The Canadian criminal justice system’s focus on legal guilt holding precedence over factual guilt supports the rights outlined in the Canadian Charter of Rights and Freedoms; sections 1 and 7 to 14 because focus on legal guilt requires law enforcement to better follow strict adherence to the legal rights of each citizen if they wish to introduce them to the criminal justice system.
The legal system’s focus on legal guilt over factual guilt sets rules in place that could potentially prove an accused person’s innocence and thus solve the issue of factual guilt. The judicial system is structured in a way that ensures a person’s legal rights are upheld when it comes to criminal law. It is critical to the proceedings that all rules are followed
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Section 11(d) of the Canadian Charter of Rights and Freedoms states that all Canadian citizens have the right to be considered innocent until proven guilty in a court of law. The fact that legal guilt is considered more important than factual guilt in the judicial system means that the system is designed to uphold several of the legal rights outlined in the Charter. Having guidelines that make it so a person has every right to a just trial prove that having a legal focus supports the concept of justice as laid out by the Canadian Charter of Rights and …show more content…
This equality is achieved by creating standards and procedural precautions that must be respected to ensure that a person has been treated fairly. If the due process model isn’t followed a case could be dismissed, thus allowing someone who may be factually guilty to get away with a crime. The Toronto Star (2015) reported on a incident in which a Markham marijuana grower’s case was dismissed because the police Constable leading the investigation didn’t follow proper procedure and as such violated the accused man’s rights. The officer failed to follow the proper procedures and as such the court was unable to justify pursuing the case. There can’t be a fair trial if there isn’t procedure to make sure that the definition of fair is the same for
Victims’ rights include being informed of the investigation, being able to make a witness statement, being informed of the charges laid against the accused and being treated with sympathy and compassion. (Charter of Victim’s Rights NT 2016). The rights of the accused are outlined Article 14 of ‘The International Covenant on Civil and Political Rights’, which states that the accused must; be informed of the charges laid against them, have adequate time to prepare and choose a counsel of their choosing, be tried without undue delay, be tried in the presence of the court, not be compelled to testify against themselves or confess guilt and be compensated by the court if wrongfully convicted (ICCPR 1966). These rights must be upheld to ensure equality before the law, however, when neglected justice is denied as illustrated in the Mallard and Raggett
In today’s Canadian society, it is certain that criminal law is to serve and protect and its fundamental purpose is to prevent crime and punish offenders. However, there have been cases where criminal law has punished the offender who turned out to be innocent. A conviction is needed to show that the system is not in disrepute and to keep order and people safe in society. If a criminal cannot be caught then people will look down upon the system in disgrace. In many cases, officers will arrest an individual who fits a certain description that they know will lead to an arrest and conviction. In the case of Guy Paul Morin it shows how the system failed in aiding the innocent who abide to the law. The law is established to protect those who are innocent from being targeted because of the law.
Canada’s criminal justice system largely focuses on rehabilitation, but Bourque’s harsh sentence is similar to the sentencing practices of the United States (Gagnon 2015). This is troubling as Canada’s rehabilitation focused criminal justice system appears to be working. Canada has a low rate of recidivism for offenders who have been convicted of murder (Gagnon 2015). Research shows that Canada’s rehabilitation focused criminal justice system has also worked with crimes that are not as severe as murder. Between 2010/2011 and 2013/2014, there was a 12% decrease in completed adult criminal court cases. Most cases in adult criminal court involve non-violent offenses (Maxwell 2013/2014). Similarly, in 2013, the police-reported crime rate was at it lowest since 1969 (Statistics Canada). The homicide rate is also declining, as in 2013, it represented less than 1% of all violent crime (Statistics Canada). Notably, probation was the most common sentence given in adult court cases and custody sentences were less than six months (Maxwell, 2013/2014). These types of sentences showcase the rehabilitation focused thinking of the Canadian criminal justice system and reinforce the impact and possible repercussions of Justin Bourque’s
The Charter of Rights and Freedoms is an important document that allows us to live our lives without arbitrary governmental control, although there may be certain times when rights should be limited. The R. v Oakes case is a perfect example of this situation coming into play. David Edwin Oakes was caught with an unlawful possession of hash oil and was automatically convicted of trafficking, under section 8 of the Narcotic Control Act. By looking at the Charter, it was clear that section 8 of the NCA violated his right to be presumed innocent until proven guilty, guaranteed in section 11.d. With that in mind, the respondent brought in a motion that challenged section 8 of the Narcotic Control Act. Since the Supreme Court and the Crown were confident that the suspect was trafficking narcotics, they created a four criteria ruling, in order to reasonably limit the rights of the respondent. This is permissible under section 1 of the Charter, which states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms…only to such reasonable limits prescribed by law.”2 The respondent’s case passed the first criterion which stated that “the reasoning for limiting the Charter must be proven important enough to override a constitutionally protected right.” The case did not pass the second criterion which stated that “there must be an appropriate connection between the limitation of rights and the objective of the legislation.”2 Therefore, the appeal was dismissed and the respondent was released. After reviewing the case it was clear that even though the suspect did not have his rights limited against him, limiting rights should be used more often in severe cases.
