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Page 1
117 STAT. 972
PUBLIC LAW 108-79-SEPT. 4, 2003
Sept. 4, 2003
[So
1435]
Prison Rape
Elimination Act
of 2003.
45
use
15601 note.
42
use
15601.
Public Law 108-79
108th Congress
An Act
To provide for the analysis of the incidence and effects of prison rape in Federal, State, and
local institutions and to provide information, resources,· recommendations, and funding to
protect individuals from prison rape.
Be it enacted
by
the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION l.SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.-This Act may be cited as the "Prison Rape
Elimination Act of 2003".
(b) TABLE OF CONTENTS.-The table of contents of this Act is
as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Purposes.
Sec. 4. National prison rape statistics, data, and research. Sec. 5.
Prison rape prevention and prosecution.
Sec. 6. Grants to protect inmates and safeguard communities. Sec.
7. National Prison Rape Reduction Commission.
Sec. 8. Adoption and effect of national standards.
Sec. 9. Requirement that accreditation organizations adopt accreditation standards. Sec. 10.
Definitions.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) 2,100,146 persons were incarcerated in the United States
at the end of 2001: 1,324,465 in Federal and State prisons and
631,240 in county and local jails. In 1999, there were more than
10,000,000 separate admissions to and discharges from prisons
and jails.
(2) Insufficient research has been conducted and insufficient
data reported on the extent of prison rape. However, experts have
conservatively estimated that at least 13 percent of the inmates in
the United States have been sexually assaulted in prison. Many
inmates have suffered repeated assaults. Under this estimate,
nearly 200,000 inmates now incarcerated have been or will be the
victims of prison rape. The total number of inmates who have
been sexually assaulted in the past 20 years likely exceeds
1,000,000.
(3) Inmates with mental illness are at increased risk of sexual
victimization. America's jails and prisons house more mentally ill
individuals than all of the Nation's psychiatric hospitals combined.
As many as 16 percent of inmates in State prisons and jails, and 7
percent of Federal inmates, suffer from mental illness.
( 4) Young first-time offenders are at increased risk of sexual
victimization. Juveniles are 5 times more likely to be sexually
Page 2
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT.
973
assaulted in adult rather than juvenile facilities -often within the first 48 hours of
incarceration.
(5) Most prison staff are not adequately trained or prepared to prevent,
report, or treat inmate sexual assaults.
(6) Prison rape often goes unreported, and inmate victims often receive
inadequate treatment for the severe physical and psychological effects of sexual
assault -if they receive treatment at all.
(7) HIV and AIDS are major public health problems within America's
correctional facilities. In 2 000, 25,088 inmates in Federal and State prisons were
known to be infected with HIV/AIDS. In 2000, HIV/AIDS accounted for more
than 6 percent of all deaths in Federal and State prisons. Infection rates for other
sexually transmitted diseases, tuberculosis , and hepatitis Band C are also far
greater for prisoners than for the American population as a whole. Prison rape
undermines the public health by contributing to the spread of these diseases, and
often giving a potential death sentence to its victims.
(8) Prison rape endangers the public safety by making brutalized inmates
more likely to commit crimes when they are released -as 600,000 inmates are
each year. '
(9) The frequently interracial character of prison sexual assaults
significantly exacerbates interracial' tensions, both within prison and, upon
release of perpetrators and victims from prison, in the community at large.
(10) Prison rape increases the level of homicides and other violence against
inmates and staff, and the risk of insurrections and riots.
(11) Victims of prison rape suffer severe physical and psychological effects
that hinder their ability to integrate into the community and maintain stable
employment upon their release from prison. They are thus more likely to
become home less and/or require government assistance.
(12) Members of the public and government officials are largely unaware of
the epidemic character of prison rape and
the day-to-day horror experienced by victimized inmates.
'
(13) The high incidence of sexua l assault within prisons involves actual and
potential violations of the United States Constitution. In Farmer v. Brennan, 511
U.S. 825 (1994), the Supreme Court ruled that deliberate indifference to the
substantial risk of sexual assault violates prisoner s' rights under the Cruel and
Unusual Punishments Clause of the Eighth Amendment. The Eighth
Amendment rights of State and local prisoners are protected through the Due
Process Clause of the Fourteenth Amendment. Pursuant to the power of
Congress under Sec tion Five of the Fourteenth Amendment, Congress may take
action to enforce those rights in States where officials have demonstrated such
indifference. States that do not take basic steps to abate prison rape by adopting
standards that do not generate sign ificant additional expenditures demonstrate
such indifference. Therefore, such States are not entitled to the same level of
Federal benefits as other States.
(14) The high incidence of prison rape undermines the effectiveness and
efficiency of United States Government expenditures through grant programs
such as those dealing with health care; mental health care; disease prevention;
crime prevention, investigat ion, and prosecution; prison construction,
Page 3
117 STAT.
974
PUBLIC LAW 108-79-SEPT. 4, 2003
42
use
15602.
maintenance, and operation; race relations; poverty; unemploy -
ment and homelessness. The effectiveness and efficiency of these
federally funded grant programs are compromised by the failure of
State officials to adopt policies and procedures that reduce the
incidence of prison rape in that the high incidence of prison rape: -
(A) increases the costs incurred by Federal, State, and
local jurisdictions to administer their prison systems;
(B) increases the levels of violence, directed at inmates
and at staff, within prisons;
(C) increases health care expenditures, both inside and
outside of prison systems, and reduces the effectiveness of
disease prevention programs by substantially increasing the
incidence and spread of HN, AIDS, tuberculosis, hepa titis
Band C, and other diseases;
(D) increases mental health care expenditures, both
inside and outside of prison systems, by substantially
increasing the rate of post -traumatic stress disorder,
depression, suicide, and the exacerbation of existing mental
illnesses among current and former inmates;
(E) increases the risks of recidivism, civil strife, and
violent crime by individuals who have been brutalized by
prison rape; and
(F) increases the level of interracial tensions and strife
within prisons and, upon release of perpetrators and vic tims,
in the community at large.
(15) The high incidence of prison rape has a significant effect
on interstate. commerce because it increases substantially
-
(A) the costs incurred by Federal, State, and local
jurisdictions to administer their prison systems;
(B) the incidence and spread of HIV, AIDS, tuber culosis,
hepatitis Band C, and other diseas es, contributing to
increased health and medical expenditures throughout the
Nation;
(C) the rate of post-traumatic stress disorder, depres sion,
suicide, and the exacerbation of existing mental ill nesses
among current and former inmates, contributing to increased
health and medical expenditures throughout the Nation; and
(D) the risk of recidivism, civil strife, and violent crime
by individuals who have been brutalized by prison rape.
SEC. 3. PURPOSES.
The purposes of this Act are to -
(1) establish a zero -tolerance standard for the incidence of
prison rape in prisons in the United States;
(2) make the prevention of prison rape a top priority in each
prison system;
(3) develop and implement national standards for the detec tion,
prevention, reduction, and punishment of prison rape; (4) increase
the available data and information on the incidence of prison
rape, consequently improving the manage ment and administration
of correctional facilities;
(5) standardize the definitions used for collec ting data on the
incidence of prison rape;
Page 4
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT. 975
(6) increase the accountability of prison officials who fail to
detect, prevent, reduce, and punish prison rape;
(7) protect the Eighth Amendment rights of Federal, State, and
local prisoners;
(8) increase the efficiency and effectiveness of Federal
expenditures through grant programs such as those dealing with
health care; mental health care; disease prevention; crime prevention,
investigation, and pros ecution; prison construction, maintenance, and
operation; race relations; poverty; unemploy ment; and homelessness;
and .
(9) reduce the costs that prison rape imposes on interstate
commerce.
SEC. 4. NATIONAL PRISON RAPE STATISTICS, DAT A,
AND
RESEARCH. 42 USC 15603.
(a)
ANNuAL COMPREHENSIVE STATISTICAL REVIEW.-
(1) IN GENERAL.-The Bureau of Justice Statistics of the
Department of Justice (in this section referred to as the "Bureau")
shall carry out, for each calendar year, a comprehen sive statistical
review and analysis of the incidence and effects of prison rape. The
statistical review and analysis shall include, but not be limited to the
identification of the common character -
istics of -
.
(A)
both victims and perpetrators of prison rape; and (B) prisons
and prison systems with a high incidence of prison rape ...
(2) CONSIDERATIONS . .,.-In carrying out paragraph (1), the
Bureau shall consider -·
.
(A)
how rape should be defined for the purposes of the
statistical review and analysis; .
(B) how the Bureau should collect information about
staff-on-inmate sexual assault;
.
(C) how the Bureau should collect information beyond
inmate self -reports of prison rape;
.
(D) how the Bureau should adjust the data in order to
account for differences among prisons as required by subsection
(c)(3);
(E) the categorization of prisons as required by sub section
(c)(4); and
(F) whether a preliminary study of prison rape should be
conducted to inform the methodology of the comprehensive
statistical review.
(3) SOLICITATION OF VIEWS.-The Bureau of Justice Statis -
tics shall solicit views from representatives of the following:
State departments of correction; county and municipal jails; juvenile
correctional facilities; former inmates; vict im advocates; researchers;
and other experts in the area of sexual assault.
(4) SAMPLING TECHNIQUES.-The review and analysis under
paragraph (1) shall be based on a random sample, or other
scientifically appropriate sample, of not less than 10 percent o f all
Federal, State, and county prisons, and a representative sample of
municipal prisons. The selection shall include at least one prison
from each State. The selection of facilities for sampling shall be
made at the latest practicable date prior to cond ucting the surveys
and shall not be disclosed to any facility or prison system official
prior to the time period studied in the survey. Selection of a facility
for sampling during any
Page 5
117 STAT.
976
Confidentiality.
PUBLIC LAW 108-79-SEPT. 4, 2003
year shaH not preclude its selection for sampling in any subsequent
year.
(5) SURVEYS.-In carrying out the review and analysis under
paragraph (1), the Bureau shaH, in addition to such other methods as
the Bureau considers appropriate, use surveys and other statistical
studies of current and former inmates from a sample of Federal,
State, county, and municipal prisons. The Bureau shaH ensure the
confidentiality of each survey participant.
(6) PARTICIPATION IN SURVEY.-Federal, State, or local
officials or facility administrators that receive a request from the
Bureau under subsection (a)(4) or (5) will be required to participate
in the national survey and provide access to any inmates under their
legal custody.
(b) REVIEW PANEL ON PRISON RAPE.-
0)
ESTABLlSHMENT._To assist the Bureau in carrying out
the review and analysis under subsection (a), there is established,
within the Department of Justice, the Review Panel on Prison Rape
(in this section referred to as the "Panel").
(2) MEMBERSHIP._
(A)
COMPOSITION.-The Panel shall be composed of 3
members, each of whom shaH be appointed by the Attorney
General, in consultation with the Secretary of Health and
Human Services.
(B) QUALIFICATIONS.-Members of the Panel shall be
selected from among individuals with knowledge or expertise
in matters to be studied by the Panel.
(3) PUBLIC HEARINGS.-
(A)
IN GENERAL.--:-The duty of the Panel shaH be to carry
out, for each calendar year, public hearings concerning the
operation of the three prisons with the highest incidence of
prison rape and the two prisons with the lowest incidence of
prison rape in each category of facilities identified under
subsection (c)(4). The Panel shall hold a separate hearing
regarding the three Federal or State prisons with the highest
incidence of prison rape. The purpose of these hearings shaH be
to coHect evidence to aid in the identification of common
characteristics of both victims and perpetrators of prison rape,
and the identification of common characteristics of prisons and
prison systems with a high incidence of prison rape, and the
identification of common characteristics of prisons and prison
systems that appear to have been successful in deterring prison
rape.
(B) TESTIMONY AT HEARINGS.-
(i) PuBLIC OFFICIALS.-In carrying out the hearings
required under subparagraph
(A),
the Panel shaH request
the public testimony of Federal, State, and local officials
(and organizations that represent such officials), including
the warden or director of each prison, who bears
responsibility for the prevention, detection, and
punishment of prison rape at each entity, and the head of
the prison system encompassing such prison.
(ii) VICTIMS.-The Panel may request the testimony
of prison rape victims, organizations representing
Page 6
PUBLIC LAW lOB-79-SEPT. 4,2003
117 STAT. 977
such victims, and other appropriate individuals and
organizations.
(C) SUBPOENAS.-
(i) ISSUANCE.-The Panel may issue subpoenas for the
attendance of witnesses and the production of writ ten or other
matter.
(ii)
ENFORCEMENT.-In the case of contumacy or refusal
to obey a subpoena, the Attorney General may in a Federal
court of appropriate jurisdiction obtain an appropriate order to
enforce the subpoena.
(c) REPORTS.-
(1) IN GENERAL.-Not later than June 30 of each year, Deadline. the
Attorney General shall submit a report on the activities
of the Bureau and the Review Panel, with respect to prison
rape, for the preceding calendar year to-
(A)
Congress; and
(B) the Secretary of Health and Human Services.
(2). CONTENTS.-The report required under paragraph (1) shall
include-
(A)
with respect to the effects of prison rape, statistical,
sociological, and psychological data;
(B) with respect to the incidence of prison rape -
(i) statistical data aggregated at the Federal, State, prison
system, and prison levels;
(ii) a listing of those institutions in the representa tive
sample, separated into each category identified under
subsection (c)(4) and ranked according to the incidence of
prison rape in each institution; and
(iii) an identification of those institutions in the
representative sample that appear to have been successful in
deterring prison rape; and
(C) a listing of any prisons in the representative sample that
did not cooperate with the survey conducted pursuant to section 4.
(3) DATA ADJUSTMENTS.-In preparing the information specified in
paragraph (2), the Attorney General shall use estab lished statistical
methods to adjust the data as necessary to . account for differences
among institutions in the representative
sample, which are not related to the detection, prevention, reduction
and punishment of prison rape, or which are outside the control of the
State, prison, or prison system, in order to provide an accurate
comparison among prisons. Such dif ferences may include the mission,
security level, size, and juris diction under which the prison operates.
For each such adjust ment made, the Attorney General shall identif y
and explain such adjustment in the report.
(4) CATEGORIZATION OF PRISONS.-The report shall divide
the prisons surveyed into three categories. One category shall be
composed of all Federal and State prisons. The other two categories
shall be defined by the Attorney General in order to compare simil ar
institutions.
(d) CONTRACTS AND GRANTS.-In carrying out its duties under
this section, the Attorney General may -
(1) provide grants for research through the National Institute of
Justice; and
(2) contract with or provide grants to any other entitythe Attorney
General deems appropriate.
Page 7
117 STAT.
978
PUBLIC LAW 108-79-SEPT. 4, 2003
42
use
15604.
Establishment.
Deadline.
42
use
15605.
(e) AUTHORIZATION OF APPROPRIATIONS.-There are
authorized to be appropriated $15,000,000 for each of fiscal years 2004
through 2010 to carry out this section.
SEC.
5.
PRISON RAPE PREVENTION AND
PROSECUTION. (a) INFORMATION AND
ASSISTANCE.-
(1) NATIONAL CLEARINGHOUSE.-There is established
within the National Institute of Corrections a national clearinghouse
for the provision of information and assistance to Federal, State, and
local authorities responsible for the prevention, investigation, and
punishment of instances of prison rape.
(2) TRAINING AND EDUCATION.-The National Institute of
Corrections shall conduct periodic training and education programs
for Federal, State, and local authorities responsible for the prevention,
investigation, and punishment of instances of prison rape.
(b) REPORTS.-
(1) IN GENERAL.-Not later than September 30 of each year, the
National Institute of Corrections shall submit a report to Congress and
the Secretary of Health and Human Services. This report shall be
available to the Director of the Bureau of Justice Statistics.
(2) CONTENTS.-The report required under paragraph (1) shall
summarize the activities of the Department of Justice regarding prison
rape abatement for the preceding calendar year ..
(c) AUTHORIZATION OF APPROPRIATIONS.-There are
authorized to be appropriated $5,000,000 for each of fiscal years 2004
through 2010 to carry out this section ..
SEC. 6. GRANTS TO PROTECT INMATES AND SAFEGUARD
COMMUNITIES.
(a) GRANTS AUTHORIZED.-From amounts made available for
grants under this section, the Attorney General shall make grants to States
to assist those States in ensuring that budgetary circumstances (such as
reduced State and local spending on prisons) do not compromise efforts to
protect inmates (particularly from prison rape) and to safeguard the
communities to which inmates return. The purpose of grants under this
section shall be to provide funds for personnel, training, technical
assistance, data collection, and equipment to prevent and prosecute
prisoner rape.
(b) USE OF GRANT AMOUNTS.-Amounts received by a grantee
under this section may be used by the grantee, directly or through
subgrants, only for one or more of the following activities:
(1) PROTECTING INMATES.-Protecting inmates by-
(A) undertaking efforts to more effectively prevent prison
rape;
(B) investigating incidents of prison rape; or
(C) prosecuting incidents of prison rape.
(2) SAFEGUARDING COMMUNITIES.-Safeguarding
communities by-
(A) making available, to officials of State and local
governments who are considering reductions to prison budgets,
training and technical assistance in successful methods for
moderating the growth of prison populations without
compromising public safety, including successful methods used
by other jurisdictions;
Page 8
PUBLIC LAW 108-79-SEPT. 4,2003
117 STAT. 979
(B) developing and utilizing analyses of prison popu lations and risk
assessment instruments that will improve State and local governments'
understanding of risks to the community regarding release of inmates in the
prison population;
(C) preparing maps demonstrating the concentration, on a community -
by-community basis, of inmates who have been released, to facilitate the
efficient and effective -
(i) deployment of law enforcement resources (includin g probation
and parole resources); and
(ii) delivery of services (such as job training and substance abuse treatment)
to those released inmates;
(D)
promoting collaborative efforts, among
officials of State and local governments and leaders of appropriat e
communities, to understand and address the effects on a community of the
presence of a disproportionate number of released inmates in that
community; or
(E) developing policies and programs that reduce spending on prisons
by effectively reducing rates of parole and probation revocation without
compromising public safety.
(c) GRANT REQUIREMENTS.-
(1) PERIOD.-A grant under this .section shall be made for a period of not
more than 2 years.
(2) MAXIMUM.- The amount of a grant under this section may no t exceed
$1,000,000.
(3) MATCHING.-The Federal share of a grant under this section may not
exceed 50 percent of the total costs of the project described in the application
submitted under subsection (d) for the fiscal year for which the grant was made
under this section.
(d) APPLICATIONS.-
(1) IN GENERAL.-To request a grant under this section, the chief executive
of a State shall submit an application to the Attorney General at such time, in
such manner, and accom panied by such information as the Att orney General
may require.
(2) CONTENTS.-Each application required by paragraph
(1) shall-
.
(A)
include the certification of the chief executive that
the State receiving such grant -
..
(i) has adopted all national prison rape standards that, as of the date
on which the application was submitted, have been promulgated under
this Act; and
(ij) will consider adopting all national prison rape standards that are
promulgated under this Act after such date; .. (B) specify with
particularity the preventative, prosecu -
torial, or administrative activities to be undertaken by the State with the
amounts received under the grant; and (C) in the case of an application for a
grant for one or more activities specified in paragraph (2) of subsection
(b)-
(1)
review the extent of the budgetary cir cumstances affecting the
State generally and describe how those circumstances relate to the
State's prisons;
Page 9
117 STAT. 980
PUBLIC LAW 108-79-SEPT. 4, 2003
Deadline.
42
use
15606.
President.
(ii) describe the rate of growth of the State's prison
population over the preceding 10 years and explain why
the State may have difficulty sustaining that rate of
growth; and
(iii) explain the extent to which officials (including
law enforcement officials) of State and local governments
and victims of crime will be consulted regarding decisions
whether, or how, to moderate the growth of the State's
prison population.
(e) REPORTS BY GRANTEE.-
(1) IN GENERAL.-The Attorney General shall require each
grantee to submit, not later than 90 days after the end of the period
for which the grant was made under this section, a report on the
activities carried out under the grant. The report shall identify and
describe those activities and shall contain an evaluation of the
effect of those activities on-
(A) the number of incidents of prison rape, and the
grantee's response to such incidents; and
(B)
the safety of the prisons, and the safety of the
communities in which released inmates are present.
(2) DISSEMINATION.-The Attorney General shall ensure that
each report submitted under paragraph (1) is made available under
the national clearinghouse established under section
5.
(f) STATE DEFINED.-In this section, the term "State" includes the
District of Columbia, the Commonwealth of Puerto Rico, and any other
territory or possession of the United States.
(g) AUTHORIZATION OF APPROPRIATIONS.-
(1) IN GENERAL.-There are authorized to be appropriated for
grants under this section $40,000,000 for each of fiscal years 2004
through 2010.
(2) LIMITATION.-Of amounts made available for grants
under this section, not less than 50 percent shall be available only
for activities specified in paragraph (1) of subsection (b).
SEC.
7.
NATIONAL PRISON RAPE REDUCTION COMMISSION.
(a) ESTABLISHMENT.-There is established a commission to be
known as the National Prison Rape Reduction Commission (in this
section referred to as the "Commission").
(b) MEMBERS.-
(1) IN GENERAL.-The Commission shall be composed of 9
members, of whom-
(A) 3 shall be appointed by the President;
(B)
2 shall be appointed by the Speaker of the House of
Representatives, unless the Speaker is of the same party as the
President, in which case 1 shall be appointed by the Speaker of
the House of Representatives and 1 shall be appointed by the
minority leader of the House of Representatives;
(C) 1 shall be appointed by the minority leader of the
House of Representatives (in addition to any appointment
made under subparagraph
(B));
(D) 2 shall be appointed by the majority leader of the
Senate, unless the majority leader is of the same party as the
President, in which case 1 shall be appointed by the majority
leader of the Senate and 1 shall be appointed by the minority
leader of the Senate; and
Page 10
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT. 981
(E) 1 member appointed by the minority leader of the Senate
(in addition to any appointment made under subparagraph (D».
(2) PERSONS ELIGIBLE.-Each member of the Commission shall
be an individual who has knowledge or expertise in mat ters to be
studied by the Commission.
(3) CONSULTATION REQUIRED.-The President, the Speaker
and minority leader of the House of Representatives, and the majority
leader and minority leader of the Senate shall consult with one another
prior to the appointment ofthe members of the Commission to achieve,
to the maximum extent possible, fair and equitable representation of
various points of view' with respect to the matters to be studied by the
Commission.
(4) TERM.-Each member shall be appointed for the life of the
Commission.
(5) TIME FOR INITIAL APPOINTMENTs.
