Crime and Justice

Crime and Justice: The Criminal Process - What Works?

Submitted: August 6, 2013

Crime takes but a moment, but justice an eternity. - Unknown

Crime is a complex social, economic and political problem. Crime refers to conduct in violation of the sanctioned laws of a state, the federal government, or a local jurisdiction for which there is no legally acceptable justification or excuse. There are several explanations put forward by criminologists for the problem of crime, and these influence criminal justice policy and practice.
Criminal justice is the structure that the government applies during social control, law imposition and justice administration. The criminal justice system aims to deliver a service to the community with a view to enhancing public safety both from the potential threat and existence of crime. To do so, the system must aim to meet expectations across the community in a balanced fashion. This process embraces all the steps and traditions of justice administration, streaming from the discovery of suspects/delinquents to their probation or confinement. It includes the apprehension of suspects by law enforcers; charging and prosecution of the alleged lawbreakers; court arraignments and convictions; preparation for communal penalties; as well as the psychoanalysis and rehabilitation and reincorporation of wrongdoers into society. In doing so the system interacts with various parties including victims, witnesses, the accused, and criminal justice professionals. Each group has different and, at times, competing views of the system. At a broader level the general community also has expectations as to how the system should deliver on its objectives. The challenge is to be able to deliver a service which is fair, effective, efficient and transparent. Therefore, an effective understanding of this process enables all parties involved to attest justice. This essay is to provide a general overview of the measures in place on the part of Canada’s criminal justice system to respond to the needs of the individuals and communities with which it interacts.
Suppose you chance upon an uprooted tree while walking in the forest. If nobody heard it, what sort of sound did it make when it fell? Now, imagine you have committed a crime – but nobody saw you do it. Is it still a crime? Crime is socially constructed in that every society makes rules governing behaviour that deviates from the norm. The crime may not be the quality of the act the person commits, but a consequence of the application of rules and sanctions to an offender. Crime is socially constructed and socially relative therefore it must be controlled by effective social policy. The theoretical perspectives of crime have differing views on interpretations of how social policy or laws should be enacted. The consensus perspective views laws as a means to criminalize behaviours that members of society agree are necessary as they serve all people equally and reflect the will of the people. The pluralist perspective supports criminalizing behaviour through political process, after debate over the most appropriate course of action because the legal system should be value neutral and concerned with the best interests of society. Those who embrace the social conflict perspective feel conflicts are inevitable as groups within society have differing definitions of right and wrong, and the law is a tool of the politically powerful to retain their leadership. Regardless of the theoretical perspective, public policies for crime prevention are developed in five stages starting with the identification of a problem, a tabling or prioritization of the issue, followed by program development and implementation. Once a program is underway, the final stages of public policy development require evaluation and reassessment.
In Canada there are two crime prevention philosophies, crime control and crime prevention. Crime control is the widely accepted ideological “social responsibility” perspective of crime and its treatment. The premise is that if crime cannot be eliminated, and rules are integral to social function, then those who break the legislated rules of society will be punished to deter repetition of the norm violation. This perspective holds that crime is an individual responsibility so social policy should be reactive and take a “get tough” stance with crime. Crime control advocates tougher laws and more policy; retributive justice through punishment oriented responses such as fines or incarceration, making offenders socially accountable through restitution and restricting the flow of certain crimes by regulating how and when crime occurs such as with red light districts. Retributive justice considers punishment, if proportionate, the best response to crime. The negative sanctions of punishment such as a fine, probation, or jail term are meant to deter the individual offender from repeating the behaviour and as a means of general deterrence to society by communicating that there are penalties/consequences for violating the official rules of society.

