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Criminal Law: The Criminal Justice System Part: 2

In a just world where everyone follows the laws and acts like normal citizens, the criminal justice system would probably be useless since nobody breaks the law. Unfortunately, we are in a world of chaos where there are laws broken every single day. To counter these actions, we need to have a strong criminal justice system that would both respect the rights of individuals, while also making sure the victim is being treated properly and fairly, such as the right to have a lawyer and a fair trial. Our modern justice system has evolved a long way since the first justice system developed by the British since the American revolution. This modern system would include a network of government and private agencies working together to make sure our rights are being protected. In the following section, I will be describing the current Canadian justice system, if they satisfy the needs of the people, and any changes that need to take place.

Laws: What are they?

As we have seen from the last section on the Fundamentals of Government, laws are a necessary part of a functioning society and there are many types of laws. First, we have international and domestic laws. For the purposes of this paper, I will only touch base on domestic laws (within Canada). Inside domestic law, we have substantive laws (they establish the rights and freedoms of the governed). Furthermore, substantive laws get split down into private and public laws. Private laws mean that the law governs private individuals (civil law), and public law deals with the relationship between the government and the individual (criminal law, constitutional law, etc.). Since we are only talking about criminal laws in this section, I will only explore public law. The last layer of division within public law is between Administrative, Constitutional, Criminal, and Aboriginal laws. These laws overlap within each other since they are all a part of public law. For instance, due process is stated in the Constitution, but it is used in every criminal law case to protect the accused.

The Criminal Code of Canada

The Criminal Code is a federal law in Canada in which it defines most of the criminal offenses that can be enforced. The purpose of this law can be seen in the first section where I talked about the foundations of government. Just like any other laws, the Criminal Code ensures a safe and peaceful society by establishing prohibitions on certain activities such as murder. This is not to say that there are no imperfections in the Criminal Code, in fact, there are many, but first, we have to understand the punishments and how this piece of legislation works.

The first major distinction in criminal law is the difference between a summary and indictable offense. A summary offense generally applies to smaller violations of the law and can only result in up to $5000 in fine and/or 6 months in jail whereas compared to an indictable offense, for bigger violations, which can result in life imprisonment. For instance piracy is an indictable offense liable for life imprisonment while prize fights is a summary offense. In addition to indictable and summary offenses, there are also hybrid offenses meaning that it can be both based on the situation. For example, unlawful drilling is a summary and indictable offense liable for up to 5 years in prison. The fact that we have this classification is crucial so that the punishment of a crime is proportional to the crime itself, but however, there are loopholes.

In addition to summary and indictable offenses, another huge problem that the courts have to determine is if the accused is actually criminally responsible or not. This is where the majority of the exceptions fall. The current minimum age to be held criminally responsible is 12 years old. There are people on both sides of the debate as to whether this age is too low or too high. For instance, some want to raise the age to 16 while some want to lower it to 10. Those argue that they want to raise the age because children lack the capacity to understand that they are doing something wrong. This is a major topic of controversy in England and Wales since their minimum age for criminal responsibility is 10. Those who argue that the age should be lowered think that it is unreasonable to give young people a “free pass” to break the law since it would promote them to break more laws in the future. The topic of whether someone is criminally responsible is highly contested even to this day, and age is not the only exception to criminal responsibility.

In Canada, in order to be criminally responsible, you have to have both mens rea and actus reus (note: you can still be charged with conspiracy even if there is no actus reus). In order for someone to have mens rea, the prosecutor must demonstrate that the act was either intentional, knowing, negligent, reckless, or wilful blindness. In order to have actus reus, you just need to prove that the person actually committed the crime voluntarily. We can look at mens rea as the mental part of a crime and the actus reus as the active part of the crime. For example, if you killed someone by accident, then you could be charged with manslaughter since you don’t necessarily need to have intent, but instead, negligence or recklessness. Furthermore, it is the Crown’s burden to prove the crime, so this means that the accused is innocent until proven guilty (this is stated in the Canadian Charter of Rights and Freedoms section 11 (d) “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”). The last principle of proving that someone is criminally responsible is reasonable doubt. It is the Crown’s burden to prove that the accused is guilty beyond a reasonable doubt. In criminal law, one can only be convicted if the jury is 95% sure that the person committed the crime. The reason for this high standard is because we have to be absolutely sure that the accused convicted the crime to avoid wrongful convictions. However, even though we try our best to make sure no one gets a wrongful conviction, studies have shown that 1 in 20 criminal cases are wrongly convicted, and Romeo Phillion was one of many who was wrongly convicted each year.

