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Due Process and Victims' Rights

Due Process and Victims' Rights: The New Law and Politics of Criminal Justice

Copyright Date: 1999
Pages: 416
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  • Book Info
    Due Process and Victims' Rights
    Book Description:

    A critical examination of the dramatic changes in criminal justice over the last two decades and the first full-length study of the law and politics of criminal justice in the era of the Charter and victims? rights.

    eISBN: 978-1-4426-7412-7
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Acknowledgments
    (pp. ix-2)
    Kent Roach
  4. Introduction
    (pp. 3-10)

    The way that Canadians think and talk about criminal justice has changed dramatically in the last two decades. This book attempts to make sense of these developments and provide a new framework for the choices to be made in the future.

    Before 1980, the courts and legislatures were reluctant to recognize the rights of the accused or the crime victim. Parliament had supreme authority for enacting criminal laws, which were then enforced through the largely unfettered discretion of police and prosecutors. The system functioned and thought of itself as a smooth and efficient crime-control assembly line (Packer 1968: 159). The...

  5. 1 Models of the Criminal Process
    (pp. 11-50)

    This chapter outlines models of the criminal process and places them in theoretical and historical context. The crime-control model represents many of the traditional values of the Canadian criminal justice system and was entrenched in the law and operation of the criminal justice as late as 1980. It assumes that the criminal law, enacted by Parliament and enforced by police and prosecutors, can control crime. The due-process model best describes the values that the Supreme Court of Canada embraced in many, but not all, of its early decisions under the Charter. Its main goal is the protection of the rights...

  6. 2 The Police
    (pp. 51-87)

    At the start of the 1980s, the police enjoyed the benefits of a criminal process oriented towards crime control. Having lost their battle to water down the legal rights and remedies of the Charter, however, they feared an Americanization of the criminal justice system. By the end of the decade, their worst fears were realized. The writs of assistance were a fond memory, and judicial warrants were required to authorize search and seizures. They had to inform even cooperative and drunk suspects about their right to counsel before obtaining confessions or breath samples, and the Supreme Court was prepared to...

  7. 3 The Criminal Trial
    (pp. 88-114)

    LikeMirandarules and warrant requirements, the criminal trial in which the accused was represented by a lawyer and forced the prosecutor to prove guilt beyond a reasonable doubt was an important symbol of the due-process model of criminal justice. The irony, however, was that most cases ended in guilty pleas or prosecutorial withdrawals with minimal judicial involvement. Packer recognized that the guilty plea was the most efficient disposition of a case, and thus a goal for police and prosecutors, who dominated the crime-control model. He did not, however, anticipate that guilty pleas might also serve the organizational interests of...

  8. 4 Victimless Crimes?
    (pp. 115-150)

    According to Herbert Packer (1968: 151-2), the rise of due process should have resulted in a corresponding decline in the use of the criminal sanction with respect to ‘victimless’ crimes based on ‘consensual’ transactions. The proactive police behaviour necessary to enforce laws against prostitution, drugs, gambling, vagrancy,¹ abortion, euthanasia, and obscenity and other forms of speech, and the laws themselves, would be challenged by accused claiming their rights in court. Due process would slow down and disrupt the ‘assembly-line justice’ (ibid: 292) that surrounded many of these crimes and provide an outlet for social ambivalence about their criminalization.

    Packer’s claims...

  9. 5 Women
    (pp. 151-190)

    As suggested in chapter 4, feminists played an important role in defending the rights of crime victims and potential crime victims with respect to some crimes that Packer believed to be victimless. Feminists were, however, not united on whether the criminal sanction should be used to respond to the harms of prostitution and pornography. Nevertheless, there was more consensus about the need for new laws and strategies to respond to the prevalence of sexual and domestic violence against women. Efforts in the 1970s focused on raising awareness and reducing harm through rape crisis centres and shelters for battered women. In...

  10. 6 Young People
    (pp. 191-220)

    Criminal justice policies towards young people reflect many of the themes discussed throughout this book. Children were recognized in the 1980s as victims and potential victims of sexual violence. In turn, criminal laws were reformed in attempts to facilitate reporting, prosecutions, and convictions. New concerns for the rights of victims were used to justify the crime-control activities of police, prosecutors, and other professionals. Some attempts to facilitate prosecutions of child sexual abuse have been subject to due-process challenges and resulted in new political cases similar to those examined in chapters 4 and 5. Statutory rape and vagrancy offences for convicted...

  11. 7 Minorities
    (pp. 221-249)

    Herbert Packer hoped that due process would promote the equality of minorities. In the 1960s, it was all too clear that African Americans required protection from the police. Ugly spectacles such as the use of attack dogs against civil-rights demonstrators had ‘driven home the lesson that law enforcement unchecked by law is tyrannous’ (Packer 1966: 240). To the extent that due process led to less reliance on the criminal sanction, particularly with respect to consensual crimes, this would assist ‘the urban poor, and particularly those who belong to minority groups, [who] provide most of the raw material for the criminal...

  12. 8 Aboriginal People
    (pp. 250-277)

    Aboriginal people bear the double disadvantage of being significantly overrepresented among both those imprisoned and those victimized by crime. This well-documented overrepresentation (Doob and Roberts 1997) was stressed by numerous public inquiries examining the failures of the criminal process with respect to Aboriginal people (Nova Scotia 1989; Manitoba 199la, 1991b; Alberta 1991; Law Reform Commission of Canada [LRCC] 1991; Canada 1996b). It was also made real by individual tragedies. The wrongful conviction of Donald Marshall Jr and the shooting death of J.J. Harper generated considerable concern about how Aboriginal people were treated by police, prosecutors, defence lawyers, judges, and juries....

  13. 9 Crime Victims
    (pp. 278-309)

    This chapter examines the legal and political impact of crime victims who are not members of groups discussed in previous chapters. Victimization surveys suggest that in any one year almost a quarter of all Canadians are victimized by crime. Such a large, diffuse, and heterogeneous group might have less political clout than the smaller more organized groups examined in previous chapters (Roach 1993a). Nevertheless, like the groups examined in previous chapters, crime victims made their mark on criminal justice policy, particularly in relation to the punishment of offenders. Victim-advocacy groups were formed by those who had experienced the most severe...

  14. 10 Conclusions
    (pp. 310-320)

    The future of criminal justice will largely depend on how victims’ rights evolve. The well-trodden path leads towards the criminal sanction and more victim-sensitive prosecutions as a means to protect and recognize crime victims and potential victims. Its dangers are more symbolic and divisive battles over the primacy of the rights of the accused and the victim, and the reproduction of the false assumption that the criminal law controls crime. A less-travelled, but more promising, path leads towards increased emphasis on crime prevention and restorative justice. Its dangers are disrupting the monopoly of criminal justice professionals and abandoning traditional assumptions...

  15. Notes
    (pp. 321-340)
  16. Table of Cases
    (pp. 341-350)
  17. References
    (pp. 351-382)
  18. Index
    (pp. 383-391)