This is a CRIMINAL LAW AND PROCEDURE course’s paper.The topic is “Gladue factors and the Justice System” (of Canada). Papers are to be approximately 10 pages, double spaced, 12 font. All pages must be

This is a CRIMINAL LAW AND PROCEDURE course’s paper.The topic is “Gladue factors and the Justice System” (of Canada). Papers are to be approximately 10 pages, double spaced, 12 font. All pages must be
Gladue factors and the justice system theory The purpose of Gladue is to reduce rate of the Indigenous population in the correctional system and rates of reoffences (StackPath, 2019). Among indigenous population the inadequacy of basic things like education of mental illness and substance abuse continues till now. The impact of intergenerational factors is still existing. The first nation is always overrepresented in most sectors of legal system. Racism, discrimination, and petrol policing are few of the reasons behind this (Maurutto & Hannah-Moffat, 2016) Therefore, Gladue was introduced to bring equality in justice system for these people. Some of the Gladue factors are residential school survivor, family affected by the “Sixties Scoop, if one has put in a foster home or involved in the child protection system, experienced poverty, racism, trauma, childhood abuse, violence, or addictions (StackPath, 2019). In the paper I will be discussing: Challenges Application of s. 718.2(e).: Gladue report preparation and when to it is applicable: Effect on Criminal justice system after the implementation of Gladue. How the application of Gladue fails in certain circumstances. Bail on Gladue application: The chances of getting bail for in indigenous is low. As an aftermath of Gladue, the legal authority (lawyer and Judges) was little unsure of the use of Gladue, additionally, it was challenging for judges to determine the relevant background factors in sentencing. (Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System, 2018). There is still a question of Gladue’s implementation that “does the judges always take into account the Gladue factors while making decision?”. The court must recognise the history of discrimination and the seriousness of increasing number of indigenous prisoners. There is an unavoidable need to look at an Indigenous accused’s background. Cases like Lockett v. Ohio and state v. elk illustrates a deep understanding of Gladue factors and its impact of discrimination. The case of Leonard demonstrates inadequate use of Gladue principle (Manikis, 2016). This is not the only case but there are few other of this kind which indicates the unfairness towards the Indigenous community. Many have claimed the indigenous legal tradition have taken the place of restorative justice system, but the effect is not similar (Challenges and Criticisms in Applying S. 718.2(e) and the Gladue Decision – Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System, n.d.). Thus, Proper implication of Gladue and understanding the indigenous perspective is essential element in criminal justice system. Reference: Challenges and Criticisms in Applying s. 718.2(e) and the Gladue Decision – Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System. (n.d.). Retrieved September 29, 2022, from https://canada.justice.gc.ca/eng/rp-pr/jr/gladue/p3.html Manikis, Marie, Towards Accountability and Fairness for Aboriginal People: The Recognition of Gladue as a Principle of Fundamental Justice That Applies to Prosecutors (September 16, 2016). (2016) 21 Canadian Criminal Law Review 173, Available at SSRN: https://ssrn.com/abstract=3045409 or http://dx.doi.org/10.2139/ssrn.3045409 Maurutto, P., & Hannah-Moffat, K. (2016). Aboriginal Knowledges in Specialized Courts: Emerging Practices in Gladue Courts. Canadian Journal of Law and Society / Revue Canadienne Droit Et Société, 31(3), 451-471. doi:10.1017/cls.2016.35 Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System. (2018). Retrieved October 2, 2022, from https://www.justice.gc.ca/eng/rp-pr/jr/gladue/index.html StackPath. (2019). Steps to Justice. Retrieved October 3, 2022, from https://stepstojustice.ca/questions/criminal-law/what-gladue-or-indigenous-peoples-court/
This is a CRIMINAL LAW AND PROCEDURE course’s paper.The topic is “Gladue factors and the Justice System” (of Canada). Papers are to be approximately 10 pages, double spaced, 12 font. All pages must be
Criminal Law and Procedure Ch. 1 Criminal Law in Canada What do we mean when we talk about law: the entire body of law laid down by the courts or the government to control the behaviour of the people under their authority What is another way to talk about people under the authority of lawmakers and law making bodies: is to say that those people are “within their jurisdiction: The categorization of law: The entire body of law of a jurisdiction can be broken down into what: various areas of law, such as: –          Criminal –          Family law –          Property law –          Tax law –          Immigration law –          Contract law –          Tort law Within each area of law, there are: specific rules or laws What most often changes: A specific rule or law within an area of law, rather than a whole body of law What does the law tend to change in response to: circumstances in society that have already changed, rather than the other way around *the law is more responsive than proactive *law tends to adjust to society, rather than to modify it Public law and private law: *how we divide law into classes Public law: What does public law relate to: the relationship between an individual or business and the government –          It is the body of law that deals with the relationship between the government and individuals or businesses – criminal law is an example What is the main purpose of criminal law: its main purpose is to ensure that wrongdoers are found guilty and