-The appointment of Deadline.
the members shall be made not later than 60 days after the
date of enactment of this Act.
(6) VACANCIES.-A vacancy in the Commission shall be Deadline. filled in
the manner in which the original appointment was
made, and shall be made not later than 60 days after the
date on which the vacancy occurred.
(c) OPERATION.-
(1) CHAIRPERSON.-Not later than 15 days after appoint- Deadline. ments
of all the members are made , the Prsident shall appoint President. a chairperson
for the Commission from among its members.
(2) MEETINGS.-The Commission shall meet at the call
of the chairperson. The initial meeting of the Cl;>mmission shall Deadline. take
place not later than 30 days after the initial appointment
of the members is completed.
(3) QUORUM.-A majority of the members of the Commis sion
shall constitute a quorum to conduct business, but the Commission may
establish a lesser quorum for conducting hearings schedule d by the
Commission.
(4) RULES.-The Commission may establish by majority vote any
other rules for the conduct of Commission business, if such rules are
not inconsistent with this Act or other applicable law.
(d) COMPREHENSIVE STUDY OF THE IMPACTS OF PRISON RAPE.-
(1) IN GENERAL.-The Commission shall carry out a com -
prehensive legal and factual study of the penalogical, physical, mental,
medical, social, and economic impacts of prison rape in the United
States on-
(A) Federal, State, and local governments; and
(B)
communities and social institutions generally, including
individuals, families, and businesses within such communities and
social institutions.
(2) MATTERS INCLUDED.-The study under paragraph (1) shall
include-
(A)
a review of existing Federal, State, and local government
policies and practices with respect to the prevention, detection, and
punishment of prison rape;
(B)
an assessment of the relationship between prison rape and
prison conditions, and of existing monitoring, regulatory, and
enforcement practices that are intended to address any such
relationship;
Page 11
117 STAT.
982
Deadline.
PUBLIC LAW 108-79-SEPT. 4,2003
(C) an assessment of pathological or social causes of
prison rape;
(D) an assessment of the extent to which the incidence of
prison rape contributes to the spread of sexually transmitted
diseases and to the transmission of HI V;
(E)
an assessment of the characteristics of inmates most
likely to commit prison rape and the effectiveness of various
types of treatment or programs to reduce such likelihood;
(F) an assessment of the characteristics of inmates most
likely to be victims of prison rape and the effectiveness of
various types of treatment or programs to reduce such
likelihood;
(G) an assessment of the impacts of prison rape on
individuals, families, social institutions and the economy
generally, including an assessment of the extent to which the
incidence of prison rape contributes to recidivism and to
increased incidence of sexual assault;
(H) an examination of the feasibility and cost of con-
ducting surveillance, undercover activities, or both, to reduce
the incidence of prison rape;
(I) an assessment of the safety and security of prison
facilities and the relationship of prison facility construction
and design to the incidence of prison rape;
(J)
an assessment of the feasibility and cost of any
particular proposals for prison reform;
(K)
an identification of the need for additional scientific
and social science research on the prevalence of prison rape in
Federal, State, and'local prisons;
(L) an assessment of the general relationship between
prison rape and prison violence;
(M) an assessment of the relationship between prison
rape and levels of training, supervision, and discipline of
prison staff; and
(N) an assessment of existing Federal and State systems
for reporting incidents of prison rape, including an assessment
of whether existing systems provide an adequate assurance of
confidentiality, impartiality and the absence of reprisal.
(3) REPORT.-
(A) DISTRIBUTION.-Not later than 2 years after the
date of the initial meeting of the Commission, the Commis-
sion shall submit a report on the study carried out under this
subsection to-
,0)
the President;
(ii) the Congress;
(iii) the Attorney General;
(iv) the Secretary of Health and Human Services; (v)
the Director of the Federal Bureau of Prisons; (vi)
the chief executive of each State; and
(vii) the head of the department of corrections of
each State.
(B) CONTENTs.-The report under subparagraph (A)
shall include-
(i) the findings and conclusions of the Commission; (ii)
recommended national standards for reducing prison
rape;
Page 12
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT. 983
(iii) recommended protocols for preserving evidence
and treating victims of prison rape; and
(iv) a summary of the materials relied on by the
Commission in the preparation of the report.
(e) RECOMMENDATIONS.-
(1) IN GENERAL.-In conjunction with the report submitted
under subsection (d)(3), the Commission shall provide the
Attorney General and the Secretary of Health and Human
Services with recommended national standards for enhancing the
detection, prevention, reduction, and punishment of prison rape.
(2) MATTERS INCLUDED.-The information provided
under paragraph (1) shall include recommended national
standards relating to --
(A) the classification and assignment of prisoners, using
proven standardized instruments and protocols, in a manner
that limits the occurrence of prison rape;
(B) the investigation and resolution of rape complaints
by responsible prison authorities, local and State police, and
Federal and State prosecution authorities;
(C) the preservation of physical and testimonial evi -
dence for use in an investigation of the ci rcumstances
relating to the rape;
(D)
acute-term trauma care for rape victims, including
standards relating to --
(i) the manner and extent of physical examination
and treatment to be provided to any rape victim; and
(ii) the manner. and extent· of any psychological
examination, psychiatric care, medication, and mental
health counseling to be provided to any rape victim;
(E)
referrals for long-term continuity of care for rape
victims;
(F) educational and medical testing measures for
reducing the incidence of HIV transmission due to prison
rape;
(G) post-rape prophylactic medical measures for reducing the
incidence of transmission of sexual diseases; (H) the training
of correctional staff sufficient to ensure that they understand
and appreciate the significance of prison rape and the
necessity of its·eradication;
(1) the timely and comprehensive investigation of staff
sexual misconduct involving rape or other sexual assault on
inmates;
(J)
ensuring the confidentiality of prison rape com plaints
and protecting inmates who make complaints of prison rape;
(K) creating a system for reporting incidents of prison
rape that will ensure the confidentiality of prison rape
complaints, protect inmates who make prison rape com -
plaints from retaliation, and assure the impartial resolution of
prison rape complaints;
(L)
data collection and reporting of.
(i) prison rape;
(ii) prison staff sexual misconduct; and
(ill) the resolution of prison rape complaints by
prison officials and Federal, State, and lo cal investiga -
tion and prosecution authorities; and
.-......./.
Page 13
117 STAT.
984
PUBLIC LAW 108-79-SEPT. 4, 2003
(M) such other matters as may reasonably be related to the detection,
prevention, reduction, and punishment
of prison rape.
(3) LIMITATION.-The Commission shall not propose a rec -
ommended standard that would impose substantial additional costs compared to the
costs presently expended by Federal, State, and local prison authorities.
(D
CONSULTATION WITH ACCREDITATION ORGANIZATIONs.-In
developing recommended national standards for enhancing the detection, prevention,
reduction, and punishment of prison rape, the Commission shall consider any standards
that have already been developed, or are being developed simultaneously to
the delib-
erations of the Commission. The Commission shall consult with accreditation
organizations responsible for the accreditation of Fed eral, State, local or private prisons,
that have developed or are currently developing standards related to prison rape. The
Commission will also consult with national associations representing the corrections
profession that have developed or are currently devel oping standards related to prison
rape.
(g) HEARINGS.-
(1) IN GENERAL.-The Commission shall hold publi c
hearings. The Commission may hold such hearings, sit and act at such times and
places, take such testimony, and receive such evidence as the Commission considers
advisable to carry
out its duties under this section.
(2) WITNESS EXPENSEs.-Witnesses requested to appear
before the Commission shall be paid the same fees as are paid to witnesses under
section 1821 of title 28, United States Code. The per diem and mileage allowances for
witnesses shall be paid from funds appropriated to the Commission.
(h) INFORMATION FROM FEDERAL OR STATE AGENCIEs.-The Commission
may secure directly from any Federal department or agency such information as the
Commission considers necessary to carry out its duties under this section. The
Commission may request the hea d of any State or local department or agency to furnish
such information to the Commission.
(i) PERSONNEL MATTERS.-
(1) TRAVEL EXPENSEs.-The members of the Commission
shall be allowed travel expenses, including per diem in lieu of subsistence, at rat
es
authorized for employees of agencies under subchapter I of chapter 57 of title 5,
United States Code, while away from their homes or regular places of business in the
performance of service for the Commission.
(2) DETAIL OF FEDERAL EMPLOYEES.
-With the affirmative vote of
2/3
of
the Commission, any Federal· Government employee, with the approval of the head
of the appropriate Federal agency, may be detailed to the Commission without
reimbursement, and such detail shall be without interruption or loss of civil service
status, benefits, or privileges.
(3) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICEs.-
Upon the request of the Commission, the Attorney Gen eral shall provide reasonable
and appropriate office space, sup plies, and administrative assist ance.
(j)
CONTRACTS FOR RESEARCH. -
(1) NATIONAL INSTITUTE OF JUSTICE.
-With a
o/s
affirmative
vote, the Commission may select nongovernmental researchers and experts to assist
the Commission in carrying out its duties
Page 14
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT. 985
under this Act. The National Institute of Justice shall contract with
the researchers and experts selected by the Commission to provide
funding in exchange for their services.
(2) OTHER ORGANIZATIONS.-Nothing in this subsection
shall be construed to limit the ability of the Commission to enter
into contracts with other entities or organizations for research
necessary to carry out the duties of the Commission under this
section.
(k) SUBPOENAS.-
(1) ISSUANCE.-The Commission may issue subpoenas for
the attendance of witnesses and the production of written or other
matter.
(2) ENFORCEMENT.-In the case of contumacy or refusal to
obey a subpoena, the Attorney General may in a Federal court of
appropriate jurisdiction obtain an appropriate order to enforce the
subpoena.
(3)
CONFIDENTIALITY
OF
DOCUMENTARY
EVIDENCE.-Documents provided to the Commission pursuant to
a subpoena issued under this subsection shall not be released
publicly without the affirmative vote of% of the Commission.
(l) AUTHORIZATION OF APPROPRIATIONS.-There are
authorized to be appropriated such sums as may be necessary to carry
out this section ..
(m) TERMINATION.The Commission shall terminate on the date
that is 60 days after the date on which the Commission
submits the reports required by this section.'
.
(n)
EXEMPTIoN.-The Commission shall be exempt from the
Federal Advisory Committee Act.
SEC. 8. ADOPTION AND EFFECT OF NATIONAL
STANDARDS. (a) PuBLICATION OF PROPOSED
STANDARDS.-
(1) FINAL RULE.-Not later than 1 year after receiving the
report specified in section 7(d)(3), the Attorney General shall
publish a final rule adopting national standards for the detection,
prevention, reduction, and punishment of prison rape.
(2) INDEPENDENT JUDGMENT.-The standards· referred to
in paragraph (1) shall be based upon the independent judgment of
the Attorney General, after giving due consideration to the
recommended national standards provided by the Commission
under section 7(e), and being informed by such data, opinions, and
proposals that the Attorney General determines to be appropriate to
consider.
(3) LIMITATION.-The Attorney General shall not establish a
national standard under this section that would impose substantial
additional costs compared to the costs presently expended by
Federal, State, and local prison authorities. The Attorney General
may, however, provide a list of improvements for consideration by
correctional facilities.
(4) TRANSMISSION TO STATES.-Within 90 days of
publishing the final rule under paragraph (1), the Attorney General
shall transmit the national standards adopted under such paragraph
to the chief executive of each State, the head of the department of
corrections of each State, and to the appropriate authorities in those
units of local government who oversee operations in one or more
prisons.
(b) APPLICABILITY TO FEDERAL BUREAU OF PRISONs.-
The national standards referred to in subsection (a) shall apply to the
Deadlines.
42
USC
15607.
Page 15
117 STAT. 986
PUBLIC LAW 108-79-SEPT. 4, 2003
Deadline.
Procedures.
Federal Bureau of Prisons immediately upon adoption of the final rule
under subsection (a)(4).
(c) ELIGIBILITY FOR FEDERAL
FUNDS.(1) COVERED
PROGRAMS.-
(A) IN GENERAL.-For purposes of this subsection, a
grant program is covered by this subsection if, and only if-
(i) the program is carried out by or under the authority
of the Attorney General; and
(ii) the program may provide amounts to States for
prison purposes.
(B) LIsT.-For each fiscal year, the Attorney General shall
prepare a list identifying each program that meets the criteria of
subparagraph (A) and provide that list to each State.
(2) ADOPTION OF NATIONAL STANDARDs.-For each
fiscal year, any amount that a State would otherwise receive for
prison purposes for that fiscal year under a grant program covered
by this subsection shall be reduced by 5 percent, unless the chief
executive of the State submits to the Attorney General-
(A) a certification that the State has adopted, and is in full
compliance with, the national standards described in section
8(a); or
(B) an assurance that not less than 5 percent of such
amount shall. be used only for the purpose of enabling the State
to adopt, and achieve full compliance with, those national
standards, so as to ensure that a certification under
subparagraph (A) may be submitted in future years. (3)
REPORT ON NONCOMPLIANCE.-Not later than September
30 of each year, the Attorney General shall publish a report listing
each grantee that is not in compliance with the national standards
adopted pursuant to section 8(a).
(4) COOPERATION WITH SURVEY.-For each fiscal year,
any amount that a State receives for that fiscal year under a grant
program covered by this subsection shall not be used for prison
purposes (and shall be returned to the grant program if no other
authorized use is available), unless the chief executive of the State
submits to the Attorney General a certification that neither the State,
nor any political subdivision or unit of local government within the
State, is listed in a report issued by the Attorney General pursuant to
section 4(c)(2)(C).
(5) REDISTRIBUTION OF AMOUNTS.-Amounts under a
grant program not granted by reason of a reduction under paragraph
(2), or returned by reason of the prohibition in paragraph (4), shall
be granted to one or more entities not subject to such reduction or
such prohibition, subject to the other laws governing that program.
(6) IMPLEMENTATION.-The Attorney General shall establish
procedures to implement this subsection, including procedures for
effectively applying this subsection to discretionary grant programs.
(7) EFFECTIVE DATE.-
(A)
REQUIREMENT
OF
ADOPTION
OF
STANDARDS.-The first grants to which paragraph (2) applies
are grants for the second fiscal year beginning after the date on
which the national standards under section 8(a) are finalized.
Page 16
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT.
987
(B)
REQUIREMENT FOR COOPERATION.-The first
grants to which paragraph (4) applies are grants for the fiscal
year beginning after the date of the enactment of this Act.
SEC.
9.
REQUIREMENT THAT ACCREDITATION ORGANIZATIONS
42
use
15608.
ADOPT ACCREDITATION STANDARDS.
(a) ELIGIBILITY FOR FEDERAL GRANTS.-Notwithstanding any
other provision of law, an organization responsible for the accreditation
of Federal, State, local, or private prisons, jails, or other penal facilities
may not receive any new Federal grants during any period in which such
organization fails to meet any of the requirements of subsection (b).
(b) REQUIREMENTS.-To be eligible to receive Federal grant,
Deadlines.
an
accreditation organization referred to in subsection (a) must
meet the following requirements:
(1) At all times after 90 days after the date of enactment of this
Act, the organization shall have in effect, for each facility that it is
responsible for accrediting, accreditation standards for' the
detection, prevention, reduction, and punishment of prison rape ..
(2) At all times. after 1 year after the date of the adoption of the
final rule under section 8(a)(4), the organization shall, in addition to
any other such standards that it may promulgate relevant to the
detection, prevention, reduction, and punishment of prison rape,
adopt accreditation standards consistent with the national standards
adopted pursuant to such final rule.
SEC.
10.
DEFINITIONS.
42
USC
15609.
In this Act, the following definitions shall apply:
(1) CARNAL KNOWLEDGE.-The term "carnal knowledge"
means contact between the penis and the vulva or the penis and the
anus, including penetration of any sort, however slight .
.
(2) INMATE.-The term "inmate" means any person incar-
cerated or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law
or the terms and conditions of parole, probation, pretrial release, or
diversionary program.
(3) JAIL.-The term "jail" means a confinement facility of a Federal,
State, or local law enforcement agency to hold-
(A) persons pending adjudication of crimiJ:!.al charges;
(B)
persons committed to confinement after adjudication of criminal
charges for sentences of 1 year or less. (4) HIV.-The term "HIV"
means the human immunodeficiency virus.
(5) ORAL SODoMY.-The term "oral sodomy" means contact
between the mouth and the penis, the mouth and the· vulva, or the
mouth and the anus.
(6) POLICE LOCKUP.-The term "police lockup" means a
temporary holding facility of a Federal, State, or local law
enforcement agency to hold-
(A) inmates pending bail or transport to jail;
(B)
inebriates until ready for release; or
(C) juveniles pending parental custody or shelter place-
ment.
or
j
Page 17
117 STAT. 988
PUBPULIC LAW 108-79-SEPT. 4, 2003
(7) PRISON.-The term "prison" means any confinement
facilitY., of a Federal, State, or local government, whether
administered by such government or by a private organization on
behalf of such government, and includes-
(A)
any local jailor police lockup; and
(B)
any juvenile facility used for the custody or care of
juvenile inmates.
(8) PRISON RAPE.-The term "prison rape" includes the rape
of an inmate in the actual or constructive control of prison
officials.
(9) RAPE.-The term "rape" means-
(A)
the carnal knowledge, oral sodomy, sexual assault
with an object, or sexual fondling of a person, forcibly or
against that person's will;
(B)
the carnal knowledge, oral sodomy, sexual assault
with an object, or sexual fondling of a person not forcibly or
against the person's will, where the victim is incapable of
giving consent because of his or her youth or his or her
temporary or permanent mental or physical incapacity;
or
(C)
the carnal knowledge, oral sodomy, sexual assault
with an object, or sexual fondling of a person achieved
through the exploitation of the fear or threat of physical
violence or bodily injury.
(10) SEXUAL ASSAULT WITH AN OBJEcT.-The term
"sexual assault with an object" means the use of any hand, finger,
object, or other instrument to penetrate, however slightly, the
genital or anal opening ofthe body of another person.
(11)
SEXUAL FONDLING.-The term "sexual fondling"
means the touching of the private body parts of another person
(including the genitalia, anus, groin, breast, inner thigh, or
buttocks) for the purpose of sexual gratification.
(12) EXCLUSIONs:-The terms and conditions described in
paragraphs (9) and (10) shall not apply to--
.
(A)
custodial or medical personnel gathering physical
evidence, or engaged in other legitimate medical treatment, in
the course of investigating prison rape;
(B)
the use of a health care provider's hands or fingers or the use of
medical devices in the course of appropriate medical treatment
unrelated to prison rape; or
Page 18
PUBLIC LAW 108-79-SEPT. 4, 2003 117 STAT. 989
(C) the use of a health care provider's hands or fingers and the use of
instruments to perform body cavity searches in order to maintain security and
safety within the prison or detention facility, provided that the search is
conducted in a manner consistent with constitutional requirements.
Approved September 4, 2003.
LEGISLATIVE HISTORY-S. 1435:
CONGRESSIONAL RECORD, Vol. 149 (2003):
July 21, considered and passed Senate. July 25, considered and
passed House.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 39 (2003):
Sept. 4, Presidential statement.
o
Page 19
from webpage
Monday, November 26, 2007
Prison rape: the challenge of prevention and enforcement
This summary is not available. Please
click here to view the post.
alternates to prisons
PRISON ABOLITION & ALTERNATIVES from http://www.prisonjustice.ca/politics/abolition_alternatives.html
Download a brochure on abolition and alternatives to prison
Nine Perspectives for Prison Abolitionists
Perspective 1
Imprisonment is morally reprehensible and indefensible and must be abolished. In an enlightened free society, prison cannot endure or it will prevail. Abolition is a long term goal; an ideal. The eradication of any oppressive system is not an easy task. But it is realizable, like the abolition of slavery or any liberation, so long as there is the will to engage in the struggle.
Perspective 2
The message of abolition requires "honest" language and new definitions. Language is related to power. We do not permit those in power to control our vocabulary. Using "system language" to call prisoners "inmates" or punishment "treatment", denies prisoners the reality of their experience and makes us captives of the old system. Our own language and definitions empower us to define the prison realistically.
Perspective 3
Abolitionists believe reconciliation, not punishment, is a proper response to criminal acts. The present criminal (in)justice systems focus on someone to punish, caring little about the criminal's need or the victims loss. The abolitionist response seeks to restore both the criminal and the victim to full humanity, to lives of integrity and dignity in the community. Abolitionists advocate the least amount of coercion and intervention in an individual's life and the maximum amount of care and services to all people in the society.
Perspective 4
Abolitionists work with prisoners but always remain "non-members" of the established prison system. Abolitionists learn how to walk the narrow line between relating to prisoners inside the system and remaining independent and "outside" that system. We resist the compelling psychological pressures to be "accepted" by people in the prison system. We are willing to risk pressing for changes that are beneficial to and desired by prisoners. In relating to those in power, we differentiate between the personhood of system managers (which we respect) and their role in perpetuating an oppressive system.
Perspective 5
Abolitionists are "allies" of prisoners rather than traditional "helpers." We have forged a new definition of what is truly helpful to the caged, keeping in mind both the prisoner's perspective and the requirements of abolition. New insights into old, culture-laden views of the "helping relationship" strengthen our roles as allies of prisoners.
Perspective 6
Abolitionists realize that the empowerment of prisoners and ex-prisoners is crucial to prison system change. Most people have the potential to determine their own needs in terms of survival, resources and programs. We support self-determination of prisoners and programs which place more power in the hands of those directly affected by the prison experience.
Perspective 7
Abolitionists view power as available to each of us for challenging and abolishing the prison system. We believe that citizens are the source of institutional power. By giving support to "or withholding support from" specific policies and practices, patterns of power can be altered.
Perspective 8
Abolitionists believe that crime is mainly a consequence of the structure of society. We devote ourselves to a community change approach. We would drastically limit the role of the criminal (in)justice systems. We advocate public solutions to public problems "greater resources and services for all people".
Perspective 9
Abolitionists believe that it is only in a caring community that corporate and individual redemption can take place. We view the dominant culture as more in need of "correction" than the prisoner. The caring communities have yet to be built.
from Instead of Prisons: A Handbook for Abolitionists
Why Decriminalize?
Abolitionists advocate drastically limiting the role of criminal law. We do this not because we wish to encourage certain behaviour, but because we realize that criminal sanctions are not an effective way of dealing with social problems. There are far too many laws on the books. It would be prohibitively expensive to enforce them all. This results in unjust and arbitrary law enforcement. Powerless persons are imprisoned while more powerful persons go free. People of colour, first nations and poor people bear the brunt of unequal law enforcement.
