Christy (Ka Yik) Leung 210274157 T.A. Christina Hollingshead (Tutorial- 11:30a.m.) Part 1 Sentencing Circle The sentencing circles were first developed in various areas of Yukon, Canada communities. It was intended for community residents and Territorial justice personnel, and judges from the Territorial Court of Yukon to engage in sentencing circles. The participants include defence lawyer, the judge, prosecutor, police officer, the victim and the offenders as well as their families, and community residents, where they face each other sitting in a circle to engage in a discussion. Through the discussions, the ones within the circle will reach a consensus about the best way to dispose of the case. The sentencing circles takes into account of both goals of protecting the community and the rehabilitation and the offender’s punishment. The significant of the sentencing circle is that it is based on traditional Aboriginal healing practice which led to addressing the needs of communities, victims, and offenders through a process of reconciliation/restitution and reparation. Ideally, the sentencing circle’s fundamental principle is that the process used to select is more important than the actual sentence. Sentencing circles are only accessible to the offenders who plead guilty. It relies heavily on the community volunteers for the sentencing circle to succeed. In addition, the sentencing circles are in the best interest of both non-Aboriginal and Aboriginal people (such as offenders, victims as well as the community). Conditional Discharge Conditional Discharge occurs when the offender is place on probation with various conditions such as “to keep the peace and be of good behaviour”. When the offender is of good
behaviour, he/she may be discharged from court with no records. Conditional discharges are faced with minimal probation. There are four types of conditional release that are available for inmates who are incarcerated in federal or provincial/territorial correctional institutions. Firstly, temporary absence occurs when the offender is granted by the institution which can also begin after admission and may extend to the end of the sentence. It may also involve ankle brace or some sort of electronic monitoring device. Secondly, day parole is granted by parole boards where it is accessible during the one-sixth point in a sentence; but it all depends on the years of the offender’s sentence. Thirdly, full parole is similar to day parole which is also granted by parole boards but what differs is that it is available at the one-third point in sentence. Fourthly, statutory release is granted to federal inmates by the Correctional Service of Canada and it is accessible at the two-thirds point in a sentence. All in all, these are various types of conditional release at different stages of the sentence but unfortunately not all applications will succeed. Denunciation Denunciation uses sentencing as an expression of moral blaming. It expresses society’s disapproval of an offender’s behaviour. It is one of the sentencing principles of retribution (social aspect). It may also be a possible justification for the nuisance of the offender’s sentence. Denunciation requires deterrence other than retribution to justify more harsh sentences. It is similar to the statements of society’s values. Denunciation is a term used by the civilians to in forms a public officer whose duty is to prosecute offenders who have committed a crime. Also, the conditional sentence provides significant denunciation and deterrence. Denunciation is also the act of accusing another of a crime prior to a prosecutor. It occurs when the sentence is able to notify the public that the offence is serious then stating that the punishment is just.
Family Violence Courts/Gladue Courts Family violence courts emerged in the 1900s, where trained prosecutor would assist family members. During that period of time, it was a work product framework which entails that police were making more arrests. The prosecution, arrest and sentencing rates were higher than usual. Criminal justice system began to adapt to women’s needs and accommodation in the system. Essentially, family violence courts focused on the safety of victims (men and women) and sought to address the factors which triggered the offender’s behaviour. Its aim was to break the cycle of family violence by providing programs and services to the offender prior to sentencing. The family violence court was able to produce better result for the victim’s family violence as well as the reduction of family violence to reoccur. Ursel looked at the mandatory charging and zero protocol of direct charging specifically in Manitoba. There were 92% of all reported cases that led to a charge and at the same time Manitoba had the highest rate in Canada. She explained that the more women who goes through the criminal justice system, the more the court adapts to the criminal needs and vice versa. She continued with work culture and how that builds more trusts and the use of the criminal justice system is part of a broader web and set of strategies that women are able to use when dealing with family violence. Gladue Courts are the practices of respecting Indigenous people. The Aboriginal Services of Toronto works with judges to establish some kind of system where the principles are implemented. This expanded since 2000 to two sessions a week and it allows Aboriginal offenders who appear in court to use the court to their advantage. The court will not question whether or not the victim/offender is Aboriginal but themselves. Gladue Courts created a new atmosphere and environment instead of an alienating territory. In addition, the court keeps a list of all Aboriginal Service, communities, and facilities and it mostly focuses on sentencing. It
allows Aboriginals to be recognized and treated with more respect. The court also extended itself to bail hearings in light of removing institutional biases. LaPrarie thought that the sentencing law may be very well intended but will have no substantive affects. Her explanation heavily relied on the overrepresentation of Aboriginal people and that the ones who were incarcerated have a tendency to be young, under educated, unemployed and/or poor. Family Violence Court and Gladue Courts have domestic disputes as well as interpersonal cases that deal with victims and offenders. Both are attempting to remove systemic racial bias as well as gender discrimination. YOA/YCJA The Young Offender’s Act (YOA) maintains the idea that young people should be treated separately from adults. There are four principles in the YOA. Firstly, the act should hold young people more accountable for their behaviours. Secondly, it is to promote protection from young offenders. The first couple of principles demonstrate criminal justice system as being too soft on crime. Third principle is to recognize the impact of the criminal justice system on the young people. Fourthly, it is to protect the legal rights of young people. The third and fourth principles draws too much concern dealing with young people. These four principles made significant changes for youths in court. It introduces the idea of alternative measures and stresses on the issue of removing youths from the criminal justice system. Furthermore, the YOA has diversion program court options which may minimize the impact of criminal justice system and it is in the best interest of both youth and society. YOA gives young offenders due process rights such as the right to cautions, legal control and the rights to choosing their parental care. The legal rights for youth are protected and guarded rights that the youth did not have before.
