Criminal Justice in Canada

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Table of Contents

Alternatives to Prison
Police Misconduct
Reintegration and Parole
Wrongful Convictions
Works Cited

Alternatives to Prison

Prison overcrowding is one of the most pertinent social issues in Canada, and it comes as no surprise that the criminal justice system develops alternative sentencing options. Alternatives to prison hold a promise to reduce the number of people going to prisons. They have the potential to optimize the costs of criminal justice while ensuring sufficient levels of public safety and crime deterrence within communities. Goff describes three alternatives to imprisonment: (1) conditional sentencing, (2) intermediate sanctions, and (3) home confinement and electronic monitoring. These sentencing options operate in different ways but have a number of things in common. Basically, they represent the so-called “back-end strategies” that promise to become more economically prudent and feasible in meeting the public demand for safety and reducing the scope of crime (Burns 75).

Conditional sentences were created and approved in Bill C-41 (Goff 1). Conditional sentencing means that the length of imprisonment does not exceed two years, and the offender can serve this sentence in the community (Goff 1). It can be provided on mandatory or optional conditions (Goff 1). The former implies law-abiding behaviors, stricter rules of personal conduct, and an obligation to inform the court or the responsible supervisor of any changes in occupation, job, place of residence, etc. (Goff 1). Optional conditions may vary, depending on the circumstances of the case. For instance, the offender may be obligated to attend counseling sessions or participate in community programs.

Intermediate sanctions represent the second alternative to imprisonment. These sanctions were designed to provide better control over the offenders who are released into the community (Goff 4). According to Goff, such intermediate sanctions include home confinement, intensive supervision, electronic monitoring, fines, and restitution orders (4). In most cases, intermediate sanctions are administered by judges, which is why they are also called “judicially administered” sanctions (Goff 4).

One of the most serious questions raised by intermediate sanctions is whether they are effective enough to reduce recidivism rates and prevent offenders from being sent to a correctional facility (Goff 4). Even despite these concerns, intermediate sanctions remain a popular sentencing option in Canada. The number of offenders serving intermediate sanctions increases every year. As of today, intensive supervision probation remains the most popular form of intermediate sanctions applied to offenders in Canada (Goff 5).

In addition to conditional sentencing and intermediate sanctions, home confinement and electronic monitoring represent an alternative to imprisonment. This alternative is based on the principle that offenders must be limited in their freedoms to the place of residence (Goff 7). This type of sentencing is based on the philosophy that the offender should maintain close family ties, be productive in the workplace, and actively participate in the community programs that are available to him/her (Goff 7). Electronic monitoring will guarantee that offenders stay at home according to the conditions required by the court. Electronic monitoring enables officials at the central location to detect any attempts to violate the conditions of home confinement by the offender (Goff 7). Criminal justice professionals hope that, by keeping offenders at home and monitoring them electronically, they will reduce their motivation to violate the conditions of sentencing or re-offend (Goff 7).

The benefits of these alternative sentencing options, as well as their drawbacks, are numerous. It should be noted that all these strategies were introduced with the goal of reducing the costs of criminal justice, addressing the problem of prison overcrowding, and, at the same time, creating favorable conditions for effective crime deterrence. The results of these sentencing alternatives are quite contradictory. Conditional sentencing has proved to be of little value in reducing the rates of imprisonment: the number of actually imprisoned has changed little since the first conditional sentence was introduced in 1996 (Goff 4).

The benefits of conditional sentencing are limited to letting the offender stay within the community. Meanwhile, threats to public safety can be considerable, depending on the severity of the crime committed by the offender. Besides, the issue of judges’ discretionary power should not be ignored. Different judges and even different provinces may have opposing views on the suitability of conditional sentencing in particular cases (Goff 3).

No less controversial is the situation with intermediate sanctions and home confinement. Intermediate punishments are quite popular in Canada for a number of reasons. First, a belief persists that the costs of intermediate sanctions are lower than those of imprisonment (Goff 5). Second, in some jurisdictions, offenders are required to compensate for a share of costs for their participation in the program (Goff 5). Third, intermediate sanctions are believed to create a perfect basis for administering fair sentences (Goff 5). Unfortunately, the frequency of re-arresting for the offenders sentenced to intensive supervision probation has increased considerably since the program was introduced (Goff 6). Most such arrests are for technical violations. Nevertheless, they increase the rates of incarceration and, therefore, the costs of alternative programs. Moreover, not all programs include an element of rehabilitation, which has proved to reduce the rates and risks of recidivism among offenders (Goff 6).