The “social problems” perspective of crime considers crime the outcome of poor social conditions therefore social programs should be proactive and emphasize improvements in social infrastructure and social epidemiology. Crime prevention reflects a social justice view of society as it advocates opportunity reduction and social development in terms of reducing or eliminating the social and economic conditions which contribute to crime. Crime prevention strategies can and do operate at different stages of the criminal process and attempt to change criminal behaviour in a positive way though rehabilitation programs and healing circles for example. Most crime prevention strategies can be described as nurturant, protective or avoidant, or deterrent in nature. Nurturant strategies attempt to forestall development of criminality by improving early life experiences such as educational, health care, and child care programs that address the roots of criminality early in the life course by channeling child and adolescent development. However the effectiveness of nurturant strategies is a long-term commitment and attempts to measure it have been confounded by population fluctuations and displacements. As such, crime control strategies should take evolutionary and ecological dynamics into account.
Protection/avoidance and conventional deterrence strategies for crime control will always be necessary but tend to have limited effectiveness in a free society. Protection or avoidance strategies attempt to reduce criminal opportunities by changing people’s routine activities or by incapacitating convicted offenders through incarceration or electronic monitoring devices. They also may increase guardianship through such things as target hardening, neighborhood watch programs, and increasing the numbers or effectiveness of police. Their aim is to reduce interaction with the criminal justice system through alternative sentencing, diversion programs, and supporting community based services. Deterrence strategies attempt to diminish motivation for crime by increasing the perceived certainty, severity, or celerity of penalties. ‘Non-punitive’ deterrence approaches also advocate raising the costs of crime but they emphasize increasing an individual’s stake in conventional activities rather than punishing misbehaviour.
These programs all have a commitment to communities and cooperative action for both offenders and victims. Canada’s National Crime Prevention Strategy promotes integrated action of governmental and non-governmental partners in reducing crimes and victimization. The strategy also focuses on increasing public awareness of effective crime prevention approaches and invests $43.1 million annually through the Crime Prevention Action Fund; Northern and Aboriginal Crime Prevention Fund, and Youth Gang Prevention Fund which support community-based projects that center on helping those who are most at risk of offending.

Crime Prevention Through Environmental Design (CPTED) is becoming more popular across the nation. CPTED’s goal is to prevent crime by designing a physical environment that positively influences human behaviour. The theory is based on four principles: natural access control, natural surveillance, territoriality, and maintenance. CPTED initiatives can involve a considerable number of stakeholders including law enforcement officers, architects, city planners, landscape and interior designers, and resident volunteers who work together to create a climate of safety in a community right from the beginning.
A third significant policy initiative, the Youth Criminal Justice Act (YJCA) was proclaimed in April 2003 to deal with the criminal behaviour of youth between the ages of 12 and 18. Moral panics shaped by media and the political elite affected public perceptions of youth raising concern over the increasing level of youth crime. Blaming children and branding them as scapegoats was ill founded as youth are often victims of socio-economic forces (law, education, social welfare) beyond their control. The YJCA legislation reinforces the principle that the criminal justice system provides clear direction on implementing meaningful consequences (sanctions based on factors such as age and circumstance) and rehabilitation and reintegration of youth back into society.

Crime prevention and control policies are developed at the federal level only after each level of government has had an opportunity to review, interpret, or challenge the proposed legislation. A proposed policy could be tied up in bureaucratic purgatory for an undetermined time before an agreement is reached by all parties. Meanwhile the criminal justice system can only enforce the legislated laws of the country.

Efforts to reduce crime are impeded by fundamental disagreements within society as to the sources of crime and how best to prevent and fight it. Crime control and due process are two different ideal types of criminal justice models constructed by Herbert Packer, a law professor at Stanford University. Although the crime control model reflects conservative values and the due process model reflects liberal values, the common goal of both models of criminal justice is to get the criminal off the street and to protect the innocent. These two objectives are important because they ensure a safe community and a fair trial for all. Crime control and due process share four common values which are that: crime should only be defined by law; crime should lead to some form of legal intervention; criminal justice system power should be legally limited and the criminal justice system should be adversarial. On the other hand, the models have completely opposite approaches. The crime control model views the person as guilty until proven innocent while the due process model views the person as innocent until proven guilty and all action taken flows from this starting point. In the crime control model, the suppression of criminal conduct is the most important function of the criminal process. The due process model focuses on securing each individual's day in court and recognizes that the police sometimes make mistakes. In Canada the police lean toward crime control and the courts lean toward due process, however they work together to investigate a crime and apprehend the offender while at the same time ensuring that the accused has their due process. If we did not have due process in Canada, people in positions of legal authority could manipulate the system for their own personal or political gain. These two components of criminal justice work more effectively together when there is a thorough investigation of every case.

