. "You will face a penalty of up to a maximum of 5 years." Mandatory minimums - targeted at drug offences, firearm possession. First degree murder has a minimum life sentence with parole eligibility set at 25 years. Sometimes day parole, or full parole.
Lecture 16: Mar 7, 2018
3) Hybrid Offences - Mostly tried by summary conviction procedures. Up to the crown on how to proceed. Look at seriousness, circumstances, evidence, then decide which category going to prosecute with. Typically it's summary. The cinviction has to happen within 6 month time period, do not have to give finger prints, tried in a proviincial court typically, can apply for a record of suspension Assault, theft under 5k, fraud under 5k
Another set of offence categories - 3 categories of criminal offences.
A cirminal conviction needs to establish intent.
2 elements of an offence: actus reus - the act itself - did it occur. And mens rea - the intent. You must prove both and at the same time. Simultaneity between the two.
Actus reus - prohibited harm and can be an act or omission and which must be voluntary.
Mens Rea - interested to know what did the person have in their mind at the time when they committed the offence. The guilty mind. Person's state of mind.
Committed Actus reus, but did not intend to bring about the harm. Regulatory offences only need actus reus. But not for Criminal law
You also have to prove causation. Important to knwo that the two events - there has to be a correlation between the intended act and the consequences. Correlation is not causation. Timmy gets into a bar fight. Punched in head by Bouncer. He's knocked unconscious. Once transferred over to hospital, placed on gurney, then he falls off and hits the floor. How difficult would it be to determine what caused his death? Was it the blow from the bouncer or was it him falling off the gourney. Go after bouncer or medical negligence. Causation does not equal correlation. The crown must prove that the accused committed the act and did so with intent. Prove that the defendant's behaviour actually caused the consequences (part of actus reus). Show that there is a positive effect. Factual causation - if the crown can prove that but for the accused's conduct. But for the actions o fhte bouncer, timmy would not have died. But for the accused's conduct, the prohibited consequences would not have occurred. Once we have this, we can establish legal causation. It is up to the crown to prove this causal link.
Need to establish Voluntariness - must be demonstrated. Have to show that the accused conduct was voluntary. Child soldiers - forced into a situation they had no control over. Have to establish they are physically/mentally capable of doing what they did and acted of their own free will. They have to have the capacity - mental illness, children. Excludes cases of involuntary reflects, convulsion, or bodily movement during unconscious state or sleep. Sexually assaulted someone, claimed they were blacked out and not aware of conduct.
Presumption of Fact - mens rea is difficult to prove. courts assume people are rational and that we can foresee the consequences of our conduct. General Rule: if someone makes the conscious voluntary decision to move forward despite the fact that they know the risk, then the courts will presume you intended to commit the act. Excludes mentally unfit, minors. But how can courts measure intent?
You're innocent until proven guilty, and the burden has to establish reasonable doubt.
Apply the REasonable Persons Test - you have to be able to put yourself (judge.jury) in the accused's place and ask what would a reasonable or prudent person have done under the same circumstances? Would you have acted in the same manner? In order to assess intention. Alternative question: what would a reasonable person have foreseen and intended from their actions? Test to establish mens rea. The common law presumption that people engage in certain conduct - must have intended the natural and porbable consequences of their actions. People calculate what will happen.
Why is mens reus so difficult to establish? We have to infer -> Inferences into Intention - court is free to interpret/infer what one intended - however they like. Subjective process. Law states that the jury may also draw inferences but are not required to. Question of what we think one might have intended. We allow the accused to defend themselves by epxplaining their actions and the courts are free to believe them and their acquit.
In Class CRP: simultaneity of mens rea and actus reus. Does the act and intent occur simultaneously? Decide whether or not there was intent.
Does the act and intent occur simultaneously? For both.
Case 1: Dan vs. Vickers. Malfunction -> no intent. No sign of regret/concern -> intent. did not exercise duty of care. Omission - committing criminal offence. What were the remarks made - could infer intent from these. He was capable of moving car.
Case 2: Indignity to corpse. sexual assault. Clearly knowing they cannot consent. No intent with corpse. Intoxicated - foreseeability of consequences. Can't technically rape a dead body - it can't give consent.
Case1: at the time, had no mens rea. When had mens rea - to leave wheel on foot - no actus reus. No coincidence of mens rea and actus reus. Did not occur sumultaneously. Court did not accept. The act of not doing officers request - both.
Case 2: Ladue argues not conviced - no intent for corpse. Thought she was alive. Did not accept it. Problematic: could not use a defense which is an admission of another offence. If we accept Ladue's position, he was engaging in sexual assault. You can't use that defence to get out of offence.
Lecture 17: Mar 12, 2018
Principles of Criminal Law Continued...
Intentionality, Recklessness, Criminal NEgligence, Strict and Absolute Liability under Regulatory offences -do not require actus reas/mens rea.
Objectives: Different forms of intentionality, absolute and strict liability, defences in criminal law.
Forms of Intentionality (mental element) various degrees of intent.
Most serious form of mens rea is intentionality. The accussed commits crime knowing that it is wrong and intends to cause the consequence. (We can't criminally convict someone if they don't know what they're doing is wrong. Must establish that they knew what they were doing was wrong.) The person foresees consequences (if I do this, it is likely that this will result), acted with forethought and malice and premeditation (they planned this). The offence of 1st degree murder is the highest degree of culpability and receives the harshet sentence possible (life in prison with no chance of parole). (Intention is at the top.)
Where does Recklessness fall on this hierarchy? Also a form of mens rea, per section 421 of CCC. This is a total indifference to consequences of an act. (Less intent, but I'm indifferent, shrug off that my actions could bring about harm.) The accused knowngly takes adeliberate inexcusable risk and is thus reckless in his or her actions. If I have a gun and start firing against the wall, on the other side, my neighbour is shot. I'm not intending to kill my neighbour, but by doing that, that is reckless. 2nd degree murder charge. Life with parole or no parole. HOw do we determine recklessness?
Needs to assess according to a standard - use the Reasonable Persons Test. What would a reasonable person acting prudently (someone who takes care) have foreseen? (This is what the ocurts will use as a standard in test - jury or judge. To create some kind of unified standard to evaluate/assess someone's culpbility.) Clearly if I'm shooting at a gun at the wall, I can foresee that something negative is gonna come of this. Culpable homicide and arson both include the wording 'reckless' in the CCC provision. REceive a maximum of life imprisonment (25 years).
Third category: Criminal Negligence - causing bodily harm and causing death. Another form of intent, but less serious than recklessness. indifference to the consequence of an act. Implies inadvertence and means that the person was not thinking when they should have been. This refers to what we call a DUty of Care - in the CCC 229 - Duty under the law. Negligence can arise through acts or ommissions if the accused was under a legal duty to act. Section 215 CCC - parents and guardians have aduty to provide necessities of life to a child. Not reckless, but negligent.
Certain cases where we don't have to establish mens rea.
