“Moving Towards a Minimalist and Transformative Criminal Justice System”: Essay on the Reform of the Objectives and Principles of Sentencing
In Part One, we have attempted to briefly respond to two sets of questions: first, what are the core and legitimate principles that form the basis of the State’s powers to mete out punishment within our justice system; and second, what is the actual context in which this power is exercised?
The first series of questions require us to re-examine the very notions of crime, punishment and criminal responsibility. We will then formulate a certain number of findings about the administration of justice by answering the following questions: who is subject to incarceration and for what type of offence; what types of sentences are imposed and what are the procedural and systematic contexts in which sentencing decisions are made.
1. The founding and legitimizing principles that form the basis of the State’s power to mete out punishment: the liberal model
In our society, the legitimacy of the State’s power to punish is based on one of the following two justifications: first, we punish because it is useful and only insofar as it is useful in promoting general welfare—utilitarianism; Footnote 1 and second, we punish because the offender deserves it and only insofar as the punishment is rightly deserved—retributivism. Footnote 2
Although they differ in many different ways, these theories have a certain number of points in common and are based on a series of premises specific to political liberalism, including (a) the notion of crime being associated with the State; (b) individual and personal responsibility; (c) the understanding that human beings exist independently of the society in which they live and that they are free, intelligent, rational and equal; (d) sentencing conceived of as infliction of suffering; (e) a claim of universalism; and (f) protection of the rights of the accused.
Crime and the State
The two theories are based on the notion of “crime” or “criminal offence” which can be defined as an individual’s transgression against a legal order established by the State at a specific point in its social, economic and political history. In this sense, crime is a “construct”, that is, the result of choices made by this State and its representatives in a certain context. Moreover, our conception of crime is closely linked to the public nature of prosecutions: therefore, starting in the 19th century and with only a few exceptions, the State assumed full responsibility for resolving what had originally been private conflicts and did so at the expense of the other parties directly involved, namely, the victims, the offenders and communities (Christie, 1977). In this sense, our conception of crime is also distinct from our broader and more comprehensive understanding of conflict or problem. Criminal law does not necessarily seek to resolve conflicts, but instead seeks to punish crimes that are perceived to violate the interests and values that the State is trying to protect.
Individual and personal responsibility
The criminal justice system advocates individual responsibility. Unlike our civil liability system, Footnote 3 there is no mechanism for sharing or allocating responsibility among certain individuals. Consequently, responsibility is not shared based on the fault or negligence of each of the parties.
Moreover, even though this was the case at a certain point in time, the individual’s family or community, whether it is religious, ethnic or political, does not assume any responsibility for its members. Responsibility is therefore strictly personal, and there is no vicarious liability or collective responsibility. Lastly, responsibility is generally expressed in absolute and binary terms—responsible or not responsible, guilty or not guilty—and therefore does not allow for consideration of degrees of responsibility or diminished responsibility (Sylvestre, 2013). This conception of crime as reflecting a personal and individual choice has a direct impact on sentencing: we try to blame someone for his/her choices or we try to influence these choices in the future, rather than consider the situation as a whole, its social context and the interpersonal dynamics that contributed to the perpetration of a criminal act.
On the contrary, when we envisage crime as a conflict and we take the prevailing social and interpersonal context into consideration, it is possible to contemplate both the responsibility and the status of the victim on a scale or spectrum. As a result, the artificial opposition created between the victim and the offender tends to disappear either partially or completely. We will return to this point a little later.
