Unit Two - Criminal Law
Overview - Unit Two: Criminal Law
The roles and purposes of the criminal justice system are
matters of public debate, and public policy in the criminal justice
area is constantly undergoing scrutiny and reform in attempts to
make the Canadian criminal justice system more effective. Unit two
introduces students to concepts associated with the criminal
justice system in Canada. Students are challenged to view law as a
social construct, and to recognize that laws change according to
the social context in time and place. The unit introduces the
skills associated with dialectical reasoning and moral testing as
an avenue to effective decision making. Investigation of the causes
of crime, the response of Canadian society to crime and the
alternatives available in the criminal justice system are
presented. Students also develop interpretation and analytical
skills in dealing with crime statistics, and assess the meaning of
criminal justice data. An examination of the elements of crime, the
nature of criminal offences and the approaches to defence in court
are included in this unit. Finally, students are challenged to
assess the effectiveness of the criminal justice system, and
inquire about alternatives to the traditional Canadian approach to
criminal justice.
Resource-based learning is an integral part of all units. The
bibliography developed to support this curriculum will assist you
in incorporating a variety of resources from different media into
each unit. This annotated bibliography should be available from
your teacher-librarian or the Learning Resource Distribution
Centre. The bibliography contains annotations of current, useful
resources including print, video, Internet sites and other media
selections. Teachers are encouraged to assess their current
resource collection, identifying those that continue to be useful,
and to acquire small quantities of each new title, rather than
class sets, in order to provide students with a broad range of
perspectives and information.
The following list of evaluated resource titles provides a
starting point for developing a resource collection that is
current and relevant, and that addresses students' various learning
styles and abilities. Please refer Law 30: The Law and You
- A Bibliography, for a complete list of resources giving
the full citation, annotation, and ordering information. Please
note that many of these resources can be ordered through the
Curriculum Distribution Service.
Videos may be available from Media Group.
At the time of publication all of the resources listed here and
in the bibliography were in print and available.
Print Resources
- Aboriginal Youth: Dealing With the Youth Justice System in Canada: A
Resource Manual for Teachers and Students
- AIDS and Canadian Law
- Blaming Children: Youth Crime, Moral Panics & the Politics of Hate
- Canadian Crimes
- Canadian Criminal Justice Today: An Introductory Text for the 21st
Century
- Canadian Criminal Justice: A Primer
- Canadian Criminal Procedure & Evidence for the Social Sciences
- Corrections in Canada: Social Reactions to Crime
- Court Folder
- Cowboys and Indians: The Shooting of J. J. Harper
- Crime in Canadian Society
- Criminal Justice in Canada
- Criminal Law & the Canadian Criminal Code
- Criminal Law in Canada: Cases, Questions, and the Code
- Cyberlaw Canada
- Diversity Issues in Policing
- Doing Things the Right Way: Traditional Dene Justice in Lac La Martre,
N.W.T
- Foundations of Criminal and Civil Law in Canada
- Juristat Reader: An Overview of the Canadian Justice System
- Just Another Indian: A Serial Killer and Canada's Indifference
- Justice in Aboriginal Communities: Sentencing Alternatives
- Juvenile Delinquency in Canada: A History
- Kids in the Jail: Why Our Young Offenders Do the Things They Do
- Let’s Talk (Journal)
- Outrage!: Canada's Justice System on Trial
- Pocket Criminal Code (Annual)
- Punishment Report
- R. v. Wyler: A Mock Trial Kit
- Shadow Line: Deviance and Crime in Canada
- Teenage Troubles: Youth & Deviance in Canada
- To Hurt or to Heal
- Understanding Parole: A Simulated Parole Hearing Kit
- Way of the Pipe: Aboriginal Spirituality & Symbolic Healing in Canadian
Prisons
- Web of Hate: Inside Canada's Far Right Network
- You Can't Do That in Canada!: Crazy Laws from Coast to Coast
- Youth in Conflict with the Law
Non-Print Resources
- Circles
- For Angela
- Hollow Water
- Inside Out: A Teacher’s Guide to Corrections and Conditional Release
- Out of the Woods
- Scared Straight! 20 Years Later
- Test of Justice (part of Inside Out kit)
- Through a Blue Lens
- W5: Community Service
- When Women Kill
Internet Sites
The following links provide access to evaluated and recommended websites that support Unit Two of Law 30.
Incorporating Current Events
Incorporating current events enhances students' understanding of
the concepts under study and extends their learning experiences by
relating the events to real life, making them more relevant.
Sources for current event stories include newspapers,
newsmagazines, daily and weekly television or radio newscasts,
documentaries and the Internet. Many Canadian daily newspapers are
available online and are a useful source of current events. Select
articles and news items to support the objectives and concepts as
often as possible, and encourage students to contribute also.
Learning Objectives of two types are identified for Law 30:
Foundational Objectives and Specific Learning Objectives.
Foundational Objectives are designed to guide instruction and
student learning throughout each unit of study, and indicate the
broad learning outcomes in terms of content, skills and abilities,
and values. Specific Learning Objectives, identified in each lesson
of each unit, are designed to help students achieve the
foundational objectives. The core Specific Learning Objectives are
identified in bold font. This makes timelines for each lesson and
unit flexible. Teachers can choose to focus on the core objectives
only, or to have students strive to achieve all of the stated
Learning Objectives.
Objectives to achieve the Common Essential Learnings (C.E.L.s)
are identified using the following abbreviations:
| Communication |
|
| Numeracy |
|
| Critical and Creative Thinking |
|
| Technological Literacy |
|
| Personal and Social Values and Skills |
|
| Independent Learning |
|
|
Knowledge/Content
|
Skills/Abilities
|
Values
|
- Know that the criminal law is based in written statutes. (COM)
- Know the rights and responsibilities of citizens in relation to the
criminal justice system. (COM, CCT)
- Investigate the structure, functions and purpose of the current criminal
justice model in Canada.
(COM, CCT, IL)
|
- Apply criteria as a basis for testing models. (CCT)
- Apply dialectical reasoning skills in making decisions. (CCT, COM)
- Research to gather specific data regarding crime statistics. (COM,
NUM, IL)
- Apply inquiry skills to issues. (IL, CCT, COM)
|
- Appreciate the nature of the adversarial system. (PSVS,
CCT)
- Appreciate the role of procedural safeguards in the criminal
justice system.
(PSVS, CCT)
- Contemplate models for addressing criminal behaviours. (PSVS,
CCT)
- Appreciate the history and philosophy of alternate dispute
resolution mechanisms.
(COM, PSVS)
|
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Crime as a Social Construct
Decisions about which activities will be offences against the
law, and how society will collectively respond, are made through
legislative processes in Canada, and are reflections of a worldview
of society. Laws are constantly debated, defended, and redefined as
political and social changes occur. Something that was not against
the law at one time may, at another time, be unlawful, or vice
versa. The sale of liquor was, during the period of prohibition,
illegal, whereas it is now legal, regulated and controlled through
law.
The Nature of Crime and Criminal Law in Canada
Crime is considered to be any action that threatens the peace
and security of society as a whole. A crime may be committed
against an individual, but is still considered to be a wrong
against the well being of the entire society, which is represented
by the state. Legislators in each jurisdiction determine what
actions are offensive to the society and the state, and therefore,
criminal offences. In turn, these same legislators are responsible
for identifying and implementing society’s reaction to crime,
through sanctions and punishments set out in the statutes of
written law.
In order for an action or omission to be considered a crime,
certain conditions must exist:
- the action must cause harm to other people, or to society
- the harm must be serious, both in nature and degree
- the harm must be best dealt with through the mechanism of
criminal law.
The Criminal Code
The best known of the offence creating statutes enacted by
governments is the Criminal Code. The Criminal Code
is a set of statutes enacted by the federal government, and applied
uniformly throughout the entire nation. The Criminal Code
was first adopted in 1892, and is regularly revised to reflect
changes in social, political and economic environments. Some
revisions are administrative, whereby regulations attached to the
statutes are updated or modernized. Other changes have been
substantive. Substantive changes include creating, changing and
discarding offences by changing legislation.
|
Non-Criminality
Know that the concept of non-criminality states that nothing
is a crime unless the law specifically so provides. This means that
an accused must be charged under a specific statute and the burden
is upon the prosecution to present facts to prove the offence
charged.
Society
Know that society is a system in which individuals and
social organizations performing a variety of roles
interrelate with each other according to a set of mutual
expectations and in ways controlled by the social and
natural environments.
Change
Know that as the values, norms and mores of society change, laws
are changed to reflect the current worldview of dominant groups in
society
.
Jurisdiction
Know that under sections 91 and 92 of the Constitution Act,
1867, the federal government has sole power and responsibility
to create criminal law, while the provinces have the power and the
responsibility for the administration and enforcement of criminal
law.
Crime
Know that crime is an act or omission, prohibited by law,
which is considered a wrong against society and society’s
values and morals.
Harm
Know that some actions are deemed criminally offensive because
they cause harm to the individual, in a physical or
social-emotional manner. Other actions are deemed criminally
offensive because they may harm or damage public institutions or
practices.
Morality
Know that some actions are deemed criminally offensive because
they offend the morality of the predominant worldview in
society.
Criteria
Know that criteria are rules or standards that are
accepted and used to provide a consistent basis for
making judgments.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Develop an hypothesis from data.
Develop and apply criteria as a basis for making value
judgments.
Practice recording ideas in individual setting.
Share information verbally.
Summarize oral data in written format.
|
Understand that morality provides guidance for making moral
choices. It is based on a number of principles or criteria:
- an action may not be taken unless it is right for everyone to
take that action
- actions which may be hurtful to others in some way must not be
carried out
- before any action is taken:
- all information about the consequences of the proposed
action(s) on others must be sought
- the effect of an action on another person must be
considered
- advice from others should be considered
- the moral reasoning should be tested and rejected if it is
faulty
- others involved in the action should test their moral reasoning
and reject it if it is faulty.
Appreciate that criminal offences are actions that are against
the law because society has deemed they should be, based on the
moral reasoning at the time the legislation was enacted.
Appreciate that those actions considered offensive change in the
context of time and place.
|
Instructional Notes
- Examine issues associated with morality and criminality.