Historically, regulatory offences were considrered offences of absolute liability. environmental Act (Create sets of provisions that we are supposed to abide by to keep certain aspects of our society flowing, allows us to do things safely in the best interest of society). With old system, we had absolute liability, the Crown only had to prove actus reus elements of the offence. You polluted that area, you shot that animal. The courts did not permit any defences to the offence (you had no defence, you could not defend yourslef). The dfendants could not argue they were not at fault (you couldn't say you did not do something). Store owner, you sell baby formula to moms. LAter find out that baby formula is tainted. Children are sick, dead. Under absolute strict liability system, you are liable. You are a store owner, you assume a certain degree of risk. The fact that you sold it, makes you responsible under the law. The point of regulatory offences is to protect against those harms/dangers, need to send a message that we have a unified set of standards and live up to them to protect the public's itnerest.
We have shifted from absolute to strict liability . Where you are allowed to defend yourself. R v. Sault Ste. Marie 1978 - city convicted of pollution offences when shown that garbage it had entrusted to a private company was dumped on a site where chemicals leaked into the water. The case went to court, SSM was convicted, but later overturned. Gathering referrals (company is reputable), checking ID for cigarettes With a strict liability system, we can allow them to defend themselves with the dfense of due diligence and argue that it had taken reasonable precautions and was not guilty. (The only was is through due diligence.) Result of SSM case: See a difference in courts. The lower court is trying to uphold Absolute liability. The court of appeal narrowed that scope and said it was an offence of strict liability because they were able to establish due diligence. This case resulted in the demarcation of 3 categories of criminal offences in Canada: 1) real crimes (actus reus and mens rea); 2) strict liability (actus reus, but defendants can avoid liability by showing due diligence; 3) absolute liability (actus reus, no defense permitted)
Break in - possession of break-in instruments - Strict liability, only need to prove that the tools for break in are present. Intent is presumed from the possession. The onus is on the accused (reverse onus) to defend oneself from the charge. Differenc ebetween contractor who has a set of tools vs. someone lurking around at night with tools on them. (It's strict liability in the sense that the person has the right to defend themselves against the charge)
Care and Control of Motor Vehicle - it is a crime to be in care and control of a motor vehicle when one is impaired by alcohol or drugs with a blood alcohol level of 80mg or above (.08). The crown only has to establish that they were 1) in care and control and 2) impaired. We have to have offences like this where there is a reverse onus because of the offence. The crown does not have to prove that one intended to drive.
Your friends are drink or sober place you (you're drunk) in the driver seat of the car. Keys underneath seat, parked on private property, sleeping.
2 different rulings of care and control: R v. Pilon (1998) simply possessing keys even if sleeping off intoxication and keys are beneat the seat of the car constitutes care and control. There's still an opportunity for something to go wrong. as opposed to... R v. Tows (year) - drunk and asleep in a sleeping bag in a truck on private property did not constitute care and control. On private property, whcih implies that they wer at a party and decided to stay. Sleeping bag so they planned to sleep in truck. He inteded to sleep off his intoxication. What if he wakes up and decides to not sleep anymore and drives drunk? Depends on the judge. Applying same legal concept but subjectively interpreted differently.
Justifications for Offences of Strict Liability - We know at some point, somebody intended to do some kind of harm. There was intent at some point. We can't just let people off. Have to hand down some kind of punishment. Justified on grounds that earlier bbbehaviour of the accused was culpable and voluntary and included the guilty mind, even though certains ections of the CCC alows courts to convict someone of a criminal offence without having an intent to commiti the prohibited act. Impaired drivers consume alcohol with the knowledge that their ability to drive may be impaired before they even enter a vehicle. Unless stated otherwise, the courts are likley to rule that a statute is one of strict liability. Few esist today, struck down because unconstitutional. It's unconsistituional that one can't defend themselves.
Fall under the area of public welfare statutes. Advantages of Public Welfare STatutes - safeguard public interests, protect against big players (people who have resources to circumvent rules of society). A more expedient, efficient system - do not have to prove mens rea. Small penalities such as a fine or 2 yr prison term (quasi-criminal). (Tells us what you did is wrong, we're gonna punish you, but if we compare you to toher cases where there's intent, we can't compare you, so we're going to lay a sentence that's harsh enough to send a message to you and the wider society, but not harsh enough to leave you with a stigma. Balancing deterrent efect.) Less stigma. Provide incentives for companies to take care through precautionary measures to meet regulations in place. (If you don't abide, you're gonna be punished.) Smooth functioning of important segments of our society: trae, commerce, industry, pollution, traffic. (Creates a standard that is uniform. It's transparent, people know what regulations/acts are. If they wish to contravene, they have to suffere the consequences.)
Critique of REgulatory Statuses - punishing poeople who have no mens rea or moral culpability. There are no defenses for asbolute liability - violates section 11 d of Charter d) to be presumed innocent until proven guilty, according to law in a fair and public hearing by an independent and impartial tribunal. If we're overly regulated, people would argue that we may be subject to admministrative oppression and petty tyranny. (Undermining our entire democratic system, criminal justice system in its principles.)
Case Example: R v. Pierce Fisheries Ltd 1970 - How would you rule?
Pierce Fisheries charged under the Lobster Fisheries REgulations Act with having possession of any lobster of a length less than the specified min size. In a catch of more than 50k pounds of lobsters, an inspector found 26 under sized lobsters. The dfendant company argued that Perice Fisheriers had no knowledge of undersized lobsters being on the company premises. The president of the company had instructed his employees not to buy undersized lobsters. Consequently, the accused contended that there should be an acquittal because there was no mens rea.
Based on the key concepts learned in class today, please answer the following, based on R. Pierce Fisheries Ltd: How would you rule if you were the trial judge? Is this a case of strict or absolute liability? Should Pierced be punished and how so? Please think abou tthe following important ideas: The objectives / goals of regulatory laws. Best interests of companies, communities, government, the law, society as a whole.
Lecture 18: Mar 19, 2018
Avg: 71%. Exam is not cumulative.
Last class: R V Pierce Fisheries - Class response: minute percentage - wasn't enough justification for go over. Some said more of management than legal issue. Most talked about that intention is to protect a very important ecosystem, cutdown on overfishing/premature harvesting, this is a commmunity's livlihood. Outcome: ratio: it's an offence of strict liability. Not absolute. Allows you to defend yourself - prove you exercised due diligence. 2nd) Lobster fishery regulatios - intended to protect. 3) conserving the source of supply for an important fishing industry is of genreal public interest. Function: protect public interest.
defences should you be accused of a crim.e Explore a variety of defences. Compulsion, automatism, necessity, provocation, drunkenness, self-defencse - battered wife syndrome (BWS), Mental disorder. There are others, but we focusing on these.
Defenses to criminal charges - In order for us to understand criminal defenses, we have to look at our criminal code and precedent in case law. What it takes to defend yourself, what kindo f evidence you need, requirements, precedent (past cases and what judges have decided). Many defences aim at the mens rea component of an offence arguing that the accused did not have capacity for form criminal intent, or diminished criminal intent (in order to defend ourselves, establisht o the courts that we did not intend or lacked the capacity to understand the consequences of our actions. Look at mens rea.) We will look at a variety of defences used in criminal trials.