The crimes most frequently considered for decriminalization are those which are "victimless"....offenses that do not result in anyone's feeling that s\he has been injured so as to impel him\her to bring the offense to the attention of the authorities ....behaviour not injurious to others but made criminal by statutes based on moral standards which disapprove of certain forms of behaviour while ignoring others that are comparable.
A system "bursting at its seams" is perhaps the most visible effect of overcriminalization. Overcriminalization encourages the wide use of discretionary power in law enforcement. Because there is no complainant, police resort to questionable means of enforcement. Investigative techniques used to gather evidence are often immoral and sometimes illegal. These include entrapment, use of informers, wiretapping and use of constitutional rights such as illegal search and seizure, invasion of the right to privacy and self-incrimination.
from Instead of Prisons
Alternatives to Incarceration
Imprisonment should be a last resort. The presumption should be against its use. Before any offender is incarcerated, the prosecution should bear the burden of proving in an evidentiary hearing that no other alternative exists. An equal burden should be required for the denial or revocation of "good time", probation and parole, which really are only other ways of imposing imprisonment...
We should further reduce our excessive reliance on prisons by making extensive use of alternatives to imprisonment, such as fines, restitution, and other probationary methods, which could at least as effectively meet society's need for legal sanctions. However, such alternatives must be made available to all people who have committed similar offenses, so as not to become a means for the more affluent to buy their way out of prison. And where some kind of confinement seems necessary, halfway houses, community centres, group homes intermittent sentences, and other means of keeping offenders within the community should be preferred to prison.
from A Program for Prison Reform
Download a brochure on abolition and alternatives to prison
Nine Perspectives for Prison Abolitionists
Perspective 1
Imprisonment is morally reprehensible and indefensible and must be abolished. In an enlightened free society, prison cannot endure or it will prevail. Abolition is a long term goal; an ideal. The eradication of any oppressive system is not an easy task. But it is realizable, like the abolition of slavery or any liberation, so long as there is the will to engage in the struggle.
Perspective 2
The message of abolition requires "honest" language and new definitions. Language is related to power. We do not permit those in power to control our vocabulary. Using "system language" to call prisoners "inmates" or punishment "treatment", denies prisoners the reality of their experience and makes us captives of the old system. Our own language and definitions empower us to define the prison realistically.
Perspective 3
Abolitionists believe reconciliation, not punishment, is a proper response to criminal acts. The present criminal (in)justice systems focus on someone to punish, caring little about the criminal's need or the victims loss. The abolitionist response seeks to restore both the criminal and the victim to full humanity, to lives of integrity and dignity in the community. Abolitionists advocate the least amount of coercion and intervention in an individual's life and the maximum amount of care and services to all people in the society.
Perspective 4
Abolitionists work with prisoners but always remain "non-members" of the established prison system. Abolitionists learn how to walk the narrow line between relating to prisoners inside the system and remaining independent and "outside" that system. We resist the compelling psychological pressures to be "accepted" by people in the prison system. We are willing to risk pressing for changes that are beneficial to and desired by prisoners. In relating to those in power, we differentiate between the personhood of system managers (which we respect) and their role in perpetuating an oppressive system.
Perspective 5
Abolitionists are "allies" of prisoners rather than traditional "helpers." We have forged a new definition of what is truly helpful to the caged, keeping in mind both the prisoner's perspective and the requirements of abolition. New insights into old, culture-laden views of the "helping relationship" strengthen our roles as allies of prisoners.
Perspective 6
Abolitionists realize that the empowerment of prisoners and ex-prisoners is crucial to prison system change. Most people have the potential to determine their own needs in terms of survival, resources and programs. We support self-determination of prisoners and programs which place more power in the hands of those directly affected by the prison experience.
Perspective 7
Abolitionists view power as available to each of us for challenging and abolishing the prison system. We believe that citizens are the source of institutional power. By giving support to "or withholding support from" specific policies and practices, patterns of power can be altered.
Perspective 8
Abolitionists believe that crime is mainly a consequence of the structure of society. We devote ourselves to a community change approach. We would drastically limit the role of the criminal (in)justice systems. We advocate public solutions to public problems "greater resources and services for all people".
Perspective 9
Abolitionists believe that it is only in a caring community that corporate and individual redemption can take place. We view the dominant culture as more in need of "correction" than the prisoner. The caring communities have yet to be built.
from Instead of Prisons: A Handbook for Abolitionists
Why Decriminalize?
Abolitionists advocate drastically limiting the role of criminal law. We do this not because we wish to encourage certain behaviour, but because we realize that criminal sanctions are not an effective way of dealing with social problems. There are far too many laws on the books. It would be prohibitively expensive to enforce them all. This results in unjust and arbitrary law enforcement. Powerless persons are imprisoned while more powerful persons go free. People of colour, first nations and poor people bear the brunt of unequal law enforcement.
The crimes most frequently considered for decriminalization are those which are "victimless"....offenses that do not result in anyone's feeling that s\he has been injured so as to impel him\her to bring the offense to the attention of the authorities ....behaviour not injurious to others but made criminal by statutes based on moral standards which disapprove of certain forms of behaviour while ignoring others that are comparable.
A system "bursting at its seams" is perhaps the most visible effect of overcriminalization. Overcriminalization encourages the wide use of discretionary power in law enforcement. Because there is no complainant, police resort to questionable means of enforcement. Investigative techniques used to gather evidence are often immoral and sometimes illegal. These include entrapment, use of informers, wiretapping and use of constitutional rights such as illegal search and seizure, invasion of the right to privacy and self-incrimination.
from Instead of Prisons
Alternatives to Incarceration
Imprisonment should be a last resort. The presumption should be against its use. Before any offender is incarcerated, the prosecution should bear the burden of proving in an evidentiary hearing that no other alternative exists. An equal burden should be required for the denial or revocation of "good time", probation and parole, which really are only other ways of imposing imprisonment...
We should further reduce our excessive reliance on prisons by making extensive use of alternatives to imprisonment, such as fines, restitution, and other probationary methods, which could at least as effectively meet society's need for legal sanctions. However, such alternatives must be made available to all people who have committed similar offenses, so as not to become a means for the more affluent to buy their way out of prison. And where some kind of confinement seems necessary, halfway houses, community centres, group homes intermittent sentences, and other means of keeping offenders within the community should be preferred to prison.
from A Program for Prison Reform
Human Rights critisim of Canada
Groups Demand Closure of 150 year old Newfoundland Jail
Penitentiary ancient, obsolete: advocates
October 18, 2005
CBC News
The minister of justice admits that Her Majesty's Penitentiary [located in St. John's, Newfoundland] – parts of which were built in the age of Charles Dickens – has outlived its usefulness.
However, Tom Marshall is not keen to commit to construction of a new prison to replace HMP.
Parts of the prison were built were 150 years ago. Various additions were built over succeeding decades.
The John Howard Society, who works with inmates and parolees, says the prison is ancient and needs to be replaced.
"The narrow corridors, the old grilled bars in the old section, the need of painting in places, the lack of programming space, which is really, really apparent … something needs to be done in a very planned way," said Terry Carlson, the society's executive director.
HMP houses many of the province's convicts who are sentenced to two years or less in prison.
Marshall says a good case can be made to renovating the prison, or replacing it altogether. He has asked officials in his department to review the matter.
However, Marshall cautions that cabinet already faces numerous demands.
"Government has many priorities in terms of its capital needs," Marshall said.
"Planning for the prison will be brought forward and will be dealt with by government as it examines its priorities for all other capital structures, such as schools and hospitals and so on."
Marshall could not give an indication when cabinet will consider the HMP issue.
Source: stjohns.cbc.ca
http://www.prisonjustice.ca/starkravenarticles/HMP_old_1105.html
Penitentiary ancient, obsolete: advocates
October 18, 2005
CBC News
The minister of justice admits that Her Majesty's Penitentiary [located in St. John's, Newfoundland] – parts of which were built in the age of Charles Dickens – has outlived its usefulness.
However, Tom Marshall is not keen to commit to construction of a new prison to replace HMP.
Parts of the prison were built were 150 years ago. Various additions were built over succeeding decades.
The John Howard Society, who works with inmates and parolees, says the prison is ancient and needs to be replaced.
"The narrow corridors, the old grilled bars in the old section, the need of painting in places, the lack of programming space, which is really, really apparent … something needs to be done in a very planned way," said Terry Carlson, the society's executive director.
HMP houses many of the province's convicts who are sentenced to two years or less in prison.
Marshall says a good case can be made to renovating the prison, or replacing it altogether. He has asked officials in his department to review the matter.
However, Marshall cautions that cabinet already faces numerous demands.
"Government has many priorities in terms of its capital needs," Marshall said.
"Planning for the prison will be brought forward and will be dealt with by government as it examines its priorities for all other capital structures, such as schools and hospitals and so on."
Marshall could not give an indication when cabinet will consider the HMP issue.
Source: stjohns.cbc.ca
http://www.prisonjustice.ca/starkravenarticles/HMP_old_1105.html
facts and statistics canada
ACTS & STATISTICS
STATISTICS FOR 2004-2005
Source: Juristat, Statistics Canada
Stats are all 2004/5, unless stated otherwise. Updated July 2007.
Incarceration rates
* (Canada-wide) 129 per 100,000 adult population.
* (BC only) 66 per 100,000 adult population.
* While the incarceration rate is dropping, the number of Aboriginal prisoners and women in prison continues to increase.
* The largest increase in the provincial prisoner population has been adults on remand awaiting trial.
On any given day in Canada during 2004-2005...
* An average of 152 600 individuals were under the supervision of Correctional Service Agencies in Canada, a slight decline of 1% from 2003/2004.
* There were approximately 32 100 adults prisoners in custody and 120,500 under supervision in the community. These totals include both federal and provincial prisoners.
Deaths in the Criminal Justice System
For 2004/05:
* 184 prisoners died while under the supervision of the criminal justice system.
* Of the 132 federal prisoners who died, 49 of those deaths were in custody and 83 were out of custody.
* 48 of the 52 provincial prisoner deaths were in custody.
* While the suicide rate amongst the prisoner population continues to be higher than what you would find in the community, more prisoners are dying from health related causes.
For 2003/04:
* 181 prisoners died while under the supervision of the criminal justice system.
* Of the 142 federal prisoners who died, 67 of those deaths were in custody and 75 were out of custody.
* 36 of the 39 provincial prisoner deaths were in custody.
'Out of custody deaths' are deaths attributed to prisoners who are serving out the remainder of their sentence in the community, whether it's on day parole, full parole, statutory release or "compassionate release".
Number of Prisons in Canada
* In 2004/2005, there were 190 prisons and jails across Canada, of which 76 were under federal jurisdiction and 114 were under provincial/territorial jurisdiction (of these 114, only 16 are minimum security).
The Costs of Incarceration
* Correctional services expenditures totalled $2.8 billion in 2004/2005, up 2% in constant dollars from 2003/2004. Custodial services (prisons) accounted for the largest proportion (71%) of the expenditures, followed by community supervision services (14%), headquarters and central services (14%), and National Parole Board and provincial parole boards (2%). This figure does not include policing or court costs which bring the total expenditures up to more than $10 billion for the year.
* Cost of incarcerating a Federal prisoner: $259.05 per prisoner/per day
* Cost of incarcerating a Federal female prisoner: $150,000-$250,000 per prisoner/per year
* Cost of incarcerating a Federal male prisoner: $87,665 per prisoner/per year
* Cost of incarcerating a provincial prisoner: $141.78: per prisoner/per day
* The cost of alternatives such as probation, bail supervision and community supervision range from $5-$25/day.
Prisoners' Wages
* In 1981, the daily wage rate for a federal prisoner was $7.55 and a canteen basket cost $8.49.
* In 2007, the daily wage rate for a federal prisoner is $6.90 and that same canteen basket now costs $61.59.
Conditional Sentencing
* Conditional sentencing was introduced in 1996 to provide judges with the option of allowing eligible provincial and territorial adults, sentenced to a jail term of less than two years, to serve their sentence in the community with conditions.
Remand Rates (2004-5)
Includes persons awaiting trial, who have not been convicted of a crime.
* Non-sentenced custody counts (e.g. remand and other temporary detention) represented half of all provincial/territorial custodial counts, equivalent to the proportion of prisoners in sentenced custody.
* Approximately 9,600 adults were held in remand awaiting trial or sentencing on any given day, an increase of 5% from 2003/2004.
* On any given day BC had 900 prisoners on remand.
* The use of remand has increased 83%, from 5,300 to 9,600 adults, over the last decade (since 1995/96).
Custody Rates (2004-5)
People who have been convicted of a crime and are serving time in custody (i.e. in a prison or jail).
* The number of federal prisoners in sentenced custody on any given day declined over the past decade (since 1995/96) by 13%, from 14,100 to 12,300.
* The number of prisoners in provincial/territorial sentenced custody has declined by 31% over the past decade, from 14,200 to 9,800.
* Provincial prisoners (Canada-wide) in non-sentenced custody (remand) out number those prisoners sentenced to a term of imprisonment.
Aboriginal Adults (2004-2005)
* 3% of the total canadian adult population - (2001 Census)
* 22% of admissions to provincial/territorial sentenced custody
* 17% of admissions to federal prisons
* 21% of male prisoner population
* 30% of female prisoner population
* In Saskatchewan, Aboriginal adults are incarcerated at 35 times the rate of non-aboriginals, where they make up 77% of the total prisoner population (10% of outside population)
* In the Yukon -- Aboriginal adults make up 74% of the total prisoner population (20% of outside population)
* In Manitoba -- Aboriginal adults make up 70% of the total prisoner population (11% of outside population)
* In Alberta -- Aboriginal adults make up 38% of the total prisoner population (4% of outside population)
* In Ontario -- Aboriginal adults make up 9% of the total prisoner population (1% of outside population)
* In British Columbia -- Aboriginal adults make up 20% of the total prisoner population (10% of outside population)
Aboriginal Women (2004-2005)
* Aboriginal women make up 30% of the female prisoner population
* In Saskatchewan, Aboriginal women account for 87% of all female admissions
* In Manitoba and the Yukon, Aboriginal women account for 83% of all female admissions
* In Alberta, Aboriginal women account for 54% of all female admissions
* In British Columbia, Aboriginal women account for 29% of all female admissions
These high rates of imprisonment remain despite changes made by parliament to the sentencing provisions of the criminal code. These changes to the criminal code were designed to address the issue of overrepresentation of First Nations within the sentenced prison population. s.718.2(e) of the criminal code provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."
Aboriginal Youth (2001-2002)
* 5% of the total canadian adult population - (1996 Census).
* 25% of youth held on remand
* 22% of total youth prisoner population
* 17% of probation admissions
Female Aboriginal Youth
* 32% of remand prisoner population
* 25% of youth in prison
Male Aboriginal Youth
* 23% of remand prisoner population
* 21% of youth in prison
Women (2004-5)
* Provincial: 10% of all admissions to custody were female.
* Federal: 5% of all admissions to custody were female.
* Remand: 11% of all admissions to custody were female.
Youth (12-17 year of age)
* There were about 39,000 admissions to youth custody and community correctional services (2004/2005, not all provinces reported).
* Youth make up 8% of Canada’s total population. Youth represented 21% of all persons charged by police in 1999 and 21% of these charges were against females.
* In 2004/5, about 450 young people on average were on deferred custody and supervision - Deferred custody and supervision allows a young person to serve a custody sentence in the community under a number of strict conditions and is comparable to conditional sentence for adults. Any breach of conditions may result in the young person being sent to custody.
* The average number of young people held on remand while awaiting trial or sentencing about 800 on any given day in 2004/5.
* On any given day in 2004/5, there were about 800 youth in remand (awaiting traial or sentencing), 700 in secure custody, and 600 in open custody (residential centres/group homes).
* On any given day in 2003/4, there were 470 youth in remand, 750 in secure custody, and 620 in open custody (residential centres/group homes).
* The incarceration rate in 2004-5 was 83 per 100 000 youth population, 2003-2004 was 82 per 100 000.
* In 2004/5 about 21,200 young people were on probation.
* in 2004/5 the probation rate was 837 per 100,000 youth population.
* The YCJA gives the courts the discretion to impose adult sentences on youth and has extended the group of youth who can receive adult sentences to include 14 and 15 year olds.
* Property crimes accounted for the largest portion of charges against youth. 2/3 of these charges resulted in conviction.
* 23,215 youth were sentenced to a term of imprisonment in 1999.
Prisoners' Age (2004-5)
* Since 1993 there has been a 60% increase in the number of prisoners over 50 years of age and an 87% increase in the number of prisoners over the age of 65.
* At any given time (2004/5) there were approximately 400 federal prisoners aged 20 or younger. 28% of these prisoners are aboriginal.
http://www.prisonjustice.ca/politics/facts_stats.html accessed today
STATISTICS FOR 2004-2005
Source: Juristat, Statistics Canada
Stats are all 2004/5, unless stated otherwise. Updated July 2007.
Incarceration rates
* (Canada-wide) 129 per 100,000 adult population.
* (BC only) 66 per 100,000 adult population.
* While the incarceration rate is dropping, the number of Aboriginal prisoners and women in prison continues to increase.
* The largest increase in the provincial prisoner population has been adults on remand awaiting trial.
On any given day in Canada during 2004-2005...
* An average of 152 600 individuals were under the supervision of Correctional Service Agencies in Canada, a slight decline of 1% from 2003/2004.
* There were approximately 32 100 adults prisoners in custody and 120,500 under supervision in the community. These totals include both federal and provincial prisoners.
Deaths in the Criminal Justice System
For 2004/05:
* 184 prisoners died while under the supervision of the criminal justice system.
* Of the 132 federal prisoners who died, 49 of those deaths were in custody and 83 were out of custody.
* 48 of the 52 provincial prisoner deaths were in custody.
* While the suicide rate amongst the prisoner population continues to be higher than what you would find in the community, more prisoners are dying from health related causes.
For 2003/04:
* 181 prisoners died while under the supervision of the criminal justice system.
* Of the 142 federal prisoners who died, 67 of those deaths were in custody and 75 were out of custody.
* 36 of the 39 provincial prisoner deaths were in custody.
'Out of custody deaths' are deaths attributed to prisoners who are serving out the remainder of their sentence in the community, whether it's on day parole, full parole, statutory release or "compassionate release".
Number of Prisons in Canada
* In 2004/2005, there were 190 prisons and jails across Canada, of which 76 were under federal jurisdiction and 114 were under provincial/territorial jurisdiction (of these 114, only 16 are minimum security).
The Costs of Incarceration
* Correctional services expenditures totalled $2.8 billion in 2004/2005, up 2% in constant dollars from 2003/2004. Custodial services (prisons) accounted for the largest proportion (71%) of the expenditures, followed by community supervision services (14%), headquarters and central services (14%), and National Parole Board and provincial parole boards (2%). This figure does not include policing or court costs which bring the total expenditures up to more than $10 billion for the year.
* Cost of incarcerating a Federal prisoner: $259.05 per prisoner/per day
* Cost of incarcerating a Federal female prisoner: $150,000-$250,000 per prisoner/per year
* Cost of incarcerating a Federal male prisoner: $87,665 per prisoner/per year
* Cost of incarcerating a provincial prisoner: $141.78: per prisoner/per day
* The cost of alternatives such as probation, bail supervision and community supervision range from $5-$25/day.
Prisoners' Wages
* In 1981, the daily wage rate for a federal prisoner was $7.55 and a canteen basket cost $8.49.
* In 2007, the daily wage rate for a federal prisoner is $6.90 and that same canteen basket now costs $61.59.
Conditional Sentencing
* Conditional sentencing was introduced in 1996 to provide judges with the option of allowing eligible provincial and territorial adults, sentenced to a jail term of less than two years, to serve their sentence in the community with conditions.
Remand Rates (2004-5)
Includes persons awaiting trial, who have not been convicted of a crime.
* Non-sentenced custody counts (e.g. remand and other temporary detention) represented half of all provincial/territorial custodial counts, equivalent to the proportion of prisoners in sentenced custody.
* Approximately 9,600 adults were held in remand awaiting trial or sentencing on any given day, an increase of 5% from 2003/2004.
* On any given day BC had 900 prisoners on remand.
* The use of remand has increased 83%, from 5,300 to 9,600 adults, over the last decade (since 1995/96).
Custody Rates (2004-5)
People who have been convicted of a crime and are serving time in custody (i.e. in a prison or jail).
* The number of federal prisoners in sentenced custody on any given day declined over the past decade (since 1995/96) by 13%, from 14,100 to 12,300.
* The number of prisoners in provincial/territorial sentenced custody has declined by 31% over the past decade, from 14,200 to 9,800.
* Provincial prisoners (Canada-wide) in non-sentenced custody (remand) out number those prisoners sentenced to a term of imprisonment.
Aboriginal Adults (2004-2005)
* 3% of the total canadian adult population - (2001 Census)
* 22% of admissions to provincial/territorial sentenced custody
* 17% of admissions to federal prisons
* 21% of male prisoner population
* 30% of female prisoner population
* In Saskatchewan, Aboriginal adults are incarcerated at 35 times the rate of non-aboriginals, where they make up 77% of the total prisoner population (10% of outside population)
* In the Yukon -- Aboriginal adults make up 74% of the total prisoner population (20% of outside population)
* In Manitoba -- Aboriginal adults make up 70% of the total prisoner population (11% of outside population)
* In Alberta -- Aboriginal adults make up 38% of the total prisoner population (4% of outside population)
* In Ontario -- Aboriginal adults make up 9% of the total prisoner population (1% of outside population)
* In British Columbia -- Aboriginal adults make up 20% of the total prisoner population (10% of outside population)
Aboriginal Women (2004-2005)
* Aboriginal women make up 30% of the female prisoner population
* In Saskatchewan, Aboriginal women account for 87% of all female admissions
* In Manitoba and the Yukon, Aboriginal women account for 83% of all female admissions
* In Alberta, Aboriginal women account for 54% of all female admissions
* In British Columbia, Aboriginal women account for 29% of all female admissions
These high rates of imprisonment remain despite changes made by parliament to the sentencing provisions of the criminal code. These changes to the criminal code were designed to address the issue of overrepresentation of First Nations within the sentenced prison population. s.718.2(e) of the criminal code provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."
Aboriginal Youth (2001-2002)
* 5% of the total canadian adult population - (1996 Census).
* 25% of youth held on remand
* 22% of total youth prisoner population
* 17% of probation admissions
Female Aboriginal Youth
* 32% of remand prisoner population
* 25% of youth in prison
Male Aboriginal Youth
* 23% of remand prisoner population
* 21% of youth in prison
Women (2004-5)
* Provincial: 10% of all admissions to custody were female.