“The Youth Criminal Justice Act (YCJA) is intended to promote the protection of the public by preventing crime by addressing the circumstances underlying the behaviour, rehabilitating and reintegrating young person in society; and providing meaningful consequences for the offence to promote protection of society.” (s.3) Youths should be accountable for their actions but punishments should be less harsh than adults. The YCJA replaced the Young Offender’s Act in April 1st, 2003 where it provides the legislative framework for a fairer and effective justice system for youths. Since YCJA, there was a reduction of cases in youth court. Drugs and criminal offense substantially decreased during the first year. The problem with YOA was that incarceration was overused and Canada had the highest youth incarceration. YOA did not ensure that the young person would be able to reintegrate in the community after the release. The process after the age of 17 would be transferred to adult court which resulted in unfairness and delay. Overall, the YOA does not give enough interests and concerns to the victims. The YCJA contains preamble and a declaration of principles to the youth justice system. Probation/Conditional Sentence of Imprisonment Probation was first used a correctional strategy but it remains mostly used as an alternative to confinement. It is a versatile sentencing option designed to provide supervision for offenders in the community. This may be used in conjunction with a period of incarceration in a provincial correctional facility. Some of the ways that adult offenders can be on probation are as part of a conditional discharge, suspended sentence, intermittent sentence or as a sentence as its own (as it is most common) or following a prison term of less than two years. Probation can include various dispositions such as fine, imprisonment for a term of up to two years less a day, intermittent sentence and/or conditional sentence. The conditions of probation includes: keep the peace and be of good behaviour, appear before the court when asked to do so by the court and to
notify the court and/or probation officer of any changes in name, address or occupation. The sentencing judge may also impose of additional conditions such as report to probation officer, abstain from drugs/alcohol, owning/possessing/carrying a weapon, provide support and care for dependents and/or perform community service work. Conditional Sentence of Imprisonment occurs when a judge may decide a prison is the appropriate sentence but allowing the individual to serve time in the community rather than in an institution. It is done in heavy monitoring and surveillance. If the offender breaches the conditions then he/she will return to court where the judge will have various options such as incarceration. The conditional sentence may include abstaining from alcohol/intoxicants, carrying a weapon, providing support or care of dependents, performing up to 240 hours of community service and/or attending a treatment program. If and whenever the offender has breached any of the conditions, the judge may: take no action, add or eliminate certain conditions, suspend the conditional sentence order or terminate the conditional sentence order and commit the offender to custody to serve until the release on parole. Part 3 1.
Sentencing disparities indicate systemic racial bias and it reflects on many decisions that
had been made in the process. It occurs due to racism and racial profiling. As a result, sentencing disparities displayed that more black men were being incarcerated due to control for formal reasons. Mandatory minimum sentences reduce substantially on the disparities of sentence due to the fact that they would not discriminate minorities. They are various sets of guidelines on punishments for certain crimes with at least a minimum number of years in prison. Mandatory minimum sentences allow the opportunity for any racial backgrounds to have the same
incarceration years and decreases sentencing disparities. Problematic sentencing disparities focus on racism and discrimination towards minorities. An example of sentencing disparities was the Commission on Systemic Racism in the Ontario Criminal Justice System found that many Black men were disproportionately incarcerated due to control for formal reasons. Whereas, the White men imprisonment rates varied but 57% of Black men were sentenced to prison. There are many factors that indicate sentencing decisions are responsible for the over representation of people of colour in the Criminal Justice System. It may begin as early as racial profiling where police would be responsible for rounding up mostly minorities into the crime net. Certain people of colour are targeted based on stereotypes and it leads to a breakdown of trust between police and public. As the process goes on, the judge/the Crown has discretion and they are able to use their power to either incarcerate or fine the minority offenders. Black men are likely to indictment such as hybrid offences. It is almost out of the question to remove systemic racial bias due to racial discrimination in communities. Carole LaPrarie argues that sentencing reforms like Gladue Courts and Aboriginal Rights will not resolve overrepresentation because it does not have to do with sentencing patterns instead it have to do with the difficulty that people have in the criminal justice system. In the case of Aboriginal people, there history is deeply rooted to the colonial relationship with the Canadian people. Although sentencing law may be very well intended but it will have no substantive affects. Gladue Courts and s.718.2 (e) may allow Aboriginals to have some sort of compassion and respect but it does not unable them to forget about their heritage in Canada such as residential schools, colonization and maltreatment from Canadian people. LaPrarie stated that the real problem is the socio-economic disparities that function in our society. Overrepresentation was and continues to be ingrained in our society. For example, Saskatchewan
has the lowest employment rate of Indigenous people but the highest incarceration rate. The discrepancy of our society tends to over represent Aboriginals as the ones who are likely to be incarcerated are unemployed, under educated, young and has possibly even fallen into poverty. 2.