Identify instances in which criminal laws reflect the moral code of
Canadians. See Student Handout 2.1 - The Concept of Moral
Testing.
- Speculate on new criminal laws that may be needed in the
21st century. Have students write a scenario describing
the need for a new law, or summarizing a debate that might occur
with regard to a proposed new law.
- Using a think-pair-share strategy, have students select a
particular criminal law, and examine the purpose for the law.
Consider questions such as:
- Why is the particular action deemed criminally offensive?
- What is the basis in morality for the law?
- What is the social policy objective the law attempts to
achieve?
- Have students consider issues within their social network. Are
there situations or actions that are not criminally offensive, but
that students think should be? Are there current criminal laws they
disagree with? What are their reasons?
Issues in the Law
- Are any of our current criminal laws out of date, thus not
reflecting the worldview of the majority of Canadians?
- If you were the minister of justice for a day, what laws would
you enact, discard or amend? What would be the implications for
society? Would your initiatives pass the moral tests?
Student Handout 2.1 - The Concept of
Moral Testing
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Other Offence Creating-Legislation in Canada
Along with the Criminal Code, there are other legislative
statutes that contain criminal provisions. Examples include the
federal Food and Drugs Act, the Official Secrets Act,
the Emergencies Act, andthe Controlled Drugs and
Substances Act at the federal level, and the Highway Traffic
Act at the provincial level. These provisions in legislation
are necessitated by new circumstances as they arise in society.
These non-criminal code offences may be federal, provincial or
local in jurisdiction, and all contain provisions for penalties
when contravened.
|
Social Change
Know that societies adjust to a pattern of realities (natural, social, technological) in ways that seem reasonable at the time. Know that over time realities change, making it necessary for society to respond.
|
|
Quasi-Criminal Law
While the constitution designates the power to make criminal law
exclusively to the federal government, provinces are empowered to
enact laws on all matters falling within their jurisdiction. This
has further empowered local governments to make laws. Indian bands
have authority to pass laws for the benefit of the reserve under
provisions of the federal Indian Act, while municipalities
have authority to pass laws for the benefit of local communities
under provisions of provincial statutes.
|
Quasi-Criminal Law
Know that law made by provinces, municipalities and band
councils is known as quasi-criminal law, because criminal law can
be enacted only at the federal level.
Know that quasi-criminal law creates offences for which
sanctions may be imposed according to the statutes of the
jurisdiction. Examples include traffic laws, wildlife protection
laws and local by-laws.
|
|
Regulatory Offences
Regulatory offences include those non-criminal code offences
that contravene regulations of federal, provincial or local
government statutes. The regulations define the details supporting
the implementation of a statute (which is written to describe the
general intent of lawmakers), and are not subject to the
legislative process of statutes. These regulatory offences include
such items as improper disposal of herbicides and pesticides,
exceeding the posted speed limit and operating an unlicensed motor
vehicle. Consequences of contravening a regulation, or any
quasi-criminal law, are not as serious as is contravention of a
criminal code statute. No criminal record results from
contravention of quasi-criminal or regulatory law, and the sanction
is usually less serious than in cases contravening criminal
law.
|
Regulations
Know that the regulations are the implementation details of
quasi-criminal statutes and other non-criminal statues.
Know that regulatory limits on individual actions are designed
to enhance quality of life for all citizens.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Develop and apply criteria as a basis for coming to
conclusions.
Apply skills of dialectical evaluation:
- defining relevant viewpoints within the
information
- testing the view points for factual accuracy
- testing the viewpoints for their morality
- evaluating the factual and moral testing
- forming a conclusion about the issues.
Apply the moral tests of:
- role exchange
- universal consequences
- new cases.
|
Appreciate that the outcome of any evaluation is
dependent upon the criteria selected as the basis for making
judgments.
Understand that criminal law reflects moral values and social
policy objectives in the context of the society in which it
operates.
Appreciate the differences between criminal law, quasi-criminal
law and regulatory offences.
|
Instructional Notes
- Ensure students understand that regulatory and quasi-criminal
offences are in fact contrary to law, and carry penalties for
unlawful conduct. Create a listing of quasi-criminal and regulatory
offences from student experiences.
- Have students create a chart comparing regulatory offences,
quasi-criminal offences, and Criminal Code offences.
- Have students reflect on impaired driving laws. Engage in
dialectical reasoning exercise to answer the question, "Are the
Canadian impaired driving laws effective?"
Issues in the Law
- Examine a criminal law such as impaired driving. What are the
moral reasons for its criminalization? What social policy
objectives are reflected in the impaired driving laws in
Canada?
- Reflect upon ways in which laws restrict our freedom. Then
explore ways in which laws improve our freedom. Write a brief
reflection paper discussing whether Canadian law is more than a set
of rules telling individuals can not do.
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Purposes of Criminal Law
Criminal laws force compliance with the norms of behaviour
deemed important to individual and collective well being of
society. Laws are designed primarily to protect the safety and well
being of our communities. Behaviour that falls outside the accepted
standard of the Criminal Code or other laws may result in
criminal charges and sanctions. This occurs through both procedural
and substantive law. Clear definition of laws in both procedure and
substance ensures a greater degree of fairness in the justice
system.
Criminal laws may also be instruments of social policy, whereby
social attitudes toward a particular action result in the
criminalization or decriminalization of the action. For example,
gaming had been illegal in most jurisdictions in Canada until the
decade of the 1990s, when governments became involved in the gaming
industry. Laws were reformed in order to legalize the establishment
of institutions that were previously criminal.
Some observers suggest that criminal law is an instrument of
power whereby the empowered classes of society use criminal law as
a response to challenges presented as a result of poverty,
alienation, marginalization and exclusion from empowered society.
Other observers suggest that the effect of procedural safeguards is
to prevent law enforcement agencies from effectively controlling
crime in our communities.
Procedural law protects the well being of the suspected and
accused, in order to ensure that individual rights are respected
through due process in the procedures of implementing criminal
law.
Substantive law protects the well being of society by ensuring
that laws are applied consistently and transparently, and are
readily available for scrutiny by members of the citizenry. The
statutes of the Criminal Code identify those behaviours that
are criminally offensive to society, and identify the sanctions to
be imposed for commission of a criminal offence.
Consideration of the purpose of criminal law necessitates
examination of the purpose of the criminal justice system in our
national, provincial and local communities. Elements within the
criminal justice system include:
- the police
- the courts
- the correctional system
- the victim
- the offender
|
Norms
Know that norms are the expected standards of behaviour within a
group.
Sanctions
Know that sanctions are penalties or consequences for actions
outside the accepted norms of behaviour. Sanctions may be formal or
informal.
Criminal Procedure
Know that procedural safeguards in the Charter of Rights
and Freedoms and the Criminal Code of Canada are
designed to ensure the equality of all individuals before the
law.
Social Policy
Know that social policy includes the decisions of governments
regarding the challenges facing a population, and the solutions to
such problems.
Due Process
Know that due process is the procedure in the Canadian judicial
system whereby an individual is provided all procedural safeguards
of the law.
Legal Rights
Know that the legal rights of Canadians are protected as
components of fundamental justice under the Charter of Rights
and Freedoms.
Adversarial System
Know that the Canadian judicial system operates on an
adversarial model.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Analyze the processes that create and maintain law within
Canadian society.
Use effective group discussion skills.
Select and apply criteria in order to avoid biased
judgments.
Compare and contrast the adversarial system to other
systems.
Use effective reading skills to analyze expository data.
|
Appreciate that variance of opinion exists regarding the
purposes of the criminal justice system.
Appreciate that the criminal justice system is a tool of social
policy.
Contemplate the impact of crime upon the victims of crime.
|
Instructional Notes
- Lead students through a discussion regarding the purpose of
laws in:
- local communities
- provincial communities
- the national community.
- See Student Handout 2.2 - The Adversarial System for background
information regarding the nature of the Canadian criminal
court.
- Investigate alternatives to the adversarial system of justice,
such as the inquisitorial system used in many European
jurisdictions.
- See Student Handout 2.3 - Victims of Crime, for data regarding
support for victims of crime.
- Investigate alternate dispute resolution mechanisms as
alternatives to the adversarial system.
Issues in the Law
- What do we believe to be the purpose and responsibility of the
following institutions within the criminal justice system:
- the police
- the courts
- the correctional system
- the legal profession?
- What are the strengths and weaknesses of the adversarial system
of justice? What are the strengths and weaknesses of the
alternatives?
- Examine the purposes of the criminal justice system. Should the
emphasis be on rehabilitation or punishment, or some other
alternative type of restoration?
- Should we expect the criminal justice system to protect us from
harm?
- Should the satisfaction of the victim or the state be the most
important goal of the criminal justice system?
Student Handout 2.2 - The Adversarial
System
Student Handout 2.3 - Victims of Crime
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
The Role of the Criminal Justice System in Canada
In order for the criminal justice system to function as an
effective institution, Canadians must decide what it is they wish
that system to achieve. A variety of philosophies regarding the
criminal justice system and its roles and goals are held within
Canadian society.
Models of Criminal Justice
Public policy decisions regarding the mandate and operation of
the criminal justice system are the responsibility of legislators
and the public service. Approaches to criminal justice and
corrections varies across jurisdictions in Canada, and public
opinion regarding effective approaches to criminal justice are as
varied as the political spectrum. Two opposing viewpoints regarding
approaches to criminal justice are reflected in two theoretical
models.
The Crime Control Model
The crime control model of criminal justice emphasizes the
protection of society through control and suppression of criminal
activity. The most important goal is to prosecute wrongdoers in
order to deter others from committing offences. The crime control
model is characterized by the presumption of guilt, asserting that
most individuals who are arrested are, in fact, guilty.
This model purports that it is possible for the justice system
to reduce crime by implementing harsh, mandatory sentencing for
crime and incarcerating individuals who are guilty of criminal
offences. The model asserts crime control is effective when the
criminal justice system focuses upon speed and efficiency, with
high degrees of discretion exercised by individuals within the
system in order to expedite the implementation of justice. A
further assumption of this model is that individuals employed
within the criminal justice system make few mistakes, with those
few being a minimal cost in comparison to the efficiency provided
in protecting communities. Detractors from this model argue the
result of its implementation would be a police state, in which
individual rights are sacrificed in return for the law and order
agenda.
|
Model
Know that a model is an organized set of factors that attempt to
explain reality.