In this sense, the results achieved through the use of electronic monitoring and home confinement look extremely promising. These alternative sentencing strategies provide conditions for effective surveillance and saving high costs (Goff 7). Still, the rates of recidivism among the offenders who are monitored electronically do not differ greatly from the rates of recidivism among manually supervised offenders (Goff 8). Thus, even in the presence of numerous alternatives to conventional sentencing, the issues of crime deterrence and recidivism remain unresolved.

Police Misconduct

Since the time’s police forces were created, professional misconduct due to power discretion has been one of the biggest challenges facing the criminal justice system. Today, even a well-developed system of legal provisions and sanctions does not stop police professionals from using their official position for their own benefit. Goff defines police misconduct as a form of police deviance, “a generic description of police officer activities which are inconsistent with the officer’s legal authority, organizational authority, and standards of ethical conduct” (2). The researcher divides police misconduct into two broad categories: abuse of authority and occupational deviance (Goff 2). The latter includes a variety of behaviors (criminal and noncriminal) that take place during the fulfillment of the officer’s workplace activities with the use of his/her power and position in the criminal justice system (Goff 2).

Abuse of authority is a form of police misconduct when police officers use coercion in their interactions with citizens (Goff 2). Such behaviors may take four different forms. First, verbal coercion implies the use of threats, promises, language manipulations, and deception to achieve the officer’s legal or illegal purposes (Goff 2). Second, physical coercion means the use of physical force against citizens (Goff 2). Third, non-lethal coercion covers all behaviors that involve the use of weapons, instead of physical strength (Goff 2). Fourth, lethal coercion takes place when the use of a deadly weapon leads (or threatens to lead) to a serious injury and even death (Goff 2).

The current state of literature provides compelling evidence that the use of excessive force by police is quite common in Canada. Almost every week Canadian media report at least one case of using excessive force by policemen (Goff 2). Physical abuse is quite rare, unlike verbal abuse that remains the most frequent form of police misconduct in the Canadian criminal justice system (Goff 2). Apart from physical and verbal abuse, the risks of using laws selectively should not be ignored – Goff describes selective law enforcement as one of the most popular forms of police misconduct (2). It is particularly difficult to detect, but it has the greatest potential to reinforce the existing discrimination and bias in criminal justice (Goff 3).

Police misconduct happens for a variety of reasons. Many causes of police coercion are individual. In other words, there is always a small group of officers, who undermine the image of fairness, honesty, and justice in the entire criminal justice system. Statistically, 10 percent of officers who are problematic and coercive are responsible for more than 90 percent of citizen complaints (Goff 3). Their actions are caused by structural and cultural factors. From the structural perspective, police misconduct is a complex product of the larger social system, in which police officers are bound to operate (Prenzler 20). On the one hand, frequent contacts with suspected and real offenders create a temptation to “trade benefits for immunity from prosecution” (Prenzler 20). Furthermore, the nature of the police work makes it difficult for managers and supervisors to control officers in their everyday tasks (Prenzler 20).

This is particularly the case of patrol officers, who are likely to abuse their professional position and power for personal benefit. On the other hand, the organisational culture in most police departments favours coercion, corruption, and misconduct. Protective solidarity and secrecy are the two pillars, on which the organisational culture of police currently rests (Prenzler 23). Some police officers engage in coercion and misconduct, because they know that the code of silence offers enough protection against an effective legal response. Some others believe that being coercive is a part of their professional image. In any case, police misconduct is a problem that has persisted for decades. It keeps influencing the public image of police officers.

Here, tasers deserve particular attention. They are actively used by police professionals and increase the extent of police misconduct, particularly in relation to the excessive use of force against citizens. In 2007, police tasers killed Polish immigrant Robert Dziekanski (Bronski). He arrived at the Vancouver British Columbia International Airport as a legal immigrant and had to meet his mother (Bronski). Due to the lack of language proficiency, he was lost. When confronted by police officers, the immigrant was shocked by the strikes of the taser gun and asphyxiated (Bronski). Tasers are intended to be used by police officers against violent offenders without hurting them badly. Unfortunately, they are often used against innocent and obviously compliant citizens, who expect the police to be a helper, rather than a killer. This is why the system of criminal justice in Canada develops numerous interventions to reduce the scope of police misconduct.