Jury nullification is the process by which the panel of juries acquit the defendant regardless of evidence provided. Jury are also able to nullify the law if it is applied unjustly, again, regardless of supporting evidence or instructions from the judge. It is clear that there are both, strengths, and weaknesses of this process, which will be discussed in this paper. This paper will champion jury nullification within the Canadian justice system, discuss its pros and cons, as well as propose changes to the process. Ideas of morality, fallibilities of rule of law, and social change will be explored in relation to jury nullification and its effects on the legal system within Canadian
Publication bans have been a part of the Criminal Code since 1988. A publication ban is a court law that prohibits trial information from leaving the case. Since these bans were first introduced in Canada, they have become a very useful tool in Common Law. These bans have been frequently used over the years for many purposes including avoiding the risk of adverse consequences to participants and for more accurate trial procedures. Having publication bans are beneficial, in every which-way, than not. These bans contribute positively to the environment of law and most importantly, the society within. This essay will outline why the court should have the right to impose a publication ban in Canada. It will support the debate that if Canada wishes to build towards a reputation of having trials handled efficiently, then it should not change the nature of these publication bans. It will portray the importance of these bans through a thorough explanation of how the bans work, and two solid arguments of the cause on the society and environment. First, this essay will discuss basics of publication bans and how they work. Then, this essay will point out how publication bans contribute to trial fairness in the court. Finally, this essay will touch upon how publication bans protect victims and those involved in the trials.
The Charter of Rights and Freedoms is the strong foundation for the diverse country of Canada. They uphold various beliefs and values Canadians may have. Under the constitution in 1982, the CRF (Charter of Rights and Freedoms) was entrenched by then Prime Minister Trudeau. The CRF has 4 rights; Equality, legal, democratic and mobility, there is also 4 freedoms; of Conscience and Religion, of thought, belief, expression and media, of peaceful assembly, and Association. If people feel that their right and/or freedom has been violated, they can go to court by using a “Charter Challenge. ” A charter challenge is when something inequitable or unfair has been done, the citizen can pursue the court case stating that something violated their rights and/or freedoms. All the rights and freedoms help
Wrongful conviction is an issue that has plagued the Canadian Justice System since it came to be. It is an issue that is hard to sort out between horrific crimes and society’s desire to find truth and justice. Incidences of wrongful conviction hit close to home right here in Saskatchewan as well as across the entire nation. Experts claim “each miscarriage of justice, however, deals a blow to society’s confidence in the legal justice system” (Schmalleger, Volk, 2014, 131). Professionals in the criminal justice field such as police, forensic analyst, and prosecutors must all be held accountable for their implications in wrongful convictions. There are several reasons for wrongful convictions such as racial bias, false confessions, jailhouse informants, eyewitness error, erroneous forensic science, inappropriate, professional and institutional misconduct and scientific limitations that society possessed prior to the technological revolution (Roberts, Grossman, 2012, 253 – 259). The introduction of more advanced DNA analysis has been able to clear names and prevent these incidences from occurring as often. As well as the formation of foundations such as The Association of Defense for the Wrongly Convicted (AIDWYC). Unfortunately, mistakes made in the Canadian Justice System have serious life altering repercussions for everyone that is involved. Both systematic and personal issues arise that require deeper and more intense analysis.
Democracy is more than merely a system of government. It is a culture – one that promises equal rights and opportunity to all members of society. Democracy can also be viewed as balancing the self-interests of one with the common good of the entire nation. In order to ensure our democratic rights are maintained and this lofty balance remains in tact, measures have been taken to protect the system we pride ourselves upon. There are two sections of the Canadian Charter of Rights and Freedoms that were implemented to do just this. Firstly, Section 1, also known as the “reasonable limits clause,” ensures that a citizen cannot legally infringe on another’s democratic rights as given by the Charter. Additionally, Section 33, commonly referred to as the “notwithstanding clause,” gives the government the power to protect our democracy in case a law were to pass that does not violate our Charter rights, but would be undesirable. Professor Kent Roach has written extensively about these sections in his defence of judicial review, and concluded that these sections are conducive to dialogue between the judiciary and the legislature. Furthermore, he established that they encourage democracy. I believe that Professor Roach is correct on both accounts, and in this essay I will outline how sections 1 and 33 do in fact make the Canadian Charter more democratic. After giving a brief summary of judicial review according to Roach, I will delve into the reasonable limits clause and how it is necessary that we place limitations on Charter rights. Following this, I will explain the view Professor Roach and I share on the notwithstanding clause and how it is a vital component of the Charter. To conclude this essay, I will discuss the price at which democr...