Assumptions about human beings and their environment
The liberal model is based on four underlying principles. First, individualism: there is a distinction and separation between society and the individuals which make up society, who have divergent and opposing interests. Second, rationality: humans are rational beings who value reason at the expense of their emotions or intuitions; they have all the information and skills required to take the necessary measures to achieve their goals. Third, free will: human beings live in a universe without constraints, and they are free to make choices. Lastly, formal equality: human beings are equal, have the same opportunities and must be held responsible for their actions (Lacey, 1988; Sylvestre, 2010). The liberal model therefore focuses on the individual at the expense of and in opposition to society and the social context and does not allow for the inclusion of collective values and common property. However, these assumptions do not correspond to the human experience and have little or no empirical foundation. In reality, individuals and their community are interdependent. The choices that people make in a world of possibilities are more or less limited by their position in the social space, which is determined not only by their social class, place of birth, religious, cultural or racial origin, gender and sexual orientation, but also by the capital accumulated and skills developed in a particular field (e.g., Bourdieu, 1980). They are therefore profoundly unequal in terms of power and opportunities. Although rational and capable of calculation and strategy, human beings are also impulsive and emotional and do not always have the information, intellectual capabilities and skills required to make their choices (Sylvestre, 2010). It is therefore my opinion that the social context and the social objectives of sentencing should be re-evaluated and reconfigured.
Lastly, in order to achieve its intended purposes, the criminal justice system gives high priority to sentencing (conceived of as a means), which imposes suffering on an individual who is held responsible for an action (the offender). It is therefore structured around negative and afflictive values. It is based on “modern penal rationality”, which is informed by modern sentencing theories (deterrence, denunciation, retribution and rehabilitation within the penitentiary) (Pires, 2001). Each of these theories articulates an obligation to punish, through afflictive sentences, at the expense of the values of pardoning or reconciliation, which are covered only marginally; they promote the punishment and social exclusion of the offender rather than the offender’s reintegration into the community and reparations for harm caused. Exclusion and marginalization are affecting a growing number of individuals and are increasingly taking on an aura of finality in our society. Indeed, the criminal system produces effects which endure over time and through space, most notably due to criminal records and the proliferation of various orders such as supervision, civil incapacity, administrative and penal orders associated with sentencing. This conception of a sentence as imposing suffering and leading to social exclusion does not encourage acknowledgement of responsibility by offenders, who instead try to avoid being convicted at any cost. However, it is possible to conceive of a sentence or a criminal trial process as having a different outcome, of being positive and transformative.
Criminal law has a universal and hegemonic mission owing to the fact that it remains closely tied to the sovereign power of the State and the legitimate use of force. However, in order to maintain its authority and legitimacy, criminal law must allow for a certain number of concessions and accommodations. For example, the State has adopted a series of measures or programs intended to mitigate the effects of imposing Canadian law on Aboriginal people since the colonial era, either by trying to improve understanding of State laws among Aboriginal people (e.g., the Aboriginal Courtwork Program) or by adapting State practice of the law (e.g., itinerant courts, sentencing circles, consideration of Aboriginal status under paragraph 718.2(e) of the Criminal Code).
Protection of the rights of the accused and moderation in criminal justice matters
Lastly, although the liberal values underlying the criminal justice system provide the basis for responsibility and its universal application, they also ensure a certain level of protection for the accused or the offender against the punitive intervention of the State. This protection takes the form of principles of fundamental rights or legal safeguards which are claimed at different stages of the criminal justice process. Theoretically, this legal guarantee presumptively conveys more positive values by calling for a minimum of or more moderate criminal law. In this regard, we would point out that the two main sentencing theories mentioned above include a principle of moderation in criminal justice matters. Therefore, punishment should be meted out only when it is useful to do so, and only insofar as it is rightly deserved. However, as suggested later in this essay, these moderate principles are often sidelined in favour of repressive principles and should once again become the central focus of analysis. Moreover, fundamental rights have only had a minimal influence at the sentencing stage, versus other stages of the criminal process, like standards of behaviour or rules of procedure (Garcia, 2014).
All of these core and legitimate principles allow the State to justify imposing suffering on an individual while also making the individual bear the full weight of responsibility for the social conflict at the root of the criminal intervention: an individual committed a crime, and the State is justified in imposing a sentence on this individual. However, despite the fact that there is some data showing that criminal justice interventions and sentencing have normalizing and stabilizing effects for certain individuals, Footnote 4 there is no empirical evidence to show that this solution is generally effective in preventing crime, Footnote 5 much less in resolving conflicts within communities (although this was not its objective), nor would this solution be the most effective in this context.
