Politics and Criminal Law

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Politics and Criminal Law


I’ve been thinking recently a lot about politics and its effect on criminal law in Canada. It’s fairly self-evident that our criminal justice system is greatly affected by political actors. For example, most appointments to the judiciary are selected by political actors.

The Criminal Code is written, and amended regularly, by Parliament (here’s an interesting blog post on this). Our entire criminal justice system, including bail, sentencing, jails, and criminal law itself, are heavily influenced by politics.

I have been enjoying listening to excellent criminal law podcasts recently, such as The Docket and Of Counsel, and I’m starting to get a better sense of areas of criminal law and the criminal justice system that are weak or in need of improvement, etc. I will focus on these areas in future posts.

My first post will be about drug sentencing and starting points – particularly in Alberta. In another post, I will discuss sexual assault trial procedure. Another post will address bail.

I argue that the criminal matter has 3 main components: bail, trial, and sentencing. Of course, there are other issues, such as jail conditions, appeals, etc. – but I focus on these three.

The first – bail – is when someone is charged with a criminal offence, and the justice system decides whether or not to grant the person release pending the trial or resolution of their criminal matter. In a good percentage of matters, the accused is released on bail. In many cases; however, they’re not, and I will discuss this in detail in a later post.

The second – trial – is when the accused enters a not-guilty plea (rather than a guilty plea) to their charge. The Crown then needs to prove the guilt of the accused beyond a reasonable doubt in front of the Court. This is not easy for the Crown in many cases, although I will argue that it has gotten a lot easier for the Crown in cases of sexual assault.

The third stage – sentencing – is what happens after the accused is either found guilty at trial or if the accused bypasses the trial stage by pleading guilty. (If the accused is found not guilty at trial, or if the Crown otherwise withdraws the charges, sentencing is avoided.) I sometimes find this to be the most interesting stage in that the Court needs to craft a fit sentence for the offender taking into account their aggravating and mitigating factors, their unique personal circumstances and those of the offence, as well as caselaw (as in sentencing precedents – similar sentences for similar offences are what’s aimed for), Parliamentary directives (regarding type of sentence and minimum sentences, etc.), along with keeping in mind totality and other principles. Sentencing is arguably the most complex aspect of criminal law, and perhaps the most important. This is where the “rubber hits the road” in terms of our criminal law: regardless of how bail or trial is conducted, is the offender sentenced to decades, years or months of jail, or none at all?

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