In 1967, a firefighter was stabbed to death and the firefighter’s wife described the killer which matches Romeo and his brother. Since his brother was out of town during the stabbing, his brother was released. After some time, since the wife couldn’t make a positive identification, Romeo was released. Then, in 1972, Romeo was arrested again for an armed robbery. Although this was completely different from the murder, at the end, Romeo confessed to murdering the firefighter. He was wrongly convicted due to many reasons. First, he falsely confessed to a murder and it was at first unknown why he did it (later, we would learn that these kinds of confessions are actually common for high profile cases). In addition, he suffered from mental disorders such as borderline personality disorder which might have led him to falsely confess. Last, the police officers frequently lost evidence and were very unorganized, which as a result, led the crown in failing to disclose the April 1968 report containing Romeo’s alibi to his lawyer.

This was eventually overturned since Romeo gathered enough evidence to get his case reopened. In 2006, the Minister of Justice ordered the Ontario Court of Appeal to reopen Romeo’s case. Overall, the crucial documents were not disclosed to the court or else, Romeo probably wouldn’t spend his last 3 decades in prison. This is just one of many cases of wrongfully convicted victims every year.

The NCR Clause: Justice Being Served?

The last type of exception for avoiding criminal responsibility is the Not Criminally Responsible (NCR) clause in the Criminal Code. Under section 16 of Interpresentation: “No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.” This means that if someone committed a crime due to a “disease of the mind,” they will not be held responsible, and would be sent to a psychiatric hospital to receive treatment as long as they are not a danger to themselves or society. In rare situations, they would be acquitted completely and let go as seen in the Kenneth Parks case.

On May 23rd, Mr. Parks exemplified the known genetic predisposition called sleepwalking. He left his house and exhibited the sleepwalking variation known as sleep driving. Mr. Parks drove to his mother-in-law’s house where he unconsciously attacked his in-laws which resulted in his mother in law’s death. Shortly after this event, he drove to the local police station and entered the station to state that he “thought” he killed someone. After he recognized that the bodies were his in-laws, he was very confused and said it was “all his fault.”

For many people, this case seems ridiculous to even make its way into the Supreme Court since we all know that sleepwalking is harmless and taken for funny anecdotes. Nevertheless, few realize that sleepwalking episodes could turn violent. Basically, Mr. Parks was unconscious when he committed the murder since he was in the state of sleep walking, and due to this reason, he couldn’t possible form mens rea, therefore not criminally responsible. Based on expert testimony, they argued that Mr. Parks had a sleeping disorder but it does not fall under the “disease of the mind,” thus, this is a case where someone used the NDR clause, but was not actually insane or a danger to society since sleepwalking can be treated by simply having more rest. Essentially, the Ontario court let Mr. Parks go free based on the fact that he was not a danger to others and was not responsible for the murder. This case was highly controversial and even made its way up to the Supreme Court of Canada where the judges ruled that the previous court’s verdict stands ground.

Another case of NDR can be seen from the Vince Li case. Li was a 40 year old Chinese Canadian who had schizophrenia. McLean was a 22 year old Canadian man who was stabbed, beheaded, and cannibalized while riding a Greyhound bus. Li killed McLean but was not found guilty because he had schizophrenia and was not in control of himself, therefore, using the NDR clause, he was sent to a mental hospital in Manitoba. This crime happened because Li was schizophrenic, and according to our law, people with mental disabilities can “get away” with committing a crime by just saying that he/she did not have the mental capacity to understand what he/she did was right or wrong (NDR). In addition to not going to prison, they can get released with a full discharge, meaning that they will not have a record of criminal offense. Justice wasn’t served nor hindered in this case. For instance, we couldn’t blame the entire crime on Li since he was not in control of himself, but we also can’t say that Justice was served because essentially, Li was discharged with no consequences or record showing that he committed a crime. In other words, the law protected Li because he was released at the end and his Justice was respected.