In contrast, there are several studies on the destructive and counterproductive effects that the criminal justice system has on accused persons, victims, families and communities. Footnote 6 Various studies thus demonstrate that the criminal justice response, particularly incarceration, contributes directly to recidivism, criminality and the creation and perpetuation of social inequalities. Footnote 7 However, these collateral effects of sentences are not taken into consideration during sentencing. As an example, we should mention how the Supreme Court, in Pham, Footnote 8 limited the scope of the promising concept of “indirect consequences” of a sentence to “factors related to the offender’s personal circumstances” versus the consequences for families, society and communities. In contrast, judges are often quick to attribute full responsibility for social conflict to the individual, as highlighted in cases where judges justify the imposition of a more severe sentence because of the “social evil” represented by drugs or driving while impaired, for example. Footnote 9 Consequently, the social context is primarily used to increase the severity of sentences and not to mitigate responsibility.
In closing this section, we will use four cases drawn from case law to illustrate the importance of reconsidering these principles.
In a region far away from urban centres where there is no public transit system, three youths went out to celebrate at a bar one Saturday evening. At the end of the evening, one of the youths, the one who had consumed the least amount of alcohol, took the wheel of the car in order to drive his two friends home. In the car, the passengers encouraged the driver to go faster. The driver lost control of the vehicle and caused an accident, killing his two friends immediately. The “designated driver” was charged with impaired driving causing death. The parents of the deceased youth were devastated but asked the prosecutor to withdraw the charges.
One fine morning, an Aboriginal man, who was a homeless addict, went into a supermarket, took some frozen meat and cheese valued at $45 and then left without paying before being stopped by a security officer. Intoxicated and agitated, he scuffled with a peace officer during his arrest and kicked the officer. He was charged with theft under $5,000, simple assault and three counts of breaching a condition of probation (keeping the peace, abstaining from intoxicating substances and refraining from going downtown).
A man and a woman had lived together for two years, and their relationship was particularly stormy and abusive. They each took turns insulting, threatening and screaming at the other. One evening, things came to a head, and the situation degenerated. The woman took refuge in the bathroom and called the police, who proceeded to arrest the man, who would later be charged with assault and simple possession of cannabis found on the premises.
In the context of social strife in Quebec, hundreds of students demonstrated against tuition fee hikes. After issuing a notice indicating that the demonstration was being held in violation of municipal regulations (non-disclosure of route and wearing a mask), the police declared the demonstration to be illegal and proceeded to arrest 15 people for unlawful assembly and obstructing a police officer.
In each of these cases, we can ask ourselves the following questions: What is a crime? Who is the victim? Who is the aggressor? What effects would criminal charges have on those who have been characterized as offenders, those who have been characterized as victims, their families and the communities concerned? How useful is the punishment? Considering the social context and environment, how could we approach the situation differently besides engaging the criminal justice system?
In the first case, the victims and the offender knew each other, and in a way, their status is interchangeable, even though two of them obviously lost their lives while one survived. In such cases, it is not unusual for the parents of the victims to be able to identify with the parents of the offender. However, the offender is likely to obtain an exemplary sentence in the hope that it serves as a lesson to others by making the offender bear the full weight of responsibility for the social conflict, irrespective of the effects on the life of this offender. Moreover, one could ask what the specific deterrent effect of the sentence would be if the scenario of killing two of his friends was not enough to deter the offender in this case. Lastly, what proportion of past or future responsibility is borne by the victims, who contributed to creating the context in which the offence was committed; by automobile manufacturers, who foment a culture of excessive speed; or even by municipalities, which fail to offer alternatives in terms of public transit or a safe ride program for clients leaving bars, or our system of raising children, which develops models of masculinity involving such a performance? This does not necessarily mean blaming each of these entities or placing responsibility on individuals; instead, it means taking a different and decompartmentalized approach to viewing this tragic incident. Collectively, would it not be possible for us to take preventive and transformative measures to ensure that these types of cases never happen again?