These two objectives can collide when the police want to get an offender off the streets and control crime by charging them even though there is not enough evidence for the court to fully convict. The police may choose to control crime by removing an offender from the street and into the system even if it is only for a limited time. In due process if the police obtain evidence that violates the law or a person’s Charter of Rights and Freedoms the judge will exclude the evidence from the hearing, even if it would help to prove that the person is guilty. The right to remain silent is also protected under the Charter and the due process model of justice as well.
A third component of the criminal justice process is the integral role of sentencing and corrections. There are four philosophies considered when it comes to sentencing. Retribution relies on the principal of “just deserts”; this holds that the severity of the punishment is in accordance to the severity of the crime. This philosophy is not the same as revenge because retribution is more concerned with the rules of society as a whole, rather than the individual revenge had on the victim or victims or the offender. General deterrence is a basic principle that by punishing one criminal, others may be dissuaded from committing similar crimes. Specific or individual deterrence is a principle that assumes an individual, after being punished, will not be likely to repeat that criminal offense again with the fear of receiving the same punishment. Rehabilitation can be used as a deterrent as well by showing the offender how to adapt to society by gaining academic or trade skills. Rehabilitation creates a change in a criminal’s attitude or resources so crime is not considered an option. Incapacitation of criminals may guarantee that the individual will no longer be a threat to society, as when a criminal has a term of incarceration. Some would argue that elected governments dictate through legislation what forms of punishment are acceptable, while others argue that punishing does not reduce crime—harsher punishment just increases the chances of longer incarceration and greater recidivism.

The three components of the criminal justice system are the police, the courts, and corrections. The police investigate and apprehend criminals and maintain public order, the courts try accused criminals and impose sentences of deterrence while ensuring due process and upholding the law, and corrections carries out the sentence imposed by the courts, providing safe and humane custody and supervision of offenders, while protecting the community. However, crime is not only about the rule breakers and enforcers; there are also the people who have criminal actions committed against them indirectly or directly—the victims.
During the founding of victimology in the 1940s, when the concept of typologies of victims was created, victims were usually defined as hapless dupes who instigated their own victimizations. This notion of "victim precipitation" was replaced by the concept of victims as anyone caught up in an asymmetric relationship or situation. In this view, victimology is all about power differentials. Today, the concept of victim includes any person who experiences physical or psychological trauma or injury, financial loss, or hardship due to any cause, even if it is post crime due to a secondary victimization. Besides primary crime victims, there are also secondary crime victims who experience the harm second-hand, such as intimate partners or significant others of rape victims or children of a battered woman. There are also tertiary crime victims who experience the harm vicariously, such as through media accounts or from watching television.