The Canadian Charter of Rights and Freedoms was enacted under the Pierre Trudeau government on April 17, 1982. According to Phillip Bryden, “With the entrenchment of the Charter into the Canadian Constitution, Canadians were not only given an explicit definition of their rights, but the courts were empowered to rule on the constitutionality of government legislation” (101). Prior to 1982, Canada’s central constitutional document was the British North America Act of 1867. According to Kallen, “The BNA Act (the Constitution Act, 1867) makes no explicit reference to human rights” (240). The adoption of the Charter of Rights and Freedoms significantly transformed the operation of Canada’s political system. Presently, Canadians define their needs and complaints in human rights terms. Bryden states, “More and more, interest groups and minorities are turning to the courts, rather than the usual political processes, to make their grievances heard” (101). Since it’s inception in 1982 the Charter has become a very debatable issue. A strong support for the Charter remains, but there also has been much criticism toward the Charter. Academic critics of the Charter such as Robert Martin believe that the Charter is doing more harm than good, and is essentially antidemocratic and UN-Canadian. I believe that Parliament’s involvement in implementing the Charter is antidemocratic, although, the Charter itself represents a democratic document. Parliament’s involvement in implementing the Charter is antidemocratic because the power of the executive is enhanced at the expense of Parliament, and the power of the judiciary is enhanced at the expense of elected officials, although, the notwithstanding clause continues to provide Parliament with a check on...
Welsh, B., & Irving, M. (2005). Crime and punishment in Canada, 1981-1999. Crime and Justice, 33, 247-294. Retrieved from http://library.mtroyal.ca:2063/stable/3488337?&Search=yes&searchText=canada&searchText=crime&list=hide&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dcrime%2Bin%2Bcanada%26acc%3Don%26wc%3Don&prevSearch=&item=18&ttl=33894&returnArticleService=showFullText
The Canadian Justice system is run like a well-oiled machine. It is based on the fair and humane treatment of suspects who remain innocent until proven guilty. There is one big question that has been debated since July 14th, 1976 - should the death penalty have been abolished in Canada? The new younger generation of Canadians seems to agree with me that the death penalty should be resurrected in Canada.
The criminal trial process is able to reflect the moral and ethical standards of society to a great extent. For the law to be effective, the criminal trial process must reflect what is accepted by society to be a breach of moral and ethical conduct and the extent to which protections are granted to the victims, the offenders and the community. For these reasons, the criminal trial process is effectively able to achieve this in the areas of the adversary system, the system of appeals, legal aid and the jury system.
This paper will be focusing on the controversial issue of mandatory minimum sentences in Canada. There has been much debate over this topic, as it has quickly become implemented for the sentencing of drug offenders, drug-related crimes and banned firearm offences. I will argue that every case that comes through the criminal justice system is different and deserves a fair trial with a sentence that is not already determined for them. There have been many cases where the judge has no discretion in the sentence due to the mandatory minimum sentences pre-determined for the case, no matter what the aggravating or mitigating factors were. I will argue that the mandatory minimum sentences in Canada should be reduced or eliminated as they result in very few positive outcomes for the offender and society, increase recidivism rates, are very expensive, and in many cases are detrimental and unjust. Throughout this essay I will discuss two main cases that represent an unjust sentencing outcome due to the mandatory minimum sentencing laws. I will stress how it should be the discretion of the judge to individualize the sentences based on the offender’s mitigating factors, aggravating factors and background. Leroy Smickle is the first case discussed through the essay, which ended with the judge striking down the mandatory minimum sentences in Ontario due to the possession of a loaded gun. Robert Latimer was also a highly controversial Canadian case about a father who killed his mentally disabled daughter out of compassion to end her severe suffering. I will be using many academic articles throughout this essay to give empirical support to the overall argument.
Criminals always have some sort of motivation to execute crimes. Whether it be that they are low on money or that they have a brutal relationship with someone, they know the consequence will never be as grave as a death penalty in Canada. However, what if that changed? What if the punishment of homicide lead to the death penalty? Criminals might re-consider the consequence of executing the crime and decisively disregard it due to the very dreadful amercement. The death penalty could save lives of the criminals as well as their victims. Hence, the death penalty is an adequate way to make criminals bethink their crime and it could potentially ...