deal with appropriately in the justice system It is established to do what: maintain social order *parties are those who are legally recognized in the court case (government and the one being criminally charged) – the victim is not a party, only a witness Who in Canada prosecute criminal cases: either government employees or people retained by the government to represent it What are they called: crown attorneys because they represent the head of the government Who is this in Canada: the queen of England, otherwise known as the crown Criminal cases are prosecuted in the name of: the british monarch, not the name of the victim What would be the name of a case if ms. Smith assaulted mr. smith: the name of the criminal case against ms. Smith would be R v smith. R stands for regina which is latin for queen. When it’s a man it stands for rex which is king What are some other areas of public law: –          Constitutional law: law that is concerned with the protection of the rights of individuals in dealing with the government and the governments agents –          Administrative law: law that deals with the regulations made by government and enforced by agencies, boards, or tribunals that are set up by government; –          tax law: law that deals with both individual and business obligations to pay taxes and the penalties for failure to do so public law also involves quasi criminal offences. What is that: provincial statutes governing traffic and liquor offences – regulation laws set out by the govt. Enforced in the city private law: what is private law: involves areas of law where the interests of individuals or businesses and the interaction between them are the focus what are some examples of private law: –          contract law: focuses on the making of legally enforceable agreements between people or business and the consequences for breaking such an agreement –          tort law: deals with harm caused to people or their property by others *there is a connection between tort law and criminal law, however not all torts involve criminal harm Explain an example of this: –          if someone did not shovel their driveway and someone fell and got hurt they could sue them –          the state would not be interested in prosecuting the homeowner since there would likely not be any criminal intent –          the homeowner may be required by courts to pay the injured individual money for financial loss and pain they suffered –          if mr ali slipped on ms jones driveway, the name of the case would be ali v jones does this mean that a private individual who is the victim of criminal harm cannot sue an offender: no *** If Ms Jones assaulted Mr Ali, the criminal case against Ms Jones would be conducted by the government against the accused with a view to holding Ms Jones criminally responsible and punishing her for her wrongdoing. As we have discussed, the criminal law is not focused on compensating Mr Ali for the harm caused to him. However, if Mr Ali was injured in the assault and, as a result, lost wages, had pain and suffering, or suffered other harm or loss, he may wish to sue Ms Jones in tort law for monetary compensation, which is called damages. Which case would be heard first: usually the criminal case Why: because the standard of proof is different ***In a criminal case, the individual faces the power and resources of the state or government and, therefore, in an attempt to place the parties on a more equal footing, the justice system requires the Crown to bear the responsibility (or onus) of proving the case to a very high level of proof, beyond a reasonable doubt. What’s different about some tort cases though: when both parties are private individuals, they are on a more level playing field so the level of proof required is much lower Explain standard of proof: the legal level of proof must be established in a court case before the case may be won What is the standard of proof in a criminal case: beyond a reasonable doubt What is the standard of proof in a non criminal case: the lower standard of the balance of probabilities What do we say when private individuals or businesses begin a court action against other private individuals or businesses: we say they have begun a civil action *we may also say that civil law principles govern the case, to distinguish it from a case where criminal law principles apply Explain civil law: the body of law in the Canadian legal system that is non criminal What may the term be used to describe: world legal systems that are based on foundations other than british common law *most countries in Europe have civil law systems as does Quebec in its provincial law Add table 1.1           Substantive and Procedural Law: What is another way we can categorize law: to differentiate them between substantive law and procedural law Does areas of law consist of both substantive and procedural law: yes, all areas of law including criminal law Explain substantive law: stated in general terms – the law that sets out the rights and duties of individuals When we talk about a substantive right, what are we talking about: a right that can be enforced by law In criminal law, what part of law is the substantive law: the part that prohibits certain behaviour or conduct from which we all have the right to be protected – it establishes the specific elements of each offence and defence *** substantive law the part of an area of law that defines the rights and responsibilities in that area of law; in criminal law, it is the part of the law that deals with the creation of criminal offences, the defences that may apply, and the penalties for breaking the law What is procedural law: it provides details of the steps or processes that are required to be followed in order to enforce the substantive law Procedural law deals with the: rules that