The Recognition of Prosecutorial Obligations in an Era of Mandatory Minimum Sentences of Imprisonment and Over-representation of Aboriginal People in Prisons

In Canada, recent decisions have reaffirmed the almost unfettered discretionary power of prosecutors, and in Anderson the Supreme Court has also decided that prosecutors, unlike judges, do not have a constitutional obligation to consider the principle of proportionality, including Aboriginal status, when making decisions that trigger mandatory minimums and reduce the sentencing options available for judges. The Court found that the role of prosecutors is substantially different than the role of judges, highlighting that the prosecutorial function does not include sentencing, and that prosecutorial discretion should generally be protected from judicial oversight. One may wonder whether this is a realistic and ethical depiction of the role of prosecutors, particularly in light of their role as “ministers of justice”, the ever-increasing use of offences with mandatory minimums, the numerous ways that prosecutors can trigger these sentences, and the shared responsibility of all actors in the criminal justice system to remedy the systemic problem of Aboriginal over-representation in Canadian prisons. The following article analyzes the decision in Anderson and argues that the Court was right in deciding that the principle of proportionality only applies to sentencing judges. Arguably, however, the Gladue principle should be considered a stand-alone principle, separate from the principle of proportionality in sentencing, that applies not only to sentencing judges, but also to all actors in the criminal justice process that have a role to play in the incarceration of Aboriginal people, including prosecutors. Indeed, prosecutors should have a duty to apply the Gladue principle in their decisions that can impact an individual’s liberties, particularly when making decisions that trigger mandatory minimum sentences in the context of Aboriginal offenders. Current prosecutorial guidelines are not satisfactory in this regard since they fail to explicitly mention the consideration of Aboriginal status. This article proposes that prosecutorial guidelines be amended to instruct prosecutors to consider these elements when making decisions that trigger mandatory minimum sentences. It finally presents a possible model of review that promotes accountability, fairness and transparency within these decisions, without impeding on the separation of powers between prosecutors and judges

The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions

This article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks: desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and demonstrates that this concept was primarily rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. It is argued that this multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. The article therefore proposes a nuanced framework, similar to the one in England and Wales, rooted in a dynamic understanding of just deserts that allows for the incorporation of relevant consequentialist aims in a principled fashion

Rhetoric or reality?: victims' enforcement mechanisms in England and Wales and the United States

Recent policies in England and Wales and the United States have recognised for the first time enforcement mechanisms for victims of crime under the Crime Victims’ Rights Act (CVRA) in the United States as well the Code of Practice for Victims of Crime in England and Wales (the Code). Although very different from one another, these policies ostensibly aimed to provide a stronger commitment to victims’ rights, by recognising an accessible, timely and impartial process that recognises accountability and provides individual remedies in cases of breaches. This thesis engages in a careful in-depth analysis of these mechanisms and their implementation based on elite qualitative interviews, case law analysis and a multidisciplinary examination of the relevant literature. It argues that on the whole, these mechanisms have presented a number of limitations, and thus in many respects cannot and have not delivered accessible, and timely means to respond to victims’ rights breaches. Most importantly, it demonstrates that for certain types of breaches and in certain contextual settings, these mechanisms have recognised only limited or no redress at all for breaches. This research takes the available victims’ literature further by arguing that many of these promises have been closer to rhetoric than reality and providing a more nuanced portrait of the substantial difficulties and limitations that relate to these enforcement mechanisms. In effect, these limitations can be understood in light of the nature and structural components of these selected mechanisms, as well as the ways they have been implemented by the main actors involved in these processes and the different contexts under which the different types of breaches take place. Finally, despite their limitations, when compared to one another, each mechanism can be considered a better option for access, timeliness and redress – depending on context and the type of breach. Following from this analysis, a complementary approach is developed which can facilitate and increase opportunity for redress for a wider range of situations. It is important to bear in mind however the limits of the complementary approach; namely, that it only includes elements inspired from the two mechanisms examined in this thesis and that there are several limitations that relate to transplants and policy transfers.</p

The Recognition of Prosecutorial Obligations in an Era of Mandatory Minimum Sentences of Imprisonment and Over-representation of Aboriginal People in Prisons

In Canada, recent decisions have reaffirmed the almost unfettered discretionary power of prosecutors, and in Anderson the Supreme Court has also decided that prosecutors, unlike judges, do not have a constitutional obligation to consider the principle of proportionality, including Aboriginal status, when making decisions that trigger mandatory minimums and reduce the sentencing options available for judges. The Court found that the role of prosecutors is substantially different than the role of judges, highlighting that the prosecutorial function does not include sentencing, and that prosecutorial discretion should generally be protected from judicial oversight. One may wonder whether this is a realistic and ethical depiction of the role of prosecutors, particularly in light of their role as “ministers of justice”, the ever-increasing use of offences with mandatory minimums, the numerous ways that prosecutors can trigger these sentences, and the shared responsibility of all actors in the criminal justice system to remedy the systemic problem of Aboriginal over-representation in Canadian prisons. The following article analyzes the decision in Anderson and argues that the Court was right in deciding that the principle of proportionality only applies to sentencing judges. Arguably, however, the Gladue principle should be considered a stand-alone principle, separate from the principle of proportionality in sentencing, that applies not only to sentencing judges, but also to all actors in the criminal justice process that have a role to play in the incarceration of Aboriginal people, including prosecutors. Indeed, prosecutors should have a duty to apply the Gladue principle in their decisions that can impact an individual’s liberties, particularly when making decisions that trigger mandatory minimum sentences in the context of Aboriginal offenders. Current prosecutorial guidelines are not satisfactory in this regard since they fail to explicitly mention the consideration of Aboriginal status. This article proposes that prosecutorial guidelines be amended to instruct prosecutors to consider these elements when making decisions that trigger mandatory minimum sentences. It finally presents a possible model of review that promotes accountability, fairness and transparency within these decisions, without impeding on the separation of powers between prosecutors and judges