1) Compulsion - The law does not recognize inner compulsions such as psychological drives or irresistible impulses. I argue that it was compulsive/reactionary on my part that brought about someone's death. The law does not accept irresistible impulses - it's a psychological drive - we do not recognize that. What we will accept is compulsion by threat. Known as duress - when an indiividual is faced with 2 options and have to chooose between 2 evils, commmit crime or face serious injury/death. Threat has to be immediate/imminient, only used for less serious offences, belief that perpetrator will likely carry out the threat. Your defense: you are essentially defending yourself from someone because you perceive a very real, imminent threat. Temporal element there. There are exceptiins to this defence (refer to CCC).
What do the courts have to consider? Are you allowed to use this? Critical consideration: 1) did the accused have any alternative course of action? COuld you run away? turn your backs? gone in a different direction?; 2) Was there another safe avenue the accused could exercise in lieu of committing the offencE? Was there a safe alternative that we could haev exercised?
(In cases of duress, chances are that the sentence is gonna be mitigated (dropped down to a lesser charge).) If one did commit a prohibited offence, under duress, sentence is mitigated.
2) Automatism - also known as involuntary conduct. It's a state of impaired consciousness in which an individual though capable of action, has no voluntary control over that action. (This is not amnesia (a loss of memory). someone has no voluntary control over their action) Sleep walking Best illustrated through case law - R v Parks 1992. Falls asleep, at some point, drives to home of in laws, beats them up, stabs them. Father survived, mother dies. Charged with murder. At court, his defence was that he suffered from a state of automatism (impaired consuousness) as a result of a sleep disorder. At trial, people said that he did not have a strain in relationship with in laws. Had family members with extreme sleep disorders and he had a history as well. 1) History, 2) had a good relationship -> they stood up in this case.
Outcome: acquitted on account of automatism. On the basis that it could not be established that he had the requisite mens rea (intent to murder). Ont Court of Appeal upheld the acquittal and the SC said no to the Crown's appeal. History is very important. It's very rarely used. You will be acquitted if there's not enough evidence to support the intent. This is rare because there are very few people with automatism. Be careful we don't use it too loosely as a defence. So people don't use this as an excuse. If acquit you, you walk through. No restrictions for you. Mental disorders - you might need treatment after. No recourse here. If later find out he wanted to murder, cant' go back on it.
3) Necessity - refers to cases in which the accused can avoid some harm only by breaking the law. Had to trespass to get away from someone trying to chase you with a knife. Evil comminitted in breaking law less than evil sought to avoid. Trespassing is a lesser evil than the stabbing. It's a choice between two perils, choice is involuntary therefore no mens rea. Crappy alternatives, diminishes your capacity to make a choice. Was not voluntary. oOnly applies to circumstance sof imminent risk. Has to be a temporal risk. (Different than BWS where temporal risk is not immediate) 3 elements to this dfeence: imminent peril/danger, abscence of alternative (choices diminished -> voluntariness diminished), proportionality of harm infliced (lesser of two evils).
Key cases: R v Dudley and Stephens (1884) - to survive shipwreck, killed and ate boy's flesh. All 3 couldn't survive, resulted to cannibalism. Only way to survive R v Bridges - indidivudals who violate a court order against abortion pro choice activists who argue necessary to interrupt services to protect unborn child. They had to interrupt the services through protesting in order to protect the unborn child. R v Morgentaler 1975 - argued that he had to as a necessity to perform abortions, otherwise women would use unsafe ways to terminate their pregnancies R v Latimer 2001 - father has a disabled child suffering, takes her life to end her suffering. Mercy killing. He was convicted and sent to prison. Courts disagreed. Ecxept for morgentaler, everyone was convicted. Mercy killing - father is thinking about long-term suffering vs. short-term suffering. Partial defence - can't acquit you but can mitigate it - dropped down to 2nd degree.
4) Provocation - CCC 232 (1, 2, 3). Far more complicated process of determination. Only applicable in cases of murder - drop charges to manslaughter. Dif between 1st degree and manslaughter . (1st - premeditated, 2nd - no premeditation, manslaughter - crime of passion). 2 questions of fact we have to establish: 1) whether a particular wrongful act of insult amount to provocation (has to be outside the normal bounds of human reaction, have to be told something pretty heinous/evil/malicious/traumatic in order to constitute provocation); 2) whether the accused was deprived of the power of self-control by the provocation that they alleges they received (what extend/degree is individual deprived of power and self control as a result of this provoking/taunting).
Exceptions to provocation - you cant use this defence in cases of assault, you cant bring about your own provocation (can't provoke someone to insult you). You cannot be provoked on grounds of illegal acts/lawful act. I murdered my spouse because they wanna divorce me. Can't because getting a divorce is legal. They have the legal right to divorce you and it's not a wrongful act or injury.
3 tests of provocation:
Case of infidelity - Commont ype of provocation accepted by the coursts is adultery. It is a wrongful act that may lead a person to kill in a state of passion brought on by the provocation. The dfence would only succeed if the murder was committed shortly after the offender learned of their spouse's infidelity. Why/how would this be critiqued by feminists? People cheat. But can we justifiably use provocation as a defence to mitigate/diminish our culpability? It's commonly accepted. How would it be problematic? Often a defence used by men who kill their wives/partners/girlfriends. Victimiziton rates for women are far higher. It is disporoportionately used by men whoa re accused. He cna testify that he was provooked by something she did but the victim is not around to give evidence of the contrary. If you murder your spouse, they can't testify it. Accused is let off with relatively lenient sentences for murderign partner (woman) - changing now. Imporant to use a feminist criminolpgoy lens to see the issues.
5) Intoxication - Can we use intoxication as a defence? It may be used as a partial defence in order to reduce your sentence. Established through precedent in 1920 and included in CCC in 1996. Historically, british courts treated intoxication as an aggravating factor. Now a partial dfence that will reduce severity in charges. If at such an extreme state of intoxication, do you have the control to have the capacity of intent? There are exceptions y which this defence can not be deployed. Used to argue because of intoxication the person did not have the capacity to commit the offence nor to form the specific intent.For defence to be successful, the accused must be able to raise a reasonable doubt that they ere unable to form specific intent (onus on accused - through reverse onus). If they are successful, they may have sentence lowered from murder to manslaughter.
Exceptions - cannot use this defence in cases of sexual assaul. Cannot be used for crimes of general intent, only specific intent. Specific intent - seruous indictable offences, there's an ulterior motive or purpose. Murder, robbery, theft, break and enter. General intent - Whether the only intenet involved relates to the performance of the act with not furhter ulterior motives or purpose - the act in and of itself is enough to understand its purpose. Manslaughter, assault, assault causing bodily harm, sexual assault, impaired driving. The defense of intoxication cannot be used for these offences. You have to take reasonable steps to receive concent from someone. You can't say you were so drunk you didnt know what youw ere doing. The fact that you engaged in drinking, is enought o establish general intent for durnk driving. We want to understand the purppose and function of this limitation - why specific limitation to intoxication? Safeguard safety/interest of public - otherwise people would be drunk all the time - have to recognize that there are risks in certain behaviours/activities.
