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Spring 2005 Edition

The Reporter

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Community Issues in Criminal Justice

“Our emotions are always more powerful than our thoughts”.
                Robert Roskind

The Role of the Courts in Canadian Criminal Justice

In our last Issue (Fall, 2004) of The Reporter, we talked about the meaning of the term “justice” and the place of justice in our legal system. Justice, as it is understood and applied by Canadian Courts is objective – bereft of emotional or subjective considerations. And amongst large segments of the citizenry, the misunderstanding of justice and how it is applied in our Courts, is exacerbated by an even more fundamental misunderstanding of the role of the Courts in our democratic society.

The recent decision in the Air India Trial in British Columbia has been the subject of much public attention and media scrutiny. The public, some politicians, and some elements of the mass media have been in full cry about the “injustice” of the result.

It does seem somewhat curious that all those who, one might safely surmise, did not spend one minute in the Court during the Trial, are absolutely confident in the guilt of the accused, and that the justice system or, more particularly, the Courts, have “failed” us - once again. Especially curious when one considers that it was one of Canada’s most experienced and respected Trial Judges that heard every minute of testimony over the course of a two year Trial, and painstakingly reviewed mountains of evidence, before coming to the conclusion that guilt had not been established beyond a reasonable doubt.

It is submitted that those who are outraged at this outcome fail to apprehend the basis of our Canadian criminal justice system, and the role of the Courts within that system. Those condemning the result would have it that the role of the Court is to do no more than visit the full punitive power and authority of the state on those who appear before it; in essence, if someone has been charged with an offence, they must be guilty, and the Court’s job is to affirm that guilt and punish the offender. Apparently these critics of the Courts live in a world in which the police and other agents of the state cannot err – tell that to David Milgaard and numerous others.

In 1968, Professor Herbert Packer published The Limits of the Criminal Sanction. In his book, Prof. Packer discusses the attributes of the two conflicting models of a criminal justice system. The first model is the Crime Control Model, the purpose of which is to “reduce the number of criminals on the street”. This is accomplished by “increasing the number of police, increasing the number of correctional facilities (and filling them up), increasing the length of sentences meted out by the Courts, giving criminal justice agencies more legal powers (investigative, coercive, and repressive), and proceeding on the basis at trial of ‘guilty until proven innocent’”. The outcomes of this model are ostensibly that “it reduces crime, protects citizens and the community, punishes offenders, and provides ‘efficient’ justice”.

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