Legal positivism” “meaning and scope of legal rules

1. FOUNDATIONS OF LAW & JUSTICE ★ VERY HIGH PRIORITY

Social Construction of Crime:

• Moral entrepreneurs:

  
  individuals/groups who pressure legislators to criminalize behaviours

Models of Law:

• Value consensus law reflects shared values and community norms
• Conflict law reflects power & inequality; dominant groups shape criminal law

Nullum crimen sine lege:

No crime without law. Cannot punish for something not defined in law.

Mens rea + Actus reus (BOTH required):

• Actus reus — the guilty act; includes omissions (e.G. Failing to report child abuse)
• 
  Mens rea — guilty mind; intent to commit the act
• Also: no legal defence; violates a provision of criminal law

Other principles:

2. LEGAL PRINCIPLES & COURT PROCESSES

Substantive vs Procedural Law:

• Substantive defines crimes and rights — e.G. Criminal Code
• Procedural how law is applied; protects rights in the process

Adversarial System:

• Strength: fairness through opposing sides
• Weakness: outcome depends heavily on lawyer skill/resources

Presumption of innocence:

• Can be acquitted criminally but still civilly liable — different standards

Rule of law:

Governments AND individuals must follow the law.

Charter:

Primary law of the land; guarantees fundamental freedoms + legal rights for all, including accused.

Criminal Code:

Criminal Justice Funnel:

Fewer cases move forward at each stage — most filtered out before trial.

Task Environment:

Cultural, geographic, community setting shapes CJS decisions. Leads to inconsistency and disparity.

Ethics:

Decisions based on judgment, experience, intuition — not formulas. Ethical dilemmas constant with no clear answers.

Crime Control vs Due Process:

• Crime control protecting community + apprehending offenders is paramount
• Due process legal rights of individuals including suspects are paramount

Fed/Prov Division (Constitution Act, 1867):

• Federal: defines criminal offences; Criminal Code
• Provincial: administers justice; law enforcement

Restorative Justice:

Alternative to adversarial system. Problem-solving; addresses victim + offender needs; community involvement; targets root causes; reduces reoffending.

Accountability:

• Police: internal + external
• Crown: internal only
• Defence: law society review
• Judges: CJC — inquiries, removal
• Probation/parole: internal only

Public trust:

Police Discretion:

Laws can’t cover all situations. Officers use “recipes for action” and typification. Essential but creates inconsistency and disparity.

Pluralization of Policing:

Policing functions shared across public police, private security, campus police, etc. Raises accountability questions.

Perspectives on police role:

• Social contract police serve the public; protect rights under a social agreement
• Radical perspective police maintain power structures; protect dominant group interests

Police authority:

Unique power to deprive liberty + use force. Lawful authority ≠ moral authority.

Procedural Justice (4 pillars):

5. POLICE POWERS & ACCOUNTABILITY

Charter — MUST KNOW:

• s.7 right to life, liberty, security
• s.8 no unreasonable search or seizure
• s.9 right not to be arbitrarily detained
• s.10 rights upon arrest: informed of charges, right to counsel

Use of Force — MUST KNOW:

• Must be:
  

  Reasonable + Proportionate

• Performing authorized duty; act on reasonable grounds
• Only as much force as necessary
• Liable for excessive force (criminally + civilly)

• One-plus-one rule:

  
  one level above what officer faces

Procedural Justice → Fairness = Legitimacy:

Perceived fairness in process leads to compliance and trust regardless of outcome.

Entrapment:

Controversial — especially when citizen is repeatedly pressured into committing an offence.

Search warrants:

Bias-free policing:

Decisions based on reasonable suspicion + probable grounds — not race, colour, ethnicity, ancestry, religion, or place of origin.

Racial profiling:

Decisions rely on stereotypes not evidence. Illegal; undermines trust.

Carding / Street checks:

Police stop civilian, gather info, enter into database. Disproportionately targets Indigenous and racialized groups. Criticized as racial profiling; damages public trust.

Police misconduct:

• Rotten apple (individual) vs rotten barrel (unit) vs rotten orchard (systemic)
• Most complaints: “discreditable conduct”; most unsubstantiated
• Underreported — fear of retaliation, lack of trust

PWMI:

Police are de facto first responders for mental health calls. Disproportionate force used. Alternative response models needed.