Goff lists a number of potentially effective interventions that can help to deal with the problem of police coercion (4). Given the growing number of “problematic” officers, the so-called “early warning system” has become a relevant response to the problem of police coercion. Goff describes it as an effective tool of police management, which allows identifying and dealing with the most problematic personnel (4). Citizen oversight is another promising intervention against police misconduct. The Royal Commission has the legal power to investigate cases of police misconduct, but its effectiveness in dealing with police coercion is questionable (Goff 5).

Internal investigations are used to engage the police in the analysis of their own wrongdoings (Goof 5). This intervention is claimed to be inherently biased, since police professionals are very likely to deny the fact of misconduct or, if evidence is too compelling, impose symbolic penalties (Goff 5). A popular approach against police misconduct is establishing a civilian agency to deal with such cases (Goff 5). Citizen review boards are also quite common. Civil liability is a promising mechanism of controlling and dealing with police misconduct (Goff 8). Civil liability allows suing individual policemen or the entire police services for the injuries or damage caused by coercion.

Reintegration and Parole

Recently, rehabilitation has come to occupy one of the most significant places in the philosophy of criminal justice. As a result, community reintegration and parole are currently viewed as the two advantageous approaches to decision making in courts. Community reintegration is a strong rehabilitation theory, which rests on the assumption that a rehabilitated offender is no longer dangerous to the community (Goff 1). Unfortunately, the question of how dangerous offenders on parole can be has no definite answer. The criminal justice system in Canada allows releasing offenders into the community before they finish their sentence (Goff 1). A popular option is applying conditional sentences to non-serious offences. In case the circumstances of the case change, these releases can be invoked to ensure public safety (Goff 1). Broadly defined, reintegration emphasises the importance of acquiring social and professional skills by criminal offenders, as they live and work in community settings (Goff 1).

Neither community reintegration nor parole is without deficiencies. One of the considerable weaknesses of the reintegration approach is that it treats recidivism factors as predictable and known to the public (Goff 2). These factors are divided into three different categories: antisocial attitudes, pro-criminal associates, and antisocial personality features (Goff 2). The problem with this approach is that defining all possible categories of risk in crime and recidivism is not always possible; nor is it possible to ensure that the offenders released on parole are absolutely safe to the community. Public safety is not the only challenge facing offenders and communities in relation to reintegration and parole.

First, as Petersilia reports, many parolees fail to meet even their basic needs (362). Millions of people in Canada have been released on parole, and their number keeps growing every year. Not surprisingly, the criminal justice system may simply be incapable of addressing the unique needs of each and every parolee. Many parolees have spent long years in prison. They have a long history of substance abuse and crime (Petersilia 364). They need excellent support and professional help to become full members of their community, but they cannot always obtain such help, when they need it most. As a result, some of them have to join gangs or ask their crime allies for help, thus increasing their chances to return to a correctional setting.

Second, in the absence of viable support and quality services for parolees, community becomes less cohesive and more socially disorganised. Petersilia writes that, with the growing number of offenders released on parole and in the absence of effective community reintegration frameworks, the risks of crime become much higher. They result in the substitution of social norms, disorganisation, and damaged social control networks (366). Most parolees, especially those who have spent long years in prison, are released into their communities without any employment benefits or savings (Petersilia 366). They have no adequate professional skills, and some of them display low levels of numeric and prose literacy (Petersilia 366). Such parolees are bound to spend their lives as unemployed individuals, and they will be more prone to commit a crime in order to survive.

Third, stigma is one of the most significant problems encountered by parolees as they are released into the community. “Incarceration is also stigmatising, and there is increased reluctance among employers to hire ex-offenders” (Petersilia 366). Phillips continues this topic, and the results of her empirical investigation suggest that most people perceive ex-offenders more negatively than individuals without any history of crime and incarceration (123). These perceptions are consistent with the signs of stigma, when individuals released from correctional facilities into the community are ascribed non-existent negative traits, based on their social status (Phillips 123). Ex-offenders fail to reintegrate into the target community due to the lack of programs that could teach them excellent reintegration skills (Phillips 123). They are virtually unprepared to withstand the social pressures of life beyond the correctional setting, and the community does not welcome their release.