* Federal: 5% of all admissions to custody were female.
* Remand: 11% of all admissions to custody were female.
Youth (12-17 year of age)
* There were about 39,000 admissions to youth custody and community correctional services (2004/2005, not all provinces reported).
* Youth make up 8% of Canada’s total population. Youth represented 21% of all persons charged by police in 1999 and 21% of these charges were against females.
* In 2004/5, about 450 young people on average were on deferred custody and supervision - Deferred custody and supervision allows a young person to serve a custody sentence in the community under a number of strict conditions and is comparable to conditional sentence for adults. Any breach of conditions may result in the young person being sent to custody.
* The average number of young people held on remand while awaiting trial or sentencing about 800 on any given day in 2004/5.
* On any given day in 2004/5, there were about 800 youth in remand (awaiting traial or sentencing), 700 in secure custody, and 600 in open custody (residential centres/group homes).
* On any given day in 2003/4, there were 470 youth in remand, 750 in secure custody, and 620 in open custody (residential centres/group homes).
* The incarceration rate in 2004-5 was 83 per 100 000 youth population, 2003-2004 was 82 per 100 000.
* In 2004/5 about 21,200 young people were on probation.
* in 2004/5 the probation rate was 837 per 100,000 youth population.
* The YCJA gives the courts the discretion to impose adult sentences on youth and has extended the group of youth who can receive adult sentences to include 14 and 15 year olds.
* Property crimes accounted for the largest portion of charges against youth. 2/3 of these charges resulted in conviction.
* 23,215 youth were sentenced to a term of imprisonment in 1999.
Prisoners' Age (2004-5)
* Since 1993 there has been a 60% increase in the number of prisoners over 50 years of age and an 87% increase in the number of prisoners over the age of 65.
* At any given time (2004/5) there were approximately 400 federal prisoners aged 20 or younger. 28% of these prisoners are aboriginal.
http://www.prisonjustice.ca/politics/facts_stats.html accessed today
canadian legal system
WORLD FACTBOOK OF CRIMINAL JUSTICE SYSTEMS
Canada
Debra Cohen
Sandra Longtin
State University of New York at Albany
This country report is one of many prepared for
the World Factbook of Criminal Justice Systems
under Bureau of Justice Statistics grant No.
90-BJ-CX-0002 to the State University of New York
at Albany. The project director was Graeme R.
Newman, but responsibility for the accuracy of the
information contained in each report is that of
the individual author. The contents of these
reports do not necessarily reflect the views or
policies of the Bureau of Justice Statistics or
the U. S. Department of Justice.
GENERAL OVERVIEW
1. Political system.
Canada is a federalist country and a member
of the British commonwealth. It is divided into
10 provinces and 2 territories. It has a
parliamentary democratic government in which the
executive and legislative power is split between
the central and provincial units.
Responsibility for the various parts of the
criminal justice system is shared and divided
among the federal, provincial, and municipal
levels of government. The Constitution Act of
1867 defines and establishes the division of power
and authority between the federal and provincial
levels of government. The 2 territories receive
their power from the federal authority, while the
10 provincial governments may grant certain powers
to the local or municipal governments. For
example, the provinces have the power to create
police forces that have provincial or municipal
jurisdiction, while the Royal Canadian Mounted
Police (the federal police force) is concerned
mainly with the enforcement of federal statutes,
such as the Customs Act and Narcotic Control Act.
Under Section 91 of the 1867 Constitution
Act, the Canadian Parliament has been given
exclusive jurisdiction to pass criminal laws and
legislate rules for criminal procedures. Under
Section 92, the provinces have jurisdiction over
the administration of justice in each province.
This jurisdiction includes the interpretation of
the Constitution, the maintenance and organization
of provincial courts in both civil and criminal
jurisdictions, and civil procedure as applied in
provincial courts. (Ekstedt and Griffiths, 1988:
4; Kurian, 1989: 49; MacIntosh, 1989: 11).
2. Legal system.
Although the legal system of Canada uses an
inquisitorial process in some proceedings such as
a coroner's inquest or a Royal Commission Inquiry,
an adversarial process is used for both civil and
criminal trials.
In a civil case, the plaintiff alleges that
the defendant has committed some wrong against
himself, while in a criminal case, the prosecution
alleges that the accused has committed a criminal
offense. In criminal cases, the accused is
considered innocent until proven guilty beyond a
reasonable doubt by the Crown prosecution.
(Kurain, 1989: 57; Mewett, 1988: 26).
3. History of the criminal justice system.
The Canadian legal system emerges from two
traditions: Roman law and English common law. The
New France was established in 1664 in accordance
with the laws of the English mother country. The
English common law came to Canada via the English
settlers and was even partially introduced into
Quebec through the Conquest (1763). Today, civil
law in Quebec is based on the Code Civil du Quebec
which is derived from the French code Napoleon;
whereas in the other Canadian provinces, civil law
is based on the English common law. (Van Loon and
Whittington, 1976: 160).
The criminal law is based on the Canadian
Criminal Code, submitted to Parliament and enacted
in 1892. Over the years numerous amendments and
revisions have been made and in 1955, a totally
new revised Criminal Code came into force. The
Criminal Code is derived almost exclusively from
the principles of English criminal jurisprudence
and is uniform across the country. Under the
terms of the 1867 Constitution Act, the federal
government has exclusive jurisdiction to legislate
criminal law. The Act also empowers the provinces
to pass laws but only in those areas where they
have been assigned responsibility, such as the
provincially regulated Highway Traffic Act and
Liquor Control Act. (Van Loon and Whittington,
1976: 160).
The Constitution is a set of rules that
govern the ways Canadian laws are made and
administered. It is the supreme law of Canada;
even Parliament and the Legislatures are bound by
its provisions. Laws inconsistent with the
Constitution are legally invalid. The courts are
responsible for deciding whether certain laws are
inconsistent. The courts interpret the
Constitution and decide how its provisions apply
to particular circumstances, which they have done
since the time of Confederation in 1887. The
Constitution, at that time called the British
North American (BNA) Act, set limits on the powers
of Parliament and the Legislatures, and
established other governing requirements.
In April, 1982, a new dimension was added to
the Constitution. The Canadian Charter of Rights
and Freedoms became Part I of the Constitution
Act. For the first time in Canada, the supreme
law included guarantees of certain rights and
freedoms which, subject to certain limitations,
had to be observed by all who made or administered
the law. The courts now had to decide whether
legislation or actions by officials offended any
of the rights and freedoms guaranteed in the
Charter and in the old BNA Act. (Cromwell, 1988:
283; MacIntosh, 1989: 12).
Significant criminal justice legislation.
In 1959, the Parole Act created the National
Parole Board. The NPB makes the decision to
grant, deny, or revoke parole for all federal
inmates. The Act was amended in 1977 to allow
provinces to establish their own parole boards for
provincial inmates. The NPB is also the primary
paroling agent in the provinces which have not
established their own parole board. (Ekstedt and
Griffiths, 1988: 418).
The Narcotic Control Act (1970) is designed
to control the flow of narcotics by making a
federal crime of narcotic offenses. Violations of
this act are prosecuted by federally appointed
counsel. Besides listing the drugs which are
illegal under this federal statute, it guides the
prosecution and enforcement process (e.g.
requirements for police officer entry, search, and
seizure), sentencing, and the appeal process.
(Carswell, 1989: 595-612).
The Bail Reform Act, enacted in 1971, was
passed under a recommendation of the Ouiment
Committee Report to prevent unnecessary detention
of accused persons. It limits the warrantless
arrest powers of the police by requiring suspects
to be released if the police have no reasonable or
probable grounds to believe that the public
interest or safety would be in jeopardy. The Act
also empowers the police officer in charge of
lock-up to release a suspect in accordance with
principles of the Criminal Code. (Generally, the
suspect must be charged with a crime that has a
5-year or less prison sentence attached to it and
the officer has no reasonable/probably grounds to
believe "(1) that continued detention is necessary
in the 'public interest', (2) that the accused is
unlikely to attend trial if released, or (3) that
the issue of release is of such a serious nature
that it should be dealt with by a Justice of the
Peace.")(Griffiths,et.al., 1980: 84-85; 126-127).)
Finally, the Young Offenders Act (1985),
which replaced the Juvenile Offenders Act of 1908,
raised the age of minimum criminal responsibility
to 12 years old for all provinces and territories.
It also set the age of adult criminal culpability
at 18 years old across the country.
The Act provides that only Criminal Code and
federal statute offenses are prosecuted in youth
courts, which handle young offenders aged 12 to
17. Young offenders may, at the recommendation of
the youth court judge, be transferred to an adult
court. They may also avoid formal prosecution and
be put into a diversion or alternative measures
program at the request of the prosecutor. Should
formal prosecution occur, there is a broad range
of sentencing options under this Act, from
community service, restitution, treatment, or
secure custody to absolute discharge. The
provinces are given responsibility to handle cases
involving persons under 12 years-old through a
social service agency. (Canada Year Book 1990:
20.11-20.13).
CRIME
1. Classification of crime.
* Legal classification. Crimes are generally
divided into summary, indictable, or hybrid
offenses. Indictable offenses include only the
most serious crimes, which are punishable by at
least 2 years imprisonment in a federal
penitentiary, such as murder, rape, and robbery.
Since the Canadian Criminal Code is used by all
provinces, territories, and municipalities, the
definition of indictable offenses is uniform in
all jurisdictions. Some indictable offenses, such
as murder, treason, and piracy, are also called
"supreme court exclusive" offenses. Other
offenses, like theft, betting, and gaming, are
called "absolute jurisdiction" offenses. (Ekstedt
and Griffiths, 1988: 5).
Summary offenses are less serious, such as
motor-vehicle offenses and creating a disturbance.
Sentences can range from fines (maximum of $2,000)
and probation, to a maximum of 6 months
incarceration in a provincial prison. (All
expenditure information is presented in Canadian
dollars.) Unlike indictable offenses, summary
offenses are most often defined by provincial or
municipal legislation. For instance, there are
varying provincial statutes for traffic
violations. Thus, the provinces tend to have
jurisdiction on less serious offenses, while the
federal government is given legislative authority
for more serious offenses. (Birkenmayer, 1993;
Ekstedt and Griffiths, 1988: 5).
Hybrid or dual offenses can be prosecuted
either as summary or indictable offenses, at the
decision of the prosecutor. For example,
prosecutors typically decide to prosecute the
crime of breaking and entering as summary
offenses, having the effect of expediting case
dispositions by moving the case to a lower court.
(Birkenmayer, 1993; Kurain, 1989: 56;
Understanding the Canadian Criminal Justice
System, 1993: 1).
* Age of criminal responsibility. Under the Young
Offenders Act of 1985, the age of adult
culpability is 18 years-old. (Ekstedt and
Griffiths, 1988: 89; Fourth United Nations Survey,
1993: 28).
* Drug offenses. For Canadian Police Statistic
reporting purposes, the Canadian Centre for
Justice Statistics divides drug offenses into the
categories of trafficking/importation/cultivation
and possession. It is a federal crime to traffic
(e.g. manufacture, sell, give, administer,
transport, send, deliver, distribute, or to
attempt such actions), import, export, cultivate,
or possess drugs listed under the Narcotic Control
Act and under the Food and Drugs Act. (The
Narcotic Control Act (1985) lists the following
durgs to be illegal under Schedule 1: Opium,
coca, cannabis sativa, phenylpiperidines,
phenazepines, amidones, methadols,phenalkoxsams,
thiambutenes, moramides, benzazocines, ampromides,
benzimidazoles, phencyclidine, fentanyl, tilidine,
carfentanil, and alfentanil. The drugs listed
under the Food and Drugs Act are generally those
which must be controlled, are available only for
medical use, are legally restricted, or are used
for non-medical purposes. Carswell, 1989: 546-547,
596-598; Fourth United Nations Survey, 1993).)2. Crime statistics.
The definitions of the following crimes are
based on administrative definitions which are
constructed by the Canadian Centre for Justice
Statistics to aid Canadian Police report crime
statistics to the Uniform Crime Report Survey and
have legal standing under the Canadian Criminal
Code.
* Murder. In 1990, the police recorded 589
incidents of first and second degree murder, at a
rate of 2 per 100,000 population. Attempts are
not included. (Canadian Crime Statistics 1990,
1991).
Under Section 231 of the Canadian Criminal
Code, "Murder in the first degree is murder when
it is planned and deliberate" or when the victim
is "a) a police officer, police constable,
constable, sheriff, deputy sheriff, sheriff's
officer or other person employed for the
preservation and maintenance of the public peace,
acting in the course of his duties; b) a warden,
deputy warden, instructor, keeper, jailer, guard
or other officer or a permanent employee of a
prison, acting in the course of his duties; or c)
a person working in a prison with the permission
of the prison authorities and acting in the course
of his work therein" or when death is caused
while committing or attempting to commit hijacking
an aircraft, sexual assault, sexual assault with a
weapon (including threats to a third party or
causing bodily harm), aggravated sexual assault,
kidnapping and forcible confinement, or hostage
taking. (Under Section 231 of the Criminal Code,
subsection 3, "...murder is planned and deliberate
when it is committed pursuant to an arrangement
under which money or anything of value passes or
is intended to pass from one person to another or
is promised by one person to another, as
consideration for that other's causing or
assisting in causing the death of anyone or
counselling another person to do any act causing
or assisting in causing that death." (Carswell,
1989: 131).) "All murder that is not first degree
murder is second degree murder". (Carswell, 1989:
131-132).
* Rape. In 1990, the police recorded 26,539
incidents of sexual assault for a rate of 100 per
100,000. Attempts are included. As of 1983, the
terms "rape" and "indecent assault" were replaced
by "sexual assault". (Canadian Crime Statistics
1990, 1991; Fourth United Nations Survey, 1993).
The definition of sexual assault can be
ascertained by combining Sections 265 and 271 of
the Canadian Criminal Code: Section 265 (Assault)
states that "(1) A person commits an assault when
[generally] without the consent of another person,
he applies force intentionally to that other
person, directly or indirectly, ... 2) This
section applies to all forms of assault, including
sexual assault, sexual assault with a weapon,
threats to a third party or causing bodily harm
and aggravated sexual assault...". In Section
271 (Sexual Assault) the Commentary states that,
"Sexual assault...is not defined, although an
essential element, assault, is elsewhere defined
for such purposes. In general, it is an assault
under Section 265(1) committed in circumstances of
a sexual nature such as to violate the sexual
integrity of [the victim]. (Tremeear's Criminal
Code, 1992: 459, 469).
* Theft. In 1990, the police recorded 50,293
incidents of major theft, at a rate of 189 per
100,000. This figure includes the theft of
property worth over $1,000 (e.g. embezzlement,
fraud, other misappropriation of money held under
direction) and does not include motor-vehicle or
bicycle theft, or shoplifting. Attempts are
included. (Canadian Crime Statistics 1990, 1991).
Generally, under Section 322 of the Canadian
Criminal Code, a person charged with theft is one
"...who fraudulently and without colour of right
takes, or...converts to his use or to the use of
another person, anything, whether animate or
inanimate, with intent, a) to deprive, temporarily
or absolutely, the owner of it, or a person who
has a special property or interest in it...".
(Carswell, 1989: 170).
* Serious drug offense. In 1990, the police
recorded 7,153 incidents of cocaine trafficking,
at a rate of 27 per 100,000. Attempts are
included. (Canadian Crime Statistics 1990, 1991).
* Crime regions. The total crime rate per 100,000
for all of Canada was 9,273 in 1989, but for major
cities it was higher (Toronto = 10,172 per
100,000; Montreal = 11,267 per 100,000; Edmonton =
15,472 per 100,000; Vancouver = 18,815 per
100,000). (Bayley, 1991: 9).
Newfoundland, Prince Edward Island, and
Manitoba experienced greater increases of violent
crime than other Canadian regions between 1981 and
1991. Manitoba had the highest rate of violent
crime in Canada in 1991, with a rate of 6,294 per
100,000 population. (Canadian Crime Statistics,
December 1992).
VICTIMS
1. Groups most victimized by crime.
Overall, the Canadian Uniform Crime Reports
showed no significant differences in the amount of
assaults reported to the police by men and women.
However, women did have a higher amount of sexual
assault victimization than men, while men had a
higher incident of victimization for robbery. Men
had more incidents involving aggravated assault
and assault with a weapon, and less incidents of
assaults not involving a weapon or serious injury,
than did women. (These data are derived from the
1991 incident-based Uniform Crime Report survey,
which includes the reports of 15 police
departments, throughout the regions of New
Brunswick, Quebec, Ontario, Saskatchewan, and
British Columbia, for a total of 21,234 violent
crime victims. They exclude victims under 18
years-old as well as regions with a population
above 500,000. These incidents are estimated to
comprise about 11% of the total amount of violent
offenses reported to the police in 1991.(Juristat
Service Bulletin, November 1992).)
Persons over 60 years old had a lower
incident of crime victimization overall, although
they had a higher incidence of robbery than their
younger counterparts. In addition, teenagers and
children had more reports of sexual assault than
older age groups, while the opposite trend was
found for assault. (These data are derived from
an incident-based Uniform Crime Report survey,
which includes information on violent crime
victimizations from 13 police departments taken
between 1988 and 1991, for a total of 43,299
victims. Cities with a population over 500,000
are excluded. (Juristat Service Bulletin, March
1992; August 1992).)
In 1988, the General Social Survey was
conducted by Statistics Canada in which 100,000
Canadians over 15 years-old were interviewed by
telephone. The interviewers asked the respondents
about their experiences with crime during the year
1987. Information was recorded for the personal
crimes of sexual assault, robbery, assault, and
theft of personal property.
The GSS results showed men to have higher
rates of total personal and violent victimization
than women. Individuals between 15 and 24
years-old had personal victimization rates that
were almost double and 7 times the rate of age
groups 25 to 44 and 45 to 64, respectively.
(Statistics for the elderly were not calculated
due to the small sample.) Personal victimization
rates were also 3 times greater for single,
separated, or divorced individuals than married
persons.
Furthermore, students, persons who
participated in activities outside the home more
than 30 times per month, and persons who consumed
14 or more drinks per week had higher personal
victimization rates. The summary findings
indicate that, "Generally speaking, men, young
people, single people and students are at highest
risk of personal victimization, along with those
who are active outside the home in the evenings or
regularly consume alcohol." (Juristat Service
Bulletin, October 1990).
2. Victims' assistance agencies.
The primary responsibility for supporting
victim/witness rests with the office of the Crown
Attorney. According to the Canadian Criminal
code, society ultimately is the victim, and the
"victim of the crime" is ignored. (Baril, 1984:
259; Weiler and Desgagn‚, 1984: 19).
Most police departments and judicial
districts have victim- witness assistance
programs. There are also both private and
government sponsored victim service agencies. All
the provinces, except for Prince Edward Island,
have Criminal Injuries Compensation Boards, in
which victims are compensated by the government
for distress, out-of-pocket expenses, salary loss,
etc. Health expenses are covered by the universal
health care system in Canada. (Birkenmayer, 1993;
Carswell, 1989: 391-392).
The administration of these programs vary
among jurisdiction. These variations mainly occur
in the type of crime a victim may be compensated
for or the method by which compensation is awarded
(e.g. total sum or periodic installments).
Generally, property damage is not covered by such
programs. (Canada Year Book 1990, 1989:
20.12-20.16).
3. Role of victim in prosecution and sentencing.
Under Section 735 of the Criminal Code,
victims can file a victim impact statement with
the court for consideration by the judge at the
post-disposition stage prior to sentencing.
(Section 735 of the Canadian Criminal Code states:
"For the purpose of determining the sentence to be
imposed on an offender or whether the offender
should be discharged...the court may consider a
statement...of the victim of an offence describing
the harm done to, or loss suffered by, the victim
arising from the commission of the offence."
(Carswell, 1989: 391-92).) Judges may use victim
impact statements to guide sentencing decisions.
The role of the victim is generally very limited
because of the precept that crimes are committed
against the "Crown", thus the true victim is the
State, not the individual who is victimized.
(Baril, 1984: 263).
4. Victims' rights legislation.
Although broad "Victims' Rights" legislation
does not exist, there have been increasing
systematic efforts in each province and territory
to consider victims when making amendments to
already existing Acts and portions of the Criminal
Code. For instance, a 1992 law amends the Parole
Act to allow victims to be informed when the
offender is eligible for parole. (Birkenmayer,
1993).
POLICE
1. Administration.
Police forces are generally divided into
provincial, municipal, and federal units.
(Griffiths, et.al., 1980: 47; Understanding the
Canadian Criminal Justice System, 1993: 2).
The Royal Canadian Mounted Police (RCMP) is
the federal police agency. It is primarily
responsible for enforcing federal statutes and
executive orders, providing protective services,
policing airports and government buildings, and
policing remote geographical territories. Crimes
listed under Federal statute include acts
violating the Bankruptcy Act, Canada Shipping Act,
Customs Act, Excise Act, Explosives Act, and
Immigration Act. Sometimes the RCMP combines
efforts with municipal or provincial forces (e.g.
organized crime, narcotics). (Fourth United
Nations Survey, 1993; Griffiths, et.al., 1980: 49;
Juristat, 1991: 3; Kurian, 1989: 51).
The RCMP is the only policing agency serving
the Yukon and Northwest territories, which per
square miles, account for more than one-third of
Canada. The RCMP chain of command can be
diagrammed as the following, from lowest to
highest: RCMP Commissioner (Deputy Minister)
-----> the Solicitor General of Canada (the acting
Minister of Justice) ---> Parliament. (Griffiths,
et.al., 1980: 48-49; Kurian, 1989: 51).
The RCMP has also been contracted out by 8
provinces to provide provincial police services.
In these provinces, the RCMP derives its authority
from its headquarters in Ottawa and the provincial
attorney generals. Thus, although the RCMP is a
federal agency, their jurisdictional
responsibility can extend into the provinces as
well. (Bayley, 1993; Griffiths, et.al., 1980:
48-49; Kurian, 1989: 50).
Municipal police forces have jurisdiction
over the most heavily populated areas (e.g.
Metropolitan Toronto), utilize the largest amount
of police resources, and are comprised of city,
village, county, and township police forces. Most
forces are organized along lines similar to the
Ottawa municipal police force (highest to lowest):
Attorney General ---> Chief of Police ---> Deputy
Chief of Field Operations (traffic and patrol),
Deputy Chief of Staff Operations (investigations),
and Deputy Chief of Administration and Staff
Services. The provinces, by law, must financially
support municipal police forces. "Municipal
forces enforce all laws relating to their area of
jurisdiction which includes the Criminal Code,
provincial statutes, the bylaws of the
municipality and (in recent years) certain federal
statutes, such as the Narcotic Control Act and
Food and Drugs Act." (Griffiths, et.al., 1980: 50;
Kurian, 1989: 55).