Purpose and function of general intent exception to intoxication - it caused the accused to lose power and self control or created a propensity to follow one's passion. People consume alcohool voluntarily and a liberal use of drunkenness as a defence would opent he flood gates. Cannot use it as a defenc ebecause it would mean we can act on impulses. Can't use the excuse that we just lost control. The courts don't want to encourage people to get drunk before they commit a crime in the hope that they will get off more leniently. We know effects of intoxication and don't want people to get off easily on it. It's a general deterrent. MEssage on what our views are.
6) Battered Wife Syndrome (BWS) Self-defence - retaliate against their abusive partner because she fears for her life/children/pets. Successfully use din murder cases. She has to establish that there is reasonable apprehension of death or grievous bodily harm (possibility of death/injury is looming) and subjectively believes that she cannot otherwise perserve herself (only way to sav eherself). Also the battered woman does not have to wait until she is about to be attackedor under attack before she acts - WHY? Doesn't have to be imminent risk of daner. Don't need that temporal element to satisfy the defence. The predictability of it. Because it's recurrent, you don't know when ti's going to be your last moment on earth. Research shows that assaults by violent spouses are difficult to predict. Do not need ot establish imminenity. Can be applied to partners.
7) Mistake of Fact - can't claim you were ignorant of the law - can't claim you didn't know it was illegal. Laws have to be explicit, clear, legible - so we know what's right/wrong. But you can aruge that thwree was a mistake of fact. It's a grounds for acquittal. If in my mind, I believe that I'm divorced, then if I wanna marry again, I can't be charged with bigamy. Key to this defence: reasonable grounds for the belief of certainty in order to establish credibility of the defence. We establish evdence in order to support our defence.
Rejection of defence - if the crown can prove that the accused acted in a manner that was reckless or willfully blind (turned a blind eye) then this is not gonna work. MOF will be denied. Knowing something, but turning a blind eye. Avoiding documentation - bills or something, put it aside but turn a blind eye and continue as if it's not there. Wilful blindness - when someone delibterately closes eyes to the obvious. In this case, the accused will be treated as thought they knew the relevant material facts they claim not to know. I was in a time capsule On the accused to prove.
Controversy around this defence - sexual assault, drug trafficking. Drug trafficking - Bob is travelling on airplane, on route to England, plane decides to stop, lands in St Johns newfoundland, on his stopover, he is waiting in an arrival areas, he looks suspicious, airport security suspects he might have narcotics on him, they find 1kg heroin, Bob is charged with posession for purpose of trafficking - bob claims that he cannot be charged with posession for trafficking, he had not intended to be at that stopover in Canada. He does not intend to possess for purpose of trafficking in canada because he did not anticipate that stopover. Should have anticipated layover (on itinerary, double-check, he's an avid traveller - he should know to check itinerary), no drugs on plane. INTENT is key - intent to traffic. He claims that ticket does not stipulate a stopover. Judge decided because bob is an avid traveller - he should know that stopovers do occur - this waas not a mistake of fact, this was wilfull blindness.
Sexual assault - Self-induced intoxication not a valid dfence in cases wehre the accused argued that because he was drunk, he didn't realize the victim didnt give consent. Codified in criminal code section 273 1a. If you're not sure if theyre going to consent, you have to take reasonable steps. It's ambigous, it requires evidence, judicial discrention/interpretation. They are of legal age, they are saying yes. Must take reasonable steps, exercise due diligence to ensure consent. Difficult to establish consent.
Lecture 19: Mar 21, 2018
11 c; 12 d; 13 b; 14 b; 15 c; 16 C; 17 a; 18 b; 19 d; 20 a; 21 a; 22 d; 23 a; 24 d; 25 b; 26 c; 27 c; 28 a; 29 a; 30 b;
8) Mental Disorder - NCRMD Designation - 16(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption - (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal reponsibility by virty of subsection (1) until the contrary is proved on the balance of probabilityies. Burden of proof - (3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. What's important to understand: with NCRMD there is no acquittal. It means you are technically guilty of the offence, but because you did not have the cpaacity to form mens rea, we will take that into consideration into our sentencing and try to get you into some kind of treatment. It doesn't matter if you know if it is legally wrong or right - not importatnt - is whether or not you know something is morally wrong. Presumption under criminal law, is that you are presumed sane. The onus is on you to prove otherwise - reverse onus. It's very diffficult for corwn attorney to know a emdical condition - you know it best. Presumption of sanity. Seems counter to presumption of innocence (section 11 d) - it is permitted - the purspoe of reverse onus because it's a lot easier for me to say I have a mental disorder to negate crominal responsibility - force the accused to prove their own condition. Burden of proof is on the indidivudal who would raise the defence.
Applicability of NCRMD - you may have commited the actus reus, but you didnt have the mens rea. Use of the defence requires the accused person admits t o the act but argues that they did not have the requisite mental capacity to form criminal intent (mens rea). You have to briing in experts to testify on your behalf. Psychiatrists or clinical psychologists. They must convince the court that the disorder is serious enough to render the accused incapable of understanding the nature and quality of the act or omission or of knowing (moral) that it was wrong. Defence is established with reference to the DSM-V (lsits all conditions and disorders and symptoms). Use that to support our case, defendants.
The Presumption of Sanity - the crown and defence both contradicting itself. Contradiction inherent. Each are gonna provide their own set of expert testomonies from clinicians. What becomes problematic is that now the decision may be relegated to complete discretion of the jury if there is one. In cases in which the Crown wishes to challenge thedefence of mental disorde,r both the Crown and the dfence attoryney will call their own eexpert psychiatrists to testify. This is not uncommon to see the Crown and Defence witnesses contradicting each other. Leaving it up to judge or jury to decide who to believe. Jurt needs to know exactly what the stuff is for 16 1,2,3.
How can the NCRMD be problematic? Critique of NCRMD - There is an emphasis of focus on cognitive reasoning. Relies almost exclusively on cognitive factors (reasoning abiliyies) and excludes emotional factors. A person may understand what they are doing and know it is wrong yet are incapable of controllign their behaviour. Indidivudla in front of 2 ppolice officers attacking someone. Uncontrollable even though police officers are there.
Sentencing of NCRMD - This is operating under a framework of therapeutic jurisprudence. Designation is not mean to be punitive. The idea is: the criminal justice system is able to provide some kidn of healing function, doesn't have to be punitive. REroute offenders out of incarceration and into treatment. That;'s why we have mental health courts. 3 options available to the review board: 1) absolute discharge - free to go; 2) conditional discharge - with mandatory and optional conditions - mandatory: informing court if you are changing address, optional: pervue(?), therapeutic counselling, abiding by medication regiment, checking in with case worker, get back to cort with your progress; and 3) order to hold accused in custody in psychiatric facility - whetre they can receive treatment; Goal: to be the least restrictive unless signficant threat to public safety. Because no mens rea, can't be that punitive. Balance the rights of the indidivudla whilst protecting society.
Depedning on offence category, might have someone in mental health court - probation, alternatives in community. If serious offence: review board - judge, psychiatrist, social worker/community liason - up to them to decide what kind of plan to implement depending on the offence.