The questions raised by the third case are similar to those raised by the first: even though women are still more likely to be victims of domestic violence than men, this phenomenon is also often the result of marital dynamics and interpersonal problems. Although this does not mean blaming the victim for beatings (just like a victim of sexual assault should never be blamed for how she was dressed or her sexual past), what proportion of responsibility should each of the partners in this relationship bear in terms of resolving this conflict which escalated? How can the system of justice be useful to them when it all too often proposes radical solutions involving criminal records and separation of families, solutions which have significant psychological and economic effects on spouses and children? Consequently, the system does not have a dissuasive effect on the violence itself, but on the capacity of families to obtain assistance and resolve their problems. What proportion of responsibility is borne by our health systems and social services when they are ill-equipped to manage the psychological and mental health of the public, or by a society which cultivates gender inequality?
In the second case, the social context surrounding this offence, namely, colonialism and its destructive effects on Aboriginals, and considerations related to social inequalities and the creation of poverty and homelessness in our societies, serve to blur the lines between the perpetrator’s status as a victim and offender. Even though neighbouring businesses reported significant losses related to shoplifting, it would be appropriate to reflect on the proportion of responsibility attributable to the State and to communities which fail to provide members of the public with minimum and basic conditions for subsistence, and to the justice system, which imposed conditions of release that were not only difficult to respect, but also problematic for the social reintegration of the offender. Footnote 10 If this individual is found guilty in this case, he will probably be subjected to new conditions for release and/or a short term of imprisonment in addition to a surcharge based on five charges, a sentence which is not only excessive, but also likely to add to his criminal record and have an adverse effect on his efforts to survive and reintegrate into society. Footnote 11 How useful is this sentence? Does it actually serve to reduce shoplifting and poverty?
Lastly, the fourth case reflects a situation in which only a few individuals are held responsible for a fundamentally collective event, a demonstration. When individuals are prevented from expressing their views peacefully and delivering their political message, who are the victims, if not the demonstrators themselves and the entire democratic system? Whose interests are we trying to protect? The interests of the State, under the pretext of ensuring the free flow of road traffic? Footnote 12 What proportion of responsibility is borne by police officers who sometimes use their discretionary powers in a somewhat arbitrary or discriminatory manner, or by society which does not allow for the collective expression of dissent? If the mass crackdown on demonstrators has a dissuasive effect on the capacity to demonstrate, are we really winners as a society, and have we resolved the underlying social problem?
We therefore believe that is necessary to reconsider all these core principles, including what constitutes crime, a sentence and responsibility.
2. Administration of justice: implementation of police power and managerial justice
Although core principles offer a reference framework and make it possible to justify State intervention, in practice, however, administration of justice seems more reflective of “police” logic, i.e., a mode of governance of the population and maintenance of public peace and order, as defined by Markus D. Dubber (2005). According to Dubber, two models of governance co-exist within our criminal law. The legal model seeks to manage conflicts by protecting the interests of the political community and victims and purports to punish an individual for wrongdoing committed by violating the established order on completion of an adjudication process that respects the principle of legality and individual rights. By contrast, the police model places greater emphasis on the role of the State as head of the family who protects the interests of the home to the point of blurring the lines between the interests of the community and victims with its own interests. The players who exercise police power must have broad discretion and rely on vague and imprecise rules. They aim to dispose of and administer matters based on a managerial approach, rather than by attempting to convince or influence the conduct of individuals with specific rights (see also Kohler-Hausmann, 2014 on managerial justice). They take pre-emptive action by focusing on the threats that certain groups of individuals pose to their interests, rather than simply relying on ex post facto repression of wrongful conduct. In an era of new penology, this model encourages prevention of crime and recidivism based on predictions, control of high-risk behaviour and the surveillance of certain groups of individuals who present identifiable characteristics (Harcourt, 2007).