Deterrence Philosophy
Know that one model of criminal justice policy is based on
deterrence. Its proponents advocate:
- specific deterrence to prevent future crimes by individuals who
have been caught and punished for crimes
- general deterrence to prevent crime by members of society.
Justice Philosophy
Know that proponents of the justice model of the criminal
justice system advocate:
- sentencing to fit the offence, not the circumstances of the
offender (An end to discretionary options of the court would end
discrimination against certain groups, because all crimes would be
treated in the same fashion regardless of group characteristics
such as race or gender.)
- more severe crimes should receive more severe sentences.
Selective Incapacitation Philosophy
Know that proponents of the selective incapacitation model of
the criminal justice system advocate:
- individuals who are repeat offenders should be selectively
jailed in order to reduce overall crime
- those who are most likely to re-offend should be identified and
monitored, and detained if necessary for the good of the public
safety.
Rehabilitation Philosophy
Know that proponents of the rehabilitation model of the criminal
justice system advocate:
- individualizing treatment of offenders in order to eliminate
the causes of the criminal behaviour
- sentencing of offenders directed toward the treatment and
rehabilitation of the offender in order to prevent recurrence of
criminal behaviour.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply criteria as a basis for testing models:
- performance—the ability of the model to perform
constructively, efficiently and consistently in a variety of
situations
- consequences—the acceptability of the consequences of
applying the model to various situations
- accuracy—the ability of the model to predict future
events accurately and consistently.
Develop and apply criteria as a basis for coming to
conclusions.
Apply the skills of dialectical evaluation:
- define relevant viewpoints within the
information
- test the viewpoints for factual accuracy
- test the viewpoints for their morality
- evaluate the factual and moral testing
- form a conclusion about the issues.
Apply the moral tests of:
- role exchange
- universal consequences
- new cases.
|
Demonstrate the application of unbiased judgement when selecting
and applying criteria.
Appreciate that models are simplified representations of
reality (e.g., pictures, small figures, diagrams, concept maps,
recipes, blueprints) that attempt to show:
- the structure of a whole
- the pattern of the parts of a whole
- the relationships between the parts of a whole.
Appreciate that the assumptions and premises we accept as truth
and reality, and use in the models we create, tend to come from the
accepted paradigms of society.
Appreciate that the outcome of any evaluation is
dependent upon the criteria selected as the basis for
making judgments.
Understand that criminal law reflects moral values and social
policy objectives in the context of the society in which it
operates.
|
Instructional Notes
- Model a dialectical reasoning exercise with students regarding
the most effective model for the Canadian criminal justice
system.
- Use the two models as the extremes in a continuum, and place
the five philosophies of criminal justice policy within the
continuum in relation to the extremes. Arrange a debate regarding
the most effective model for criminal justice.
- Have students research the history of restorative justice, and
compare the system to the models now in place in Canada.
- Have students research crime rates in Canada and Saskatchewan,
and determine any trends that may be present.
Issues in the Law
- What approach should Canada take to criminal justice? Is the
get tough, law and order approach most effective, or is the
rehabilitative/restorative approach a more effective approach?
- Is rehabilitation of persons previously engaged in criminal
activity effective?
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
The Due Process Model
In the due process model of criminal justice, the most important
premise is the presumption of innocence, and the protection of
liberty. The most important goal is to see that justice is done,
through protection of the legal rights of a suspect or an accused
person, ensuring only the guilty are punished. According to the due
process model, this is accomplished through an accurate, fair and
reliable system of substantive laws and legal procedures, limiting
the power of the state and its criminal justice officials.
This model further suggests that it is impossible for the
criminal justice system to reduce crime, because it is not the
criminal sanction that is influential in decisions to commit or not
commit criminal acts. In the due process model, the causes of
criminal behaviour are complex and varied, and it is not the threat
of sanction that prevents law-abiding citizens from committing
crime. It also assumes that individuals employed within the
criminal justice system may abuse their power, or make errors in
the process of dealing with an accused person. Therefore, it is
essential that the criminal justice system protect the rights of
the accused to ensure that no wrongful convictions occur, and that
no unwarranted loss of personal liberty results. Detractors suggest
that under this model, police become powerless to protect society
from lawbreakers because of the encumbering emphasis on processes
of protecting the rights of the accused.
The Canadian Model
The question of the nature, purpose and philosophy of the
Canadian criminal justice system is one often wrought with emotion
and rhetoric, often predicated by incidents particularly horrific
and highly publicized in nature. The development of appropriate
public policy regarding the Canadian criminal justice system has
continued to be a matter of intense debate and scrutiny.
|
Restorative Justice Philosophy
Know that the restorative model of the criminal justice system
advocates:
- addressing the harm done to the victim and the community,
instead of punishment
- restoring harmony to the life of the victim, the offender and
the community through restitution and reconciliation.
- acceptance by the offender of the holistic context of the
offence—morally, socially and spiritually.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply criteria as a basis for testing models:
- performance—the ability of the model to perform
constructively, efficiently and consistently in a variety of
situations
- consequences—the acceptability of the consequences of
applying the model to various situations
- accuracy—the ability of the model to predict future
events accurately and consistently.
Select and apply criteria as a basis for coming to
conclusions.
Apply the skills of dialectical evaluation:
- define relevant viewpoints within the
information
- test the view points for factual accuracy
- test the viewpoints for their morality
- evaluate the factual and moral testing
- form a conclusion about the issues.
Apply the moral tests of:
- role exchange
- universal consequences
- new cases.
|
Appreciate that models are simplified representations of
reality (e.g., pictures, small figures, diagrams, concept maps,
recipes, blueprints) that attempt to show:
- the structure of a whole
- the pattern of the parts of a whole
- the relationships between the parts of a whole.
Appreciate that the assumptions and premises we accept as truth
and reality and use in the models we create tend to come from the
accepted paradigms of society.
|
Instructional Notes
- See Student Handout 2.4 - The Process of Dialectical
Evaluation, and Student Handout 2.5 - Comparison of Dialogue and
Debate for more information about dialectical reasoning
strategies.
- Examine the federal and provincial Justice Department websites.
Have students make inferences about which model of criminal justice
is being implemented.
Issues in the Law
- Is the restorative justice philosophy a model for the future in
Canada?
- What approach should Canada take to criminal justice? Is the
get tough, law and order approach most effective, or is the
rehabilitative/restorative approach a more effective approach?
- Is rehabilitation of persons previously engaged in criminal
activity effective?
Student Handout 2.4 - The Process
of Dialectical Evaluation
Student Handout 2.5 - Comparison
of Dialogue and Debate
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Reasons for Crime
Psychologists, criminologists and sociologists interested in the
study of deviant behaviour have developed theories as to why people
commit criminal acts. Among the theories of pre-eighteenth century
society was the belief that crime was the product of the devil or
other supernatural forces. As well, theories of lunar cycles as
influences on criminal behaviour were also accepted in the
pre-Enlightenment era. However, these theories were abandoned in
the 18th century, as various schools of thought began to
emerge about criminal behaviour during the Enlightenment. This
theorizing about the causes of crime has continued to present day,
with six predominant hypothesis prevailing:
- Classical Theory of Criminology
- Biological Theory of Criminology
- Psychobiological Theory of Criminology
- Psychological theory of Criminology
- Sociological Theory of Criminology
- Interactionist Theory of Criminology
There is no agreement among theorists as to the definitive
motivation for criminal behaviour, but continued study in this area
serves to provide a basis for societal reactions to criminality.
Research indicates, however, that some basic factors are highly
correlated to criminal activity in Canada, including:
Age—The peak period of criminal engagement appears to be
between ages 15 and 18, with engagement starting earlier and
continuing past that age in repeat and serious offenders.
Gender—Males have been more likely to commit crime than
females, although the male-to-female ratio has been steadily
declining.
Poverty—Being born into poverty has been associated with
financial, marital and family stress, and has implications for
parenting that may play a role in propensity to criminality.
Association with delinquents—Peers provide a sense of
approval in commission of crime.
Also often associated with criminal behaviour are factors such
as drug and alcohol abuse, television viewing, trouble in school,
unstable work record and hyperactive disorders. While there is no
conclusive proof that particular social, physical or mental factors
cause crime, the influence is certain enough that social programs,
and consideration of individual circumstances in determining
punishments are useful aspects of societal responses to crime.
|
Theory
Know that a theory is an hypothesis that has been tested, but
that has not produced similar outcomes often enough to be
considered fact or truth.
Demographics
Know that in Canada, identifiable patterns indicate a strong
relationship between levels of convictions for criminal offences
and socio-economic factors, including poverty and lack of
education.
Recidivism
Know that recidivism is the relapse into crime after the
sentence of a convicted offender has been completed, and the
subsequent return to the criminal justice system.
Values
Know that values are the beliefs people will act upon because
they believe them to be correct and acceptable behaviour.
Know that people use values as criteria on which to base
their judgments about issues significant to them and
society.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Evaluate theories, and define reasons for acceptance or
rejection of theories.
Gather information from statistical data.
Interpret statistical data.
Apply inquiry skills including:
- acting upon their curiosity and interests
- developing questions
- thinking through controversies or dilemmas
- looking at problems analytically
- inquiring into preconceptions about what is already known
- developing, clarifying and testing hypotheses
- drawing inferences and generate possible solutions.
Use effective reading skills to analyze expository data.
Apply writing skills to develop a position paper.
|
Appreciate that models are simplified representations of reality
(e.g., pictures, small figures, diagrams, concept maps, recipes,
blueprints) that attempt to show:
- the structure of a whole
- the pattern of the parts of a whole
- the relationships between the parts of a whole.
Appreciate that the assumptions and premises we accept as truth
and reality, and use in the models we create, tend to come from the
accepted paradigms of society.
Appreciate that the outcome of any evaluation is
dependent upon the criteria selected as the basis for making
judgments.
Contemplate various theories regarding causes of crime.
Clarify personal viewpoints regarding causes of crime.