R v Li - Li beheaded Tim McLean on a Greyhound bus bouund for Winnipeg. Witnesses to the attack claimed that Li looked relatively calm. Wasn't in a frenzy state. Didn't seem like in a psychotic state. Defence argues that Li did not have the requisite mens rea. New to country, difficulties with finding work, aggravating factors. He heard evil voices telling him to kill the victim and that Tim McCLean was going to attack him. He was found NCR by the court. At first he was remanded to a psychiatric facility (2010) and over the years, relaxed.Given absolute discharge in 2017. Question: does he still pose as a threat to society? No because he had done treatment. He was capable of living normally and functioning in society and remain sane.
Objectives: Demarcatetraditional (social) v contemporary (modern) view of marriage. Explore the vlaue orientations of each perspective. Define the construct of marriage (characteristics) and the requisite legal requirements. No-fault divorce and other significant reforms. Impacts to women and children as result of dirvorce laws - spousal support. Marriage is defined by society - according to changes in society.
The Sacred Concept of Marriage - Marriage is a contract between you and God. Defined as divine and a holy institution since it is created and blessed by God. This is a traditional view of marriage and one in which authority is granted to the Church and religious authorities.. Marriage is seen as a contract with God and one that is permanent. Thus divorce is not permissable. Logn process of divorce. Trying to discourage you.
God's Will - Marriage requires self-sacrifice (even suffering) since the desires of individuals are secondary to the obligations to follow God's will. This sacred concept of marriage - have to put my needs aside becaue my primary obligation is to God. There is an emphasis on duty, responsibility, sacrifice and rigd conformity to Church laws - obligation. Have to sacrifice my happiness because I made that commitment. Indidivudlaism and invididual rights are supperessed because of one's obligation to Churche, society, family, and kin. How God's will factors in.
The social concept of marriage - Similar to the scred concept, it has to do with your sense of obligation and responsibility to your kinship and communitu. Represents a traditional view of marriage and is similar to the sacred concept. It focusedso on social rather than sacred boligations. Authority is centeered in the kinship group, community, and the church and there is a concern with maintaining social respoectability. There is also emphasis on conformity to community norms and the demands on one's family and kinship network. Extedned family ggroups exert great social control on dividuals and rigid conformity to norms are demanded. It ensures consensus. Power resides in the elders and men - tie it to the patriarchy. In the male figure. Problematic for feminists groups trying to break way from the oppressiveness of the institution. Do you risk losing your respectability? IF you leave, you're shunned. Self-sacrifice is required and indidivual needs are secondary to the demands of society. Thus, divorce is stigmatizing and not perimissible. Not is premarital sex, homosexuality, or itnerracial marriage. Very narrow view of a union. Women are typically subject to the authority of men their sexiautlity is strictly controlled, and arranged marriages are often practiced. Don't have freedom of choice.
The Personal Conceot of Marriage - The contemporary and modern view that stresses individualism. This is a modern view of marriage. One that gives priority to indidivudal rights, needs, and desires. Indidivudals have personal freedom to marry, whom to marry, when they should marry and wehther or not they seek a divorce. Colletivisitic to indidvdualistic. Marriage is a personal decision made free from the control of Church and family. It is not dictated by religious instiitution/family. The father approval to the fiance to be is obsolete. People are free to choose their own mate and theoretically and lawfully they can marry across racial and ethnic boundaries in relative freedom. Can do that in freedom. Marriage exists for the individual and there is a ocncern with "self" and "self-actualization personal fulfillment, and happiness. We engage in it for some form of fulfillment - personal happiness. It's not up to anyone else - we are engaging in a relationship because we like each other. The personal concept is based on more hedonistic values and rights perspective - our own immediate needs, wants, desires. Rights discourse framework.
Lecture 20: Mar 26, 2018
Probably something we do in our lives. If you don't, good for you.
Social - to refrain from scrutinization - respectiability, status. Self-sacrificing. Not about ind rights. Divorce not typical. Lack of acceptance regarding interracial marriage, same sex marriage, no premarital sex.
Personal Concept of marriage - individual rights. Not about my rel with god. What god says I should do. What man or cultural custom that dictates who i marry. My own choice as an autnomous individual. Can decide everything. It's a personal decision. Free form confines/cosntraints of the church. And the family.
Traditional - collective, modern - indidivdual.
Marriag eis also divided up into federal and provincial power.
Jurisdiction over Marriage and the Familt - Canad has divided jurisdictions in matters of famiyl law. The BNA Act gave the federal government the power to legislate with respect to marriage and divorce. The Divorce Act is federal legislation and divorces are head in Superior Courts.
In terms of the province, the power is to solemnize a marriage. Go to city hall to get married. Prvinces also have the power to legislate in relation to matrimonial property (properties acquired while married), the support of spiuses and children, custody issues, succession (family throne), adoption and guardianship. All under a provincial domain.
How do you define marriage under the law - Marriages is a legal, social, moral, and religious contract between consenting adults (can't marry a kid). Have to find out legal age of marriage in each province. It's regulated by a complex system of customs, norms, vlaues, and laws. Marriage often influenced by culture, subcultures, religion, law and individual differences. Arranged marriage. Polygamy.
Common LAw & Same sex Marriages - Ontario Family LAw Reform moved the provinces towards a limited legal recognition of common law marriages (fixed period of time designated by law) - 5 years cohabitation, child born, cohabitated within that year -> legally recognized. If in common law relationships and wanna separate, assets get divided in half. Marriage is not necessarily going to safeguard you from collateral damage from separation. July 2005, the GOC passed Bill C 38 legalizing same sex marriages. A charter issue. This was ain reaction to court decision in BC and Ontario that rules that laws prohibiting same sex marriage were unconsistutional because they violate equality rights. same sex marriage recognized in some US states, Canada, Findland, Denmark, Spain. In most developed nations.
Specific characteristics of marriage
Legal Requirements to Marry - Each party must have legal capacity to appreciate the nature and quality of the legal commitment and do so freely (voluntarilyy). If consent is coerced or affected by alcohool or drugs, then the marriage can be declared void and an annulment is granted. Principle: 2 peopl eare consenting adults. Capacity, consent, no coercion. Child brides, arranged marriage. Most jurisfctions prohibit marrriage under a certain age (16-19) and between close blood relatives (kinship) - Western view. marrying cousins - a family thing. Being part of a small village. Marriage and divorce typically recognize across jurisdictional boundaries, not necessarily betwene countries though. If your fiance is married from another country, and you are trying to marry, you can't marry. You would have to get a divorce in Ontario and proceed. But your spouse in other country is still legally married to you.
Bigamy - prohibbited in most jurisdictions. Yp to 5 years in prison in Canada. Religious, cultural, economic component. Severely punished for having multiple spouses. Pacticed in ethnice and religious minority groups. This tells us about our Western view of marriage is manogamous.
Spousal Rights - Ontario Family Law Reform Act 1978 and The Family Law Act of 1986 made significant changes to the legal rights and obligations of marital partners. Negatively affects women when a marriage is dissolved. As we tried to progress, we've taken away restriction that it will only recognize legitimate children. Ontario has abolished the distinction between legitimate and illigetimate childre - both have same legal rights under the law. Having children outside out of wedlock = illegitimate. Spouses togeth take in hand the moral and material direction of the family - making decisions together, exercise parental authority and assume resulting tasks, selecting place of residence, contributing towards expense of the marriage in proportion to their respecting means. Can only contribute what you have.