Advocated of restorative justice argues that crime is an “opportunity” for the
community because it offers the public a chance to have some sort of input on decision making. It is also an opportunity because the community is able to be involved in the process and it is a challenging reaction towards retribution (punitive). Restorative justice aims to engage the public to the justice process. It is suppose to repair harm through actively involving victim in the process, offenders accepts responsibility through taking the harms directly/facing their consequences and offences harm more than just the victim where it promotes community involvement. Restorative justice promotes harmony through the participation of victim, offender and community. It allows the community to conduct in the problem-solving aspect of the process. It challenges retributive justice because it does not rehabilitate. With the retributive principle, the punishment for the offender should be proportionate to the affects. On the contrary, restorative approach gives the community as well as the victim to have more discretion over the offender. Restorative justice focuses on the due process model where it is a non-punitive system of victim rights. As for retributive justice leans towards crime control model which then is a punitive system of victim rights. Retributive justice stresses on the innocence of victims and the guilt of offenders which implicates the presumption of guilt. The fundamental principles of restorative justice contradict Nil Christie’s argument through the general atmosphere of how the justice process should be. Christie (1982) discussed about how conflicts become property and how the public gets excluded from criminal matters. “The greyest, the dullest, the lack of any important audience...” entails that essentially,
court houses are not central features of our day-to-day life. He continued on explaining that the courthouses are typically located at sites away from housing, they are often centralized into complex buildings where it may take months for lawyers to understand, the organizations of a specific courtroom is designed to have the public physically and symbolically removed, and victims marginalized in process occurs when victims are seen as witnesses to the prosecution who are typically pushed out of the process. Restorative justice provides a set of fundamental principles that enlighten the fact that the community should have involvement during the process. It focuses on the future instead of the past and it tries to present itself as a substantive process. Restorative Justice will achieve justice due to the fact that it may be in the better interest of the community. It gives a positive take on crime and the criminal justice system. Restorative justice allows the community to engage and understand the system. It aims to repair harm, social restoration and problem-solving through the victim, offender and community. Since majority of the community has little to no understanding of the trials and process. This will allow them to recognize and to address the issues. It may even build more trust with the criminal justice system and the community itself. The community may even work with the criminal justice system to lower crime rates. An example, the broad blue line occurs when the community works with the police to ensure the safety of the entire community. 3.
The accused typically does not understand courts formal rules, proceedings and
discourse. Usually, lawyers do all the understanding for the accused and to order the accused in a way that does not encourage the accused to even seeks understanding of the court procedures. Most of the accused would rather plead guilty just to be removed out of the system. The accused do have due process rights which enable his/her rights and privileges to proceed in the court
trials such as right to a fair trial and right to speedy trial. It is the upholding of rights of the accused throughout the criminal justice process. The accused also have the presumption of innocence until proven guilty, trial by jury (if requested), representation by counsel and the right to present witness during the proceedings. There is a high possibility that not many accused know about their due process rights. They may solely rely on their lawyers to navigate them through their court trials instead of understanding the court and/or justice system. The accused also has the guarantee of freedom from double jeopardy and the right to appeal a case. Whether it is the victim or the accused, there are still a high rate of “one shot” players or first-timers that enters the system. “One shot” players means that the accused is not well versed in the ceremonial rules of court. Essentially, first-timers may not even understand word for word what the judge/the Crown have stated in the courtroom. “One shot” players as the accused does not have the opportunity to develop membership within the crime control organization. In addition to the lack of knowledge of courtroom settings, environment and roles, another exemplar may also be language barrier. Many immigrants come to Canada yearly; therefore not all of them have English as their first language. The worst scenario would be a nonEnglish speaking person who was not familiar with our set of laws, ended up committing a crime then shuffled into our criminal justice system. Although Canada does in fact have translators and interpreters but we have over 200 different languages.