Clarify motivation for use of crime statistics by various
interest groups.
|
Instructional Notes
- See Student Handout 2.6 - Why Do People Commit Crime? for an
exercise clarifying viewpoints about the causes of crime. Have
students complete the chart and prepare to defend their decisions
in a group discussion.
- Conduct independent research regarding theories of the causes
of crime.
- Have students prepare position papers regarding causes of
crime, and have them propose public policy solutions to reduce
criminal activity based upon their perception of causes for crime.
Assess the practicality of the ideas contained in the position
papers.
- Research crime statistics and demographic profiles of
offenders. Draw conclusions about the causes for crime. See Student
Handout 2.7 - Counting Crime.
- See Student Handout 2.8 - Media and the Law for an opinion
regarding the role of the media in the justice system.
Issues in the Law
- The incidence of repeat offenders in the criminal justice
system is a factor that leads to the question, "Is our current
criminal justice model working?"
- What use are crime statistics? What groups use them, and for
what purposes?
- What should be the role of the media in the Canadian justice
system?
Student Handout 2.6 - Why Do People
Commit Crime?
Student Handout 2.7 - Counting Crime
Student Handout 2.8 - Media and the
Law
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Elements of Crime
Substantive Aspects of a Criminal Offence
In the case of true criminal law (as compared to quasi-criminal
law), two elements must be present in each case in order to
determine that a criminal offence has been committed. These include
the physical act of an accused person, known as actus reus
(a guilty act or deed) and the intention of an accused person to
commit a criminal act, known as mens rea (a guilty
mind).
Actus reus
The Criminal Code identifies the actus reus very
clearly within the offence creating statutes. Actus reus may
include the physical action of a person, such as, the striking of
an individual, constituting assault. It may also include an
omission, or failure to act when dutifully expected to do so, such
as the failure to provide the necessities of life to an infant
child.
Actus reus may also occur through state-of-being, such as
being in possession of a controlled substance or item. The
individual in possession of stolen property, for example, is
potentially guilty of an offence even though they may not have been
involved in the actual theft of the property.
As well, actus reus must also occur voluntarily in order
to contribute to the criminality of an action. If a person has a
mental disability, or an individual is coerced into participation
in a robbery, or if a person acting during a sleep walking episode,
the individual may be found to have not undertaken the mens
rea aspect of criminality and; therefore, found to have not
committed a criminal offence.
Mens rea
Determining the presence of guilty mind is more difficult in
criminal law than determining the occurrence of a physical action.
The mens rea element of determining criminality may be
divided into two categories:
- intent or knowledge
- recklessness or willful blindness.
|
Actus reus
Know that in proving that a criminal offence has been committed,
the state, represented by the crown prosecutor, must prove that an
individual has indeed undertaken an action, or failed to undertake
an action for which he is legally obligated, breaching the statute
of the criminal code. This is also referred to as the objective
element of an offence, as it is relatively easy to be certain if an
action did or did not occur.
Know that the actus reus component of a crime also may
occur through a state-of-being, such as possession of a prohibited
item. In order for actus reus to occur in this instance, the
individual must have knowledge of what he possesses, or consent to
possessing the item in question. This is also referred to as the
subjective element of an offence, as the determination of an
individual’s state of mind is assessed upon less physical
certainty and greater mental subjectivity.
Mens rea
Know that mens rea is Latin for guilty mind. It is the
subjective element of an offence that describes the state of mind
or required intention of accused in a criminal charge.
General Intent
Know that general intent is a level of mens rea where the
accused needs not have intended to commit the offence or cause the
results, but must have intended to act in a way that resulted in
the offence occurring.
Specific Intent
Know that specific intent is a level of mens rea that
requires the prosecution to prove that the accused meant to commit
the offence or to cause certain results. An example of this type of
intent would be a charge of murder where it is necessary to prove
that an accused intended the results from the action.
Recklessness and Willful Blindness
Know that recklessness is a level of mens rea where the
accused knows the potential consequences of an action, and takes an
unjustifiable risk despite the knowledge. Willful blindness
describes circumstances where an accused knew the potential for
criminal consequences, but closed his or her mind to them. For
example, an individual who buys an expensive car stereo from a
stranger for significantly less than market value can be said to be
willfully blind and charged with an offence.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply inquiry skills including:
- act upon their curiosity and interests
- develop questions
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify and test hypotheses
- draw inferences and generate possible solutions.
Practice analytical skills.
Differentiate between levels of criminal intent.
|
Appreciate that three fundamental principles of the criminal
justice system include:
- presumption of innocence
- fair and open trial
- burden of proof beyond reasonable doubt.
Appreciate that criteria serves as the basis for prosecuting
criminal charges.
|
Instructional Notes
- Investigate criminal cases of interest to students. Identify
the elements of mens rea and actus reus of the cases.
Several websites provide case law in detail.
- Examine the varied levels of intent associated with criminal
actus reus. Speculate on reasons for these varied
levels.
- Study a famous trial from history, and determine the mens
rea and actus reus<
/i>.
Issues in the Law
- To what extent is the criminal justice system effective in
achieving fairness and equality under the law?
- Why is willful blindness not acceptable in Canadian law?
|
Content (Teacher Information) |
Concepts and Knowledge Objectives |
Non-Intent Offences
There are two sets of circumstances whereby only actus
reus, but no mens rea need exist in order for a crime to
have occurred. This means that no moral fault exists. The first are
strict liability offences, and the second are absolute liability
offences. These are not true criminal offences, but rather
contravention of regulatory statutes. |
Strict Liability
Know that a strict liability offence depends for conviction only
on proof of the physical element of the offence (actus
reus), although there is no negligence on the part of the
accused. |
Strict Liability Offences
For offences of this nature, the general protection of the
public is the intent, rather than punishment of offenders. These
include primarily quasi-criminal offences of regulatory nature, to
protect the health, safety, environment and general welfare of the
public. Examples include wildlife laws at the provincial level, and
laws regarding taxation and environmental protection at the federal
level. Due diligence may be offered as a defence to a strict
liability offence.
|
Due Diligence
Know that as a defence to a strict liability offence, an accused
person must prove the exercise of due diligence in order to avoid
committing the offence. Due diligence involves demonstrating that
one has undertaken to do everything possible to avoid committing an
offence. In this way, because of reasonable belief in a mistaken
set of facts, which would, if true, have made the action
nonoffensive, the accused person may be deemed free from fault.
|
|
Absolute Liability Offences
Absolute liability includes commitment of a regulatory offence,
but offers no defence as is available in the strict liability
offence. Examples of an absolute liability offence would include
failing to stop for a stop sign, or speeding. |
Absolute Liability
Know that absolute liability offences are regulatory offences
based on proof that the accused committed the prohibited act
(actus reus), but need not involve proof of criminal intent
(mens rea).
Know that absolute liability is similar to strict liability, but
there is no potential for due diligence or mistake of fact as a
defence in the case absolute liability. The Canadian criminal
justice system accepts offences as absolute liability offences only
when the written statute explicitly identifies the intention of
absolute liability. |
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Differentiate between levels of intent.
Differentiate between strict and absolute liability
offences.
Apply inquiry skills including:
- act upon their curiosity and interests
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify, and test hypotheses
- draw inferences and generate possible solutions.
Use research to gather specific data.
Practice skills of analysis.
|
Assess the degree to which society should endorse the principles
of strict and absolute liability, as related to the necessary
element of mens rea in determination of a crime.
|
Instructional Notes
- Investigate current or recent criminal cases of interest to
students. Identify the elements of mens rea and actus
reus of the cases.
- Examine the varied levels of intent associated with criminal
actus reus.
- Explore the concept of nonintent offences. Investigate how one
may be charged with a nonintent offence in light of the requirement
of mens rea.
Issues in the Law
- In what ways is the criminal justice system effective, or
ineffective, in achieving fairness and equality under the law?
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Types of Criminal Code Offences
The Criminal Code of Canada outlines the provisions of
conduct deemed offensive to society. These may be categorized
according to the following criteria:
- Offences Against People
- Offences Against Property
- Offences Against Morality
- Offences Involving Automobiles
- Being Party to an Offence
|
Offences Against People
Know that under the provisions of the Criminal Code of Canada
(2000), offences against people include homicide, manslaughter,
counselling or aiding suicide, assault and sexual assault.
Offences Against Property
Know that under the provisions of the Criminal Code of Canada
(2000), offences against property include theft, break and
enter, mischief and fraud.
Offences Against Morality
Know that under the provisions of the Criminal Code of Canada
(2000), offences against morality include gambling in
contradiction to regulations, prostitution and obscenity.
Offences Involving Automobiles
Know that under the provisions of the Criminal Code of Canada
(2000), offences involving automobiles include impaired
driving, driving with excess alcohol in the bloodstream, failure to
provide a breath sample, criminal negligence and dangerous
driving.
|
|
Controlled Drugs and Substances Act
The establishment of contraband substance offences has changed
from the Criminal Code to the Controlled Drugs and
Substances Act, in order to encompass a larger number of
offence-creating statutes into one piece of legislation, and to
better reflect societal understanding of this area of law. The
Controlled Drugs and Substances Act includes schedules for
classification of certain categories of drugs. These include:
- Schedule One - includes heroin and cocaine. This schedule
provides for the most serious penalties because the substances
included within it are deemed to present the greatest health and
social difficulties.
- Schedule Two - includes marijuana and other forms of
cannabis.
- Schedule Three - includes drugs such as amphetamines and
LSD.
- Schedule Four - includes drugs such as barbiturates and
anabolic steroids. This category includes substances that are legal
to possess with a prescription, but are illegal to possess without
a legally obtained prescription, and are also illegal to import,
export or traffic.
|
Drug Offences
Know that there are six types of drug offences created under the
Controlled Drugs and Substances Act. They include:
- possession
- trafficking
- possession for the purpose of trafficking
- importing and exporting
- production
- possession of the proceeds of drug offences
Another drug-related offence created under the Criminal Code
of Canada is that of impaired driving. While most commonly
associated with the use of alcohol, impaired driving also is an
offence that occurs in the event that an individual operates a
motor vehicle while under the influence of other drugs.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply inquiry skills including:
- act upon their curiosity and interests
- develop questions
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify, and test hypotheses
- draw inferences and generate possible solutions.