Property Rights - Jurisdictional - differs from province to province. Marriage however establishes a statuatory right to share the value of property acquired during the marriage. LAwyers go through everyones assets - before, during, through negotiation decide who gets to keep what. This basic principle unde rthe Family LAw Act of Ontario is that net family property shouuld be divided ewually between spouses. Unless equal distrubution woul dbe manifestly unfair. Property includes any interest, present or future, vested or contingent, in real or personal property. spent 30 years for 50 million dollar business - got married and divorced after a year. Are they entitled to their wealth? You will get something, but not half of the total wealth. What if your partner is a corporate guru, you've been at home looking after the kids, are you entitled? Yes because taking care of domestic affairs facilitate the success. And there for entire process.
Divorce LEgislation - By law one must obtain a dvorce if you wish to remarry. In 1970, California became first government in the Western World to institiute no-fault divorce laws - not blaming anybody for the breakdown of the marriage. It's signifnicant because before someone had to demonstrate some kind of fault. The new law permits either party to divorce when "irreconcilable differences caused the breakdown of the marriage." The signifnicance: No fault has shifted the focus on the legal process from the moral questions of fault and blame to economic issuess of marital property, custody, support. Morality -> Economics. It's not focusing on why this is breaking down, it's just happened. Now we have to figure out what custody spells to support, etc. Progression to a more liberalized view of divorce, but also has undermined sacredness of marriage and traditional view of it.
Canada's Divorce Act 1968 - Easier to obtain a divorce on various grounds including no fault. Divorce rates doubled and kept rising once no fault came in/. The rate of divorce increased ramatically after the Divorce Act of 68.
Critics of the Divorce Act 68 - Provisions still restricitive and impractical. Various lobby groups emanded govt for more liberal grounds - to enhance indidivudal freedom. The practice of assigning fualt for a marriage breakdown intensified rather than diminished the existing conflict between parties. Affecting settlements and custody issues.
Moving forward to 1985... try to expand scope of divorce laws through certain mechanisms.
The 1985 Divorce Act - Act sought to liberalize divorce laws (stil in effect). The Federal Divorce Act allows couples to obtain a divorce on grounds that there has been a breakdown of marriage. Shortening of the separation period from 3 down to 1 year. Reduce conflict between spouses, long enough to permit second thought, avoid rash and hasty decisions. Want to put obstacles in your way to make sure you've exercised everything. Want to shorten to have enough time to have a cooling down, reduce conflict, work out custody issues, allows enough time to figure out if this is the right course of actions. Have some kind of safeguarding mechanism in case you want to back out of divorce. One example of how we try to liberalize our divorce act.
Divorce, PRoperty, Gender Divide - what's important of this? Intersection between these 3. TRaditionally, dirvoce laws allowed the bhusband to keep the majority of family property if his income paid for it. The law did not recognize the economic ocontribution of women in their roles as mother and housewife in the accumulation of family wealth. The point: the law often fails to recognize/ignores that women also contribute to the hosuehold - it just made be in terms of non-economic value. Looking after all those fundamental needs and wants. Research examining the impact of divorce laws and court decisions indicate that women and their children typically experience sharp delcine in their standard of living post-divorce - Face the hardships of raising children on their own, How does child support factor in? Childcare becomes a problem. Focus on wage disparity between men and women. Women's wages are low. Women's standard of living declines dramatically upon divorce especially if they have children. What is the law going to factor in for child support to work?
Spousal and Child Support - historically (in england), spousal support originates from ecllesiastical law in England back when the Church still had jurisdiction over various marital issues - didn't go to court. Later, the concepty of alimony developedin the common law as a right that women only could exercise over their husbands after separatin - given money by husband. It became a way to compensate/provide some kind of financial solution at the time of divorce. LEgistlative provisions for supoport payments indicate that the government is willing to intervene in marital and family issues and oimpose legal obligations of the spouses (even in common law relationships). Trying to still support a set of mainsteam values and belief systems. Although it seems like aviable solution to economic disparity, it was v difficult to ge ttheir hands on alimony. Application is another thing.
Prior to 1978 - wives could only obtain alimony by aplying through the Deserted Wives and Children's Maintenance Act - must show that these were a) desertion by her husband; b) a failure to maintain her. Alimony only paid under the following circumstances: 1) parties had a valid marriage; 2) PArites were living separately and apart; 3) Husband guilty of adultery, cruelty, desertion; husbands could get out of alimony if he could prove wife's adultery (is this right?) - is that easy? Probably easier. Can falsify information. Very traditional patriarchal application of law. Seems quite ridiculous. Trying to discourage divorce. Women had to work very hard to establish her case.
After 1978 - ontario abolished alimony in 1978 and relplaced it with the concept of spousal support - Wives obtain custody of children in 85-90% of cases and fathers ordered to pay child support. Courts had to develoop something that was gender neutral. Gender neutral response. Located in Family Law Act 1990. Not all provinces have legislation that allow common law spouses to seek support payments.
Types of factors to consider when determining spousal support: Variety of factors 15.2 (6). Applicant's financial needs; Capacitty to become financially independent; length of time married/cohabited; accustomed standard of living -courts udnerstand theres some sacrifice you have to make, as long as youre not in an impoverished state, you're good. Nos hrimp for you ; the respondents income and ability to afford support payments; Obligation of the responsible to support any other famiyl members (elderyly parents); A spouse's misconduct is not a factor in awarding support - had affiars, abusive, etc. They're looking at very pargmatic criteria. Displacing of moral understanding of marriage to one of economics.
Undergirding Principles of the Support Provisions in Divorce LEgislation - The Family LAw Act and Divorce Act both place the primary obligation on spouses to support themselves. The Caveat: To the extent that this is possible and Under the Ontario Family LAw act 1990 support is meant to serve a number of purposes. Significance: putting a plan in place, not looking at how bad the marriage was, past, it's how can we move forward.
Economic Self-sufficiency - courts are trying to determine this. It's not rewarding/punishing. It's about how they can move forwardsand sustain themselves. The 1970 and 1985 Divorce Act introduced the idea of economic self-sufficiency for women following the fivorce and property settlement. The courts promoted a "clean break" model and tended to award the wife support for three years after which she was on her own and require to obtain a job and support herself. Can't expect exspouse to support me forever, at some point I have to support myself. Feminist groups have hunkred down - heavily critisized - because many times women have beeen looking after children for so long - no resume. No currency for what theyve done. Places urnealistic and unreasonable expectations on the wife to support herself and children after spending decades out of the workforce looking after kids and home. Hard to do it if you dont have certaint hings: great work experience, references, etc.
Lecture 21: Mar 28, 2018
Family Law and Social Policy - finish up from last class.