This second model of governance, which is more bureaucratic and managerial and focuses on threats to and the interests of the State, is more reflective of the reality of practices surrounding sentencing. In Canada, the administration of justice is characterized by the intense criminalization of minor and non-violent social problems, including too many offences against the administration of justice itself, and the disproportionate effects on the poor, minorities and Aboriginal people (a to c). These individuals are primarily sentenced to probation or given short prison sentences but are subjected to such measures repeatedly. Prison serves many other purposes besides punishment, and so-called alternative sanctions (probation, conditional sentence and, to a lesser extent, fines) are often complementary to incarceration (d). Lastly, sentences are generally imposed in a context of overcriminalization and legislative inflation, in a bureaucratic and automatic manner, following a guilty plea and without effective protection of fundamental rights (e). In closing this section, we will address the issue of the diminished view of the justice system and assume the role of spokesperson for a growing number of stakeholders in the legal system and victims who are generally dissatisfied with the justice system and have concerns about its effectiveness and legitimacy.
Note: Even though the administration of justice falls primarily within the jurisdiction of the provinces, with the exception of offences under the jurisdiction of the Attorney General of Canada, we believe that it is essential to consider these realities, given that they arise, in part, from federal legislative provisions and have a direct impact on the effectiveness of the reform of the principles and objectives of sentencing. Indeed, the reform of some of these principles will have an impact that is so significant that it will be able to give due consideration to the practice of the administration of justice and existing systemic barriers.
Prosecution and criminalization of minor and non-violent problems related primarily to poverty, social inequalities and occupation of public spaces.
Far from being a solution of last resort, our system of justice constitutes the main system used to deal with and regulate poverty, social problems and conflicts associated with the use of public spaces. Historically, these are not new phenomena (Dubber, 2005; Fyson, 2006; Poutanen, 2015). As one of the only services that remains open 24 hours a day, through the police service, the criminal justice system serves as both a safety valve and a catalyst for problems afflicting our society, as a gateway and even a single point of access for various social and health services in the context of its regular courts or alternative programs for treatment of addiction or mental health issues, or even in the context of detention in open or secure custody. For example, it is not uncommon to meet families who are resigned to filing complaints against certain family members in order to obtain mental health services.
Who is subject to incarceration?
The federal and provincial prison populations reflect these realities: the poor, homeless and unemployed, low income individuals with low educational achievement or individuals who did not graduate, Aboriginal people, Inuit and Métis, visible minorities, who are also much more likely to be poor, and individuals suffering from physical health problems (such as dementia or brain injuries, including foetal alcohol syndrome), mental health issues and drug or alcohol addiction are largely overrepresented and form what can be called the regular clientele of the criminal justice system (Sylvestre, 2015; Collin and Jensen, 2009; Moore, 2003). Footnote 13
For what offences?
The main offences managed by the justice system constitute another indicator of the regulatory role that it exercises. Moreover, 76% of cases resolved by the courts for adults in Canada concern minor and non-violent crimes; this rate is 71% in the case of youth courts. Footnote 14 Specifically, 23% of cases resolved concern property-related offences (including theft: 10.1%), and 23% of cases constitute offences against the administration of justice (including 9.8% for breach of undertaking whilst on release and 8.7% for breach of probation, offences generated by the system of justice itself). Driving-related offences represent 13%, including 10.7% which concern driving while impaired. Statistics for violent offences include 9.3% that are classified as simple assaults. However, these general statistics are likely to vary when the alleged offender is of Aboriginal descent. For example, Aboriginal people are overrepresented in rates for alleged perpetrators of homicides (they are also overrepresented in rates for victims). Footnote 15
What sentences and terms are involved?
Even though it has been elevated to the status of the quintessential punishment within the criminal justice system, imprisonment is not the sentence that is imposed most often. Instead, it is probation which is imposed in 42.8% of cases, for an average term of one year, in addition to various other orders imposed in 55% of cases, including prohibitions and conditional discharges, which also constitute a form of probation. Footnote 16 Besides serving as punishment, prison also has many other virtues. It is primarily used as a temporary detention measure, i.e., while waiting for a court appearance or for trial, thereby accounting for close to 60% of admissions to correctional services at the provincial and territorial level, compared with 33.8% of admissions following convictions. Footnote 17 Prison is also used for the purpose of investigation and for enforcement of a sentence, including for non-payment of fines.