Contrasting the Emergence of the Victims’ Movements in the United States and England and Wales

Over the years, the role of victims in the criminal process has considerably evolved in common law jurisdictions, particularly in the United States and England and Wales. These notable developments have varied greatly between these two jurisdictions. These differences are in great part attributed to the different forces and rationales behind the emergence of the early victims’ movements in these respective jurisdictions. Indeed, the movements in the United States and England and Wales adopted different philosophies, strategies, and members came from different backgrounds, which can account for the differences in policies. This article engages in a process of comparative distancing between the forces that drove the movements, as well as the context under which they operated in order to understand the different policies, legal responses and debates that relate to the role of victims of crime in the two selected jurisdictions

Punishing while Presuming Innocence : A Study on Bail Conditions and Administration of Justice Offences

This paper examines the process and outcomes of bail hearings, focusing on cases where defendants’ hearings involved administration of justice and sentencing offences. The data analyzed for this project suggests that despite the presumption of innocence and non-punitive official objectives of judicial release, the practice by law enforcement and courts at this stage of the process tends towards punitiveness. These punitive responses are illustrated by three main findings that relate to the detention of individuals accused of administration of justice or sentencing offences, the number of conditions of release breached per combination of charges, and the breached conditions of release. These processes are understood through a durkheimian lens, using Fauconnet’s work which considers the social function of punitive processes as focused on annihilating the criminal act to establish social order. As will be seen, this function is achieved through the selection of a scapegoat that is rapidly punished, rather than appropriately assigning individual liability.Cet article analyse le fonctionnement et les résultats des audiences de mise en liberté sous caution, en mettant l’accent sur les cas où les audiences des défendeurs concernaient les infractions relatives à l’administration de la justice et à la détermination de la peine. Les données analysées suggèrent que, malgré la présomption d’innocence et les objectifs officiels non punitifs de la mise en liberté sous caution, la pratique des forces de l’ordre et des tribunaux, à ce stade de la procédure, tend à être punitive. Ces réponses punitives sont illustrées par trois éléments principaux, soit la détention de personnes accusées d’infraction à l’administration de la justice, le nombre de conditions de libération violées par combinaison d’accusations et les conditions de libération non respectées. Ces processus sont analysés sous une perspective durkheimienne, en utilisant le travail de Fauconnet qui considère la fonction sociale des processus punitifs comme centrée sur l’annulation de l’acte criminel pour établir un ordre social. Cette fonction est assurée par la sélection d’un bouc émissaire rapidement sanctionné, plutôt que par l’attribution appropriée de la responsabilité individuelle.Este artículo analiza el procedimiento y las decisiones de las audiencias de libertad bajo fianza, haciendo hincapié en los casos de acusados cuyas audiencias conciernen infracciones relacionadas con la administración de justicia y con la determinación de la pena. Los datos analizados proponen, que a pesar de la presunción de inocencia, y de los objetivos oficiales no punitivos de la libertad bajo fianza, la práctica de las fuerzas del orden y de los tribunales en ese estado del procedimiento tiende a ser punitiva. Dichas respuestas punitivas se ilustran con tres elementos principales : la detención de personas que han sido acusadas por la comisión de una infracción en contra de la administración de justicia, el número de condiciones de liberación que han sido violadas por la combinación de cargos, y de las condiciones de libertad que no han sido respetadas. Estos procesos se analizan bajo una perspectiva durkheimiana, empleando el trabajo de Fauconnet, el cual considera la función social de los procesos punitivos basada en la condonación del acto criminal para así establecer un orden social. Esta función se lleva a cabo con la selección de un chivo expiatorio, que se sanciona rápidamente, en lugar de hacerlo con atribución apropiada de la responsabilidad individual

Rhetoric or reality?: victims' enforcement mechanisms in England and Wales and the United States

Recent policies in England and Wales and the United States have recognised for the first time enforcement mechanisms for victims of crime under the Crime Victims’ Rights Act (CVRA) in the United States as well the Code of Practice for Victims of Crime in England and Wales (the Code). Although very different from one another, these policies ostensibly aimed to provide a stronger commitment to victims’ rights, by recognising an accessible, timely and impartial process that recognises accountability and provides individual remedies in cases of breaches. This thesis engages in a careful in-depth analysis of these mechanisms and their implementation based on elite qualitative interviews, case law analysis and a multidisciplinary examination of the relevant literature. It argues that on the whole, these mechanisms have presented a number of limitations, and thus in many respects cannot and have not delivered accessible, and timely means to respond to victims’ rights breaches. Most importantly, it demonstrates that for certain types of breaches and in certain contextual settings, these mechanisms have recognised only limited or no redress at all for breaches. This research takes the available victims’ literature further by arguing that many of these promises have been closer to rhetoric than reality and providing a more nuanced portrait of the substantial difficulties and limitations that relate to these enforcement mechanisms. In effect, these limitations can be understood in light of the nature and structural components of these selected mechanisms, as well as the ways they have been implemented by the main actors involved in these processes and the different contexts under which the different types of breaches take place. Finally, despite their limitations, when compared to one another, each mechanism can be considered a better option for access, timeliness and redress – depending on context and the type of breach. Following from this analysis, a complementary approach is developed which can facilitate and increase opportunity for redress for a wider range of situations. It is important to bear in mind however the limits of the complementary approach; namely, that it only includes elements inspired from the two mechanisms examined in this thesis and that there are several limitations that relate to transplants and policy transfers.This thesis is not currently available in ORA