As Goff suggests, community reintegration and release on parole cannot be effective without meeting three important goals: providing comprehensive and effective supervision, making programming services available to ex-offenders, and ensuring sufficient levels of community involvement (6). Supervision means that offenders are constantly monitored in the course of their activity within the community (Goff 6). Trained volunteers and parole officers can assume responsibilities for monitoring ex-offenders on their way to community reintegration. Programming means that the offender can access easily and participate in the programs, which are designed to meet his/her needs (Goff 6). Finally, community involvement is the most problematic aspect of community reintegration and parole, since not all community members may welcome offender participation in their programs (Goff 6).

Wrongful Convictions

Wrongful convictions remain a serious problem in the modern criminal justice system. Even in the presence of advanced methods of investigation, prosecutors and the jury cannot always develop a just and fair conclusion. Thousands of people spend their lives in prison for the crimes they never committed. The situation is particularly challenging in the context of death penalty: a total of 316 post-conviction exonerations took place in the United States, with an average of 13.5 years spent in prison by each exoneree (Innocence Project).

In Canada, the philosophy of the modern criminal justice system rests on the fundamental assumption that a person is not guilty, unless otherwise proven (Goff 2). DNA testing offers a relevant alternative to traditional investigation techniques. It is due to the use of DNA testing that more than 25 percent of suspects are excluded before the trial (Goff 2). Still, the problem of wrongful convictions is very serious. The main cause of wrongful convictions is eyewitness error (Goff 3). In 84 percent of DNA exonerations, eyewitness error was found to be the primary cause of wrongful convictions (Goff 3). Contemporary researchers are interested in solving the dilemma of eyewitness errors. For example, Wise, Dauphinais and Safer offer a tripartite solution to the problem, which includes expert testimony, enhanced procedures for collecting eyewitness evidence, and education provided to ensure that all participants of the criminal justice process are aware of the strengths and weaknesses of eyewitness identification (807).

Eyewitness error is not the only cause of wrongful convictions. Forensic errors remain quite common. Forensic scientists keep using faulty evidence, which leads to wrongful convictions (Goff 4). Some forensic experts make misstatements in relation to the evidence they have identified on the crime scene or through laboratory investigations (Goff 4). Others make misleading statements that eventually result in wrongful decisions. In the United States, almost every second wrongful conviction is due to the questionable quality of forensic conclusions (Goff 4). Given the severity of the problem, some Canadian provinces organise forensic evidence review committees to check upon the appropriateness and suitability of the forensic evidence used to support murder convictions (Goff 4). One of such committees was created by the Manitoba Justice Department (Goff 4).

In addition to eyewitness error and forensic errors, prosecutorial misconduct greatly contributes to the problem of wrongful convictions in Canada. Murder cases represent the biggest problem. In the pursuit of legal glory and public recognition, prosecutors cannot stay objective in their analyses of the existing forensic evidence (Goff 4). In addition to misleading statements of eyewitnesses and forensic scientists, prosecutors are extremely vulnerable to fame and glory mistakes. At times, they use questionable or false evidence to support their position in court (Goff 4). At other times, they may tamper with witnesses (Goff 4).

Goff recommends recording all interrogations that take place in the process of forensic investigation (4). Modern technologies offer unlimited opportunities for improving the quality of forensic evidence used in courts. Moreover, the use of modern technologies for information recording can motivate prosecutors to avoid coercion in their communication with the suspects (Goff 4). The question is in whether the proposed methods are enough to reduce the risks of wrongful convictions, especially when it comes to high-profile cases. Goff does not provide any answer.

The anatomy of wrongful convictions is so complex that it is virtually impossible to limit their scope to the three causes mentioned above. Medwed explores the notorious case of the wrongful murder conviction in People v. Wong and concludes that, beyond eyewitness error, the factors which have contributed to the justice mistake are racial prejudice and the use of jailhouse informants (357). At the same time, the case supports the statement made by Goff in relation to exculpatory evidence (4).