Practise skills of analysis.
Practise independent research skills to gather specific
data.
Practise group presentation skills.
|
Appreciate the rationale for the inclusion of actions against
morality as offences in the criminal code.
Identify the moral values portrayed through criminal
laws.
Determine the public policy intents of criminal laws.
|
Instructional Notes
- Investigate criminal cases of interest to students. Identify
the elements of criminality within the cases.
- Have students investigate various Criminal Code
offences, and speculate about why items are included as
offences.
- Divide the class into groups to investigate the various types
of offences. Have groups report to the class, sharing data in a
cooperative process.
- See Drugs, Alcohol and the Law, a publication of the
Public Legal Education Association of Saskatchewan, for background
data regarding this area of criminal law in Canada.
Issues in the Law
- Are any Canadian criminal laws unjust? What is unjust about
them, and how could they be made just?
- Are Canadian drug laws effective? Explain.
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Criminal Attempts
While completed actus reus (physical action) is a
necessary element of proof in most serious criminal matters, the
actions of attempting to commit a criminal offence may also be
deemed as offensive in the legal sense. For example, if an
individual thinks or talks about committing a criminal offence, no
law has been broken. However, if the same person attempts to take
action toward actually achieving the intended offence, then a
criminal offence has been committed, even if the action has not
been successfully completed.
Parties to an Offence
One need not be the principle character carrying out a
criminally offensive action in order to be guilty of the offence.
In Canada, it is a criminal offence to be party to a criminal
offence under the following circumstances:
- aiding and/or abetting
- counselling
|
Attempt
Know that under the Section 24 of the Criminal Code of
Canada, when an individual attempts to undertake an offence, an
action or omission directly connected with the intended crime is,
in itself, a criminal offence.
Know that three essential elements of the criminal offence of
attempt are intent to carry out an unlawful act, some act or
omission toward committing the offence, and noncompletion of the
criminal act. (Completion of the action would eliminate the offence
of attempt.)
Aiding or Abetting
Know that an aid to a criminal offence is a person who knowingly
assists in the commission of a crime in any way.
Know that an abettor to an offence is one who knowingly
encourages another to commit a criminal act.
Counselling
Know that counselling may be charged when one advises,
recommends, solicits or incites another person to be party to an
offence. Under section 464 of the Criminal Code of Canada,
an offence of this nature occurs when the counselling occurs
regarding a crime never committed. Under section 22 of the
Criminal Code of Canada, a counselling offence occurs when
an actual crime is committed, and this is deemed much more serious
an offence.
|
|
Accessory After the Fact
Another of the criminal offences that may be committed without
being the principle offender is that of accessory after the fact.
This may include providing food, clothing and shelter to one who
has committed an offence, if it is determined that such assistance
was provided for the purpose of enabling that person to escape.
However, a married person may not, under current law, be convicted
of the charge of accessory after the fact when they are an
accessory to the offence of a spouse in this manner.
|
Accessory After the Fact
Know that it is a criminal offence according to Section 23 of
the Criminal Code of Canada, when a person who, knowing that
another person has committed a criminal offence, helps that person
to escape.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply inquiry skills including:
- act upon their curiosity and interests
- develop questions
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify, and test hypotheses
- draw inferences and generate possible solutions.
Practise analysis skills.
Practise independent research skills.
Practise group presentation skills.
|
Appreciate the rationale for the inclusion of actions against
morality as offences in the criminal code.
Appreciate that criminal laws reflect the moral values of the
society in context of time and place.
Assess the public policy intents of criminal laws.
|
Instructional Notes
- Investigate criminal cases of interest to students. Identify
the elements of criminality within the cases.
- Have students investigate various Criminal Code
offences, and speculate about why items are included as
offences.
- Divide the class into groupings to investigate the various
types of offences. Have groups report to the class, sharing data in
a cooperative process.
- Have students create a scenario involving criminal attempts,
aiding or abetting or counselling an offence, from their own
experiences with peers. Have them speculate as to the criminality
or noncriminality of the scenario as a demonstration of the
concepts.
Issues in the Law
- Are any of our criminal laws unjust?
- Should an individual be protected from being forced to give
testimony regarding criminal activity by a spouse?
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
The Canadian Criminal Justice Process
Within the Canadian criminal justice process there are many
different interests represented through a variety of agencies and
structures. The process of criminal trial in Canada is based upon
an adversarial system of judging disputes. This adversarial system
includes five categories of participants in a criminal trial
process. Not all cases proceed in the same manner within the
criminal justice system, but rather proceed according to the
circumstances of each set of circumstances.
The Police
The provincial governments in Canada are constitutionally
responsible for policing within their boundaries. In some provinces
there are provincial police forces, such as Ontario and Quebec. In
other provinces including Saskatchewan and the three Territories,
the Royal Canadian Mounted Police are contracted to provide
policing services.
Another policing option that exists in
Saskatchewan, as elsewhere in Canada, has individual cities, towns
and municipalities employing their own municipal police forces. The
creation of local community policing in Aboriginal communities is
underway as part of the movement to self-government for Aboriginal
peoples in Saskatchewan. An example of this is the File Hills
Policing Agreement.
The criminal justice system places responsibility upon police
agencies to investigate crime, to apprehend and arrest persons
suspected of committing offences, to gather evidence necessary for
conviction of offenders and to charge persons with criminal
offences. The actions of police officers in the investigation of a
crime are governed and limited by the Criminal Code of Canada
(part XV), the Charter of Rights and Freedoms and the
common law. These provisions are intended to ensure procedural
fairness in protecting the rights of the citizens from abuse of
power by the state, represented at this stage of the criminal
justice system by the police.
Questioning By Police
In their daily activities, police are entitled to gather
information to further investigations, enabling them to carry out
their duties and functions in the community. While the process of
gathering information through questioning individuals is routine
procedure for police, individual citizens have clearly defined
rights in this regard. These rights are intended to prevent
unwarranted loss of liberty through detention.
|
Adversarial System
Know that in Canada, criminal trials are built around an
adversarial system. This system holds that the greatest number of
just resolutions in criminal trials will occur when both the
accused defendant and the prosecuting state are allowed to argue
their cases effectively and vociferously before a fair and
impartial arbiter (judge).
Suspect
Know that a suspect is an individual whom is being actively
investigated with regard to an offence, but has not yet been
charged.
Accused
Know that a person against whom a criminal or quasi-criminal
charge has been laid is known as the accused.
Functions of Police
Know that the three primary functions of police in Canada
are:
- to prevent crime
- to detect and apprehend offenders
- to maintain order in the community in accordance with the
law.
Detention
Know that, according to the Supreme Court of Canada, detention
occurs when a person is stopped by a peace officer and "submits or
acquiesces in the deprivation of liberty and reasonably believes
that the choice to do otherwise does not exist."
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Practice analysis skills.
Apply inquiry skills including:
- act upon their curiosity and interests
- develop questions
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify, and test hypotheses
- draw inferences and generate possible solutions.
|
Appreciate that the cost of police protection is an issue in
communities in Saskatchewan.
Appreciate that many Aboriginal peoples consider policing and
criminal justice as aspects of the inherent right to
self-government.
Appreciate the procedural safeguards in place to protect the
rights of an accused person.
|
Instructional Notes
- See Student Handout 2.9 - Law Enforcement Services and Student
Handout 2.10 - Aboriginal Policing Initiatives in Saskatchewan, for
background data regarding policing in Saskatchewan.
- Investigate the adversarial system of justice. Assess the
controls and limits put on the power of police.
- Study the rights of an individual in various interactions with
police, including:
- being confronted while walking down a street
- being approached as a driver of an automobile
- police arriving at your residence door.
Issues in the Law
- Who should pay for policing in Saskatchewan?
- What factors may influence the future for Aboriginal policing
in Saskatchewan? Why is Aboriginal policing an important issue in
Saskatchewan?
- Are the limits to police power in Saskatchewan appropriate?
Explain.
- How might we assure that those accused, who are not convicted
of an offence, will be presumed innocent by the community?
Student Handout 2.9 - Law Enforcement
Services
Student Handout 2.10 - Aboriginal
Policing Initiatives in Saskatchewan
|
Content (Teacher Information) |
Concepts and Knowledge Objectives |
Charge
When police charge an individual, they are formally accusing
that individual of committing the offence named in the charge. This
charge is called an information, and is served upon the person
accused. At this point, police usually do not arrest an individual,
but serve the individual with an appearance notice or a summons,
both of which obligate the individual to appear in court to answer
the charge identified in the information. Arrests are made when an
accused is considered to be at high risk of not appearing in court
to answer a charge.
|
Charge
Know that when an individual is formally charged with an
offence, the police will serve an information upon the accused
person that informs the accused of the details of the alleged
offence.
|
|
Arrest
The issue of arrest is important in the criminal justice
process, in that arrest is state imposed, lawful restriction of
personal liberty. Because arrest involves the loss of liberty, the
Criminal Code of Canada (part XVI) and the Charter of
Rights and Freedoms ensure procedural fairness and protection
of the rights of the accused in case of arrest. Arrest is designed
to:
- ensure that an accused person appears at trial for crimes for
which they have been accused
- prevent a person from beginning to commit a crime
- stop a person in the process of committing a crime.
Arrest may occur without a warrant when an indictable offence
has been or is about to be committed, while arrest warrants may be
obtained to arrest someone whom a judge or justice of the peace
determines should be arrested to ensure the public interest. An
officer may use reasonable force to make an arrest, although
definition of reasonable force depends upon each particular set of
circumstances. Upon arrest, an accused individual must be provided
an explanation of the reason for the arrest, and be informed of the
right to counsel and the right to remain silent. Any person who is
arrested must be taken before a judge or justice of the peace
within 24 hours or as soon as possible, to ensure that no
unwarranted loss of personal liberty occurs at the hand of the
state. Any arrest or detention must occur within the parameters of
the Criminal Code and the Charter of Rights and
Freedoms.