Police services can be contracted out on the
municipal level as well. For instance, various
cities and towns may contract the provincial
police or the RCMP, which acts as provincial
police in 8 provinces, in lieu of establishing
their own municipal police. In cases where the
RCMP is contracted out to a municipality, the unit
is accountable to the municipal chief executive.
(Griffiths, et.al., 1980: 50; Kurian, 1989: 55).
Provincial policing is largely decentralized.
Ontario and Quebec are currently the only
provinces which operate their own provincial
police. Generally their duties cover those
geographic areas not already covered by the
municipal police although there are continuous
exchanges of information between the two agencies.
The Ontario Provincial Police is headed by the
Ontario Provincial Police Commissioner, who is
supervised by the Solicitor General. The
Commissioner oversees three separate department
heads: the Provincial Commander of Field
Operations, the Provincial Commander of Services,
and the Provincial Commander of Investigations.
(The Field Operations department is divided into
three separate field divisions (e.g. Field "A"
Division, "B" Division, "C" Division) with each
field covering delineated districts.
The Services department is divided into
separate branches for program evaluation,
budgeting, policy and planning, tele-
communications, and divisions for administrative
services (e.g. training, staff, media, and records
management), and support services (e.g. transport,
quartermaster stores, and systems support). Both
divisions are headed by a separate division
commander.
Finally, the Investigations department is
divided into the Special Investigation Division
(e.g. Anti-Rackets branch; criminal investigation
and general investigation branch) and the
Investigation Support Division (e.g. Intelligence,
security, technical support, and registration
branches). Both divisions are headed by a
separate division commander. (Ontario Provincial
Police 1989 Annual Report, 1990: 3).)
The Provincial Minister of Justice supervises
the Commissioner of the Quebec Police Force. The
Commissioner has a "chief inspector or inspector"
responsible for each of the 8 district divisions.
The Criminal Investigations Bureau, the
anti-terrorist Security Service, the Special
Intelligence Service, and the Scenes of Crime
Service are a few of the departments operating
under the Operations Service division of the
force. (Kurian, 1989: 54-55).
Other types of policing agencies include: the
RCMP Marine Services, the Air Section of the RCMP,
the Canadian Pacific Railway Police, the Canadian
National Railway Police, and the National Harbors
Board Police. Although the Department of National
Revenue, the Department of Justice, the Post
Office Department, and the Immigration Service
primarily only have investigative powers, they may
collaborate with the RCMP towards law enforcement
efforts. As of 1985, there were at least 18
private security/policing agencies. (Andrade,
1985: 38; Kurian, 1989: 50-51).
2. Resources.
* Expenditures. The 1990 budgeting resources
allocated to police was $5,248,530,000. (Fourth
United Nations Survey, 1993: 14).
* Number of police. In 1990, the total number of
full-time police personnel was 75,364, of which
59,476 were male and 15,888 were female. The
total number of sworn personnel was 56,034 and the
total number of non-sworn personnel (civilian) was
19,330. (Birkenmayer, 1993; Fourth United Nations
Survey, 1993: 14).
A description of police personnel as of
December 31, 1989 tallied the number of police by
police force. Out of a total of 73,332 police
personnel, 54,233 were police officers (sworn
personnel), 63% of which were classified as
municipal police, 26% as provincial police, 6% as
Royal Canadian Mounted Police (RCMP), and 5% as
RCMP administrative or law enforcement service
officers. (Juristat, 1991: 4).
3. Technology.
* Availability of police automobiles. Although no
national statistics exist on the availability of
police automobiles, provincial data for Ontario is
available. As of December 31, 1989, the Ontario
Provincial Police had 4,521 sworn police officers
and had available the following transport
vehicles: 1,625 automobiles, 330 utility transport
units (e.g. vans, buses, prisoner transports), 61
motorcycles, 192 trailers, 166 snow vehicles, 107
marine vehicles, and 2 helicopters, for a total of
2,483 transport units. (Ontario Provincial Police
1989 Annual Report, 1990: 18-19).
* Electronic equipment. Statistics do not exist
on the national availability of electronic
equipment, but do exist for separate policing
departments. For instance, the Systems Support
branch of the Ontario Provincial Police supplies
departments with computers, user programs, and
telecommunications equipment. The OPP is supplied
armament through the Support Services division.
(Ontario Provincial Police 1989 Annual Report,
1990: 17).
The Identification Services Branch of the
RCMP provides fingerprint information and criminal
records to both federal and provincial police
departments through the National Fingerprint
Identification System. All police departments
have access to the Canadian Police Information
Centre, also run by RCMP, and can obtain
information on, for example, missing persons and
property, and wanted offenders. The RCMP's
National Criminal Intelligence Repository and
Crime Detection Laboratory are also available for
use by other policing authorities. (Griffiths,
et.al., 1980: 49; Kurian, 1989: 51).
* Weapons. RCMP officers are authorized to carry
Smith and Wesson .38 special revolvers and .308
Winchester rifles. Ontario Provincial Police
carry .38 revolvers. Other police also carry
standard .38 revolvers and batons. Bullet proof
vests are available to all police officers.
(Birkenmayer, 1993; Kurain, 1989: 53-54).
4. Training and qualifications.
RCMP recruits must complete a 6 month
training session, consisting of physical training
and course work. The course work includes courses
in interpersonal relations, how to write
reports, and how to take fingerprints. The
recruits spend an additional 6 months doing field
training. They are required to pass a written
examination and must have a college education. In
addition, they must be between 18 and 29
years old, single, and have a driver's license.
Recruits are initially appointed by the Solicitor
General for a five-year period. Their "contract"
is renewed pending satisfactory performance.
After appointment, recruits periodically take
additional courses. (Kurian, 1989: 56; Griffiths,
et.al., 1980: 51).
Training periods for other police departments
average about 6 weeks at a training academy. Most
larger municipalities have their own training
academies, while others may use federal training
facilities. Most police officers must obtain
community college or university degrees. Recruits
must pass structured physical fitness tests and
must be at least 21 years-old. For additional
education, persons can take courses at the RCMP's
Canadian Police College in Ontario. (Birkenmayer,
1993; Kurian, 1989: 56).
Persons under 21 can serve in the Cadet
program. In Ontario, cadet training takes place
at the Ontario Provincial Police Training College.
Cadets volunteer to serve as auxiliary police,
riding alongside patrolmen or aiding crowd control
efforts. The Cadet program enables young people
to gain a competitive edge for policing
positions. (Birkenmayer, 1993; Kurian, 1989: 54).
5. Discretion.
* Use of force. Under Sections 26 and 27 of the
Criminal Code, when making an arrest or seeking to
prevent a crime, the police may not use more force
than is necessary. "Everyone who is authorized by
law to use force is criminally responsible for any
excess thereof according to the nature and quality
of the act that constitutes the excess."
(Carswell, 1989: 21-22; Griffiths, et.al., 1980:
88).
* Stop/apprehend a suspect. Police can make an
arrest with or without an arrest warrant. An
arrest warrant may be issued by the Justice of the
Peace if probable grounds exist that the public
interest would be served by this action, such as
a high risk that the suspect will leave the area.
Arrest warrants are mainly used for persons who
fail to appear in court, are at-large, or fail to
pay a fine. Under Criminal Code Section 28,
police are required to inform the suspect about
the reason for the arrest. (Birkenmayer, 1993;
Carswell, 1989: 28; Griffiths, et.al., 1980: 85).
After the arrest, the suspect must be brought
to the Justice of the Peace within 24 hours for
further processing. At that point, the Justice of
the Peace decides whether to further detain or
release the suspect before his or her trial
appearance. Barring public safety risks,
pre-trial detention is discouraged and most
suspects are released after arrest. (Griffiths,
et.al., 1980: 85; Kurain, 1989: 57).
Most arrests are made without a warrant,
although no official statistics exist as to the
exact proportion. Warrantless arrests can occur
if the police are certain or have probable grounds
to believe the suspect has committed or is about
to commit an indictable offense; is committing a
crime within view of the police officer; or has an
outstanding arrest warrant. Except for very
serious offenses, police are constrained by the
Bail Reform Act of 1971 to making warrantless
arrests only if they believe that an arrest is the
only way a suspect will show up for trial or if
the "public interest" necessitates it (e.g.
prevention of suspect committing future offenses
or destroying evidence). (Birkenmayer, 1993;
Griffiths, et.al., 1980: 84).
Warrantless arrests are made at the
discretion of the police officer, who can release
the offender on his or her own recognizance or
bring him to the Justice of the Peace (lowest
ranking judicial officer). The Justice then
decides whether to grant bail. The bailing
process can last up to 8 days. (Birkenmayer,
1993).
* Decision to arrest. An alternative to arrest
is the "appearance notice" which a police officer
can issue. The notice ensures the suspect will
appear for trial by specifying a time and place
(e.g. court house or police station) for
attendance. Another option the police may
exercise is to request that the Justice of the
Peace issue a summons for the suspect to appear at
trial. (Griffiths, et.al., 1980: 85).
* Search and seizure. Police are allowed to
search the person and property in the course of
making an arrest. Without an arrest being made,
they generally require authorization for the
search from a Justice of the Peace. The Justice
will usually authorize the search if he or she
thinks there is probable cause to believe the
property could contain evidence that a crime was
committed. The search warrant must specify the
items and/or persons to be seized and the place to
be searched. The search usually must be conducted
during daylight hours. However, evidence obtained
by an illegal search can still be introduced as
evidence at trial.
There is also a type of search which is
carried out by a writ of assistance, available
only to RCMP officers and issued by a judge in the
Federal Court of Canada. A "writ" allows RCMP
officers to search, with some degree of
reasonableness, any person or property which they
believe to be connected to an offense violation of
the Customs and Excise Acts, the Narcotic Control
Act, and the Food and Drugs Act. The search can
be conducted day or night, and allows for the
seizure of narcotics or contraband and a search of
persons. The writ remains active until the police
officer is no longer operating within the confines
of the Act. (Bayley, 1993; Griffiths, et.al.,
1980: 86-87).
* Confessions. A citizen must answer the
questions of a police officer and may be subject
to arrest for obstructing justice for refusal to
do so. In some provinces, drivers of motor
vehicles are required, when stopped, to give their
name and address to the police officer.
(Griffiths, et.al., 1980: 90-92).
A confession can be entered into court as
evidence of a crime only if it can be proved that
it was given voluntarily. Although not required
by law, the arresting police officers will inform
a suspect of the right to remain silent and the
right to counsel in order to prove that a
confession statement was made voluntarily.
(Griffiths, et.al., 1980: 90-92).
6. Accountability.
Every police jurisdiction has some form of
civilian review process. The larger police
departments have internal investigation and
affairs bureaus and methods of appeal. Police
commissions have been established in a majority of
the provinces which set forth disciplinary
standards and handle police officer disciplinary
problems, including those associated with
municipal police. For instance, failure to comply
with the reasonable/probable grounds needed to
make an arrest can result in a civil suit.
(Birkenmayer, 1993; Griffiths, et.al., 1980:
51-52, 85; Kurian, 1989: 55).
Citizens are allowed to file a civil suit
against a police officer. While the RCMP has
internal resources to handle disciplinary
measures, some provinces employ full-time persons
who investigate complaints. Other provinces use a
complaint board (e.g. Alberta, Citizen's Law
Enforcement Appeal Board). Under the British
Columbia Police Act, complaints are handled in a
uniform manner in all police departments in the
province of British Columbia. If the department
is unable to satisfactorily address the complaint,
the issue is brought up at a local Police Board
public hearing. (Griffiths, et.al., 1980: 95-96).
PROSECUTORIAL AND JUDICIAL PROCESS
1. Rights of accused.
* Rights of the accused. The Canadian Bill of
Rights guarantees certain rights to persons
charged with a crime. Any person charged with an
offense has the right: "a) to be informed without
unreasonable delay of the specific offence; b) to
be tried within a reasonable time; c) not to be
compelled to be a witness in proceedings against
that person in respect of the offence; d) to be
presumed innocent until proven guilty according to
law in a fair and public hearing by an independent
and impartial tribunal; e) not to be denied
reasonable bail without just cause; f) except in
the case of an offence under military law tried
before a military tribunal, to the benefit of
trial by jury where the maximum punishment for the
offence is imprisonment for five years or a more
severe punishment; g) not to be found guilty on
account of any act or omission unless, at the time
of the act or omission, it constituted an offence
under Canadian or international law or was
criminal according to the general principles of
law recognized by the community of nations; h) if
finally acquitted of the offense, not to be tried
for it again, if finally found guilty and punished
for the offence, not to be tried or punished for
it again; and i) if found guilty of the offense
and if the punishment for the offence has been
varied between the time of commission and the time
of sentencing, to the benefit of the lesser
punishment". (Mewett, 1988: 23).
These rights are effective when a person has
been charged with an offense. The word charge
does not have any precise meaning in law, but
merely means that steps have been taken that will
lead to criminal prosecution. (Mewett, 1988: 23).
At trial accused persons may testify in their
own defense, but cannot be compelled to testify.
They cannot be forced to help incriminate
themselves at trial by being compelled to be a
witness.
The right of the accused not to be forced to
testify also generally applies to their wife or
husband. A spouse must testify for the accused if
called as a witness, but cannot be called as a
witness for the prosecution. In the case of
spouses, there are certain exceptions concerning
sexual offenses and offenses involving a victim
under the age of 14, in which a spouse can be
compelled to testify for the prosecution. (Mewett,
1988: 26).
* Assistance to the accused. Presently, all
provinces and territories will appoint an attorney
to represent persons who, if convicted, may be
imprisoned or may lose their means of financial
support. When defendants first appear at trial,
they are given an opportunity to hire a lawyer if
they have not already obtained one.
In jurisdictions where there is a private
legal aid scheme, an accused person who cannot
financially afford a lawyer can, if his or her
application to legal aid is accepted, select a
lawyer of his or her choice from a list of lawyers
who have agreed to participate in the legal aid
panel. In cases where the accused is applying for
legal aid, in order to allow counsel to prepare
the case, the matter will usually be held over for
2 weeks, during which time a trial date is set.
When the accused presents the court with a
letter from his or her lawyer setting out the
trial dates, the lawyer has gone on the record as
representing the client. This means that the
lawyer is committed to act for the client and
will, unless his or her name is removed from the
record, be obligated to appear at the accused's
trial. Before setting a trial date, the lawyers
will want to ensure that they are prepared to
represent the accused and that their fees are
secure. If an accused cannot get legal aid and
cannot agree with a lawyer as to an appropriate
fee, the judge will inform the accused that the
matter has been marked preemptory, meaning that it
will proceed to trial whether or not a lawyer is
representing the accused. (Canada Year Book 1990:
20.8; MacIntosh, 1989: 376-377).
Someone who is charged with an indictable
offense must appear in court personally to set a
trial date. However, an accused who is charged
with a summary conviction offense may appear
through an agent. An agent is a person who can
legally represent the accused, such as a lawyer,
tutor, or curator. An accused charged with a
summary conviction offense may not have to appear
at trial, but technically must have an agent
appear instead. Although a lawyer can appear
without a client at trial, the trial judge can
order that the accused to be present. (MacIntosh,
1989: 376-377).
In fiscal year 1989-1990, approximately
568,510 criminal and civil cases were handled by
legal aid attorneys, paralegals, and private
attorneys working on a fee-for-service basis.
(Juristat, 1991: 7).
2. Procedures.
* Preparatory procedures for bringing a suspect to
trial. Before a suspect can be criminally
prosecuted, another person must put forth
information before a Justice of the Peace in which
he or she swears the accused has committed a
specified offense or that there are reasonable
grounds to believe that someone has committed a
specified offense. In most cases, the person who
swears on the information presented to the justice
will be a police officer, but any private person
having knowledge of a criminal offense may be the
informant.
Once the justice of the peace having
jurisdiction has received the information, he or
she must decide whether a case has been presented
that warrants prosecuting the alleged offender.
This is the first judicial determination in the
prosecution process. It is not a determination of
whether the alleged offender is guilty; it is only
a determination that there are grounds that,
absent any explanation or defense, would warrant
the alleged offender being put on trial. (Mewett,
1988: 13-14).
Once the justice of the peace having
jurisdiction over an offense has received
information, and decides there are grounds to
support a prosecution, the justice can issue
process (e.g. issue a summons), which is an order
directed to the accused requiring him or her to
appear on a certain date at a particular court.
The judge may also choose to issue an arrest
warrant, which authorizes the police to arrest the
person in question. Whichever of the 2 processes
are issued, the laying of the information must be
established, before there is any procedural
contact with the accused. (Mewett, 1988: 14).
On the other hand, there are cases where the
police encounter a person in the act of committing
an offense, or who has just committed an offense.
Here, the police act on their own initiative and
start the process of an arrest. They then have
time to go to a justice of the peace and lay the
information. In this case, the laying of the
information would occur after the first procedural
contact with the accused. (Mewett, 1988: 47).
Finally there is a judicial interim release
hearing, in which the accused is put in temporary
custody while waiting to be brought before the
justice. This generally occurs if the police
believe that it would be in the best interest of
the public to hold the accused or that the offense
is of a serious nature. (Understanding the
Canadian Criminal Justice System, 1993: 6).
Appeals at the level of indictable offenses
are made to the Provincial Court of Appeal.
Persons appealing the sentence of a summary
offense must go to the district or county court
judge.
* Official who conducts prosecution. Crimes are
considered to be offenses committed against the
state, symbolized by the Queen of England. Since
the state is regarded as the aggrieved party, all
criminal trials are conducted in the name of the
state. (Mewett, 1988: 13, 88).
The process of moving toward a prosecution is
a matter of discretion on the part of the police.
In fact, many times the police officer acts as the
informant, another term for the prosecutor. The
prosecutor can also be a private person, in which
the cases are referred to as private prosecutions.
Each province of Canada has an organized
state prosecution machinery under control of the
provincial Attorney General. Those offenses
prosecuted by the federal government have a
similar federal prosecution machinery operating
under the control of the Minister of Justice and
Attorney General for Canada. Part of this
machinery consists of staff members (lawyers) of
various localities (counties, district or cities)
with various titles (e.g. Crown Attorney, Crown
Prosecutors, City Prosecutors, Federal
Prosecutors, and part-time agents). These staff
members have many duties and functions, one of
which is to prosecute criminal offenses on behalf
of the Queen. (Mewett, 1988: 88-89).
* Alternatives to trial. For most serious
indictable offenses, the accused has no choice but
to stand trial by a superior court of criminal
jurisdiction sitting with a jury, barring an
agreement between the accused and the Attorney
General for a trial without a jury. However,
there is another group of indictable offenses
that are not considered serious enough to require
a trial either by judge and jury or by a federally
appointed judge. In these cases, the accused must
be tried by a provincial court judge unless, for
some exceptional reason, the judge decides
otherwise. These types of offenses include theft
under $1000 (when prosecuted as an indictable
offense), most gaming and betting offenses and
some other fraud and property offenses of a
relatively minor nature.
For all other indictable offenses, the
accused has a choice in how he or she wishes to be
tried. He can choose one of the three different
courts of criminal jurisdiction available. Under
the Criminal Code, there are 3 levels of trial
courts: the superior court of criminal
jurisdiction, the court of criminal jurisdiction,
and the summary conviction court. (Mewett, 1988:
67-68).
Pre-Trial Diversion Programs also exist toenable
offenders who have been charged but have
not yet been convicted, to be diverted out of
formal criminal proceedings to an alternative
method of case resolution. Adult diversion
programs, largely based on the alternative
measures provided under the Young Offenders Act,
include personal service programs such as
restitution and helping the victims repair
property damage, as well as alcohol/drug
rehabilitation and educational programs.
(Birkenmayer, 1993; Ekstedt and Griffiths, 1988:
83).
* Proportion of prosecuted cases going to trial.
75% or 80% of persons accused of crime elect trial
by provincial court judge. These defendants
essentially give up the right to a preliminary
inquiry and their case proceeds directly to trial.
About 80% of defendants tried by a provincial
court judge plead guilty. (Mewett, 1988: 82).
Only about 10% of the cases are brought to
trial before a judge and jury. (Birkenmayer,
1993).
* Pre-trial incarceration conditions. Interim
release of persons awaiting trial is encouraged.
However, legislation has attempted to define the
circumstances where pretrial detention is
necessary. Criminal Code Section 457 provides
that, in the cases of ordinary offenses, the
detention of an accused in custody is justified
when "a) on the primary ground of ensuring
attendance in court, or b) on the secondary ground
"the public interest or for the protection or
safety of the public ... including any substantial
likelihood that the accused will, if he is
released from custody, commit a criminal offence
or an interference with the administration of
justice." (Archibald, 1988: 87).
* Bail procedure. The principle governing bail
hearings, generally, is that an accused charged
with an offense other than one of the very serious
offenses listed in Section 469 of the Criminal
Code, is entitled to be released, but must return
to appear in court on the day of trial. This
principle applies unless there is reason to
believe that additional measures must be taken to
ensure appearance at trial. If the Crown Attorney
can show cause why the accused should be detained
in custody or why the accused should not be
released on his or her unconditional undertaking,
the accused will not be released. If the Crown
prosecutor cannot show cause why the accused
should be detained in custody, but can convince a
judge that the accused should not be released
without conditions, a justice or a judge will
release the accused only under certain conditions.
(MacIntosh, 1989: 72).
* Proportion of pre-trial offenders incarcerated.
In fiscal year 1990-1991, there was an average
daily number of 4,711 inmates being held while
awaiting trial or adjudication. (Fourth United
Nations Survey, 1993: 36).
JUDICIAL SYSTEM
1. Administration.
The structure and nature of the court system
varies by the particular province or territory.
There are presently 12 judicial jurisdictions:
Newfoundland, Prince Edward Island, Nova Scotia,
British Columbia, New Brunswick, Quebec, Ontario,
Manitoba, Saskatchewan, Alberta, Yukon, and North
West Territories. (Fourth United Nations Survey,
1993).
Generally, the hierarchy of courts can be
diagrammed as the following (highest to lowest):
Supreme Court of Canada (Appeals for summary and
indictable offenses)---->Court of Appeal (Appeals
for summary and indictable offenses)---->
District/County Court (Summary Appeals and
indictable trials)----> Provincial Court- Criminal
Division (Summary and indictable trials; Summary
appeals; preliminary hearings)--->Summary
offenses/Municipal/Provincial Offenses/Traffic
Safety Court (summary trials). (Canada Year Book
1990: 20.5).