govern many aspects of criminal law, including the powers of the police to conduct and investigation, the charging of the accused, bail procedures, and modes of trial and adjudication *** procedural law the body of law that sets out the rules for how a case gets before the court and how it makes its way through the court to completion; in criminal law, it begins with the police investigation and the laying of the charge and goes through to the end of the tria What is adjudication: the process that leads to the making of a legal decision All laws including criminal law, consists of: both substantive and procedural law The purpose of criminal law: How is criminal law crimes viewed: as a crime against society as a whole, not just between the victim and perpetrator Why is this –          not only the victim affected –          the society as a whole will feel less safe –          anyone around said crime may be affected *this is why the government takes charge *also why criminal law can play a major role in politics Is a court determing the guilt or factual innocence of a person: no, it is determining if a person can be found guilty under the law How do we try to balance this grounds considering it is a person against an entire state: individuals are guaranteed certain rights at law What is one of these rights: the right to be presumed innocent until the crown proves guilty beyond a reasonable doubt When an accused person is found guilty, the principles of sentencing attempt to do what: directly address the protection of society and the preservation of social order as the purposes of criminal law How is punishment chosen: not just according to the punishment itself, nut also so it deters both the offender and the anyone else who may attempt the offence in the future Aside from from punishment, what are the other purposes of sentencing: in addition to deterrence, section 718 of the criminal code sets out the other main purposes of sentencing including 1. to denounce unlawful conduct 2. to deter the offender and other persons from committing offences 3. to separate offenders from society where necessary 4. to assist in the rehabilitation of offenders 2. common law statute law: what are some alternative names for statute law: –          legislation –          act –          code what is statute law: made by the federal government in parlimant of Ottawa or by the elected legislature in one of the provinces what are ultra vires: a latin term meaning that a law has been made outside the authority of the law making body “outside their power” what is intra vires: a latin term meaning that a law has been made within the authority of the law making body “inside their power” what is the supreme law of the land: the consitition all other statutes, whether federal or provincial, must comply with what: the constitution which includes the Canadian charter of rights and freedoms unlike a normal statute, how can the constitution be amended: through a complicated set of rules and procedures set out in the constitution itself. who can make true criminal law: the federal government the power to make law is given to the federal government pursuant to: section 91 of the constitution act 1867 what does the provincial government have the authority to do: they cant make laws, but they can make laws to regulate and enforce laws that they have made that are within their law making authority eg. Speed limits what may these laws be referred to as: provincial offences or quasi criminal offences what are provincial offences: offences created by provincial legislatures to enforce certain regulatory laws that are within their constitutional law making authority – they are not criminal offences what are quasi criminal offences: offences created to enforce regulatory laws – they are not criminal offences but they have a number of the features of criminal law – provincial offences are an example *breach of provincial law does not result in a criminal record The primary statute that creates and deals with criminal law is the: criminal code What does the criminal code contain: a major portion of both the substantive and procedural criminal law of Canada but is not the statute in the country that is a source of criminal law What are some other federal statutes that create criminal law: youth criminal justice act which addresses the criminal law and justice system as it applies to people under `8 –          also the controlled drugs and substance act – deals with drug control –          crimes against humanity and war crimes act – criminalizes genocide – crimes against humanity and other crimes based on international law and treaties **while these statutes contain most of the body of Canadian criminal law it is not an exhaustive list – eg. Income tax act creates a number of offences that are criminal in nature Common Law: What else is common law called: case law Who makes common law: judges What is the oldest source of law in Canada: case law *dates back to 1867 What does common / case law require: judges who make decisions in the lower courts in the legal structure to follow the previous decisions of higher court judges when they are dealing with a legal issue that is based on substantially the same facts as prior higher court decisions When making decisions, judges in the common law system, particularly those at the higher level, give reasons for their judgements. What do we call these reasons: precedent What is the rule that requires judges to follow the precedent set in earlier, higher court cases called: stare decisis What is stare decisis: the legal principle used in common law by which the lower courts must follow the precedents, set by the higher courts when the facts of a case are generally the same The earliest source of criminal law in Britain was: common law *they were developed