The Charter and Its Effect on Policing
1) Constitutional Law (The Charter)
The Canadian charter of rights and freedom has had major impacts on criminal law, especially on how laws are practiced. Some of the changes that has been made include the way crime is investigated, how offenders are prosecuted, and the perspective of the due process. The charter has made judicial, social, and political impacts in Canada, especially in policing (Neudorf, 2020). The charter has made the bill of rights relevant, and useful. The law of rights and freedom had emphasized on protection of Canadian rights by explaining situations where an individual needs to be left alone, and where an individual needs to be punished. For instance, the charter has been very impactful in controlling the imposition of a sanction for the past twenty-five years.
The charter has been very impactful in protecting individual liberty, especially by addressing the grey areas in policing. For instance, the charter has been focused on preventing wrongful conviction by advocating for fairness. The good thing About the charter is that it is more concerned with individual rights instead of crime control, wherein charter seven promotes a fair and impactful criminal justice system to offenders, where the system should provide better results and without corruption (Neudorf, 2020). Compared to the pre-nineteenth century, the charter has made major changes to the criminal justice system, such as criminal law, procedural, and substantive change.
The flaws in the pre-1982 criminal justice system have been rectified, opening citizens’ eyes to the most important and impactful aspect of the charter (Neudorf, 2020). Other impacts of the charter include the right to counsel trial, the right to access justice, the right to counsel at investigation detention, privacy, security, and justice for the victim, such as women and children. The charter had promoted the use of the exclusionary rule in enhancing privacy and security. In court, the charter has advocated for a speedier justice, especially speedier trial rights, plea bargaining, and use of the Askov and morin guidelines (Neudorf, 2020). On the other hand, section nine and section twelve of the charter have emphasized fair and just punishment through protection from arbitrary, unusual, and cruel punishment. Also, the charter has emphasized treating mentally ill individuals in jails and other correctional facilities. The Canadian charter has been an impactful document, although not a perfect document.
2) Administrative law
Over the years, debates have arisen on the power that the immigration refugee board possesses. Most complaints and conflicts have risen, especially on whether Canadians should follow the IRB regulation, where most complain of harassment and harsh treatment. The major role of the IRB is to ensure that the rights and freedom of researchers are met. For instance, the IRB has the power to approve or disapprove any development and modification of research based on various research requirements (Atak, et,al., 2017). Also, the IRB has the right to continuously review research, especially the consent process, conducted more than once a year. On the other hand, any research that is conducted contrary to the IRB requirements can be terminated or suspended by the IRB. The IRB is concerned with Canadian human rights, for instance, beneficence, justice, and respect of persons.
IRB have discretional power to interpret and apply the various regulations differently despite disrespect and criticism from federal agencies. IRBs allow a designed set of rules, where the use of power is for other people’s good. Additionally, IRB exercise transparency, and legitimacy, and acid personal vendettas in their administration. IRBS are more open than powerful, even in the exercise of discretion (Atak, et,al., 2017). IRB position is considered complex, especially in dealing with workloads and sophisticated cases. According to research, IRB power is considered discretionary and subjective despite its legitimacy. The discretionary power that the IRB have may lead to resentment. There is a big difference between IRB discretionary power and that of police officers. IRB discretionary power is not controlled or does not have an appeal process, where researchers can file complaints about the application of discretionary powers. Lack of an appeal provides the IRB with high power to make various decisions (Atak, et,al., 2017). IRB is an independent body that enhances human rights and compliance, follows regulations, and enhances the value of research ethics and integrity.
3) Aboriginal Overrepresentation in Canadian Correctional Institutions
Over presentation of prisoners, especially the youths, has been an issue in Canada, where the federal government has come up with various policies and strategies to prevent and reduce aboriginal offenders’ presentation (Chartrand, 2019). The youth criminal justice act of 2003 is a policy that has been used to address the issue. Another policy includes the disproportionate minority contact initiative, although most of the policies have been ineffective in addressing the issue (Chartrand, 2019). The Disproportionate Minority Contact initiative has been used to reduce the involvement of minorities and enhance training and other diverse measures. The youth criminal justice act aims to reduce formal correction and punishments to a minor and petty offense and advocate for proportional and other diverse measures.