The Criminal Code provides for three levels
of trial courts: the superior court of criminal
jurisdiction, the court of criminal jurisdiction,
and the summary conviction court. The superior
court of criminal jurisdiction is the highest
level of trial court in each province. Its actual
designation differs from province to province. It
may be called the Supreme Court of the Province,
the Superior Court, or the Court of Queen's Bench.
It is always presided over by a federally
appointed court judge, addressed as Mr. or Madam
Justice X, or My Lord or My Lady. The Superior
Court of criminal jurisdiction has jurisdiction to
try all indictable offenses and, in criminal
cases, usually sits with a jury. However, with
the consent of the Attorney General and the
accused, the trial in a superior court of criminal
jurisdiction may be held without a jury. (Mewett,
1988: 67-68).
The court of criminal jurisdiction has
jurisdiction to try all indictable offenses except
those which must be tried by a superior court of
criminal jurisdiction. The court of criminal
jurisdiction usually includes a jury, to be
presided over by a federally appointed judge, such
as a district or county court judge. Cases can
also be tried in this court without a jury, so
long as it is presided over by a federally or
provincially appointed judge. (Kurain, 1989: 56;
Mewett, 1988: 67-68).
The lowest level of criminal court is the
summary conviction court. This is a court with
limited territorial jurisdiction presided over by
a provincial court judge or magistrate with
jurisdiction to try only summary conviction
offenses. (Mewett, 1988: 67-68).
2. Special courts.
* Youth court. Youth courts process cases
involving "young persons"; described by the Young
Offenders Act of 1985 to be offenders between 12
and 17 years-old. (Fourth United Nations Survey,
1993: 28).
Offenders under 12 years old cannot be
charged with a crime. They are usually dealt with
through mental health resources. Family courts
exist, but they do not handle domestic violence
cases. Domestic violence cases are handled by
criminal courts in all jurisdictions.
(Birkenmayer, 1993).
* Circle court. Circle courts are used in criminal
cases exclusively involving native Canadian
defendants, which tend to originate in the more
remote regions of Canada. Circle courts attempt
to integrate native culture with modern Canadian
law. Generally, the court actors (e.g. judge,
prosecutor, defense attorney, defendant, and
victim) sit in a circle along with the defendant's
peers. A panel of the defendant's peers, usually
the elder statesmen in the group, can then help
determine sentences by making recommendations to
the sentencing judge. Their recommendations are
almost always adhered to by the judge.
Birkenmayer, 1993).
3. Judges.
* Number of judges. In 1991, there was a total
of 1,817 judges and magistrates, of which 1,636
were male and 181 were female. (Fourth United
Nations Survey, 1993: 30).
* Appointment and qualifications. There are three
general levels of judges: Justice of the Peace,
Provincial court Judge, and Federal Judge. Judges
for the Supreme Court, Federal Court, and Tax
Court are all appointed by the Office of the
Commissioner for Federal Judicial Affairs.
Provincial superior, district, and county court
judges are appointed by the Provincial Attorney
General. (Canada Year Book 1990: 20.6; Fourth
United Nations Survey, 1993: 30).
All judges must be attorneys with at least 10
years experience before appointment (15 years is
the standard for some Federal judge positions).
Judicial manuals serve as a part of the training,
as well as mentoring systems whereby a new
appointee sits next to a practicing judge. After
appointment, judges annually attend continuing
education seminars. (Birkenmayer, 1993).
PENALTIES AND SENTENCING
1. Sentencing process.
* Who determines the sentence? It is the
discretion of the trial judge to pass sentence,
regardless of whether a jury is present. However,
for certain offenses, the judge may be limited by
the maximum, minimum, or fixed penalty provided
under statute. (Criminal Code Section 717).
When imposing sentences, judges refer to the
principle "justice must always be tempered with
mercy." for guidance. (Carswell, 1989: 377-378;
Mewett, 1988; Fiske, 1988: 241; Kurain, 1989: 56).
* Is there a special sentencing hearing? The
sentence may be imposed at the date of the verdict
or on a subsequent date. (Code of Penal Procedure,
1990: 228).
* Which persons have input into the sentencing
process? In certain cases, the psychological
profile of an offender may constitute an important
consideration in sentencing. The report of a
psychologist or psychiatrist is important in this
regard. If there are indications that the
offender is psychologically handicapped and
requires treatment, the judge will consider this
mental status when imposing sentence. The judge
can recommend to the penal authorities that such
treatment be arranged or provided for in an
institution. (Fiske, 1988: 245).
2. Types of penalties.
* Range of penalties. The range of penalties
typically in use is: life imprisonment,
deprivation of liberty, control in freedom,
warning or admonition, fine, Community Service
Order, and restitution/compensation. ("Deprivation
of liberty includes various forms of detention,
including security measures, combined or split
sentence (where at least one part of the sentence
involves deprivation of liberty) and all other
sanctions involving deprivation of liberty (i.e.
where the person is forced to stay at least one
night in an institution of any kind)." (Fourth
United Nations Survey, 1993: 29).)
Some inmates with a sentence of 90 days or
less, are given intermittent sentences, which is
mandated by the court, in which they serve time
inprison on the weekends. The maximum term of
imprisonment is life for indictable offenses and 6
months for summary offenses. (Birkenmayer, 1993,
Kurain, 1989: 56).)("Control in freedom includes a
probation order, a conditional sentence with
additional supervision requirement and other forms
of so-called liberty (i.e. cases where the person
is required to fulfill special requirements with
regard to supervision)." (Fourth United Nations
Survey, 1993: 29).
Some probation conditions may include having
to attend a government sponsored community
correctional center or a privately run
community-based residential center, both aiming
towards offender reintegration into the community
through guidance, supervision, and training. In
addition, government sponsored Attendance Centre
programs are used alone or as a condition of
probation. They require the offender to attend a
specified program on a regular basis. Probation
orders vary across Canadian jurisdictions, with
some offenders having very little contact with the
probation agency. (Annual Report, 1991; Ekstedt
and Griffiths, 1988: 83).) ("Warnings and
admonition include suspended sentences,
conditional sentences, finding of guilt without
sanctions, formal admonitions, formal warnings,
imposing of duties without control, conditional
dismissal, conditional discharge." (Fourth United
Nations Survey, 1993: 29).) (If the offender is
unable to pay the fine, the offender has the
choice of participating in a Fine Option Program.
Under this program, an offender can work toward
fine payment by donating time and effort toward
community service. (Ekstedt and Griffith, 1988:
84).)
(Often as a probation condition, an offender is
ordered to donate time and effort to the community
by performing an assigned task or contributing a
certain number of hours towards the completion of
a service-oriented task. (Ekstedt and Griffiths,
1988: 84).) (Offenders are required to repay
their victim(s) for costs incurred as a result of
their crime. (Ekstedt and Griffith, 1988: 83-4;
Fourth United Nations Survey, 1993: 29).)
Prisons are typically used as a last resort
in sentencing. Barring a serious crime such as
murder, it is unusual for a first- time offender
to be incarcerated. The majority of offenders
have served 4 or 5 probationary terms before they
are given prison sentences. The emphasis in
Canadian corrections on reintegrating the offender
into the community has led to community-based
corrections, such as probation and Attendance
Centre Programs, frequently being used as a
sentencing option. (Birkenmayer, 1993; Ekstedt and
Griffiths, 1988: 83-84; Kurain, 1989: 56).
* Death penalty. The death penalty was abolished
by the Parliament of Canada in 1976. (Ekstedt and
Griffiths, 1988: 402).PRISON
1. Description.
* Number of prisons and type. As of December 31,
1990, there was a total of 221 small adult
prisons, from a 100 to 499 inmate capacity. There
were 162 provincial prisons, including jails, and
2 municipal prisons. There were 59 Federal
penitentiaries. Data do not exist as to the
number of minimum or maximum prisons because most
prisons are a hybrid, having both maximum and
minimum security wings and sometimes, even a
half-way house on the premises. (Birkenmayer,
1993; Fourth United Nations Survey, 1993: 40).
* Number of prison beds. As of December 31, 1990,
there were a total of 32,916 prison beds. (Fourth
United Nations Survey, 1993: 40).
* Number of annual admissions. In fiscal year
1990-1991, there was a total of 114,818 admissions
into both federal and provincial prisons, of which
105,267 were male and 9,551 were female. There
were 4,296 admissions into the Federal
Penitentiaries. (Birkenmayer, 1993; Fourth United
Nations Survey, 1993: 43-44).
* Average daily population/number of prisoners.
In fiscal year 1990-1991, the average daily
population in prisons was 29,509. (Fourth United
Nations Survey, 1993: 43).
* Actual or estimated proportions of inmates
incarcerated. The following are the yearly
percentages for Federal prison admissions in
fiscal year 1990-1991 by crime type. (Fourth
United Nations Survey, 1993: 43).
Drug Crimes (includes illicit
trafficking and simple
possession). 15%
Violent Crimes (includes
intentional and nonintentional
homicide, assault, rape,
and robbery). 50%
Property Crimes (includes
theft, burglary, fraud, and
embezzlement). 22%
Other Crimes (includes
kidnapping, criminal
negligence, and offensive
weapons). 13%
2. Administration.
* Administration. The prison system is organized
according to sentence length. Initially, all
inmates with incarcerative sentences are placed in
provincial prisons. Those with a sentence total
of 2 or more years imprisonment are eventually
transferred to federal penitentiaries, while
offenders with a sentence of 2 years-less one day
are held in the provincial prisons. (Birkenmayer,
1993; Ekstedt and Griffiths, 1988: 71-72).
A federal offender usually spends a
minimum of 30 days in a provincial prison before
he or she is transferred to a federal prison. In
those 30 days, the offender may appeal a
conviction or sentence. If the appeal is waived,
he or she is moved to a federal prison within two
weeks. During those two weeks, the offender is
given a classification assessment (e.g. maximum or
minimum security risk). If the sentence is
successfully appealed, the inmate can be let out
on bail and the sentencing scheme becomes
invalidated. Other federal offenders are held in
provincial institutions under transfer agreements
that exist between the province and the federal
government (Prince Edward Island and Ontario are
the only provinces which do not have such an
agreement). (Annual Report, 1991: 18-19;
Birkenmayer, 1993).
Correctional programs are administered
through line ministries or departments.
("Jurisdictions...vary in the degree of
centralization found within their individual
government agencies. Correctional systems also
differ in the number of agencies assigned
responsibility for corrections. For example, the
provinces of Quebec, Ontario, and British Columbia
have autonomous parole boards, while in the
remaining provinces and territories, provincial
cases are referred to the National Parole Board.
Other jurisdictional differences can be found in
the services available to correctional agencies,
such as those relating to computer systems,
financial services, and research analysis."
(Annual Report, 1991: 18).) Each
government has a ministry or department that is
responsible for correctional service
administration (e.g. Ministry of Attorney General,
Correctional Services Division in British
Columbia; Department of Social Services,
Corrections Service in Northwest Territories).
(Ekstedt and Griffiths, 1988: 91).
Maximum security facilities are
administered by both federal and provincial
governments. Federal penitentiaries are headed by
Commissioners, who are supervised by the Solicitor
General of Canada.
Provincial jails are operated under the
domain of the Department of Social Services or
Department of Health and Welfare. All prisons
have a warden or superintendent who oversees
prison operations. Municipal correction
facilities are used primarily as minimum security
lock-up facilities. (Birkenmayer, 1993; Ekstedt
and Griffiths, 1988: 95; Kurain, 1989: 57).
Under the Constitution Act, the Penitentiary
Act, and the Criminal Code, federal and provincial
jurisdictions each have distinct responsibilities
in regards to the provision of correctional
services. However, the 2 systems may interact
through exchange-of-service agreements. Federal
offenders, who serve an average of 3 years, can
serve time in provincial institutions and
visa-versa. About 200 inmates a year are
processed through exchange of service agreements
which are entered into primarily for programming
reasons. For example, provincial prisons may have
better employment programs than federal prisons.
These agreements often concern inmate transfer
across jurisdictions, parole and community
assessments, and the delivery of health,
psychiatric, and educational services. (Exchange
of service agreements present the possibility of
double counting prisoners, which would effect the
national statistics. "This is a function of
combining data retrieved from individual
information systems across Canada." (Annual
Report, 1991: 18).) (Birkenmayer, 1993; Ekstedt
and Griffiths, 1988:4-5; Annual Report, 1991).
Under the Prison and Reformatories Act, each
province or territory must follow the general
guidelines for the administration and operation of
the prison, but they abide by their own
legislative and regulatory guidelines in
determining the manner in which correctional
services are to be delivered. (Annual Report,
1991).
There are no private prisons. Private
half-way houses or group homes are available to
provide inmates access to community resources and
programs that would not be available under a
government facility. (Annual Report, 1991:
20; Birkenmayer, 1993).
* Number of prison guards. As of 1990, there
were a total of 1,930 persons on the management
staff and 11,955 on the custodial staff in adult
prisons. ("Management staff refers to the staff
whose primary responsibility is the management and
policy administration of staff and institutional
programmes.") ("Custodial staff refers to the
staff whose primary responsibility is the guarding
of all inmates both to prevent escape and to
maintain order in the institution." (Fourth United
Nations Survey, 1993: 41-2).)
About 10% of the custodial staff are
female. There are no data on ethnicity.
(Birkenmayer, 1993).
* Training and qualifications. Correctional
officers must generally obtain community college
or university degrees, which include law and
security courses. They must also participate in
local training programs, consisting of about 6
weeks of class work and on-the job training using
a buddy system (Ontario uses 3 weeks of field
work). In all prisons, training for correctional
officers is an on-going process throughout the
year. The training officer, usually an assistant
or deputy superintendent, conducts drills and
day-long training sessions. (Birkenmayer, 1993).
* Expenditure on prison system. In fiscal year
1990-1991, budget allocations for prisons totaled
$1,766,294,000. (Fourth United Nations Survey,
1993: 45).
3. Prison conditions.
* Remissions. After serving at least one-sixth
of their sentence, federal and provincial inmates
can be released on full or day parole. The
National Parole Board, run under the Ministry of
the Solicitor General, is responsible for granting
parole to all federal inmates. Inmates in
provincial prisons can also be granted parole by
the NPB if no provincially-run parole program is
available. Currently, only the provinces of
Quebec, Ontario, and British Columbia have their
own parole programs. Although the NPB may make
the initial decision about whether to grant
parole, there are separate federal and provincial
correctional services responsible for overseeing
parolees. (Annual Report, 1991; Ekstedt and
Griffith, 1988: 87-88).
The Mandatory Release Program is a federal
program in which inmates who have served 2/3 of
their sentence with good-time behavior are
released into the community but remain under
correctional authority until their time warrant
expires. Although they are accountable to a
parole officer, they are technically not on parole
as there is no parole board (NPB or provincial)
that makes a decision concerning their release.
The parole officer serves as a resource for the
inmate, aiding in obtaining housing and
employment, and helping with personal problems.
(Birkenmayer, 1993).
Temporary Absence programs are used in
provincial prisons and allow inmates to be
released, unsupervised, for a mandated period of
up to 15 days. If they do not return, they are
deemed absent without leave (AWOL). Since
prisoners can be given a back-to-back series of 15
day releases, these programs are sometimes used as
an early release mechanism for provincial
prisoners (avoiding the initial parole process).
Temporary absence is generally granted by the
prison superintendent for humanitarian reasons.
For example, the inmate may be needed to attend to
a family matter or require care that is only
available at a hospital. The program also gives
pre-parolees time to situate themselves with
housing and employment. (Birkenmayer, 1993;
Ekstedt and Griffith, 1988: 83-84).
* Work/education. All correctional facilities
(except jails, where inmates stay up to 90 days)
have opportunities for work inside the prison.
Prisoners can work in an industrial laundry, on
farms, machines, and make license plates, shoes,
and clothes. There are also opportunities,
through temporary absence programs, to work
outside of the prison.
Inmates can also pursue an education and
obtain a degree up to a PhD, although they are
usually released before they finish their
doctorate. Professors typically visit the prison
to teach courses. (Birkenmayer, 1993).
* Amenities/privileges. Most prisons do not allow
conjugal visits, however provincial prisons allow
inmates to be released on a weekend pass for
conjugal visitation. Inmates in both federal and
provincial prisons must compile a list of people
they wish to have visit them in the prison.
Generally, provincial inmates are allowed 2
face-to-face visits a week which take place in
open low- security areas within the prison. Some
minimum security facilities have outside areas
designated for visitation. Federal inmates are
allowed 1 visit per week under high security,
often through glass. (Birkenmayer, 1993).
Offenders in the Northwest Territories are
often placed in a Land Program. This program is
designed to accommodate the hunter-gatherer
culture and lifestyle still prevalent among the
native people of those regions. The inmates,
mostly Eskimo, are allowed to be armed for the
purpose of hunting caribou. The caribou they hunt
provide meat for themselves, their families, and
the community. Spousal and child support is
counted by the number of caribou obtained (they
would otherwise starve if the primary hunter was
incarcerated and not allowed to hunt). The guards
are not armed themselves, but oversee the inmates.
Since the program's establishment in 1990, there
have been no incidents of escapes or violence.
(Birkenmayer, 1993).
EXTRADITION AND TREATIES
* Extradition. Canada has a signed extradition
treaty with the following countries: Albania,
Argentina, Austria, Belgium, Bolivia, Chile,
Columbia, Cuba, Czechoslovakia, Denmark, Ecuador,
Finland, France, Germany, Greece, Guatemala,
Haiti, Hungary, India, Israel, Italy, Liberia,
Lithuania, Luxembourg, Mexico, Monaco,
Netherlands, Nicaragua, Norway, Panama, Paraguay,
Peru, Philippines, Portugal, Romania, Salvador,
San Marino, Spain, Sweden, Switzerland, Thailand,
Togo, Uruguay, United States, Yugoslavia (Serbia)
(Birkenmayer, 1993).
* Exchange and transfer of prisoners. The
Transfer of Offenders Act (1978) allows for the
prison transfer and exchange of Canadian and
foreign offenders to their home country (Ekstedt
and Griffiths, 1988: 423).
Canada has prison transfer agreements with
the following countries: United States, Mexico,
Peru, France, Spain, Sweden, United Kingdom,
Bolivia, Cyprus, Austria, Denmark, Finland,
Greece, Luxembourg, Netherlands, Switzerland,
Turkey, Thailand, Italy, Belgium, Germany, Malta,
Bahamas, Norway, Czech Republic, and Slovak
Republic. (Birkenmayer, 1993).
* Specified conditions. The following Articles
describe some of the requirements of the
extradition treaty signed between Canada and the
U.S. on December 3, 1971 in Washington D.C.
Article 1: "Each Contracting Party agrees to
extradite to the other,...persons found in its
territory who have been charged with, or convicted
of, any of the offenses covered by Article 2 of
the Treaty committed within the territory of the
other, or outside thereof under the conditions
specified in Article 3(3) of this Treaty." (United
States Treaties and Other International
Agreements, 1977: 986).
Article 2: "(1) Persons shall be delivered
up according to the provisions of this Treaty for
any of the offenses listed in the Schedule annexed
to this Treaty, provided these offenses are
punishable by the laws of both Contracting Parties
by a term of imprisonment exceeding one year. (2)
Extradition shall also be granted for attempts to
commit, or conspiracy to commit or being a party
to any of the offenses listed in the annexed
schedule. (United States Treaties and Other
International Agreements, 1977: 986).
Article 6: "When the offense for which
extradition is requested is punishable by death
under the laws of the requesting State and the
laws of the requested State do not permit such
punishment for that offense, extradition may be
refused unless the requesting State provides such
assurances as the requested State considers
sufficient that the death penalty shall not be
imposed, or, if imposed, shall not be executed."
(United States Treaties and Other International
Agreements, 1977: 989).
Article 10: "(1) Extradition shall be granted
only if the evidence be found sufficient,
according to the laws of the place where the
person being sought shall be found, either to
justify his committal for trial if the offense of
which he is accused had been committed in its
territory or to prove that he is the identical
person convicted by the courts of the requesting
State." (United States Treaties and Other
International Agreements, 1977: 991).
Article 11: "(1) In case of urgency a
Contracting Party may apply for the provisional
arrest of the person sought pending the
presentation of the request for extradition
through the diplomatic channel...(3) A person
arrested shall be set at liberty upon the
expiration of forty-five days from the date of his
arrest pursuant to such application if a request
for his extradition accompanied by the documents
specified in Article 9 shall not have been
received." (United States Treaties and Other
International Agreements, 1977: 992).
Article 14: "(2) If a warrant or order for
the extradition of a person sought has been issued
by the competent authority and he is not removed
from the territory of the requested State within
such time as may be prescribed by the laws of that
State, he may be set at liberty and the requested
State may subsequently refuse to extradite that
person for the same offense." (United States
Treaties and Other International Agreements, 1977:
993).
A protocol signed at Ottawa on January 11,
1988 amended the 1971 extradition treaty between
the U.S. and Canada by replacing the scheduled
list of specific crimes with a "dual criminality"
clause. The clause makes any crime which is
punishable by one or more years in prison, in both
the USA and Canada, an extraditable offense.
Parental child abduction became a new offense
subject to extradition under this protocol. In
addition, terrorist acts or crimes associated with
terrorism, such as murder, manslaughter, malicious
assault, kidnapping, and specified explosives
offenses, are no longer excluded under the
political offense exception to extradition of the
1971 treaty. (Protocol Amending the Extradition
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and David Perrier (Toronto: Carswell), 1988,
pp. 27-32.
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Criminal Justice Branch Centre for Social
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United Nations, New York) 1993.
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Verdun-Jones, Criminal Justice in Canada,
(Toronto: Butterworths), 1980.
Juristat Service Bulletin, Vol. 10, no. 16.
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Juristat Service Bulletin, Vol. 12, no. 15.
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Justice Statistics, August 1992.
Juristat Service Bulletin, Vol. 12, no. 21.
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Justice Statistics, November 1992.
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Police Forces and Penal Systems. (New York:
Facts on File), 1989.
MacIntosh, Donald A. Fundamentals of the Criminal
Justice System, (Toronto: Carswell), 1989.
Mewett, Alan W. An Introduction to the Criminal
Process in Canada, (Toronto: Carswell), 1988.
Ontario Provincial Police 1989 Annual Report,
Commissioner Thomas O'Grady, 1990.
