Suchergebnisse

AbstractDuring the Harper era (2006–2015), the Canadian government actively pursued criminal justice policy reform. Many of its efforts focused on reforming the Canadian sentencing regime by increasing the severity of penalties, including expanding mandatory minimums. Yet, Canada's rate of incarceration remains stable. The inconsistency between the considerable focus on sentencing policy by the Harper government and the lack of significant change in incarceration rates merits further scrutiny. This contrast between policy effort and policy impact also presents an opportunity to examine how the context of criminal justice policy in Canada influences the nature of policy reform. Taking up this focus, this article articulates the context of Canadian criminal justice policy and considers how this context shapes the policymaking process and policy reform.

This paper addresses one aspect of the very important but understudied Canadian reference power. More specifically, it examines the frequency at which Canadian appellate courts refuse to answer all questions submitted in a reference case and under what conditions courts refuse to answer through analysis of an original dataset of all Canadian appellate court reference cases from 1949 to 2017. Addressing this question of how often and under what conditions courts refuse to answer reference questions is central to understanding how reference power operates, as the statutory foundation for the power does not provide courts any discretion to refuse questions submitted by the executive. This lack of discretion and the reference power itself, raise several concerns for judicial independence. This paper considers the implications for judicial independence brought on by the reference power. This paper argues that courts should have the power to refuse to answer questions that are considered inappropriate to safeguard the independence of the judiciary when participating in the extrajudicial function of reference cases.

AbstractThe Canadian reference power allows governments to ask appellate courts for an advisory opinion without a live dispute. Reference cases have been an important element of Canadian federalism since their creation in 1875 but have not been subject to a comprehensive analysis. Shifting the focus to understanding government decisions to rely on the courts to navigate federalism, this article has two objectives. First, through analysis of an original dataset of Canadian appellate reference cases from 1875 to 2017, the article provides an examination of how references have been used by governments, with particular attention to issues related to federalism. Second, the article considers how the reference power can be employed as a political strategy by governments. The reference power demonstrates clear support for the blame avoidance and credit-claiming thesis and provides compelling evidence on how the dynamics of intergovernmental relations can shape a government's decision to delegate decision-making to the courts.

"Four decades have passed since the adoption of the Constitution Act, 1982. Now it is time to assess its legacy. As Constitutional Crossroads makes clear, the 1982 constitutional package raises a host of questions about a number of important issues, including sovereignty, identity and pluralism, the scope and limits of rights, competing constitutional visions, the relationship between the state and Indigenous peoples, and the nature and methods of constitutional change. The patriation of the constitution and the entrenchment of a new bill of rights, Aboriginal and treaty rights, and a homegrown amending formula have had considerable consequences for Canadian governance, public policy, and the evolution of the constitution. Constitutional Crossroads brings together established and rising stars of political science and law not only to develop a robust account of the 1982 constitutional reform but to analyze the ensuing scholarship that has shaped our understanding of the constitution. Contributors bypass historical description to offer reflective analyses of different aspects of Canada's constitution as it is understood in the twenty-first century. With a focus on the themes of rights, reconciliation, and constitutional change, Constitutional Crossroads provides profound insights into institutional relationships, public policy, and the state of the fields of law and politics."--

While the subject of populism receives increasing scholarly attention from both political scientists and criminologists, so far these two bodies of literature have existed mostly in isolation of each other. This paper aims to connect them by investigating whether parties that political scientists describe as populist are likely to evince positions on criminal justice that criminologists describe as populist. Relying on a secondary data analysis comparing mainstream right-wing and populist right-wing parties for 131 elections in 24 countries since 1973, this paper concludes that the populist right on average expresses slightly more support for penal populism than the mainstream right, but that its positioning is crucially shaped by considerations relating to issues of immigration and multiculturalism. These findings suggest that most contemporary populist parties on the right primarily pursue a nativist agenda and will only invoke penal populism when it fits this overall strategy.

AbstractCommunity trust in law enforcement and confidence in the administration of justice is put to the ultimate test when police officers act outside the limits prescribed by the criminal law. External and civilian oversight of the police can be essential to investigate and respond to allegations of police criminality and impropriety. However, little is known about the investigations completed by civilian oversight agencies and the prosecution of police officers. In this paper, we analyze 159 investigations by the Ontario Special Investigations Unit over a fifteen-year period. We examine each case from the laying of charges to prosecution through to sentencing. We provide an empirical analysis of how the justice system responds to police officers charged with a criminal offence. We situate these findings within the context of the broader justice system and police oversight. At the same time, we observe certain differences between the Canadian and American approaches to dealing with police offenders accused and convicted of criminal offences.

COVID-19 has made videoconferencing a regular occurrence in the lives of Canadians. Videoconferencing is being used to maintain social ties, run business meetings—and to uphold responsible government. On April 28, 2020, Members of the House of Commons sat virtually using Zoom. The virtual sitting was the first of what will become a stand-in for regular proceedings, allowing the Members to fulfill some of their parliamentary duties while complying with physical distancing (see Malloy, 2020). As the legislative and executive branches look to digital technology to allow the business of government to continue, what about the judicial branch of Canada's government? Courts are an essential service. This is best articulated by the Chief Justice of Nova Scotia: "The fact is, the Courts cannot close. As the third branch of government, an independent judiciary is vital for our Canadian democracy to function. It is never more important than in times of crisis" (Wood, 2020). In this analysis, we seek to understand how courts have responded to COVID-19 and the challenges of physical distancing through the use of digital technologies. This is accomplished through a systematic review of COVID-19 statements and directives issued from all levels of court across Canada. We briefly compare Canada to the United States, a jurisdiction that demonstrates greater openness to technology.

AbstractJournalists routinely live-tweet high-profile criminal trials, a practice that raises questions about access to justice and the principle of open court. Does social media open up the justice system? There is a normative debate in the literature about the use of Twitter and social media in the courtroom. This paper takes on this debate by exploring the relationship between digital technologies and criminal justice. Through a systematic examination of journalists' tweets during two key trials (Ghomeshi and Saretzky), we ask to what extent can the live-tweeting of court proceedings achieve greater access to justice in Canada? We argue that while the live-tweeting does provide more access to court, potentially furthering the principle of open court, the nature of this access provides little in the way of increased engagement with the public and its understanding of the legal system. This paper makes contributions to both the legal studies and digital politics literatures.

AbstractDuring the 2015 Maclean's election debate, Stephen Harper commented, "we have more private member's legislation that has gone through Parliament under this government than multiple governments before us." This statement is borne out by empirical evidence: more private member's bills (PMBs) have become law during Harper's time in government, compared with most previous parliaments. However, PMBs are subject to less analysis than government bills and do not receive legal scrutiny by the Department of Justice, potentially implicating the protection of rights. Moreover, while one might assume that PMBs concern innocuous local and/or specialized interests, many Harper era PMBs effect substantive legal change to national issues like criminal justice policy. This paper examines the law and order trend in PMBs and addresses the following: why would the PMO under Stephen Harper, noted for its centralized control over all aspects of public policy, permit backbench MPs a role in criminal justice policy, through PMBs?