With respect to imprisonment, it is important to note that 87% of individuals sentenced to detention served a sentence of six months or less. Footnote 18 However, this statistic masks two phenomena.
First, there is the fact that long-term imprisonment is disproportionately imposed on certain individuals: a review of 635 decisions rendered between 2012 and 2015, i.e., after the judgment rendered by the Supreme Court in Ipeelee concerning sentencing for Aboriginal offenders, demonstrates that they are disproportionately subjected to prison sentences, i.e., in 87.7% of reported decisions. Moreover, long-term sentences (two years or longer) were imposed in more than 60% of these cases (Denis-Boileau and Sylvestre, 2016).
There is also the “revolving door” phenomenon: a very large number of individuals remain under judicial or custodial supervision without necessarily committing new substantive offences through breach of bail conditions, primarily at the time of release but also during probation. In this sense, the justice system contributes directly to creating criminals that are repeat offenders. In a research project conducted in four Canadian cities on conditions for release imposed on marginalized individuals, Footnote 19 we found that numerous interventions and arrests, repeated appearances before the court and increased supervision through the addition of extremely restrictive conditions of supervision which are often impossible to respect, contribute directly to recidivism (Sylvestre et al, 2015). Footnote 20
In what context are these sentences imposed?
Legislative inflation and penal populism
Between 2006 and 2013, the federal government tabled close to a hundred bills concerning criminal justice and public safety. These bills generally included one of the following objectives: increase the severity of sentences and aggravating circumstances, including by adding mandatory minimum sentences and by extending the effects of the sentence over time; limiting access to alternative measures or community programs while encouraging imprisonment; limiting the discretionary power of judges while strengthening the powers of the executive (including the powers of police forces); resorting to other normative systems, such as regulatory penal law and administrative law, in order to diversify the tools used to control and prevent crime; and lastly, modifying the rules of procedure and evidence, in order to make it easier to obtain convictions for certain offences. Moreover, lawmakers did not hesitate to resort to criminalization on an ad hoc basis in order to respond to various events that were particularly shocking to public opinion. The media also contributed to the formation of this public opinion (Roberts, 2003).
High rate of convictions
Close to two thirds (63%) of cases resolved by the criminal courts in Canada end with a guilty verdict, while 32% end with charges being withdrawn or a stay of proceedings. Footnote 21 Only 4% of cases resulted in acquittal. Moreover, minor infractions are much more likely to end with a guilty verdict than violent offences. Footnote 22
Guilty pleas and the lack of effective protection of individual rights
We estimate that close to 90% of individuals plead guilty (Sylvestre and Jodouin, 2009). A very large number of these individuals plead guilty while effectively compelled to do so. Such is the case for too many individuals detained as a preventive measure for several days and who plead guilty in order to be released and are sometimes given a retroactive term of imprisonment corresponding to the period spent in preventive custody. Footnote 23 There are also some individuals who choose not to exercise their rights because it would be too expensive to do so from a material and financial point of view (costs related to the justice system and ineligibility for legal aid; loss of working days and costs related to travel), from a personal point of view (time, energy and anxiety caused by uncertainty and a lack of understanding of the process or even multiple constraints related to conditions for release), and also because they are more likely to obtain a reduced sentence when they waive their right to a trial, not to mention those who believe that it is not worth the risk. Footnote 24 For all these individuals, the criminal justice process is part of the sentence. Footnote 25 Moreover, this accelerated and highly ritualized process offers only a limited space for challenges that would allow individuals to assert their rights, which are hardly ever invoked at the time of release or sentencing (Sylvestre et al., 2015; Garcia, 2014).