through judge made law, not statute law *common law dates back to before there was parliament and it came from the king **earlier than statute law Can statute law change case law: yes How: the elected government can enact statutes that modify or overturn judge made law ***Parliament and the provincial legislatures are supreme and can alter common law through the passing of statutes. Their only major limitation in this regard is that all statute law must comply with Canada’s constitutional principles and must not violate the Charter. other systems of law: Civil law is a tern that can be used in two different ways: –          when comparing criminal law and non criminal law, non criminal law is called civil law –          we can also compare common law, with a totally different system of law called civil law how did the latter system of civil law develop: from early roman law and is used in most European countries in this context, what does civil law mean: a system of law with many rules and principles that are different from those of the common law where is Canada is common law system followed: everywhere other than Quebec why: because the earliest law of Quebec was established when Quebec was a colony of France – so it follows the civil law system used in France what does this mean: This means that when the Quebec legislature makes a law that is within the constitutional power of the province and when Quebec courts apply that law, they follow the principles of the civil law system, not the common law system. What about for criminal law: since criminal law is federally made law, the criminal law in Quebec is the same as the criminal law in the rest of Canada Does the common law play a major role in current Canadian criminal law: yes – judges must apply statutes, including the code, but a statutte must be interpreted to be applied *** When judges interpret statutes or particular provisions in them, they are making case law. Therefore, the common law and statute law have a close, interactive relationship as sources of criminal law in Canada. Basic principles of Canadian criminal law: What are the basic principles that form the framework of the Canadian criminal justice system: 1. all persons charged with a criminal offence are presumed to be not guilty 2. to establish guilt, the crown must prove guilt beyond a reasonable doubt 3. the proof must be presented in a fair and public hearing who in trial has the burden of presenting evidence of the accused guilt to the level of proof beyond a reasonable doubt: the crown where must this take place: a trial that is open to the public and not in a secret hearing *the accused does not have to say anything in court What do we call the crowns burden: the onus of proof What do we call the level of proof to be met: the standard of proof Onus of proof: the prosecutor in a criminal case or the plaintiff in a civil case has the burden or onus to present enough evidence to win their case beyond a reasonable doubt or on the balance of probabilities respectfully What presumption is a significant common law principle that forms the major foundation of the criminal justice system: the presumption of innocence Although this principle has been around for centuries it is now a right enshrined in: section 11d of the Charter What does it mean by the fact that the principle is now a charter right: that the remedies available for a charter violation apply Ch. 2 The Constitution and Criminal Law: The Canadian charter of rights and freedoms and criminal law: The Constitution as the supreme statute: What is a constitution: the aggregate of fundamental principles or established precedents that constitutes the legal basis of something What year did the Canadian charter of rights and freedoms become apart of the Canadian constitution: 1982 *the majority of these rights and freedoms existed prior as common law which had been included in the Canadian bill of rights Including these rights on the charter meant what: that they became part of the constitutional law of Canada The constitution is unlike other statutes in that it is the supreme statute. What does this mean: supreme statute is a statute which which all other statutes must comply The constitution is a: supreme statute *so both provincial and federal legislation must comply with the constitution including the charter What happens if a piece of federal or provincial legislation violates the rights set out by the charter: the offending legislation potentially will be struck down by the courts *legislation that is struck down is of no force or effect section 52 of the Constitution Act, 1982 provides: 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. What is important to note: the charter only applies in the interaction between the individual and the state, it does not apply between individuals What happens when there is violation of rights between individuals: dealt with by human rights legislation even when the Charter does apply, the rights and freedoms set out are not: absolute in nature The Charter places some significant limitations on them. First of all, section 1 states: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In other words, the charter allows what: infringements of rights and freedoms if the court determines that the infringement is reasonable and can be justified When does this infringement usually arride: when the government is attempting to balance various interests What does infringement of rights mean: action by the governments or their agents that violates a right granted under the Canadian charter of rights and freedom What does section 9 guarantee the right to be free from arbitrary detention What does this mean: actions in which the police improperly and unlawfully stop and hold a person in their custody for even a few mins *police cannot stop people or