According to the study, the prison population and the rate of incarceration are more than the united states, where young offenders are sentenced for a longer period in prison than adults. For instance, some minor cases include possession of stolen items, theft, and common assault cases. The YCJA has been effective in reducing custodian sentences and promoting diversionary methods in Canada (Chartrand, 2019). According to a report, the policy has reduced the rate at which young offenders were incarcerated for violent crimes and property crimes. Other policies that have been applied include the development of the Gladue courts and the criminal code change. Especially on sentencing, review of Gladue case law, provision of remand and bail, and lastly implementation of community correction approach. The YCJA has been impactful in reducing court referrals and applying diversionary measures, although the policy has not reduced inappropriate custodial sentences and remand, especially among Caucasian young offenders (Chartrand, 2019).
4) Judiciary
According to research, the election is a fundamental practice in providing checks and balances and to avoid political appointment and corruption. Full-time judges should be elected to enhance the accountability of people and reduce corruption (Ceccherini, 2019).In Canada, judges are appointed; the judges appointed are judges of the Canada supreme court, province courts, and territorial supreme court. The advisory committee constitutes the committee from every territory, where the committee appoints the registered judges. Every committee has seven members and one ex-officio, such as the executive director or the designate. The commissioner of the federal judicial affair in Canada appoints a person to be included in the committee taking factors, such as language, multiculturalism, and geographic location. However, the committee member must have served as a lawyer for at least the years before passing laws (Ceccherini, 2019).The judges are appointed by the governor acting upon instructions and advice from the prime minister for supreme court judges. For the territorial and provincial judges, provincial and territorial judges do the appointment. Once the judges are appointed, they can attend classes for more knowledge concerning judging (Ceccherini, 2019). The Canadian judicial council advocates for efficiency, quality, consistency in the appointment, practices in the federal courts, investigation of complaints, and judges’ ethical principles.
Appointment of judges enhances judicial independence from outside, for instance, judicial independence from legislative power and executive power. On the other hand, the public’s election of judges would enhance internal independence, where judges would be protected from judicial pressure and decisions designed by high influential judges or courts administration (Ceccherini, 2019). On the other hand, recruitment, Assessment, and judges’ appointment is a mode of Canadian institutional independence regulated and controlled by the various statutes in the constitution. The nature of independence in the Canadian judicial system has negatively and positively impacted individual judges. For instance, judges are limited to their state of mind, decision, and individual dependency.
Judges’ appointment does not focus on personal qualities, ethics, social awareness, communication skills, honesty, integrity, and other qualities of a good judge. The system focuses on legal expertise, which involves a person’s ability to make a judgment in court. Compared to Australia, and the Philippines, the Canadian appointment of judges, does not conduct an intelligent test or a judge’s ability to communicate, make a decision, and work with other judges (Ceccherini, 2019). The independence in the Canadian judicial system is not enough on how judges are supposed to act. Judges should be impartial, where they are supposed to consider ethics and a professional code of conduct. On the other hand, judicial independence in judges’ appointment limits the judge’s ability to deliver, where most judges do not have healthy interactions with lawyers and other courtroom members (Ceccherini, 2019). Election of judges could create competency and promote delivery and ethical consideration among judges compared to the current judicial independence.
References
Atak, I. D. I. L., Hudson, G. R. A. H. A. M., & Nakache, D. E. L. P. H. I. N. E. (2017). Making Canada’s refugee system faster and fairer”: Reviewing the stated goals and unintended consequences of the 2012 reform. Canadian Association for Refugee and Forced Migration Studies (CARFMS) Working Paper Series, 3.
Ceccherini, E. (2019). The Judicial Power in Canada: The Mirror of a Pluralistic Society. DPCE Online, 38(1).
Chartrand, V. (2019). Unsettled times: indigenous incarceration and the links between colonialism and the Ceccherini, E. (2019).
Neudorf, L. (2020). Building National Identity through the Constitution: The Canadian Charter Experience.