In circumstances other than those stated, an officer believing
someone has committed a criminal offence will charge the individual
and later serve the individual with a summons to appear in court,
rather than arresting the individual. |
Arrest or Detention
Know that arrest is the act of taking an alleged or suspected
offender into police custody. It is the lawful restriction of
liberty by legal authority, by expressing words of arrest and
actual physical detention.
Know that stopping someone to ask for identification is not an
arrest.
Know that under section nine of the Charter of Rights and
Freedoms, everyone has the right not to be arbitrarily detained
or imprisoned.
Know that the Criminal Code of Canada outlines the
procedural safeguards that protect the rights of an accused person
upon arrest or detention.
Summons
Know that a summons is a document that may be served upon a
person accused of a crime, requiring the accused individual to
appear in court at a certain time and date to answer the
charges.
Habeas Corpus
Know that the right to habeas corpus involves the right
to a hearing to determine if an accused is being legally detained
before trial. |
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Select and apply criteria in assessing documentation.
Apply inquiry skills including:
- act upon their curiosity and interests
- develop questions
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify, and test hypotheses
- draw inferences and generate possible solutions.
|
Appreciate reasons for procedural protections guaranteed
under the Charter of Rights and Freedoms and the Criminal
Code of Canada.
Contemplate the consequences of human error in determining the
guilt or innocence of an individual charged with an offence.
|
Instructional Notes
- Investigate the concept of habeas corpus. Why is it
important in Canadian law?
- Investigate the circumstances of Guy Paul Moran, David Milgard
or Donald Marshall. How did these miscarriages of justice occur
despite the procedural safeguards in place in the criminal justice
system?
- Analyze a charging document, which may be obtained from a local
police detachment. Identify the components of procedural and
substantive law included in the document. Assess the adequacy of
the document in protecting the rights of the accused.
Issues in the Law
- Are the rights of accused persons excessive?
- How should society compensate victims of wrongful
imprisonment?
- How might the Canadian criminal justice system prevent further
cases of wrongful imprisonment?
|
Content (Teacher Information) |
Concepts and Knowledge Objectives |
| Anyone placed under arrest must be informed of the reason for
the arrest, and must be advised of their rights under the law. This
is one of the procedural safeguards designed to prevent the abuse
of power by authorities of the state in their interaction with the
citizens. |
Presumption of Innocence
Know that in Canada an individual is presumed innocent unless
proven guilty beyond a reasonable doubt.
Know that an individual placed under arrest has procedural
rights, including:
- the right to remain silent
- the right to consult with a lawyer
- the right to a hearing regarding their liberty
- the presumption of innocence unless proven guilty beyond a
reasonable doubt.
|
Search or Seizure
A police officer may search a person, place or thing for
evidence. Because a search is an intrusion on a person’s body
or property, the police must have a good reason for the search. In
certain circumstances the police may make a search without a
warrant, while in other cases they must have a warrant. After
making a search, the police may take things they believe could be
used as evidence.
|
Search or Seizure
Know that under section eight of the Charter of Rights and
Freedoms, everyone has the right to be secure against
unreasonable search or seizure.
Know that in 1987, the Supreme Court of Canada determined that a
search is reasonable if:
- it is authorized by law
- the law itself is reasonable
- the manner in which the search is carried out is
reasonable.
Know that under part XV of the Criminal Code of Canada,
the powers of police are defined and limited in terms of search or
seizure.
|
|
The Prosecution
Crown prosecutors are government lawyers who handle criminal
cases on behalf of the people of the land. The Crown prosecutor
prepares the case by researching the law, reviewing exhibits
obtained by police as evidence, reviewing paperwork such as search
warrants and interviewing witnesses. The Crown prosecutor decides
if there is enough evidence to justify taking the case to trial,
and also decides whether to prosecute a dual (hybrid) offence as a
summary conviction or an indictable offence. If there is a trial,
the Crown prosecutor must have evidence to present in court to
prove the elements of the alleged offence, which is either verbal
testimony or a physical object. |
Prosecution
Know that the Crown prosecutor represents the state in
criminal prosecutions, and is given the task of proving the case
that an accused is guilty beyond a reasonable doubt. |
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply inquiry skills, including:
- act upon their curiosity and interests
- develop questions
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify and test hypotheses
- draw inferences and generate possible solutions.
Apply research skills to gather specific
data.
|
Appreciate reasons for procedural protections guaranteed
under the Charter of Rights and Freedoms and the Criminal
Code of Canada.
Contemplate the consequences of human error in determining the guilt or innocence
of an individual charged with an offence.
|
Instructional Notes
- See Student Handout 2.11 - Search and Student Handout 2.12 -
Student Searches for information about search and seizure.
- Interview a police officer regarding issues of arrest from the
law enforcement viewpoint.
- Examine the procedural protection for accused persons as
identified in the Charter of Rights and Freedoms. Identify
reasons for such protection.
Issues in the Law
- Is the procedural safeguard of the right to remain silent
justified in Canadian law? Why?
- How might we assure that those accused, who are not convicted
of an offence, will be presumed innocent by the community?
Student Handout 2.11 - Search
Student Handout 2.12 - Student Searches:
A Case in Point
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Classification of Offences
Offences under the Criminal Code are classified into
three categories according to their seriousness and the procedure
used to deal with the accused. They include:
- summary conviction offences
- hybrid or dual offences
- indictable offences.
The nature of the alleged offence usually will dictate the
category of law under which an accused person is tried, although
certain hybrid or dual offences may proceed according to the choice
of the crown, in terms of summary conviction or indictable
procedures.
The Accused or Defendant
A person becomes a defendant, or accused of an offence, only
after formally receiving the charge in the form of an information.
The rights of all accused persons in Canada are protected by
procedural statutes and the Charter of Rights and Freedoms,
intended as safeguards against wrongfully convicting an individual,
and subsequently violating their fundamental rights and
freedoms.
An accused person is under no obligation to present a defence to
a charge, as it is the Crown that must prove guilt beyond a
reasonable doubt. The accused is not obligated to even raise a
doubt about guilt or innocence, as they have the right to be
considered innocent until and unless the Crown meets this burden of
proof. However, in most criminal trials, the accused will choose to
attempt to create a reasonable doubt about the case of the
prosecution. As well, the accused may mount a defence by attempting
to prove that circumstances existed that negate the guilt of the
accused as it is presented by the prosecution.
|
Summary Conviction Offences
Know that summary conviction offences include less serious crime
that carries a light penalty. The accused may be tried in
provincial court without a jury or a preliminary hearing.
Hybrid or Dual Offences
Know that hybrid or dual offences allow the prosecution to
elect to proceed by way of summary conviction or by way of
indictment.
Indictable Offences
Know that indictable offences include serious crime that is
subject to stiff penalties, and that is prosecuted using the more
formal set of criminal procedures including a preliminary inquiry
and jury (if the accused so chooses).
Fundamental Rights
Know that sections seven through fifteen of the Charter of
Rights and Freedoms outline the fundamental legal rights in
effect in Canada.
Fundamental Justice
Know that under section seven of the Charter of Rights and
Freedoms, the right to life, liberty and the security of the
person can be deprived only in accordance with the principles of
fundamental justice.
Know that the principles of fundamental justice require that
all persons investigated for and accused of a crime receive
procedural protections to ensure that they are treated fairly
throughout the process.
Burden of Proof
Know that in a criminal trial, the accused is presumed innocent
the crown must prove guilt beyond reasonable doubt.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply critical viewing skills to make judgements.
Select and apply criteria to make judgements.
Classify information by applying identified criteria.
|
Examine why it is important to have an independent judiciary in
the Canadian justice system.
Appreciate the importance of an independent judiciary in the
Canadian justice system.
|
Instructional Notes
- Investigate the concept of an independent judiciary, using a
video kit such as Judicial Independence: What it Means to
You, available from the Canadian Bar Association, Saskatchewan
Branch. (See Law 30 - The Law and You a Bibliography for Law
30 for information regarding engaging the assistance of the
Canadian Bar Association, Saskatchewan Branch).
- Research the process of determining how an offence should be
categorized (summary conviction or indictable) by the crown when
charging an individual with a Criminal Code offence.
Issues in the Law
- Should accused persons be forced to submit to being
photographed and finger printed upon being charged with an
indictable or dual offence? Does this violate the fundamental right
to be considered innocent until proven guilty beyond a reasonable
doubt?
- Considering the fundamental principles of justice, what
measures might be available to overcome the stigma of charge and
the doubt cast on those found not guilty of criminal charges?
- Is it important that judges be independent of outside
influence, or is there an obligation to reflect the opinion of
society in the judicial process?
|
Content
|
Concepts and Knowledge Objectives
|
|
Defences to Criminal Charges
Under Canadian law, every accused person is entitled to present
a defence at a trial, regardless of the circumstances of the
alleged criminal activity. The defences that may be used at trial
include:
- no criminal state of mind
- automatism
- alibi
- self-defence
- defence of property
- duress
- provocation
- mistake of fact
- mistake of law
- mental disorders
- necessity
- intoxication
- special pleas
- entrapment and abuse of process.
The right to mount a defence and to answer charges with the
assistance of legal counsel is fundamental to the procedural
fairness of the Canadian system of criminal law. This procedural
fairness is based in the presumption of innocence of all accused
persons, until such time as a trier of fact (judge or jury)
establishes guilt beyond reasonable doubt in a court of law. If an
individual accused is unable to afford to provide his or her own
legal counsel, assistance is provided in the form of legal aid
counsel.
Accused persons also have obligations along with the rights
afforded under Canadian law. These obligations include any court
ordered undertaking while an accused person is awaiting trial, as
well as obligation to appear to answer charges as specified under
law. Persons accused of indictable and dual Criminal Code
offences must also submit to photograph and finger print
identification by police at the time of charge.
|
Defence
Know that a defence is any denial or answer to the charge
against an accused person.
Know that a defence is also a legally recognized excuse or
justification for criminal conduct.
No Criminal State of Mind
Know that where an accused person did not have a guilty state of
mind when committing a crime, the accused may be found not guilty.
This may include mistake of fact as well as absence of mens
rea.