Victim defenses have recently emerged in cases of parricide and homicide of batterers by abused spouses. Advocates for battered women were among the first to recognize the issue, and promote the "battered woman syndrome" to defend women who killed or seriously injured a spouse or partner after enduring years of physical, emotional and/or sexual abuse. Attorneys have also drawn upon theories of Post Traumatic Stress Disorder to defend their client's behaviour. From time to time, media attention to these defenses becomes intense, and certain high profile cases tend to influence public opinion and spread confusion over who is the "victim" and who is the "victimizer." Victimology as a science is dedicated to ending this state of societal confusion and identifying risk factors related to victimization, without blaming victims.
After the landmark Criminal Injuries Compensation Act of 1963 was adopted in New Zealand, public pressure through grassroots victims’ rights movements in Canada have ensured that provincial and federal legislation has been enacted to support victim’s right services and programs. Victims' organizations like Citizens United for Safety and Justice, Victims of Violence and CAVEAT have convinced various Governments that the role of the victim in the process is an important one and that it should be recognized. Changes with regards to the Criminal Code and victims' rights legislation is a direct result of the courage displayed by victims who have allowed society to benefit from their experiences with the system. The Canadian Criminal Injuries Compensation Plan was created in Saskatchewan in 1966 and was available throughout Canada by 1988 when the federal, provincial and territorial governments endorsed the Statement of the Basic Principles of Justice for Victims of Crime. The Statement was revised in 2003, and details principles to guide legislators and service providers in promoting access to justice, fair treatment, and provision of assistance for victims of crime.
An Act Respecting Victims of Crime - Victims' Bill of Rights was proclaimed as law on June 11, 1996. The Act supports and recognizes the needs and rights of victims of crime in both the criminal and civil justice system. The principles recognize that justice for victims of crime is a shared responsibility, and specify how victims should be treated by justice system officials at different stages of the criminal justice process. Victims have a legislated right to access to information concerning services and remedies available to them. Through the police, courts, corrections and system based services, victims are entitled to information about the progress of criminal investigations; being interviewed by same gender officers and officials in cases of sexual assault victims, and having personal property held for evidentiary property returned to them as soon as possible. Through court and correction based services victims can access information about the conditional release of offenders from custody, including release on parole, temporary absence, or escape from custody; or about plea and pre-trial arrangements and their role in the prosecution. It also made it easier for victims of crime to sue their assailants in civil actions.

The authority of the police, crown and corrections services is not limited to ensuring that victims have their rights respected throughout the process, it also has influence on developing legislation that will prevent future victims. The Victims' Justice Fund is enshrined in the Victims' Bill of Rights, 1995, dedicating all provincial and federal fine surcharge revenue and funds collected under the victim fine surcharge solely to providing services for victims. The surcharge is calculated on a graduated scale according to the amount of the fine.
All levels of government, criminal justice professionals and volunteers play a crucial role in reaching out to victims through their support and understanding. Child and youth victims and witnesses face particular challenges as they navigate the criminal justice system, therefore many provinces and territories have established special programs for child and youth victims within their provincial/territorial victim services directorates.
In Canada, there have been a range of specialized services for children and youth victims and witnesses for the past two decades provided by several well-established organizations. Children’s advocacy centres (CACs) provide an array of services through a multidisciplinary team (MDT), which includes law enforcement, child protection services, prosecution, mental health services, victim advocacy services, and CAC staff, in an effort to reduce the trauma of child victims/witnesses and their families in steering through the criminal justice system as well as providing training and public legal education. The Regina Children’s Justice Centre (RCJC), established in 1993, and the Centre for Children's Justice and Victim Services (CCJVC) in Saskatoon (established in 1996, as the Saskatoon Justice Child Center) both provide coordinated interviewing and court preparation, as well as outreach services, all in child-friendly, neutral based facilities where all of the "helping" professions can interact with abused children as a part of the investigative and criminal justice process. Volunteer support workers who have been trained and passed a police security check and who have signed an Oath of Secrecy and Code of Ethics do the majority of service delivery to clients.

In addition, since 1999, CCJVC has had a Victims Services program that deals with a wide range of incidents involving personal crimes such as assaults, sexual assaults, armed robbery, criminal harassment, and property crimes such as residential break and enters. They also handle a significant number of files involving domestic abuse which is increasingly prevalent. Victim Services also offers assistance in tragic events such as suicides and fatal accidents. Once only available in urban centers, Victim Services has partnered with the RCMP to work with rural clients, and initiates contact with 400-500 victims monthly. The addition of Aboriginal Resource Officers has provided additional expertise in serving the many clients of aboriginal ancestry to ensure culturally appropriate and sensitive service.
Cultural clash and colonization have displaced traditional control methods in Aboriginal societies resulting in undeniable Aboriginal youth and adult over-representation in the existing criminal justice system. Aboriginal people are at greater risk of being both victims and offenders in the Canadian justice system. While Aboriginal people represent only 2.8% of the Canadian population, they account for 18% of those who are incarcerated in federal institutions. In the Prairie provinces 50% of prisoners are Aboriginals. The unbalanced ratio of imprisonment for Aboriginal offenders flows from interacting factors, such as age, education, socioeconomic status, employment rate, and co-occurring substance abuse and mental health disorders. Social exclusion, and systemic biases in the legal system such as lack of access to legal resources and aid, procedural hurdles within the existing justice system (which result in procedural charges, such as failure to appear and breach of probation), remain fundamental problems. Justice Murray Sinclair points out that Aboriginal people recognize punishment only as a means to protect their community and denounce anti-social behaviour, but their traditional view is toward restorative justice that emphasizes restoring peaceful relations between offender victim and community. (Green and Healy, 2004: 140-41).