In reality, all of these examples that I listed above including the minimum age, mens rea, unlawful convictions, and NDR are subject to controversy and are little imperfections in our justice system. Nonetheless, we should not blame everything on our justice system since there is no perfect justice system. In the next subsection, I will be exploring what makes a perfect justice system.

Legislation: What Makes a Good Law?

If we look around us everyday, no matter if we notice or not, laws are everywhere; the fact that we stop at the red light, drive under the speed limit, and among many others, are the common instances of legislation around us. Legislations can be viewed as the backbone of our society. They are a necessity to a functioning world and can be compared to the moral code that keeps us running and in order every day. For instance, without driving laws, our world would be a dangerous place since anyone can speed or drive without any restrictions. With that said, our current criminal justice system begins with rule making (the Canadian Parliament).

Now that we have a system of making a law, we have to decide what is a “good” law, and what is a “bad” law. I would qualify several points of a law in order to make it “good.” First, the law has to respect individual rights and any other previous laws; second, the law has to be able to last over time; and last, the law has to be repealable. In other words, new amendments or legislation can overturn the law if necessary. The last point I mentioned is really important in several different ways. For example, different generations have different thoughts which may produce controversial laws such as laws permitting residential schools and the Indian Act. It is important for us to have the ability to overrule a law if it is morally wrong. For instance, as seen in the Canadian laws, not every law is necessarily a “good” law. For example, in recent news, the liberal party is thinking of revising the C-10 Bill “Broadcasting Act” so that the government can identify between professional and non-professional content that would potentially have the effect of limiting the freedom of expression. Another example of a recent controversial bill can be seen in the C-4 Bill which amended the Canadian Criminal Code by making conversion therapy illegal along with the promotion and/or advertising conversion therapy. This can be seen as a major setback and not a “good” bill since it effectively limited the freedom of individual’s expression. Overall, we can see that even though laws are necessary for our society to function, not all laws are designed to promote justice but even hinder it.

Now that we know why laws are important, I will be discussing some of the major laws that are beneficial in due process (Note: victim in this context means the individual who broke the law and is arrested). First, whatever evidence obtained by the policy can not breach the individual’s freedom. For instance, if you search the victim’s house without a warrant but obtain crucial information that could prove the victim guilty, it could not be registered in a court of law since it breached the individual’s freedom to property. Second, all victims have the right to get a fair trial by a judge since everyone is innocent until proven guilty. Third, victims have the right to self incriminate, meaning that the victim doesn’t need to answer questions since even someone innocent might fear prosecution. Fourth, cruel or unusual punishments is illegal since torturing and harming someone in cruel ways is not a good representation of what we are as a society. Lastly, all victims are guaranteed to the rights and laws listed above.

Law Enforcement

Having only legislation doesn’t stop people from breaking the law. In addition to a parliament to make the laws, we also need authorities to enforce them. For example, the police enforces local laws such as caching drivers for speeding and dealing with more serious issues like murder within a community. Likewise, federal agencies such as the FBI (in the States) or the RCMP enforce law at a national level. The main point is that in a functioning justice system, law enforcement acts as the interpreter of the law.

In the current Canadian justice system, law enforcements act as the interpreter of the law, meaning that they have the authority to make sense of the legislation imposed on the society. For instance, the police can actually choose to not give you a ticket if you speed because legally, they are not required to. This is crucial because the police and government agencies act as an indirect check to the legislative system to make sure that laws are not harmful or restricting the rights of citizens. For instance, if there was a law that restricted a certain minority group to go somewhere or do something, law enforcements would choose to not enforce that law because it is arbitrary to their moral values or protecting everyone’s rights.