Representatives of the State, particularly the police and Crown prosecutors, exercise their discretion based on institutional and bureaucratic imperatives and not necessarily based on legal imperatives, and there are few mechanisms for judicial review of this discretion. For example, police may in some cases not exercise their discretion when a complaint is filed as a criminal matter or when it involves an offence related to the administration of justice for fear of disciplinary reprisals even though the law would permit them to do so, Footnote 26 and there is the practice of overcharging for an offence, which consists of accusing an offender of a more serious offence than the offence that can actually be proved, most notably when there is a minimum sentence, or when charges are unduly tacked on for a single criminal act. Footnote 27 In this context, mandatory minimum sentences serve to encourage deals and guilty pleas, in addition to limiting the discretionary power of judges.
Bringing the justice system into disrepute: systemic pressures and dissatisfaction of victims
A growing number of judicial stakeholders are expressing concerns about the systemic problems afflicting the justice system. Despite the enthusiasm which some of them have demonstrated for courts focused on resolving social problems, Footnote 28 we should not forget that these stakeholders also denounce the prosecution of social problems and the instrumentalization of the judiciary by the executive branch. Footnote 29 Ultimately, these social problems should be addressed by other institutions which are better equipped than the judicial system to deal with such problems. Moreover, the challenges are not just political; they are also pragmatic. The system is being overwhelmed by minor offences, and prisons are overflowing with offenders who do not pose any risk to public safety, while wait times for a trial, most notably a trial by jury, continue to grow and the courts are struggling to focus on files which demand their attention. The judgment recently rendered by the Supreme Court in Jordan has only increased the pressure in this regard. Footnote 30 What is at issue is the legitimacy and reputation of the justice system.
Victims often express frustration with the criminal justice process and the outcome. Many deem that sentences imposed are not significant: very often, this search for meaning is not closely tied to the severity of the punishment or recourse to long-term imprisonment, but to the lack of actual acknowledgment of responsibility and reparation for the harm caused. As an example, one need only refer to the case of the alleged victims of Jian Gomeshi. In this case, the prosecution used a two-step process. First, Gomeshi had to defend himself against charges of sexual assault involving three separate victims; he was ultimately acquitted of these charges after a particularly humiliating and painful trial for the victims who testified. However, the fourth victim, Kathryn Borel, did not have to suffer a similar fate. The charges in that case were withdrawn by the prosecution after Gomeshi accepted responsibility, apologized and signed an undertaking to respect the peace under section 810 of the Criminal Code. He also made a highly publicized public statement which was broadcast repeatedly in social media. I use this example not because the second solution was perfect in terms of respecting the rights of the accused or even the conflict resolution process, but because it appeared to be entirely more satisfactory for the victim, most notably due to the acknowledgement of responsibility.
Lastly, we note that even though some of these problems have been accentuated over the past few decades, historically, they are stable and recurrent phenomena, which suggests that they are closely linked to the very functioning of the criminal justice system rather than the result of isolated acts committed by certain particularly zealous stakeholders, or even occasional lapses (e.g., Fyson, 2006).
- Two models of governance coexist within the criminal justice system, namely, political liberalism, in terms of the founding and legitimizing principles; and police power and managerial justice, which is more reflective of the reality of practice. The administration of justice in particular produces systemic effects with respect to policing, regulation of poverty and control of petty crime and deviance, which results in poor and marginalized populations being viewed as threats and having them kept under judicial supervision for several years.
- Considerable legislative inflation has stimulated overuse of and even abusive recourse to the criminal justice system. Moreover, the dearth or complete lack of resources for alternative and prevention measures remains a non-issue, since resources are primarily allocated to enforcement services and particularly to offences committed by poor and marginalized people in society.
- The criminal justice system has contributed to developing a culture of blame rather than one which promotes acknowledgement of responsibility and reparation. It does not encourage conflict resolution, and in many cases, the sentences that are imposed are not deemed to be meaningful by the parties concerned, including the victims.
- The impact of modern penal rationality and the primacy of individual responsibility act as impediments to innovation: stakeholders have great difficulty imagining sentencing in a non-afflictive manner and cannot conceive of responsibility beyond individual responsibility at the expense of shared and collective responsibility.
- The criminal justice system has disproportionate effects on Aboriginal people.
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