Case Law and Gender Divide - CAswe law is precedent. If we were to trace back precedence in idvorce - a greater amount of spousal support for longer periods of time. 90's courts in Canada awarding greater spousal support for longer periods of time. Case law increasingly recognized the problem that women faced in the workplace and began to give less weight to the principle of economic self-sufficiency. Mostly for women with children - single mothers. There's a structural barrier for women who have been out of the workforce. Trying to always explain: I had children. It took me longer to accomplish my goals. That's why trying to move away from the economic self-suffcicniency (which is more favourable to men). The courts have ruled that the objective of self-sufficiency is a goal "only insofar as is practical." There are limitations to sustain ourselves. Clear gender divide in terms of how laws have been established and how they dispororptinately affect certaing roups.
Marriage Contracts and Separation AGreements - Prior to the Ontario Family Law Reform Act 1978, domestic ocntracts were severely limited in law because they were thought to undermine the stability of marriage. Want to still promote a certain set of values - commitment, permanency. Stay away from legislation that is going to undermine that stability of marriage. Today, the Family LAw Act in 1986, allows a couple who marry or cohabit to construct a marriage or cohabitation agreement which can include separation agreement. The fact that you're raising the issue (prenup, etc) is a problem. A conctract to divide assets if you should separate/divorce - creates boundaries, rights, obligations - important. IT's symbolic that we are moving away from moralistic understanding of marriage to economic/individualistc understanding of marriage. Not as romantic anymore. These contracts must be in writing, signed by parties and witnessed.
What's the purpose of a marriage contact? trying to protect money, assets, investments, property, future investments. There is a pragmatic function.
The function of Marriage Contracts
The Dissolution of Marriage - Couple often seek a separation agreement througugh their lawyers - include a dvisision of assets, provisions for spousal support and child support, custody and access provisions. A separation agreement, marriage contract, or cohabitation agreement can be enforced just like any other contract - one party can sue the other for non-performance or default on payment owed, this allows them to collect the money through court orders, the seizure of assets, and by garnishing wages.
Main Concepts: traditional v contemporary view of marriage; jurisdiction - federal and provincial powers - divorce act is federal, if you seek divorce go to superior. for solemnizaiton is provincial; characteristics of marriage - how it changed the landscape of family law - religious to individualistic/economic; no-fault divorce; net family property - emphasizes idea that we come to marriage as equal parties, makign decisions for family unit; alimony v spousal support - why that has changed from one to the other; know the clean break model - how it's tied to self sufficienct eceonmic efificent; economic self-sufficiency; separation period - from 3 years down to 1 - what was the reason for that - why prolong it? to reflect, for tensions to cool down;
drug legis and prosutituion laws - how policy has changed, where we were and where we are now in terms of legistlating morality - sex-related and drug-related offences
Objective: Look at intersection between race, morality, and drug laws in Canada through historic-political analytical description (background factors); Compare and contrast liberalization/prohibitionist models; Discuss the need for specific drug law reforms and international perspective (why is it necessary to reform certain drugs as opposed to others)
The history of Drug Legislation in Canada - 1908 - onset of opium act - Federal government passed first drug lawn known as the opoium act prohibiting the importation, manufacturing and sale of opium. This is the starting point of change. Prior to this, the Chinese Communityon WEst cast lawfully imported large quantities of opium for own consumption. Up until this point, there was a fairly wide opium industyr that had been not recognized. Little concern amonggst the population used for medicinal purposes. Not just the Chinese, opium was available in general stores, pharmaceutical companies, and widespread. Its usage/availablility had been left unquestioned. Until we had an important factors that changed the game.
Historic-Politico Cotnext - Pre 1880s, immigration encouraged importation of cheap labor. Emphasis on bringing people over for cheap labour. Brought over Chinese workers to mine and for railway sector for low wages. They were hard working and cheaper. In 1885, rail complete and mining boom tapered -> economic downturn - we have a lack fo employment, have competition between Chinese and Whiteis for jobs. This was called the Asian Problem - created a chiense immigration act - The Chinese Immigration Act 1885 - restrict movement and libteries, deport, over tax memebrs of the Chiense community to lessen the competition. A way to find an excuse, find a loophole. This economic downturn is occuring at the same time as the proliferation of opium.
The Genesis of the Opium Act 1908 - racial unrest in BC, led to riots. The former PM Mackenzi King (not pm at the time), investigated and soon discovered a large opium industry. MK submits a report documenting the effects of this drug on certain segments of society. The deleteriouous social an dmoral impacts - this was a cover up - a way to eradicate or depossess a certain group in society. Viewed opium as poison which destroyed the inhibitions of good Christian upbringing. The decisions to criminally prohibit non-medical opiate did not rise primarily from concerns over addictive properties but rather a re0-definitioi of its moral impact by small number of moral reformers. Achieved by moral entrepreneurs. This concern is not driven by the public, it's driven by a few people (1-2) political magistrates at the time who were trying to moralize the issue.
What's the purpose of criminalizing opoium? Criminalization of Opium as means of social control by moral entrepreneuers -through the process of criminalization, we can exact a form of social control. Historians argued that 1908 Opium Act has less to do with health concerns but rather racial and economic factors. It was a means of social control to target the WEst Coast Chinese community and later African Canadians (in terms of criminalization of cocaine and crack). Who are you going after? Pharmaceutical company or rich people in power. Governments tend to create laws and reform that target those that have the least amount of power - pooor, politically powerless, and object of racial animosity. Because of the economic downturn, we're essentially creating a problem. And that becomes the solution to racial animosity. We create legislation that targets their community and it's a way to dispossess the powerless. Ironic because the Act did not target the white users or Caucasion pharmaceutical companies. Moral entrepeuner - individual powerful. Have the power to manufacture a crisis or to lobby for some kind of reform
1920s - Emily Murphy, the black Candle (1922) book claims that drug use is ramppant in sectors of country. Linked to moral turpitude, spiritual depravity, crime and insanity. She has a high power in govt. This leads to degradation, an erosion of morals and belief systems. Led readers to believe that vile and corrupt Asian and Black communities were spreading addiction among innocent whitepersons. Isn't this the perfect opoprtunity to use something like opium as a platform to target these specific groups in society? What happened in response to it: the establishment of the Opium and Narcotic Act (1923) - cannabis is added to this and deportation provisions for aliens conviction of drug offences. The development of a new department - RCMP becmes enformcement arm - to facilitate ivnestigations into potential cases of drug posession/trafficking/manufacturing.
1930-60s - Narcotics Control Act 1961 - An expansion in number and range of drug offences. Both the judiciary and courts and govt of canada - come together to create a nation wide effort to increase penalities for drug stuff. Certian penalities that maxed out at 14 years and now we're talking about life imprisonment. Severe penalities became the norm: from 14 years to life imrpisonment with 7 year minimums fo rimporting/exporting. Little opposition, users viewed as outsiders, low SES, ethnic problem, politically powerless - Othering them. They're the other, they're outside, they're part of an ethnic group, The Asian problem, they're politically powerless. Targeted the perfect group that doesnt have the tools to fight back. Things started to change - opposition howerever grew in the 1960s when middle-class white Canadians began using marijuana and hallucinogenic drugs - hippies - experimenting drugs. LSD, acid. This narcotic control act was too restrictive. Suddenly when they realize that it's not ethnic minorities that are doing drugs, but white people too so we should consider this.