In a perfect justice system, law enforcements also have to respect the rights of the individual and the law while they are enforcing the law. For instance, the police couldn’t search your house without a warrant or arrest anyone without a probable cause. A good justice system requires law enforcement that respects the citizens and protects their rights.

Other aspects of a perfect legal system include criminal protection. For instance, the accused should not only have the right to remain silent, but also, it would be fair to treat them like they are innocent until proven guilty. For example, there are numerous cases of wrongful convictions in Canada such as Romeo Phillion and Anthony Hanemaayer. Most of these convictions usually occur due to false confessions and facts that are completely avoidable. False confessions can occur due to a variety of factors such as guilt, inability to distinguish between reality and fantasy, or psychological disorders. We can totally avoid these types of confessions by providing resources to the accused such as therapy and professional support. This makes sure that the accused does not self incriminate and have someone to talk to other than their lawyer.

Another factor in a perfect justice system is making sure that police don't use unnecessary forces to detain or even intentionally hurt a suspect (police brutality). Currently, there is legislation around this topic, but it is not enough. Consider the infamous case of George Floyd who got killed by a police officer who used unnecessary force to detain him to the point that the victim suffocated to death. Of course this case made a huge impact on the current justice system since the police are supposed to be a safeguard of peace, but this entire event should not even happen in the first case if police officers were trained to defend and not attack. Due to our negligence regarding police brutality, it resulted in the death of George Floyd. Moving forward, in a perfect justice system, police should be using non-fatal weapons such as pepper sprays and tasers to detain a suspect, but not a gun unless it is absolutely required to. Police officers should be trained and taught from the fundamental value that their job is to protect and not attract. Their role in society is to fight injustice, not cause them.

In addition to training police officers to use non brutal methods to detain suspects, another factor to consider in a perfect justice system is the punishment. For the purpose of this paper, I will be talking about prisons and how they should be changed. This is a very important topic to discuss, because prison conditions, alone, can lead to increased or decreased crime rates. As the definition of prison suggests, it is a place where people are legally held as a punishment for a crime that they committed. Many view prisons as only a place to punish, not heal. However, that is not true if you want the justice system to succeed at what it’s intended to do. For instance, take a look at the Sweden prison system. Prisoners in “open prisons” are not confined behind bars where there is nothing but a bunk bed and concrete walls. Instead, they live in school-like dorms with furniture and windows. In most cases, prisoners are even allowed to watch TV and can visit their families. The reason that the prison system I just described sounds more like a hotel than a prison is because our justice system in Canada (and the US) is not designed solely for the purpose of reimplementing an individual in society. Instead, our prison system is designed as a place for someone to be detained, and this has a few problems.

The reason that Swedish prisons are so “free” is because they don’t actually see prisons as “prisons.” In fact, they view it as a rehabilitation center for individuals to correct themselves of their wrongdoings and go back into society (this is kind of similar to psychiatric hospitals in Canada where we detain the NCR patients). In other words, in Sweden, the prisoners are given their inalienable rights like any other normal citizen and are respected as human beings. Due to this mindset of “rehabilitating” individuals back in society, it has its benefits. For example, recently, multiple prisons in Sweden have to close due to the low crime rate (arrest rate), which means that less people are actively commiting crimes. This directly shows that Sweden has an ideal prison system that is working and serving justice effectively. This also shows that the people of Sweden have developed a good justice system because they managed to decrease the crime rate significantly just based on the punishment (prison) system they have.

Now let’s look at how we can revise our current prison system to make sure Justice is served and not hindered. Currently, the United Nations is pushing for prison reform because it is essentially a human rights argument. For instance, prisoners should not have their natural rights violated. In other words, they should be treated like “humans” rather than “animals.” In addition, by imprisoning the primary income holder of a family, it could lead to poverty of the entire family. This not only affects the family financially, but it may lead to more criminal behavior within the family since they are impoverished and stressed. Therefore, there should be a type of recovery fund for the family if this was the case. In addition prisoners should have access to health services especially in prisons where it is crowded, nutrition is low, inadequate sanitation, and limited access to fresh air. Death rates in prisons are climbing because of TB, HIV, psychiatric disorders, hepatitis, etc. These illnesses are not being treated properly in prison, and it is detrimental to a well justice restoration system.