Discrimination in investigations:

Professional Model (reactive):

Incident-driven, random patrol. 3 Rs: Random patrol, Rapid response, Reactive investigation. Measures: crime + clearance rates.

Community Policing (proactive):

Partnership-based. 3 Ps: Prevention, Problem-solving, Partnership. Addresses root causes; requires community trust.

Community-Based Strategic Policing:

Community policing + crime prevention + response + crime attack approaches. Adds: data, community engagement, strategic resources.

Crime Prevention:

• Primary before crime — CCTV, CPTED, neighbourhood watch, citizen patrols
• Secondary at-risk groups — DARE, youth programs, school resource officers
• Tertiary prevent reoffending — collaborative with social service agencies

Crime Response:

Broken windows · Zero-tolerance · Quality-of-life · Problem-oriented policing

Crime Attack:

Tactical-directed patrol · Hot spots · Foot patrols · Target high-risk/prolific offenders

Crime Analysis Tools:

8–9. COURTS & SPECIALIZED COURTS

Structure (low → high):

• Provincial/territorial — most cases begin + end here; no jury; JPs + prov. Judges
• Superior courts — serious cases; federally appointed; jury trials possible
• Courts of Appeal — review lower courts; panel of judges
• Supreme Court of Canada — 9 judges; final; Charter interpretation; cannot be appealed

Judicial independence:

Free from political pressure. CJC oversees conduct. Judges appointed for life by PM/cabinet — criticized for lack of diversity (“judiciary of whiteness”).

Case delays:

Endemic; undermines legitimacy. Shortage of judges, complexity, poor management. R v Jordan set time limits.

Problem-Solving Courts:

• Drug courts divert into treatment
• Mental health courts address illness driving offending
• Indigenous courts alternative sentencing; Gladue principles

Gladue:

15. CASE STUDY: R V. MANN (2004 SCC) ★ MUST KNOW

Facts:

Mann was stopped on the street by police because he matched the description of a break-and-enter suspect nearby. No warrant. Not arrested — only detained for questioning. Officer patted him down and felt a soft object in his pocket, then reached in and found marijuana.

Issue 1 — Was the detention lawful?

• YES — SCC confirmed police CAN briefly detain someone without arrest
• But ONLY with reasonable suspicion:
  An objective, articulable basis connecting the person to a recent crime
• A hunch or gut feeling is NOT enough
• Investigative detention ≠ arrest: lower threshold, no formal charges laid

Issue 2 — Was the search (pat-down) lawful?

• Pat-down itself: YES — allowed during investigative detention for officer safety only
  
• Must be limited in scope — checking for weapons, not fishing for evidence
• Reaching into pocket after feeling a soft object: NO — soft object is clearly not a weapon
• Going deeper = violated s.8 of the Charter (unreasonable search and seizure)

Charter violations in this case:

• s.8 unreasonable search — officer exceeded scope of lawful pat-down by reaching into pocket
• s.9 arbitrary detention risk — detention without reasonable suspicion would violate this

Remedy — s.24(2):

Evidence obtained through a Charter violation can be excluded from trial if admitting it would bring the administration of justice into disrepute. Here, the marijuana found in Mann’s pocket was subject to exclusion.

Key principles established:

• Reasonable suspicion required for investigative detention (objective + articulable)
• Safety searches during detention are permitted but strictly limited to weapons
• Scope of search must match the justification — safety, not evidence-gathering
• Exceeding that scope = Charter violation + possible evidence exclusion

Jurisdiction — MUST KNOW:

• Federal (CSC)

  
  sentences of 2+ years; Correctional Service of Canada
• Provincial sentences under 2 years; administered by province

Security Levels — MUST KNOW:

• Minimum lowest risk; most freedom of movement; focus on reintegration prep
• Medium moderate risk; structured environment; some programming access
• Maximum highest risk; most restrictive; limited movement and interaction

Key Issues:

• Overcrowding:

  
  strains resources, increases tension, reduces programming access
• Segregation:
  
  • Disciplinary punishment for violating prison rules
  • Administrative to protect inmate or others — not punishment
  • Both linked to serious mental health harm; highly controversial; subject to legal challenges

• Institutionalization:

  
  Long-term inmates lose ability to function outside prison; prison routines become “normal,” making reintegration extremely difficult

11. LIFE INSIDE PRISON

Prisonization:

Process of adopting prison culture, norms, values, and the inmate code. The longer the sentence, the deeper the prisonization. Actively undermines rehabilitation and reintegration capacity.