Perrier, David C, "An Introduction to Criminal
Law" , From Crime to Punishment, An
Introduction to Criminal Law System, ed. Joel
E. Pink and David Perrier (Toronto:
Carswell), 1988, pp. 1-14.
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Senate. (Washington: U.S. Government
Printing Office), 1990.
Salhany, Roger E. Canadian Criminal Procedure.
(Toronto: Canada Law Book Company Ltd), 1968.
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1993.(Toronto: Carswell, Thomson Canada
Limited), 1992.
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System, Statistics Canada. Canadian Centre
for Justice Statistics. Ottawa, Ontario,
March 1993.
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Debra Cohen
School of Criminal Justice
Draper Hall
State University of New York at Albany
135 Western Avenue
Albany, New York 12222
United States
Tel: 518-442-5210
Fax: 518-442-5603
Sandra Longtin
School of Criminal Justice
Draper Hall
State University of New York at Albany
135 Western Avenue
Albany, New York 12222
United States
Tel: 518-442-5210
Fax: 518-442-5603
from http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjcan.txt accessed Nov 26 2007
Canada
Debra Cohen
Sandra Longtin
State University of New York at Albany
This country report is one of many prepared for
the World Factbook of Criminal Justice Systems
under Bureau of Justice Statistics grant No.
90-BJ-CX-0002 to the State University of New York
at Albany. The project director was Graeme R.
Newman, but responsibility for the accuracy of the
information contained in each report is that of
the individual author. The contents of these
reports do not necessarily reflect the views or
policies of the Bureau of Justice Statistics or
the U. S. Department of Justice.
GENERAL OVERVIEW
1. Political system.
Canada is a federalist country and a member
of the British commonwealth. It is divided into
10 provinces and 2 territories. It has a
parliamentary democratic government in which the
executive and legislative power is split between
the central and provincial units.
Responsibility for the various parts of the
criminal justice system is shared and divided
among the federal, provincial, and municipal
levels of government. The Constitution Act of
1867 defines and establishes the division of power
and authority between the federal and provincial
levels of government. The 2 territories receive
their power from the federal authority, while the
10 provincial governments may grant certain powers
to the local or municipal governments. For
example, the provinces have the power to create
police forces that have provincial or municipal
jurisdiction, while the Royal Canadian Mounted
Police (the federal police force) is concerned
mainly with the enforcement of federal statutes,
such as the Customs Act and Narcotic Control Act.
Under Section 91 of the 1867 Constitution
Act, the Canadian Parliament has been given
exclusive jurisdiction to pass criminal laws and
legislate rules for criminal procedures. Under
Section 92, the provinces have jurisdiction over
the administration of justice in each province.
This jurisdiction includes the interpretation of
the Constitution, the maintenance and organization
of provincial courts in both civil and criminal
jurisdictions, and civil procedure as applied in
provincial courts. (Ekstedt and Griffiths, 1988:
4; Kurian, 1989: 49; MacIntosh, 1989: 11).
2. Legal system.
Although the legal system of Canada uses an
inquisitorial process in some proceedings such as
a coroner's inquest or a Royal Commission Inquiry,
an adversarial process is used for both civil and
criminal trials.
In a civil case, the plaintiff alleges that
the defendant has committed some wrong against
himself, while in a criminal case, the prosecution
alleges that the accused has committed a criminal
offense. In criminal cases, the accused is
considered innocent until proven guilty beyond a
reasonable doubt by the Crown prosecution.
(Kurain, 1989: 57; Mewett, 1988: 26).
3. History of the criminal justice system.
The Canadian legal system emerges from two
traditions: Roman law and English common law. The
New France was established in 1664 in accordance
with the laws of the English mother country. The
English common law came to Canada via the English
settlers and was even partially introduced into
Quebec through the Conquest (1763). Today, civil
law in Quebec is based on the Code Civil du Quebec
which is derived from the French code Napoleon;
whereas in the other Canadian provinces, civil law
is based on the English common law. (Van Loon and
Whittington, 1976: 160).
The criminal law is based on the Canadian
Criminal Code, submitted to Parliament and enacted
in 1892. Over the years numerous amendments and
revisions have been made and in 1955, a totally
new revised Criminal Code came into force. The
Criminal Code is derived almost exclusively from
the principles of English criminal jurisprudence
and is uniform across the country. Under the
terms of the 1867 Constitution Act, the federal
government has exclusive jurisdiction to legislate
criminal law. The Act also empowers the provinces
to pass laws but only in those areas where they
have been assigned responsibility, such as the
provincially regulated Highway Traffic Act and
Liquor Control Act. (Van Loon and Whittington,
1976: 160).
The Constitution is a set of rules that
govern the ways Canadian laws are made and
administered. It is the supreme law of Canada;
even Parliament and the Legislatures are bound by
its provisions. Laws inconsistent with the
Constitution are legally invalid. The courts are
responsible for deciding whether certain laws are
inconsistent. The courts interpret the
Constitution and decide how its provisions apply
to particular circumstances, which they have done
since the time of Confederation in 1887. The
Constitution, at that time called the British
North American (BNA) Act, set limits on the powers
of Parliament and the Legislatures, and
established other governing requirements.
In April, 1982, a new dimension was added to
the Constitution. The Canadian Charter of Rights
and Freedoms became Part I of the Constitution
Act. For the first time in Canada, the supreme
law included guarantees of certain rights and
freedoms which, subject to certain limitations,
had to be observed by all who made or administered
the law. The courts now had to decide whether
legislation or actions by officials offended any
of the rights and freedoms guaranteed in the
Charter and in the old BNA Act. (Cromwell, 1988:
283; MacIntosh, 1989: 12).
Significant criminal justice legislation.
In 1959, the Parole Act created the National
Parole Board. The NPB makes the decision to
grant, deny, or revoke parole for all federal
inmates. The Act was amended in 1977 to allow
provinces to establish their own parole boards for
provincial inmates. The NPB is also the primary
paroling agent in the provinces which have not
established their own parole board. (Ekstedt and
Griffiths, 1988: 418).
The Narcotic Control Act (1970) is designed
to control the flow of narcotics by making a
federal crime of narcotic offenses. Violations of
this act are prosecuted by federally appointed
counsel. Besides listing the drugs which are
illegal under this federal statute, it guides the
prosecution and enforcement process (e.g.
requirements for police officer entry, search, and
seizure), sentencing, and the appeal process.
(Carswell, 1989: 595-612).
The Bail Reform Act, enacted in 1971, was
passed under a recommendation of the Ouiment
Committee Report to prevent unnecessary detention
of accused persons. It limits the warrantless
arrest powers of the police by requiring suspects
to be released if the police have no reasonable or
probable grounds to believe that the public
interest or safety would be in jeopardy. The Act
also empowers the police officer in charge of
lock-up to release a suspect in accordance with
principles of the Criminal Code. (Generally, the
suspect must be charged with a crime that has a
5-year or less prison sentence attached to it and
the officer has no reasonable/probably grounds to
believe "(1) that continued detention is necessary
in the 'public interest', (2) that the accused is
unlikely to attend trial if released, or (3) that
the issue of release is of such a serious nature
that it should be dealt with by a Justice of the
Peace.")(Griffiths,et.al., 1980: 84-85; 126-127).)
Finally, the Young Offenders Act (1985),
which replaced the Juvenile Offenders Act of 1908,
raised the age of minimum criminal responsibility
to 12 years old for all provinces and territories.
It also set the age of adult criminal culpability
at 18 years old across the country.
The Act provides that only Criminal Code and
federal statute offenses are prosecuted in youth
courts, which handle young offenders aged 12 to
17. Young offenders may, at the recommendation of
the youth court judge, be transferred to an adult
court. They may also avoid formal prosecution and
be put into a diversion or alternative measures
program at the request of the prosecutor. Should
formal prosecution occur, there is a broad range
of sentencing options under this Act, from
community service, restitution, treatment, or
secure custody to absolute discharge. The
provinces are given responsibility to handle cases
involving persons under 12 years-old through a
social service agency. (Canada Year Book 1990:
20.11-20.13).
CRIME
1. Classification of crime.
* Legal classification. Crimes are generally
divided into summary, indictable, or hybrid
offenses. Indictable offenses include only the
most serious crimes, which are punishable by at
least 2 years imprisonment in a federal
penitentiary, such as murder, rape, and robbery.
Since the Canadian Criminal Code is used by all
provinces, territories, and municipalities, the
definition of indictable offenses is uniform in
all jurisdictions. Some indictable offenses, such
as murder, treason, and piracy, are also called
"supreme court exclusive" offenses. Other
offenses, like theft, betting, and gaming, are
called "absolute jurisdiction" offenses. (Ekstedt
and Griffiths, 1988: 5).
Summary offenses are less serious, such as
motor-vehicle offenses and creating a disturbance.
Sentences can range from fines (maximum of $2,000)
and probation, to a maximum of 6 months
incarceration in a provincial prison. (All
expenditure information is presented in Canadian
dollars.) Unlike indictable offenses, summary
offenses are most often defined by provincial or
municipal legislation. For instance, there are
varying provincial statutes for traffic
violations. Thus, the provinces tend to have
jurisdiction on less serious offenses, while the
federal government is given legislative authority
for more serious offenses. (Birkenmayer, 1993;
Ekstedt and Griffiths, 1988: 5).
Hybrid or dual offenses can be prosecuted
either as summary or indictable offenses, at the
decision of the prosecutor. For example,
prosecutors typically decide to prosecute the
crime of breaking and entering as summary
offenses, having the effect of expediting case
dispositions by moving the case to a lower court.
(Birkenmayer, 1993; Kurain, 1989: 56;
Understanding the Canadian Criminal Justice
System, 1993: 1).
* Age of criminal responsibility. Under the Young
Offenders Act of 1985, the age of adult
culpability is 18 years-old. (Ekstedt and
Griffiths, 1988: 89; Fourth United Nations Survey,
1993: 28).
* Drug offenses. For Canadian Police Statistic
reporting purposes, the Canadian Centre for
Justice Statistics divides drug offenses into the
categories of trafficking/importation/cultivation
and possession. It is a federal crime to traffic
(e.g. manufacture, sell, give, administer,
transport, send, deliver, distribute, or to
attempt such actions), import, export, cultivate,
or possess drugs listed under the Narcotic Control
Act and under the Food and Drugs Act. (The
Narcotic Control Act (1985) lists the following
durgs to be illegal under Schedule 1: Opium,
coca, cannabis sativa, phenylpiperidines,
phenazepines, amidones, methadols,phenalkoxsams,
thiambutenes, moramides, benzazocines, ampromides,
benzimidazoles, phencyclidine, fentanyl, tilidine,
carfentanil, and alfentanil. The drugs listed
under the Food and Drugs Act are generally those
which must be controlled, are available only for
medical use, are legally restricted, or are used
for non-medical purposes. Carswell, 1989: 546-547,
596-598; Fourth United Nations Survey, 1993).)2. Crime statistics.
The definitions of the following crimes are
based on administrative definitions which are
constructed by the Canadian Centre for Justice
Statistics to aid Canadian Police report crime
statistics to the Uniform Crime Report Survey and
have legal standing under the Canadian Criminal
Code.
* Murder. In 1990, the police recorded 589
incidents of first and second degree murder, at a
rate of 2 per 100,000 population. Attempts are
not included. (Canadian Crime Statistics 1990,
1991).
Under Section 231 of the Canadian Criminal
Code, "Murder in the first degree is murder when
it is planned and deliberate" or when the victim
is "a) a police officer, police constable,
constable, sheriff, deputy sheriff, sheriff's
officer or other person employed for the
preservation and maintenance of the public peace,
acting in the course of his duties; b) a warden,
deputy warden, instructor, keeper, jailer, guard
or other officer or a permanent employee of a
prison, acting in the course of his duties; or c)
a person working in a prison with the permission
of the prison authorities and acting in the course
of his work therein" or when death is caused
while committing or attempting to commit hijacking
an aircraft, sexual assault, sexual assault with a
weapon (including threats to a third party or
causing bodily harm), aggravated sexual assault,
kidnapping and forcible confinement, or hostage
taking. (Under Section 231 of the Criminal Code,
subsection 3, "...murder is planned and deliberate
when it is committed pursuant to an arrangement
under which money or anything of value passes or
is intended to pass from one person to another or
is promised by one person to another, as
consideration for that other's causing or
assisting in causing the death of anyone or
counselling another person to do any act causing
or assisting in causing that death." (Carswell,
1989: 131).) "All murder that is not first degree
murder is second degree murder". (Carswell, 1989:
131-132).
* Rape. In 1990, the police recorded 26,539
incidents of sexual assault for a rate of 100 per
100,000. Attempts are included. As of 1983, the
terms "rape" and "indecent assault" were replaced
by "sexual assault". (Canadian Crime Statistics
1990, 1991; Fourth United Nations Survey, 1993).
The definition of sexual assault can be
ascertained by combining Sections 265 and 271 of
the Canadian Criminal Code: Section 265 (Assault)
states that "(1) A person commits an assault when
[generally] without the consent of another person,
he applies force intentionally to that other
person, directly or indirectly, ... 2) This
section applies to all forms of assault, including
sexual assault, sexual assault with a weapon,
threats to a third party or causing bodily harm
and aggravated sexual assault...". In Section
271 (Sexual Assault) the Commentary states that,
"Sexual assault...is not defined, although an
essential element, assault, is elsewhere defined
for such purposes. In general, it is an assault
under Section 265(1) committed in circumstances of
a sexual nature such as to violate the sexual
integrity of [the victim]. (Tremeear's Criminal
Code, 1992: 459, 469).
* Theft. In 1990, the police recorded 50,293
incidents of major theft, at a rate of 189 per
100,000. This figure includes the theft of
property worth over $1,000 (e.g. embezzlement,
fraud, other misappropriation of money held under
direction) and does not include motor-vehicle or
bicycle theft, or shoplifting. Attempts are
included. (Canadian Crime Statistics 1990, 1991).
Generally, under Section 322 of the Canadian
Criminal Code, a person charged with theft is one
"...who fraudulently and without colour of right
takes, or...converts to his use or to the use of
another person, anything, whether animate or
inanimate, with intent, a) to deprive, temporarily
or absolutely, the owner of it, or a person who
has a special property or interest in it...".
(Carswell, 1989: 170).
* Serious drug offense. In 1990, the police
recorded 7,153 incidents of cocaine trafficking,
at a rate of 27 per 100,000. Attempts are
included. (Canadian Crime Statistics 1990, 1991).
* Crime regions. The total crime rate per 100,000
for all of Canada was 9,273 in 1989, but for major
cities it was higher (Toronto = 10,172 per
100,000; Montreal = 11,267 per 100,000; Edmonton =
15,472 per 100,000; Vancouver = 18,815 per
100,000). (Bayley, 1991: 9).
Newfoundland, Prince Edward Island, and
Manitoba experienced greater increases of violent
crime than other Canadian regions between 1981 and
1991. Manitoba had the highest rate of violent
crime in Canada in 1991, with a rate of 6,294 per
100,000 population. (Canadian Crime Statistics,
December 1992).
VICTIMS
1. Groups most victimized by crime.
Overall, the Canadian Uniform Crime Reports
showed no significant differences in the amount of
assaults reported to the police by men and women.
However, women did have a higher amount of sexual
assault victimization than men, while men had a
higher incident of victimization for robbery. Men
had more incidents involving aggravated assault
and assault with a weapon, and less incidents of
assaults not involving a weapon or serious injury,
than did women. (These data are derived from the
1991 incident-based Uniform Crime Report survey,
which includes the reports of 15 police
departments, throughout the regions of New
Brunswick, Quebec, Ontario, Saskatchewan, and
British Columbia, for a total of 21,234 violent
crime victims. They exclude victims under 18
years-old as well as regions with a population
above 500,000. These incidents are estimated to
comprise about 11% of the total amount of violent
offenses reported to the police in 1991.(Juristat
Service Bulletin, November 1992).)
Persons over 60 years old had a lower
incident of crime victimization overall, although
they had a higher incidence of robbery than their
younger counterparts. In addition, teenagers and
children had more reports of sexual assault than
older age groups, while the opposite trend was
found for assault. (These data are derived from
an incident-based Uniform Crime Report survey,
which includes information on violent crime
victimizations from 13 police departments taken
between 1988 and 1991, for a total of 43,299
victims. Cities with a population over 500,000
are excluded. (Juristat Service Bulletin, March
1992; August 1992).)
In 1988, the General Social Survey was
conducted by Statistics Canada in which 100,000
Canadians over 15 years-old were interviewed by
telephone. The interviewers asked the respondents
about their experiences with crime during the year
1987. Information was recorded for the personal
crimes of sexual assault, robbery, assault, and
theft of personal property.
The GSS results showed men to have higher
rates of total personal and violent victimization
than women. Individuals between 15 and 24
years-old had personal victimization rates that
were almost double and 7 times the rate of age
groups 25 to 44 and 45 to 64, respectively.
(Statistics for the elderly were not calculated
due to the small sample.) Personal victimization
rates were also 3 times greater for single,
separated, or divorced individuals than married
persons.
Furthermore, students, persons who
participated in activities outside the home more
than 30 times per month, and persons who consumed
14 or more drinks per week had higher personal
victimization rates. The summary findings
indicate that, "Generally speaking, men, young
people, single people and students are at highest
risk of personal victimization, along with those
who are active outside the home in the evenings or
regularly consume alcohol." (Juristat Service
Bulletin, October 1990).
2. Victims' assistance agencies.
The primary responsibility for supporting
victim/witness rests with the office of the Crown
Attorney. According to the Canadian Criminal
code, society ultimately is the victim, and the
"victim of the crime" is ignored. (Baril, 1984:
259; Weiler and Desgagn‚, 1984: 19).
Most police departments and judicial
districts have victim- witness assistance
programs. There are also both private and
government sponsored victim service agencies. All
the provinces, except for Prince Edward Island,
have Criminal Injuries Compensation Boards, in
which victims are compensated by the government
for distress, out-of-pocket expenses, salary loss,
etc. Health expenses are covered by the universal
health care system in Canada. (Birkenmayer, 1993;
Carswell, 1989: 391-392).
The administration of these programs vary
among jurisdiction. These variations mainly occur
in the type of crime a victim may be compensated
for or the method by which compensation is awarded
(e.g. total sum or periodic installments).
Generally, property damage is not covered by such
programs. (Canada Year Book 1990, 1989:
20.12-20.16).
3. Role of victim in prosecution and sentencing.
Under Section 735 of the Criminal Code,
victims can file a victim impact statement with
the court for consideration by the judge at the
post-disposition stage prior to sentencing.
(Section 735 of the Canadian Criminal Code states:
"For the purpose of determining the sentence to be
imposed on an offender or whether the offender
should be discharged...the court may consider a
statement...of the victim of an offence describing
the harm done to, or loss suffered by, the victim
arising from the commission of the offence."
(Carswell, 1989: 391-92).) Judges may use victim
impact statements to guide sentencing decisions.
The role of the victim is generally very limited
because of the precept that crimes are committed
against the "Crown", thus the true victim is the
State, not the individual who is victimized.
(Baril, 1984: 263).
4. Victims' rights legislation.
Although broad "Victims' Rights" legislation
does not exist, there have been increasing
systematic efforts in each province and territory
to consider victims when making amendments to
already existing Acts and portions of the Criminal
Code. For instance, a 1992 law amends the Parole
Act to allow victims to be informed when the
offender is eligible for parole. (Birkenmayer,
1993).
POLICE
1. Administration.
Police forces are generally divided into
provincial, municipal, and federal units.
(Griffiths, et.al., 1980: 47; Understanding the
Canadian Criminal Justice System, 1993: 2).
The Royal Canadian Mounted Police (RCMP) is
the federal police agency. It is primarily
responsible for enforcing federal statutes and
executive orders, providing protective services,
policing airports and government buildings, and
policing remote geographical territories. Crimes
listed under Federal statute include acts
violating the Bankruptcy Act, Canada Shipping Act,
Customs Act, Excise Act, Explosives Act, and
Immigration Act. Sometimes the RCMP combines
efforts with municipal or provincial forces (e.g.
organized crime, narcotics). (Fourth United
Nations Survey, 1993; Griffiths, et.al., 1980: 49;
Juristat, 1991: 3; Kurian, 1989: 51).
The RCMP is the only policing agency serving
the Yukon and Northwest territories, which per
square miles, account for more than one-third of
Canada. The RCMP chain of command can be
diagrammed as the following, from lowest to
highest: RCMP Commissioner (Deputy Minister)
-----> the Solicitor General of Canada (the acting
Minister of Justice) ---> Parliament. (Griffiths,
et.al., 1980: 48-49; Kurian, 1989: 51).
The RCMP has also been contracted out by 8
provinces to provide provincial police services.
In these provinces, the RCMP derives its authority
from its headquarters in Ottawa and the provincial
attorney generals. Thus, although the RCMP is a
federal agency, their jurisdictional
responsibility can extend into the provinces as
well. (Bayley, 1993; Griffiths, et.al., 1980:
48-49; Kurian, 1989: 50).
Municipal police forces have jurisdiction
over the most heavily populated areas (e.g.
Metropolitan Toronto), utilize the largest amount
of police resources, and are comprised of city,
village, county, and township police forces. Most
forces are organized along lines similar to the
Ottawa municipal police force (highest to lowest):
Attorney General ---> Chief of Police ---> Deputy
Chief of Field Operations (traffic and patrol),
Deputy Chief of Staff Operations (investigations),
and Deputy Chief of Administration and Staff
Services. The provinces, by law, must financially
support municipal police forces. "Municipal
forces enforce all laws relating to their area of
jurisdiction which includes the Criminal Code,
provincial statutes, the bylaws of the
municipality and (in recent years) certain federal
statutes, such as the Narcotic Control Act and
Food and Drugs Act." (Griffiths, et.al., 1980: 50;
Kurian, 1989: 55).
Police services can be contracted out on the
municipal level as well. For instance, various
cities and towns may contract the provincial
police or the RCMP, which acts as provincial
police in 8 provinces, in lieu of establishing
their own municipal police. In cases where the
RCMP is contracted out to a municipality, the unit
is accountable to the municipal chief executive.
(Griffiths, et.al., 1980: 50; Kurian, 1989: 55).
Provincial policing is largely decentralized.
Ontario and Quebec are currently the only
provinces which operate their own provincial
police. Generally their duties cover those
geographic areas not already covered by the
municipal police although there are continuous
exchanges of information between the two agencies.
The Ontario Provincial Police is headed by the
Ontario Provincial Police Commissioner, who is
supervised by the Solicitor General. The
Commissioner oversees three separate department
heads: the Provincial Commander of Field
Operations, the Provincial Commander of Services,
and the Provincial Commander of Investigations.