In short, our current prison system should be reformed in a way that a, respect basic human rights and have a system to monitor that; b, alternatives to prisons as overcrowding in prisons is a major concern; c, viewing prisons as a place where individuals can go through the process of social reintegration rather than a place for them to be miserable; and d, giving prisoners the right to health and access to healthcare whenever necessary. These 4 reforms that I outlined above are major steps that would dramatically improve our current justice system to make sure Justice is being served.

The Supreme Court

The court, or judiciary branch of the government is what takes care of the legal interpretations and places a check on the legislative branch (parliament). The court has the power to declare laws unconstitutional and can even have the effect of what's called ruling from the bench, meaning that the judge can create new laws based on a ruling by declaring a previous law unconstitutional. Nevertheless, the judicial branch is probably the most important part of the justice system in terms of restoring justice, by using the power of judicial review.

Let’s talk about how we should structure our court system in order to better serve the country and its citizens. First, there needs to be multiple levels of court that serve different aspects. For instance there needs to be a provincial court (district courts) to settle matters based on your location since it would be very inefficient to settle everything with the supreme court. In addition, there also needs to be a court of appeals because if either parties are not satisfied with the lower court’s rulings, they should have the power to appeal and have their case heard by the higher court. Last, there needs to be a supreme court that regulates all the matters regarding major cases that can’t be dealt with at lower courts. Overall, as we can see, we need a variety level of courts in our justice system in order to better serve the people.

Now, courts are a necessary part of restoring justice due to a few major reasons. First, the court has the power of judicial review, meaning that they are the deciding factor of who, at the end of the day, is guilty and who is not: a major step in restoring justice. Furthermore, in addition to the checks that the law enforcements put on the legislative branch, the court also offers a check on the law making sector. For instance, the major job of justices is to determine if someone broke the law or not. With this power, there comes the possibility of justices ruling laws unconstitutional, placing a hard check on the legislative branch. This is crucial because not every law is good, and as seen in history, particularly in the American case Brown v. Board, the supreme court struck down a racist law that promoted segregation of minority groups. Likewise, in Canada, the R. v Oakes case struck down an act that infringed our Charter rights. Last, courts are intended to be a place where a victim can be treated fairly in due process so that they can have an unbiased judge to determine if they are innocent or not.

There is a saying “Justice is blind,” and it would apply very accurately in a perfect justice system. The saying basically means that the justice system “sees” everyone as the same no matter their race, gender, or sexual orientation. This way, everyone is treated equally during the trial/conviction process. However, this is not the case in our modern world. Research has shown that something called sentencing disparities occur regularly in our society. Sentencing disparities have shown that, for instance, black men receive longer prison sentences (an average of 19.1%) longer than their white counterparts. In addition, this trend follows as women of any race receive a shorter sentence than white men. The fact that sentencing discrepancies even exist shows how corrupt our justice system actually is. In a way, we, as humans, are kind of progressing backwards. As long as we can remember, segregation has always been a part of our lives. The separation of gender in ancient Rome, racial discrimination and slavery in the 1700s, women sufferage in the 1900s, discrimination aginst the LGBTQ in our modern day, etc, the list goes on. The point here is that practically, it would be near impossible to have a justice system that doesn’t get influenced by any type of discrimination, but until we do, our current system will be forever unjust and corrupt.

As we can see, there are many factors needed in order to have an operational and fair justice system. There needs to not only be legislation, but a body that enforces the legislation. There needs to be a court in order to determine if a particular legislation is infringing the rights of the individual. The three main factors of the justice system, law, law enforcement, and judicial review, work together to ensure that everyone’s rights are respected at every step in due process: a necessity to a well functioning society.

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