Narcotic Control Act is over zealous - convinctions rose - marijuana and hashish represented 90% of totla convictions. More drug offence sbeing created. Criticized for criminalizing otherwise law abiding youths. Call for sweeping changes with media exposure to the issue. GOC responds with LeDain Commission 1970s which produced 4 reports. Does it really make sense to be convicting all of these people? Are we gonna start to criminalize the youth who generally outside of recreational use are law abiding citizens? PErhaps we're too restrictive. We create the LeDain commision - produce a set of reports with recommendations, conduct research, etc. Recommended harm reduction strategy andn gradual withdrawal of criminal sanctions for drug usage. Focus on retracting from punitive sanctions and encouraging more education and awareness and perhaps treatment. Harm reduction strategy - different view of drugs - viewed as a lifestyle choice and/or a public health concern. Remove stigmatization/moral condemntation attached to drug using.
1970s - Manufacturing of a Drug crisis - while several groups are arguing for reforms to destigmatize drugs. WE have another arm that is manufacuring a drug crisis. The narcotic act was repealed and replaced - we see a set of modest changes: fine only sentencing options; absolute/conditional discharge (finding of guilt without registered conviction) - if you do do the crime again, you can be sentenced; deportation priviso removed with onset of Charter (section 7 - cannot abitrarily deport people) . In 1986 - President Ronald REgan created this war on drugs. The drug panic over crack addicts in the US. It's targeting crack and cocaine adddicts in the US - typically in African-American cmmunities. Typically commisions are nice, but a lot of people dont adhere to them - often ignored. The Crown also had discretion to prosecute by sumary offence isntead of indictable. Allowed for people to be processed under a less serious charge.
Where are we know? Despite LEDain, the GOC has ignored recommendations. Still using repressive measures of law enforcement and sentencing as mechanism of social control. WE're not loosening reigns of this problem at all - we're tightening it. people are getting convicted of drug offences. We've expanded the repressive measures. Majority of charges in Canada are for marijuana usage/possession (64% in 1990 and slighly up from that now). Cannibis-related has declined by 15% and cocaine offences. However, it's just drug of choice has changed - prescription drugs (oxycotin), methamphetimines, heroin. 4000 tonnes of heroin being grown a year - it's big. And synthetic drugs.
Drug Usage and Social Policy: The Liberalization/Prohibition Debate - 2 distinct perspectives: those who want to see a liberalization and those who simply want to prohibit all forms, those who are inbetween. Debate over drug plicies ongoing since the 1800s. Still a lack of consensus. Segments want to see a crack down, excuse me. Conflicting demands on federal govt during the 60s led to the formation of the 5 member LeDain Commission of Inquiry into the Non-Medical Use of Drugs. Reached consensus on importance of education,treathment, and rehabilitation. Still a lack of consensus on law reform and the role of legal sanctions to combat drug usage. Correctinal officers have very unique views - some are recreational users, others dont like the idea of letting up on drug offences - they believe that simple marijuana is a gateway. It really depends on academics. Lots of people smoke weed.
The prohibitionist Model - arguing against legalization. It's a gateway. Libterliazation of drugs laws lead to an incfrese n number of drug users/addicts and drug-related crime, family conflict and dysfunction, and social and health problems. There are social and health problems. A more moralistic stance on the issue. Symbolically, there is a moral condemnation because drugs are bad. It's immoral and harmful. Wanna see that drugs are less accessible and controlled through law enforcement, strict regulations. Argue that if legalized, stigma reduced, quality regulated (govt regulation - for more revenue), marketing to target groups, no fear of arrest, more experimentation -> more users, more addict. PEople are gonna be totally doped up as a society.
The Liberlization Model - for legalizaiton. Argue that there are complex and unintended costs of prohibitionist policies - you spend a lot of money trying to prevent people form doing drugs. Crime, corruption disease (black markets), criminalization, racial tension/disparity, loss of civil libterie sthrough overzealous tactics. If I tlel my kid not to smoke pot, she's going to do it. Don't do it -> makes them more curious. Prohibition is expensive (US: between 30-40 billion - parole, judiciary, treatment, education, awreness). In Canada, looking at 300-400 million - 95% go into law enforcement. 5% left over for anything else. A very costly system. From a liberlization perspective, law enforcement is futile - demand is always there, always someone ready to selll. There's always someone there to take a corner of that market. What happpens is that as a resutl of the crackdown, it leads to overcrowiding in prisons of minority groups. African Americans make up 12% of population but constitutute two thirds of admission to state prisons for drug offences. Hispanic groups also disporoprionately represented in prisons. In Canada, aboriginal population with similar statistics.
Can we come to a middleground? Is there a way to achieve the best of both worlds here? With the liberlization model; interested in implementing harm reduction model.
Harm Reduction Models - Liberlization model takes a less moralistic approach. Accepts drug usage without condemnation, as a lifestyle choice. Have a treatment model -> buffer a life of addiction. We are looking to improve their chances of staying away from drugs or provide treatment to cure an addiciton, lower transmission of disease, more nelightened approach for drug usage. Uiilitarian and pragmatic solution via harm reduction model. Drug use a lifestyle choice or public health problem.. shift resources form law efnrocement to prevention, education, and treatment support intiiatives methadone programs, needle exchange, prescription heroin In Canada/US, we're very much entrenched in the repressive measures to contain this drug problem. In European countries, there's a movement towards harm reduction. When it comes to trafficking, it still deserves harsh penalties. But for minor possession, want a harm reduction strategy.
The Need for Drug Speficifc Legal Reform - 2 perspectives butting heads. It ignores differences in illicit drugs. Different types of drugs produce different results. Marijuana vs. Cocaine vs. meth vs. heroin vs. fentanol. They argue that we need to step back from even thinking about liberalization and conduct some objective testing to see waht re the health impacts of each drug and the collateral damage. BEfor eliberalizatin, must evaluate eaach drug separately in terms of health affects and harm. Marijuana least restriected because arguably non-addictive and few health concerns - law abiding productive citizens use recreatinally.
CAtegories of Drug Policy Advocacy - What are the different categories of reform?
An International Perspective - EU: trying to move towards a harm reduction model - decriminalize various drugs since early 200s begnning in Engladn and support/implement threatment ideologies - lifestyle approach. Still hoever taking harsh satance on trafficking. US - main engine on war on drugs sicne Cold War period which enshrined UN treaties (anti drug policies) spill across the world. Countries bound by UN conventions. Still this argument for trafficking. The other problem: any time that a country (developed) get bullied by the US. Other rich contries meet fierce opposition by US while poor countries (LAtin America) are uner immense pressure to prevent trade despite the enormous costs to civil liberties and the environment. Devleoped nations putting pressure on underdeveloped - they a) sustain on drug trade - this is work for them - they're harvesters, jsut not to us; b) enormous cost to civil liberties.
Basically, there has been little objective discustiton of the efects of certain narcotics and implication on society.
CRP: Complete the stem. "The law is..." Reflecting on all you have learned over the course of the term, in one page, describe/characterize 'the law' in your words.