Culturally-relevant education, employment, economic resources, and support systems are needed on reserves in order to create social stability and community-created and enforced, meaningful and relevant justice. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. The use of S. 718.2(e) of the Criminal Code “instructs judges to look at all reasonable alternatives to jail for all offenders and to pay particular attention to the circumstances of Aboriginal offenders.” R. v. Gladue (1999) calls for full information about the circumstances that bring Aboriginal offenders before the court and sentencing options that may be particularly appropriate because of the offender’s Aboriginal connections. However, sentencing alone cannot remedy the greater problem of aboriginal alienation from the criminal justice system. Judges too, are limited by statutory power. Regardless of the needs of an offender, a judge is restricted to ordering that offender to abide by the conditions of a sentence and has no power to order other people to do anything, or to order the spending of public or other money to assist the offender. Legislation is required to allocate funds for support initiatives.

Children are often the most vulnerable and marginalized citizens in society. In recognition of their unique needs, Canada has had youth justice legislation for over a century. There have been three youth justice statutes: the Juvenile Delinquents Act (JDA) (1908–1984), the Young Offenders Act (YOA) (1984–2003), and the Youth Criminal Justice Act (YCJA) (2003–present). The JDA’s intent was to protect and save children from abuse and neglect by adults; however it was criticized for harsh, arbitrary or trivial punishment, and a lack of due process. The YOA standardized the age of offenders; mandated legal counsel and defined a process of diversion or “alternative measures”. Only determinate sentencing was allowed and all status offences were eliminated in an effort to keep young people out of the justice system. However, the unexpected consequences of these changes included increases in all charges and custody, and a permanent increase in violent charges.
Political and public perception was that the YOA was “soft” on kids, and alternative measures made for inconsistent and unfair sentences. Additionally the public felt that under the YOA, the court system was overused and did not properly address serious and violent offences, nor did it give enough recognition to the victims.
On April 1, 2003, the Youth Criminal Justice Act (YCJA) officially replaced the Young Offenders Act. It aims to emphasize the rehabilitation and re-entry of a young offender into society, and applies to youth who are at least 12, (under 12 are considered doli incapax or incapable of forming criminal intent) but under 18 (considered adult as mens rea or “guilty mind can be established) years of age, who are alleged to have committed criminal offences. The YJCA has replaced Alternative Measures with Extrajudicial Measures, so that whenever possible young people are kept out of the formal youth justice system through the use of warnings, community referrals, and mediation. The YJCA also discourages the use of pre-trial detention and provided sentencing principles and options as well as procedural changes for “adult” sentencing. Any 16 or 17 year old who has been charged with and convicted of a presumptive offence, or has been convicted in the Youth Criminal Justice System of at least three violent offences, will have their sentences elevated to adult sentences unless a judge deems that it is not in the interests of justice to do so. The YJCA also mandates that if a judge orders a period of custody, it must be combined with a period of community supervision. This combination of jail time and community supervision will vary according to the offence. Finally it formalized the use of conferences to involve the offender, victim and community in restorative justice options.

What is the answer to the myriad of issues and concerns of the various stake holders in the criminal process? Should the agents of social control have more discretionary powers? Will granting discretionary authority have a negative impact on an individual’s right to due process? Can communities benefit from social programs in a timelier manner if policy can be legislated without multiple levels of bureaucracy? The criminal process is an evolving social construct that must reflect and meet the needs of all strata and members of society with transparency. Crime can take only a moment, but developing and enforcing even-handed, effective and reasonable laws is ever changing. Justice may possibly take an eternity.