Automatism
The accused person must have acted consciously, and the alleged
criminal behaviour must be voluntary. An accused person who does
something while sleep walking, or during an epileptic seizure, may
be deemed to have not acted consciously, and therefore the actions
may be deemed not voluntary. Crimes committed in an unconscious
state are rare, and the defence of automatism may be used because
the person moves about automatically.
Alibi
Know that an alibi is when an accused person claims not to have
been present at the time of an alleged offence.
Self-Defence
Know that a person who is attacked may use the amount of force
necessary to resist the attack, known as reasonable force.
Defence of Property
Know that a person may use reasonable force to prevent someone
from entering his or her property, but may not use excessive
force.
Mental Disorders
Know that a mental disorder may result in an individual being
found to be not criminally responsible for an offence. The person
must not have known that the action was an offence. The defence of
intoxication can only be used if alcohol or drug abuse has led to a
condition of mental disorder.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply inquiry skills including:
- act upon their curiosity and interests
- develop questions
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify and test hypotheses
- draw inferences and generate possible solutions.
Apply skills in studying case law.
|
Appreciate reasons for procedural protections guaranteed
under the Charter of Rights and Freedoms and the Criminal
Code of Canada.
Appreciate that the cost of operating the criminal justice
system is significant.
|
Instructional Notes
- Examine some criminal trials. Identify defence strategies
employed, and assess the reasons for their success or failure.
- Inquire about the processes of criminal trials.
- Investigate the defence of mental disorder, and identify the
criteria by which such a defence is applied to cases.
Issues in the Law
- Is the criminal justice system too expensive? What are the
alternatives?
- Inquire into the process of arrest. Are the procedural
safeguards sufficient to protect the rights of the accused?
- Why does the law allow accused persons to be found not guilty
in the event of certain procedural errors by the state?
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Levels of Criminal Court in Saskatchewan
Criminal cases are handled by one of three levels of court in
Saskatchewan, including:
- the Provincial Court
- the Court of Queen’s Bench
- the Court of Appeal.
The first court appearance of an accused person, on all criminal
matters in Saskatchewan, occurs in provincial court.
The criminal
trial process then proceeds through the level of court chosen by
the accused. The Saskatchewan Provincial Court is divided into four
divisions, including criminal, youth, family and small claims. The
Court of Queen’s Bench hears the more serious criminal cases
and most civil law cases (with the exception of small claims). The
highest court in Saskatchewan is the Court of Appeal. The Supreme
Court of Canada serves as the highest level of court for all of the
provinces and territories.
The Criminal Trial Process
Once charged with a criminal offence under the Criminal
Code, an accused must appear in provincial court in order to
answer the charge. The accused person has four options with respect
to a plea. They include:
- plead guilty
- plead not guilty
- plead not guilty as charged but guilty to a lesser included
offence or other offence
- enter a special plea.
It is also at this time that an accused, by pleading not guilty,
makes the decision about the level of court through which to
proceed. An election to proceed through Provincial Court generally
results in cases going to trial more quickly than Queen’s
Bench Court. However, at the Queen’s Bench Court level, the
accused is entitled to a hearing called a preliminary inquiry, to
determine if there is enough evidence to justify sending the case
to trial. If there is enough evidence to justify a trial, the judge
then sets a date for trial, and a plea is entered.
The case then proceeds with the prosecution attempting to prove
the guilt of the accused beyond a reasonable doubt. The accused
person has the right to remain silent, and continues under the
presumption of innocence unless the charges are proven. If the
charges are proven, the judge or jury finds the accused guilty. If
the charges are not proven, the accused is found not guilty of the
charges.
|
Duress
Know that a person who commits an offence because of threat of
immediate death or serious injury may use the defence of
duress.
Provocation
Know that provocation, which causes another person to lose his
or her self-control, can be used as a reason to reduce a charge of
murder to manslaughter.
Mistake of Law
Know that ignorance of the law is no defence against committing
an offence. However, if an accused person can show that they were
misled about a law by a government official, an exception called
officially induced error applies.
Independence of the Judiciary
Know that in order for the rule of law to prevail, judges must
be independent, including:
- security of tenure-absence of the threat of arbitrary
firing
- financial security
- institutional independence-absence of influence upon
judges by elected government officials or employees of the
government.
Election
Know that an accused person may choose to have his or her case
tried by a judge or a jury, and may choose to have the case heard
in either Provincial or Queen’s Bench Court.
Preliminary Inquiry
Know that at the Queen’s Bench Court level, the accused
has the right to a preliminary inquiry, during which the
prosecution must prove to a judge that there is enough evidence to
warrant holding a trial.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply inquiry skills including:
- act upon their curiosity and interests
- develop questions
- think through controversies or dilemmas
- look at problems analytically
- inquire into preconceptions about what is already known
- develop, clarify and test hypotheses
- draw inferences and generate possible solutions.
Summarize information from a flow chart.
|
Appreciate that the system of criminal trial proceedings is
designed to provide procedural safeguards for accused persons.
|
Instructional Notes
- See Student Handout 2.13 - The Court System in Canada and
Student Handout 2.14 - Criminal Trials: A Road Map as background
information for students.
- Undertake a mock trial as a simulation activity.
- Visit a Court of Queens’ Bench trial or a Provincial
Court trial to observe the procedures in action. Prepare students
for the visit by reviewing the procedures of the criminal
court.
- Invite a lawyer or a judge to make a presentation regarding
judicial independence.
Issues in the Law
- Why is an independent judiciary important to Canada’s
justice system?
- In the United States, judges are elected to office, whereas in
Canada judges are appointed. Which system is better? Why?
- Why is there a preliminary hearing in a Queen’s Bench
trial?
Student Handout 2.13 - The Court System
in Canada
Student Handout 2.14 - Criminal Trials:
A Road Map
|
Content (Teacher Information) |
Concepts and Knowledge Objectives |
|
The Young Offenders Act
The Young Offenders Act (Y.O.A.) applied to people
from age 12 until their 18th birthday, who contravened
the Criminal Code or other federal statute. The Act
attempted to balance the goal of protecting society, along with the
recognition that young people have special needs. The Act
recognized that young people make mistakes and that such mistakes
should not be held against young persons for their entire lives.
The Y.O.A. also recognized the need for parental involvement
in youth crime, as well as the desirability of anonymity of the
youth accused of a criminal offence. Subsequently, a Youth Court
division of Provincial Court was established to meet the
requirements of the Young Offenders Act. However, the
Young Offenders Act, implemented in 1984, has been
criticized as not adequate to meet the goal of protecting society.
Changes in the 1990s resulted in the option for the crown to move a
case to adult court from youth court, where the prosecution
believed the alleged offence was serious enough to warrant the
provisions of adult court. As well, maximum sentencing provisions
of the Y.O.A. were revised in 1994. Discontent with the
Y.O.A. continued throughout the 1990s, resulting in the
introduction of the Youth Criminal Justice Act by the
federal government in 2001, in order to address concerns with youth
justice in Canada. The Youth Criminal Justice Act is
designed to replace the Young Offenders Act, following the
usual process of legislation in the Canadian parliament.
The Burden of Proof in Criminal Law
Because the Canadian criminal legal system has adopted, as a
principle of fundamental justice, the presumption of innocence as
the basis for procedure and rules of evidence, the burden of proof
in criminal matters is solely on the state. The prosecution must
prove that the accused committed the alleged offence in a criminal
matter. Levels of proof in the legal sense may be categorized
according to three classification standards:
- the evidentiary standard, whereby a party must supply some
evidence of the truth of fact
- the civil standard, whereby a party must prove that it is more
likely than not that the fact is true
- the criminal standard, whereby proof of guilt must be to such a
high degree that no reasonable person would have a real doubt as to
its truth.
|
Not Criminally Responsible
Know that under Canadian law, persons under the age of twelve
are deemed not criminally responsible for actions that may
contravene criminal or quasi-criminal statutes.
Alternative Sentencing
Know that youth offenders are sentenced under provisions of
legislation specifically designed to address unique circumstances
associated with youth crime.
Burden of Proof
Know that in the legal system, burden of proof is the
requirement that a certain party prove a particular fact at
trial.
Standard of Proof
Know that standard of proof is the level to which a party must
convince the trier of fact (judge or jury) of a given
allegation.
Know that the evidentiary standard is the standard of proof
required at preliminary hearings.
Know that the civil standard, also known as the balance of
probabilities, is the standard of proof required in civil
trials.
Know that the criminal standard of proof beyond a reasonable
doubt is the highest level of proof required in the legal
system. |
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply criteria as a basis for testing models:
- performance - the ability of the model to perform
constructively, efficiently and consistently in a variety of
situations
- consequences - the acceptability of the consequences of
applying the model to various situations
- accuracy - the ability of the model to predict future
events accurately and consistently.
Develop and apply criteria as a basis for coming to
conclusions.
Evaluate conclusions applying moral tests:
- roles exchange test
- new cases test
- universal consequences test.
|
Appreciate that the assumptions and premises we accept as truth
and reality and use in the models we create tend to come from the
accepted paradigms of society.
Examine and clarify beliefs regarding age of responsibility in
terms of:
- sentencing
- publication of identity
- publication of trial details.
Clarify values regarding causes of youth crime.
|
Instructional Notes
- Examine the Youth Criminal Justice Act, which is to
replace the Young Offenders Act<
/i>.
- Identify the values expressed through the legislation.
- Compare and contrast the proposed Criminal Youth Justice
Act and the Young Offenders Act.
- Construct a dialectical reasoning activity regarding age and
circumstances of protection of identity in criminal
convictions.
- Undertake a case study of the Cornwall, Ontario high school
student who was sent to jail in December of 2000, and who is
awaiting trial for allegedly uttering threats expressed in a
dramatic reading in a school class. Engage in a dialectic reasoning
activity to draw a morally defensible conclusion about the
case.
Issues in the Law
- Should the identities of persons convicted of a criminal
offence be revealed to the public? At what point in the criminal
justice process should identities be revealed, if ever?
- Should law allow individuals to be charged with a criminal
offence in the process of engaging in artistic expression?