vehicles at will they must have reasonable and probable grounds for believing an offence has been committed before detaining someone What happened in the hufsky case:the supreme court of Canada upheld the use of programs operated by many police forces that involve the arbitrary stopping 0f vehicles –          the court ruled that the stops by police under these programs were a violation of the charter the notwithstanding clause: In addition to section 1, section 33 of the Charter also provides for a limitation on guaranteed rights and freedoms. This section is usually referred to as the “notwith-standing clause.” It provides as follows: 33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4). What is the notwithstanding clause: a rarely used, controversial provision in the Canadian charter of rights and freedoms that allows the federal government or a provincial legislature to override certain portions of the charter What does this section allow: parliament or a provincial legislature to override the charter and declare a particular piece of legislation valid despite the fact that it infringes on a charter right or freedom Is there a stated minimum on the number of times infringing legislation may be re enacted: no but any such validation would last for only 5 years *the section (rarely used) has been employed in Quebec How: the supreme court of Canada found that sections of the Quebec language law regarding the use of French were a violation of the charter What happened in 1989: the provincial legislature used section 33 to save the legislation despite the charter infringement What has happened since then: the language law has been rewritten and the notwithstanding clause that applied to it is no longer in effect Why is this section used sparingly: because it tends to raise political concern. It essentially says “we know this statute will deprive individuals of a particular right but were doig it anyway” ***section 33 only applied to only the rights and freedoms set out in section 2 (fundamental rights) or sections 7 to 15 (legal and equality rights) of the charter *other rights eg. Democratic or mobility rights cannot be overridden Remedies for charter violations: Section 52 of the constitution act, 1982, provides: for the striking down of any law that is found by the court to infringe upon the constitution, including the charger What do we say once a law is struck down: that it is of no force or effect Striking down a law means: power given to the courts under the Canadian charter of rights and freedoms to make a law inoperable because the law violates the charter What does no force or effect mean: a law that ks struck down is said to be of no force or effect because it is inoperable *the court may strike down the entire piece of legislation or only the porition of the statute that offends the charter What do courts typically do: they are reluctant to strike down a piece of legislation in its entirety, and are more likely to want to sever the offending parts ***For example, in 1988 the Supreme Court of Canada found that section 287 of the Criminal Code, the section that relates to procuring a miscarriage, violated section 7 of the Charter.8 Section 287 was struck down and is no longer law in Canada. However, although it was no longer operating law, section 287 remained in the Code for 31 years until there were a num-ber of revisions made in 2019. in addition to the remedy of striking down the offending legislation, section 24 of the Charter offers a second remedy for a Charter violation. The section reads as follows: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. what is the first thing to note about section 24: section 24(1) provides a remedy that is “appropriate and just” to anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied, while section 24(2) provides a remedy in cases where evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter there are two separate remedies contained in section: 24 – a general remedy under section 24(1) and, in section 24(2), a remedy for evidence that was obtained in a manner that infringed a person’s rights although appropriate and just remedies might include damages and injunctions, the usual remedy in a criminal or quasi criminal context would be what: a stay of proceedings what happens when a proceeding is stayed: the crown is prevented from continuing the tainted prosecution *appropriate and just provide a wide range of possible remedies – no exhaustive list Section 24(1) has been used to: return property seized in violation of section 8 of the charter to the lawful owner What is wrongfully obtained evidence: evidence that is obtained as a result of a violation of a person’s rights under the canadian charter of rights and freedoms The primary provisions with regard to wrongfully obtained evidence are contained in section what: 24(2) ***When the remedies provided in section 24(2) are combined with Charter protections such as section 7 (life, liberty, and security of the person), section 8 (unreasonable search and seizure), section 9 (arbitrary detention), section 10 (rights on arrest and detention), and section 12 (cruel and unusual treatment or pun-ishment), evidence seized as a result of the Charter violation may be excluded by the court. What does this act as: control over the police in the conduct of their investigation There are a number of purposes that have been identified for excluding evidence that is wrongfully obtained. What do these include: –          restoring parties to the position they were in before the charter breach –          stopping the police from engaging in improper practices –          educating the police and public –          ensuring that the courts continue to be held in high regard –          recognizing and pr

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