“Prison investigators and county prosecutors exhibited a classic case of ‘tunnel vision’ where, after arresting Wong at the outset, law enforcement officials consistently turned a blind eye to exculpatory evidence as it surfaced over time.” (Medwed 357)

Medwed points to the controversies surrounding the use of informants in criminal justice and the risks of wrongful convictions it actually incurs (369). In his view, Canada presents a wonderful example of how informant evidence should be treated in courts (Medwed 369). New procedures to confirm the reliability of informant evidence should be in place to reduce the risks of wrongful convictions. The criminal justice system should learn to treat such evidence with caution. Unfortunately, even when these procedures are implemented, the criminal justice system will not be secured from the risks of racial prejudice and bias.

Goff does not say anything about the role of race and ethnicity in wrongful convictions. Yet, the issues of racial and ethnic prejudice in criminal justice are well-known. The importance of the issue is justified by the compelling evidence that non-white individuals are disproportionately represented in the criminal justice system, making up the majority of the population incarcerated for violent offenses (Kalunta-Crumpton 173). In the United States, the overrepresentation of African Americans in courts and on death row raises the questions of objectivity, fairness, and impartialness of the criminal justice system. It also questions the adequacy of the existing forensic methodologies in cases involving non-white suspects.

The issue of race impacts all stages of the criminal justice process. It makes eyewitnesses particularly susceptible to biased judgments and mistakes. Some eyewitnesses may choose to make misstatements intentionally, based on their personal beliefs about race (Medwed 374). These problems reflect the legacy of racial discrimination that transcends all aspects of the Canadian and American history. Non-white suspects are often perceived as foreigners, whose subordinate social status is further reinforced through the wrongful decisions made by courts. Cross-racial misidentification remains an issue of hot concern in criminal justice (Medwed 375). Many judges and jurors project their racial stereotypes on innocent defendants (Medwed 375).

Apparently, there is no universal solution to the problem of wrongful convictions. The most effective will be a strategy that incorporates different models and approaches to address the multiple facets of the issue. Unfortunately, the current system of criminal justice is too conservative to adopt any revolutionary strategies against wrongful convictions. Wise, Dauphinais and Safer write that the criminal justice and court systems in America do not demonstrate the level of flexibility needed to deal with the problem of forensic errors, eyewitness error, and others (819). In most cases, solutions are limited to traditional safeguards, such as cross-examination, but their efficacy is quite low.

Given the scope of the issue, new interventions must be developed at the system level, so that all components of the criminal justice system are actively involved in the process. Because wrongful convictions are attributed to different factors and causes, such interventions must be complex but leave enough room for innovations and improvements. Such strategies must be regularly updated to reflect the latest findings in the field of criminal prosecution and justice. This is the only way the society can at least reduce the incidence of wrongful convictions and improve the public image of the criminal justice system, making it more objective and less biased in relation to all defendants, without any exception.

Works Cited

Bronski, Carl. Police Tasered Dziekanski to Death. 2010. Web.

Burns, Mark E. “Electronic Home Detention: New Sentencing Alternative Demands Uniform Standards.” The Journal of Contemporary Law 18.1 (1992): 75-89. Print.

Goff, Colin. Criminal Justice in Canada, Toronto: Nelson Publication, 2014. Print.

Innocence Project. DNA Exonerations Worldwide. 2013. Web.

Kalunta-Crumpton, Anita. “Race and Justice: Wrongful Convictions of African American Men.” British Journal of Criminology 53.1 (2013): 173-175. Print.

Medwed, Daniel S. “Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions.” Villanova Law Review 51.2 (2006): 337-378. Print.

Petersilia, Joan. “Prisoner Reentry: Public Safety and Reintegration Challenges.” The Prison Journal 81.3 (2001): 360-375. Print.

Phillips, Linsday A. “Perception of Community Reintegration from Correctional and Psychiatric Settings.” International Journal of Psychosocial Rehabilitation 17.2 (2013): 119-128. Print.

Prenzler, Tim. Police Corruption: Preventing Misconduct and Maintaining Integrity. New York: CRC Press, 2009. Print.

Wise, Richard A., Kristen A. Dauphinais, and Martin A. Safer. “A Tripartite Solution to Eyewitness Error.” Journal of Criminal Law and Criminology 97.3 (2007): 807- 872. Print.

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