Segregation (disciplinary vs administrative):

• Disciplinary response to rule violations; formal process; time-limited
• Administrative protective in nature; can be indefinite; used when inmate’s safety or others’ safety is at risk
• Both associated with severe psychological harm, worsened mental illness, and increased suicide risk

Correctional Officers — dual conflicting roles:

• Control maintaining security, order, and safety of institution
• Rehabilitation supporting programming, treatment, and reintegration goals
• These roles are in constant tension — officers must balance enforcement with support
• High-stress environment; ethical dilemmas frequent

RNR = Risk · Need · Responsivity

• Risk match intervention intensity to offender’s risk level. Do NOT over-treat low-risk offenders — increases reoffending. Higher risk = more intensive intervention.
• 
  Need target criminogenic needs — dynamic factors directly linked to reoffending. Not all needs are criminogenic (e.G. Housing alone is not).
• 
  Responsivity tailor the approach to the offender’s learning style, culture, abilities, motivation, and circumstances

Risk Factors:

• Static cannot change — criminal history, age at first offence, childhood trauma, prior convictions. Used to determine overall risk level.
• 
  Dynamic can change — antisocial attitudes, substance use, peer associations, employment, family relationships. PRIMARY targets for intervention.

Criminogenic needs:

Conditional release (umbrella term):

Any form of supervised release into the community before end of sentence. All forms involve conditions; violation can result in suspension/revocation.

Types — MUST KNOW:

• Temporary absence short escorted or unescorted absence for medical, compassionate, or rehabilitative reasons
• Day parole released during the day; must return to facility at night. Stepping stone to full parole — builds reintegration skills gradually.
• 
  Full parole released into community under conditions and supervision. Can be revoked if conditions violated.
• 
  Statutory release automatic release at 2/3 of sentence even if parole was denied. Still supervised. NOT the same as parole — no board approval required.

Key Issues — Parole Board Decisions:

• Lack of diversity among board members (appointed, not elected)
• Indigenous, Black, and racialized applicants less likely to receive parole
• No feedback given to board members on their decisions
• No clearly defined release criteria — inconsistency in decisions
• Gladue principles must be considered for Indigenous applicants
• Can parole boards address the factors that contributed to conflict with the law?

Disparities in parole decisions:

Indigenous offenders serve a higher proportion of their sentence before release; many do not apply for conditional release at all.

Suspension vs Revocation:

• Suspension initiated by PO; parolee has violated a condition; temporary measure
• Revocation initiated by Parole Board; release formally ended; offender returns to custody

Challenges of Re-entry:

• Life outside is unpredictable, fast, and full of choices — overwhelming after institutionalization
• Long-term offenders unfamiliar with changes in community since confinement (technology, costs, norms)
• Securing employment, stable housing, education
• Accessing special needs programs and services
• Post-incarceration syndrome:
  PTSD-like symptoms from prison environment; makes outside world overwhelming

Predictors of Reintegration Success:

• Support network (family, community)
• Stable housing
• Employment
• Participation in treatment programs
• Decision to be pro-social and crime-free
• Demographics — age, gender, Indigenous status, race all affect outcomes

Parole Officer role:

Assess risk/needs; prepare board materials; monitor behaviour + conditions; provide counselling; officer of the court. Dual tension: resource/confidant AND enforcement agent.

Women Offenders:

• Risks: high-risk rating, unemployment, substance use, failure to complete programs
• Challenges: childcare, housing, establishing contact with children, partner issues, gender discrimination
• Success factors: choice to be crime-free, support network + family, positive PO relationship

Indigenous Offenders:

• Serve higher proportion of sentence before parole; many don’t apply
• Limited access to culturally specific treatment programs
• CCRA authorizes governments to work with First Nations communities to take care and custody of some released offenders

High-Risk / Special Needs:

• Sex offenders: electronic monitoring, community notification, antiandrogen drugs, therapy
• Mental illness: limited programming esp. In remote areas; CSC + police community corrections liaison

KEY TERMS — FULL REFERENCE