Student Handout 2.15 - News Story:
Attendance to Trials
Student Handout 2.16 - Davis Inlet
and Southern Justice News Story
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
The prosecution does not have to eliminate all doubt to obtain a
conviction against an accused, but must provide proof beyond a
reasonable doubt that is based on evidence. Rules for gathering and
presenting evidence are in place in Canada as a protector of
procedural fairness. Evidence gathered through confession by the
accused is also subject to the procedural protections offered under
law, in attempts to ensure the absence of coercion by the
police.
Outcomes of the Legal Process
Upon completion of the criminal trial, an accused may be found
guilty, or not guilty. The crown, prior to the beginning of an
actual trial, may also stay charges. A guilty verdict necessitates
sentencing by the judge in the criminal case.
The Purposes of Sentencing
In determining appropriate sentencing of offenders, Canadian
courts are guided by the Criminal Code, which identifies the
legal definition of the purpose of sentencing.
- punishment
- deterrence
- protection of the public
- rehabilitation.
The Criminal code also outlines minimum and maximum ranges for
sentencing in many cases.
Varieties of Sentences
The courts may impose a variety of types of sentences,
including:
- incarceration
- fines
- probation
- suspended sentences
- absolute discharges
- conditional discharges.
Courts have also begun to impose alternatives to the process of
sentencing and the categories of sentences noted above, in response
to the need to make the sentencing of offenders more effective in
achieving the goals of the criminal justice system.
|
Verdicts in Criminal Trials
Know that a court may find an accused person guilty as a
result of the crown proving the facts of the charge beyond a
reasonable doubt. A court may also find an accused person not
guilty, as a result of the crown failing to prove the facts of a
charge beyond reasonable doubt.
Stay of Proceedings
Know that a stay of proceedings is an order by the court that no
further action on a charge will occur until some event occurs to
reactivate a case.
Sentencing
Know that sentencing is the process by which society, through
the courts, imposes sanctions or punishments on a person found
guilty of criminal conduct.
Know that section 718 of the Criminal Code of Canada
identifies the purpose and principles of sentencing.
Truth in Sentencing Philosophy
Know that proponents of the truth in sentencing philosophy
advocate full term sentences, with no early release provisions for
incarcerated offenders.
Alternative Sentencing
Know that alternatives to the process of sentencing offenders
may include accepting recommendations of sentencing circles or
family conferences, electronic monitoring, Elders’ or
community sentencing panels, sentencing advisory committees and
community service.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Apply criteria as a basis for testing models:
- performance - the ability of the model to perform
constructively, efficiently and consistently in a variety of
situations
- consequences - the acceptability of the consequences of
applying the model to various situations
- accuracy - the ability of the model to predict future
events accurately and consistently.
Develop and apply criteria as a basis for coming to
conclusions.
Apply the skills of dialectical evaluation:
- define relevant viewpoints within the
information
- test the view points for factual accuracy
- test the viewpoints for their morality
- evaluate the factual and moral testing
- form a conclusion about the issues.
Apply the moral tests of:
- role exchange
- universal consequences
- new cases.
|
Examine the concept of truth in sentencing, in terms of:
- the value claim for the position
- the value claim of the opposing position
- the factual accuracy of the arguments presented for both sides
of the idea
- The conclusions of the two positions regarding sentencing
Appreciate the values exemplified in the philosophy of
restorative justice.
|
Instructional Notes
- Research the issues surrounding sentencing of adult criminal
offenders in Canada. Undertake a dialectical reasoning activity to
clarify students’ positions regarding sentencing.
- Investigate principles of sentencing. What model should
Saskatchewan follow to improve sentencing as an instrument of
criminal justice?
- Investigate alternative models of sentencing, including:
- sentencing circles· electronic monitoring
- community service · fine-option programs
- banishment · restitution models
- Investigate the issue of minimum sentencing as it relates to
the case of Wilke area farmer Robert Latimer.
- Should there be minimum sentences for some offences, such as
murder?
- See Student Handouts 2.17 - Sentencing Circles, 2.18 - Getting
Out: Absence, Parole and Release,
2.19 - News Story: A Native Justice System, and 2.20 - Law and
Order for Canada’s Aboriginal Peoples, for information on
sentencing.
Issues in the Law
- What is the truth in sentencing philosophy? Assess the
feasibility of this approach to criminal corrections.
- What is the purpose of plea-bargaining? Is it an effective
instrument of the criminal justice system?
Student Handout 2.17 - Sentencing
Circles
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
The Canadian Correctional System
As Canadians contemplate the desired goals and roles of the
criminal justice system, clarification of the role of the
correctional system as an arm of the criminal justice system also
occurs. Responsibility for the correctional system is shared
between the provincial and federal governments, with the systems
operating under the terms of legislative statutes in each
jurisdiction. Incarceration for a period of longer than two years
occurs in the federal system, while incarceration of less than two
years occurs in the provincial system.
As well as incarceration, the correctional system addresses
issues of release of offenders and their reintegration into
society, through the system of parole. Both sentencing and parole
issues are sources of intense public discourse in Canada. Debates
about sentencing have focused on the topic of early release, or
parole. Issues associated with parole focus on appropriateness of
parole as an instrument of public policy, and the operation of the
parole system. The vast majority of Canadians who find themselves
incarcerated will, at some point, rejoin society upon fulfillment
of their sentence.
|
Legitimacy of Correctional Institutions
Know that the operations of the Correctional Service of Canada
and the National Parole Board are governed under the federal
Corrections and Conditional Release Act. The stated mission
of the Correctional Services of Canada is the protection of society
by actively encouraging and assisting offenders to become
law-abiding citizens, while exercising reasonable, safe, secure and
humane control.
Know that provincial corrections programs are mandated by
legislation of the provinces.
Parole
Know that parole is the conditional release from imprisonment or
other confinement after serving part of the sentence.
Know that the National Parole Board administers parole.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Practise role-playing skills.
Practise speaking and listening skills.
Apply critical thinking skills.
Apply analytical skills.
Practice decision-making skills.
Identify relevant information from data.
Design and implement survey instruments.
Apply dialectical reasoning skills.
|
Critically assess the underlying principles of the parole
system, which include:
- protection of the public as the most important concern
- long term protection of the community is enhanced when
offenders return to the community as law-abiding citizens
- all relevant information must be considered when making
decisions about conditional release.
Appreciate that individual differences in offenders’
backgrounds and experiences affect parole decisions.
|
Instructional Notes
- Undertake a simulation of a parole hearing. A model is
available from the PLEA Saskatchewan office.
- Examine the mandate of Corrections Canada, and assess its
effectiveness.
- Survey members of the public or families regarding the
correctional system. Use data to determine the accuracy of
perceptions about the correctional system in Canada.
- Undertake a dialectical reasoning activity to evaluate the
effectiveness of Canada’s parole system.
Issues in the Law
- Should correctional systems in Canada employ a boot camp style
of operations as some jurisdictions do? Why?
- How might a society evaluate the effectiveness of its
correctional system?
Student Handout 2.18 - Getting Out: Absences, Parole and Release
Student Handout 2.19 - News Story: A Native Justice System
Student Handout 2.20 - Law and Order for Canada’s Aboriginal
Peoples
|
Content (Teacher Information)
|
Concepts and Knowledge Objectives
|
|
Issues In Criminal Justice
The Canadian criminal justice system faces many issues and
challenges in the 21st century. As an instrument of
social justice, the criminal justice system faces competing claims
from those supporting the law and order, get tough on crime
approach to criminal justice and those supporting the
rehabilitative, restorative approach to criminal justice.
Manifest in this dilemma is the vast over representation of
Canada’s Aboriginal peoples in the provincial and federal
correctional systems. Questions of fairness and access to justice
arise from this over representation reality. Strained relations
between police forces and Aboriginal peoples in Saskatchewan are
also a challenge that requires much attention. Initiatives aimed at
addressing these issues are underway, with the potential benefits
of importance to all residents.
Youth crime is also an issue that continues to be contentious
within Canadian society, because of the immense social costs and
lost potential among repeat youth offenders.
The future of laws designed to address organized crime and
computer-related crime continue to be clarified, with tensions
between the rights of the individual and the protection of society
at the centre of debate. As the development of new laws becomes
necessary to reflect technological and societal change in the
21st century, new issues will arise. These new issues,
as well as challenges remaining from the 20th century,
will continue to be the subject of scrutiny, debate and public
policy reform.
|
Reality
Know that in reality, the world in which people live their daily
lives is a messy, confused mixture of categories, values and points
of view about which people are emotional, reasonable, unreasonable
and confused.
Know that within this confusion, there will be, at minimum, two
points of view, and usually more, that have to be defined and
examined from different points of view before it is possible to
determine truth, morality and ethical behaviour.
Morality
Know that morality provides guidance for making moral
choices.
Know that morality is based on a number of principles or
criteria:
- an action may not be taken unless it is right for everyone to
take that action
- actions that may be hurtful to others must not be carried
out
- before any action is taken:
- all information about the consequences of the proposed
action(s) on others must be sought
- the effect of an action on another person must be
considered
- advice from others should be considered
- the moral reasoning should be tested and rejected if it is
faulty
- others involved in the action should test their oral reasoning
and reject it if it is faulty.
|
|
Skills/Abilities Objectives
|
Values Objectives
|
|
Research current issues in the area of criminal law.
Examine sources of data for bias.
Review processes for criminal trials in Saskatchewan.
|
Appreciate that the outcome of any evaluation is
dependent upon the criteria selected as the basis for making
judgments.
Learn to determine whether decisions made and enforced by moral
criteria are better for society than decisions made and enforced by
political criteria, by:
- selecting moral tests to apply to each criterion
- applying those tests impartially and fully
- constructing a rigorous logic to come to a considered judgment
about the issue.
Select and apply criteria in order to avoid biased
judgments.
|
Instructional Notes
- Visit a court where a trial is in place. Contact the office of
the Court Clerk to discuss learning objectives, as well as to
review scheduling and visitor decorum protocol.
- Refer to Student Handout 2.14 - Criminal Trials: A Road Map for
details regarding the avenues of proceedings of the Canadian
criminal justice system.
Issues in the Law
- Should youth offenders be treated any differently than adult
offenders in terms of rehabilitation?
- To what degree should the background and life experiences of an
offender be considered when determining sentencing within the
criminal justice system?