(The Field Operations department is divided into
three separate field divisions (e.g. Field "A"
Division, "B" Division, "C" Division) with each
field covering delineated districts.
The Services department is divided into
separate branches for program evaluation,
budgeting, policy and planning, tele-
communications, and divisions for administrative
services (e.g. training, staff, media, and records
management), and support services (e.g. transport,
quartermaster stores, and systems support). Both
divisions are headed by a separate division
commander.
Finally, the Investigations department is
divided into the Special Investigation Division
(e.g. Anti-Rackets branch; criminal investigation
and general investigation branch) and the
Investigation Support Division (e.g. Intelligence,
security, technical support, and registration
branches). Both divisions are headed by a
separate division commander. (Ontario Provincial
Police 1989 Annual Report, 1990: 3).)
The Provincial Minister of Justice supervises
the Commissioner of the Quebec Police Force. The
Commissioner has a "chief inspector or inspector"
responsible for each of the 8 district divisions.
The Criminal Investigations Bureau, the
anti-terrorist Security Service, the Special
Intelligence Service, and the Scenes of Crime
Service are a few of the departments operating
under the Operations Service division of the
force. (Kurian, 1989: 54-55).
Other types of policing agencies include: the
RCMP Marine Services, the Air Section of the RCMP,
the Canadian Pacific Railway Police, the Canadian
National Railway Police, and the National Harbors
Board Police. Although the Department of National
Revenue, the Department of Justice, the Post
Office Department, and the Immigration Service
primarily only have investigative powers, they may
collaborate with the RCMP towards law enforcement
efforts. As of 1985, there were at least 18
private security/policing agencies. (Andrade,
1985: 38; Kurian, 1989: 50-51).
2. Resources.
* Expenditures. The 1990 budgeting resources
allocated to police was $5,248,530,000. (Fourth
United Nations Survey, 1993: 14).
* Number of police. In 1990, the total number of
full-time police personnel was 75,364, of which
59,476 were male and 15,888 were female. The
total number of sworn personnel was 56,034 and the
total number of non-sworn personnel (civilian) was
19,330. (Birkenmayer, 1993; Fourth United Nations
Survey, 1993: 14).
A description of police personnel as of
December 31, 1989 tallied the number of police by
police force. Out of a total of 73,332 police
personnel, 54,233 were police officers (sworn
personnel), 63% of which were classified as
municipal police, 26% as provincial police, 6% as
Royal Canadian Mounted Police (RCMP), and 5% as
RCMP administrative or law enforcement service
officers. (Juristat, 1991: 4).
3. Technology.
* Availability of police automobiles. Although no
national statistics exist on the availability of
police automobiles, provincial data for Ontario is
available. As of December 31, 1989, the Ontario
Provincial Police had 4,521 sworn police officers
and had available the following transport
vehicles: 1,625 automobiles, 330 utility transport
units (e.g. vans, buses, prisoner transports), 61
motorcycles, 192 trailers, 166 snow vehicles, 107
marine vehicles, and 2 helicopters, for a total of
2,483 transport units. (Ontario Provincial Police
1989 Annual Report, 1990: 18-19).
* Electronic equipment. Statistics do not exist
on the national availability of electronic
equipment, but do exist for separate policing
departments. For instance, the Systems Support
branch of the Ontario Provincial Police supplies
departments with computers, user programs, and
telecommunications equipment. The OPP is supplied
armament through the Support Services division.
(Ontario Provincial Police 1989 Annual Report,
1990: 17).
The Identification Services Branch of the
RCMP provides fingerprint information and criminal
records to both federal and provincial police
departments through the National Fingerprint
Identification System. All police departments
have access to the Canadian Police Information
Centre, also run by RCMP, and can obtain
information on, for example, missing persons and
property, and wanted offenders. The RCMP's
National Criminal Intelligence Repository and
Crime Detection Laboratory are also available for
use by other policing authorities. (Griffiths,
et.al., 1980: 49; Kurian, 1989: 51).
* Weapons. RCMP officers are authorized to carry
Smith and Wesson .38 special revolvers and .308
Winchester rifles. Ontario Provincial Police
carry .38 revolvers. Other police also carry
standard .38 revolvers and batons. Bullet proof
vests are available to all police officers.
(Birkenmayer, 1993; Kurain, 1989: 53-54).
4. Training and qualifications.
RCMP recruits must complete a 6 month
training session, consisting of physical training
and course work. The course work includes courses
in interpersonal relations, how to write
reports, and how to take fingerprints. The
recruits spend an additional 6 months doing field
training. They are required to pass a written
examination and must have a college education. In
addition, they must be between 18 and 29
years old, single, and have a driver's license.
Recruits are initially appointed by the Solicitor
General for a five-year period. Their "contract"
is renewed pending satisfactory performance.
After appointment, recruits periodically take
additional courses. (Kurian, 1989: 56; Griffiths,
et.al., 1980: 51).
Training periods for other police departments
average about 6 weeks at a training academy. Most
larger municipalities have their own training
academies, while others may use federal training
facilities. Most police officers must obtain
community college or university degrees. Recruits
must pass structured physical fitness tests and
must be at least 21 years-old. For additional
education, persons can take courses at the RCMP's
Canadian Police College in Ontario. (Birkenmayer,
1993; Kurian, 1989: 56).
Persons under 21 can serve in the Cadet
program. In Ontario, cadet training takes place
at the Ontario Provincial Police Training College.
Cadets volunteer to serve as auxiliary police,
riding alongside patrolmen or aiding crowd control
efforts. The Cadet program enables young people
to gain a competitive edge for policing
positions. (Birkenmayer, 1993; Kurian, 1989: 54).
5. Discretion.
* Use of force. Under Sections 26 and 27 of the
Criminal Code, when making an arrest or seeking to
prevent a crime, the police may not use more force
than is necessary. "Everyone who is authorized by
law to use force is criminally responsible for any
excess thereof according to the nature and quality
of the act that constitutes the excess."
(Carswell, 1989: 21-22; Griffiths, et.al., 1980:
88).
* Stop/apprehend a suspect. Police can make an
arrest with or without an arrest warrant. An
arrest warrant may be issued by the Justice of the
Peace if probable grounds exist that the public
interest would be served by this action, such as
a high risk that the suspect will leave the area.
Arrest warrants are mainly used for persons who
fail to appear in court, are at-large, or fail to
pay a fine. Under Criminal Code Section 28,
police are required to inform the suspect about
the reason for the arrest. (Birkenmayer, 1993;
Carswell, 1989: 28; Griffiths, et.al., 1980: 85).
After the arrest, the suspect must be brought
to the Justice of the Peace within 24 hours for
further processing. At that point, the Justice of
the Peace decides whether to further detain or
release the suspect before his or her trial
appearance. Barring public safety risks,
pre-trial detention is discouraged and most
suspects are released after arrest. (Griffiths,
et.al., 1980: 85; Kurain, 1989: 57).
Most arrests are made without a warrant,
although no official statistics exist as to the
exact proportion. Warrantless arrests can occur
if the police are certain or have probable grounds
to believe the suspect has committed or is about
to commit an indictable offense; is committing a
crime within view of the police officer; or has an
outstanding arrest warrant. Except for very
serious offenses, police are constrained by the
Bail Reform Act of 1971 to making warrantless
arrests only if they believe that an arrest is the
only way a suspect will show up for trial or if
the "public interest" necessitates it (e.g.
prevention of suspect committing future offenses
or destroying evidence). (Birkenmayer, 1993;
Griffiths, et.al., 1980: 84).
Warrantless arrests are made at the
discretion of the police officer, who can release
the offender on his or her own recognizance or
bring him to the Justice of the Peace (lowest
ranking judicial officer). The Justice then
decides whether to grant bail. The bailing
process can last up to 8 days. (Birkenmayer,
1993).
* Decision to arrest. An alternative to arrest
is the "appearance notice" which a police officer
can issue. The notice ensures the suspect will
appear for trial by specifying a time and place
(e.g. court house or police station) for
attendance. Another option the police may
exercise is to request that the Justice of the
Peace issue a summons for the suspect to appear at
trial. (Griffiths, et.al., 1980: 85).
* Search and seizure. Police are allowed to
search the person and property in the course of
making an arrest. Without an arrest being made,
they generally require authorization for the
search from a Justice of the Peace. The Justice
will usually authorize the search if he or she
thinks there is probable cause to believe the
property could contain evidence that a crime was
committed. The search warrant must specify the
items and/or persons to be seized and the place to
be searched. The search usually must be conducted
during daylight hours. However, evidence obtained
by an illegal search can still be introduced as
evidence at trial.
There is also a type of search which is
carried out by a writ of assistance, available
only to RCMP officers and issued by a judge in the
Federal Court of Canada. A "writ" allows RCMP
officers to search, with some degree of
reasonableness, any person or property which they
believe to be connected to an offense violation of
the Customs and Excise Acts, the Narcotic Control
Act, and the Food and Drugs Act. The search can
be conducted day or night, and allows for the
seizure of narcotics or contraband and a search of
persons. The writ remains active until the police
officer is no longer operating within the confines
of the Act. (Bayley, 1993; Griffiths, et.al.,
1980: 86-87).
* Confessions. A citizen must answer the
questions of a police officer and may be subject
to arrest for obstructing justice for refusal to
do so. In some provinces, drivers of motor
vehicles are required, when stopped, to give their
name and address to the police officer.
(Griffiths, et.al., 1980: 90-92).
A confession can be entered into court as
evidence of a crime only if it can be proved that
it was given voluntarily. Although not required
by law, the arresting police officers will inform
a suspect of the right to remain silent and the
right to counsel in order to prove that a
confession statement was made voluntarily.
(Griffiths, et.al., 1980: 90-92).
6. Accountability.
Every police jurisdiction has some form of
civilian review process. The larger police
departments have internal investigation and
affairs bureaus and methods of appeal. Police
commissions have been established in a majority of
the provinces which set forth disciplinary
standards and handle police officer disciplinary
problems, including those associated with
municipal police. For instance, failure to comply
with the reasonable/probable grounds needed to
make an arrest can result in a civil suit.
(Birkenmayer, 1993; Griffiths, et.al., 1980:
51-52, 85; Kurian, 1989: 55).
Citizens are allowed to file a civil suit
against a police officer. While the RCMP has
internal resources to handle disciplinary
measures, some provinces employ full-time persons
who investigate complaints. Other provinces use a
complaint board (e.g. Alberta, Citizen's Law
Enforcement Appeal Board). Under the British
Columbia Police Act, complaints are handled in a
uniform manner in all police departments in the
province of British Columbia. If the department
is unable to satisfactorily address the complaint,
the issue is brought up at a local Police Board
public hearing. (Griffiths, et.al., 1980: 95-96).
PROSECUTORIAL AND JUDICIAL PROCESS
1. Rights of accused.
* Rights of the accused. The Canadian Bill of
Rights guarantees certain rights to persons
charged with a crime. Any person charged with an
offense has the right: "a) to be informed without
unreasonable delay of the specific offence; b) to
be tried within a reasonable time; c) not to be
compelled to be a witness in proceedings against
that person in respect of the offence; d) to be
presumed innocent until proven guilty according to
law in a fair and public hearing by an independent
and impartial tribunal; e) not to be denied
reasonable bail without just cause; f) except in
the case of an offence under military law tried
before a military tribunal, to the benefit of
trial by jury where the maximum punishment for the
offence is imprisonment for five years or a more
severe punishment; g) not to be found guilty on
account of any act or omission unless, at the time
of the act or omission, it constituted an offence
under Canadian or international law or was
criminal according to the general principles of
law recognized by the community of nations; h) if
finally acquitted of the offense, not to be tried
for it again, if finally found guilty and punished
for the offence, not to be tried or punished for
it again; and i) if found guilty of the offense
and if the punishment for the offence has been
varied between the time of commission and the time
of sentencing, to the benefit of the lesser
punishment". (Mewett, 1988: 23).
These rights are effective when a person has
been charged with an offense. The word charge
does not have any precise meaning in law, but
merely means that steps have been taken that will
lead to criminal prosecution. (Mewett, 1988: 23).
At trial accused persons may testify in their
own defense, but cannot be compelled to testify.
They cannot be forced to help incriminate
themselves at trial by being compelled to be a
witness.
The right of the accused not to be forced to
testify also generally applies to their wife or
husband. A spouse must testify for the accused if
called as a witness, but cannot be called as a
witness for the prosecution. In the case of
spouses, there are certain exceptions concerning
sexual offenses and offenses involving a victim
under the age of 14, in which a spouse can be
compelled to testify for the prosecution. (Mewett,
1988: 26).
* Assistance to the accused. Presently, all
provinces and territories will appoint an attorney
to represent persons who, if convicted, may be
imprisoned or may lose their means of financial
support. When defendants first appear at trial,
they are given an opportunity to hire a lawyer if
they have not already obtained one.
In jurisdictions where there is a private
legal aid scheme, an accused person who cannot
financially afford a lawyer can, if his or her
application to legal aid is accepted, select a
lawyer of his or her choice from a list of lawyers
who have agreed to participate in the legal aid
panel. In cases where the accused is applying for
legal aid, in order to allow counsel to prepare
the case, the matter will usually be held over for
2 weeks, during which time a trial date is set.
When the accused presents the court with a
letter from his or her lawyer setting out the
trial dates, the lawyer has gone on the record as
representing the client. This means that the
lawyer is committed to act for the client and
will, unless his or her name is removed from the
record, be obligated to appear at the accused's
trial. Before setting a trial date, the lawyers
will want to ensure that they are prepared to
represent the accused and that their fees are
secure. If an accused cannot get legal aid and
cannot agree with a lawyer as to an appropriate
fee, the judge will inform the accused that the
matter has been marked preemptory, meaning that it
will proceed to trial whether or not a lawyer is
representing the accused. (Canada Year Book 1990:
20.8; MacIntosh, 1989: 376-377).
Someone who is charged with an indictable
offense must appear in court personally to set a
trial date. However, an accused who is charged
with a summary conviction offense may appear
through an agent. An agent is a person who can
legally represent the accused, such as a lawyer,
tutor, or curator. An accused charged with a
summary conviction offense may not have to appear
at trial, but technically must have an agent
appear instead. Although a lawyer can appear
without a client at trial, the trial judge can
order that the accused to be present. (MacIntosh,
1989: 376-377).
In fiscal year 1989-1990, approximately
568,510 criminal and civil cases were handled by
legal aid attorneys, paralegals, and private
attorneys working on a fee-for-service basis.
(Juristat, 1991: 7).
2. Procedures.
* Preparatory procedures for bringing a suspect to
trial. Before a suspect can be criminally
prosecuted, another person must put forth
information before a Justice of the Peace in which
he or she swears the accused has committed a
specified offense or that there are reasonable
grounds to believe that someone has committed a
specified offense. In most cases, the person who
swears on the information presented to the justice
will be a police officer, but any private person
having knowledge of a criminal offense may be the
informant.
Once the justice of the peace having
jurisdiction has received the information, he or
she must decide whether a case has been presented
that warrants prosecuting the alleged offender.
This is the first judicial determination in the
prosecution process. It is not a determination of
whether the alleged offender is guilty; it is only
a determination that there are grounds that,
absent any explanation or defense, would warrant
the alleged offender being put on trial. (Mewett,
1988: 13-14).
Once the justice of the peace having
jurisdiction over an offense has received
information, and decides there are grounds to
support a prosecution, the justice can issue
process (e.g. issue a summons), which is an order
directed to the accused requiring him or her to
appear on a certain date at a particular court.
The judge may also choose to issue an arrest
warrant, which authorizes the police to arrest the
person in question. Whichever of the 2 processes
are issued, the laying of the information must be
established, before there is any procedural
contact with the accused. (Mewett, 1988: 14).
On the other hand, there are cases where the
police encounter a person in the act of committing
an offense, or who has just committed an offense.
Here, the police act on their own initiative and
start the process of an arrest. They then have
time to go to a justice of the peace and lay the
information. In this case, the laying of the
information would occur after the first procedural
contact with the accused. (Mewett, 1988: 47).
Finally there is a judicial interim release
hearing, in which the accused is put in temporary
custody while waiting to be brought before the
justice. This generally occurs if the police
believe that it would be in the best interest of
the public to hold the accused or that the offense
is of a serious nature. (Understanding the
Canadian Criminal Justice System, 1993: 6).
Appeals at the level of indictable offenses
are made to the Provincial Court of Appeal.
Persons appealing the sentence of a summary
offense must go to the district or county court
judge.
* Official who conducts prosecution. Crimes are
considered to be offenses committed against the
state, symbolized by the Queen of England. Since
the state is regarded as the aggrieved party, all
criminal trials are conducted in the name of the
state. (Mewett, 1988: 13, 88).
The process of moving toward a prosecution is
a matter of discretion on the part of the police.
In fact, many times the police officer acts as the
informant, another term for the prosecutor. The
prosecutor can also be a private person, in which
the cases are referred to as private prosecutions.
Each province of Canada has an organized
state prosecution machinery under control of the
provincial Attorney General. Those offenses
prosecuted by the federal government have a
similar federal prosecution machinery operating
under the control of the Minister of Justice and
Attorney General for Canada. Part of this
machinery consists of staff members (lawyers) of
various localities (counties, district or cities)
with various titles (e.g. Crown Attorney, Crown
Prosecutors, City Prosecutors, Federal
Prosecutors, and part-time agents). These staff
members have many duties and functions, one of
which is to prosecute criminal offenses on behalf
of the Queen. (Mewett, 1988: 88-89).
* Alternatives to trial. For most serious
indictable offenses, the accused has no choice but
to stand trial by a superior court of criminal
jurisdiction sitting with a jury, barring an
agreement between the accused and the Attorney
General for a trial without a jury. However,
there is another group of indictable offenses
that are not considered serious enough to require
a trial either by judge and jury or by a federally
appointed judge. In these cases, the accused must
be tried by a provincial court judge unless, for
some exceptional reason, the judge decides
otherwise. These types of offenses include theft
under $1000 (when prosecuted as an indictable
offense), most gaming and betting offenses and
some other fraud and property offenses of a
relatively minor nature.
For all other indictable offenses, the
accused has a choice in how he or she wishes to be
tried. He can choose one of the three different
courts of criminal jurisdiction available. Under
the Criminal Code, there are 3 levels of trial
courts: the superior court of criminal
jurisdiction, the court of criminal jurisdiction,
and the summary conviction court. (Mewett, 1988:
67-68).
Pre-Trial Diversion Programs also exist toenable
offenders who have been charged but have
not yet been convicted, to be diverted out of
formal criminal proceedings to an alternative
method of case resolution. Adult diversion
programs, largely based on the alternative
measures provided under the Young Offenders Act,
include personal service programs such as
restitution and helping the victims repair
property damage, as well as alcohol/drug
rehabilitation and educational programs.
(Birkenmayer, 1993; Ekstedt and Griffiths, 1988:
83).
* Proportion of prosecuted cases going to trial.
75% or 80% of persons accused of crime elect trial
by provincial court judge. These defendants
essentially give up the right to a preliminary
inquiry and their case proceeds directly to trial.
About 80% of defendants tried by a provincial
court judge plead guilty. (Mewett, 1988: 82).
Only about 10% of the cases are brought to
trial before a judge and jury. (Birkenmayer,
1993).
* Pre-trial incarceration conditions. Interim
release of persons awaiting trial is encouraged.
However, legislation has attempted to define the
circumstances where pretrial detention is
necessary. Criminal Code Section 457 provides
that, in the cases of ordinary offenses, the
detention of an accused in custody is justified
when "a) on the primary ground of ensuring
attendance in court, or b) on the secondary ground
"the public interest or for the protection or
safety of the public ... including any substantial
likelihood that the accused will, if he is
released from custody, commit a criminal offence
or an interference with the administration of
justice." (Archibald, 1988: 87).
* Bail procedure. The principle governing bail
hearings, generally, is that an accused charged
with an offense other than one of the very serious
offenses listed in Section 469 of the Criminal
Code, is entitled to be released, but must return
to appear in court on the day of trial. This
principle applies unless there is reason to
believe that additional measures must be taken to
ensure appearance at trial. If the Crown Attorney
can show cause why the accused should be detained
in custody or why the accused should not be
released on his or her unconditional undertaking,
the accused will not be released. If the Crown
prosecutor cannot show cause why the accused
should be detained in custody, but can convince a
judge that the accused should not be released
without conditions, a justice or a judge will
release the accused only under certain conditions.
(MacIntosh, 1989: 72).
* Proportion of pre-trial offenders incarcerated.
In fiscal year 1990-1991, there was an average
daily number of 4,711 inmates being held while
awaiting trial or adjudication. (Fourth United
Nations Survey, 1993: 36).
JUDICIAL SYSTEM
1. Administration.
The structure and nature of the court system
varies by the particular province or territory.
There are presently 12 judicial jurisdictions:
Newfoundland, Prince Edward Island, Nova Scotia,
British Columbia, New Brunswick, Quebec, Ontario,
Manitoba, Saskatchewan, Alberta, Yukon, and North
West Territories. (Fourth United Nations Survey,
1993).
Generally, the hierarchy of courts can be
diagrammed as the following (highest to lowest):
Supreme Court of Canada (Appeals for summary and
indictable offenses)---->Court of Appeal (Appeals
for summary and indictable offenses)---->
District/County Court (Summary Appeals and
indictable trials)----> Provincial Court- Criminal
Division (Summary and indictable trials; Summary
appeals; preliminary hearings)--->Summary
offenses/Municipal/Provincial Offenses/Traffic
Safety Court (summary trials). (Canada Year Book
1990: 20.5).
The Criminal Code provides for three levels
of trial courts: the superior court of criminal
jurisdiction, the court of criminal jurisdiction,
and the summary conviction court. The superior
court of criminal jurisdiction is the highest
level of trial court in each province. Its actual
designation differs from province to province. It
may be called the Supreme Court of the Province,
the Superior Court, or the Court of Queen's Bench.
It is always presided over by a federally
appointed court judge, addressed as Mr. or Madam
Justice X, or My Lord or My Lady. The Superior
Court of criminal jurisdiction has jurisdiction to
try all indictable offenses and, in criminal
cases, usually sits with a jury. However, with
the consent of the Attorney General and the
accused, the trial in a superior court of criminal
jurisdiction may be held without a jury. (Mewett,
1988: 67-68).
The court of criminal jurisdiction has
jurisdiction to try all indictable offenses except
those which must be tried by a superior court of
criminal jurisdiction. The court of criminal
jurisdiction usually includes a jury, to be
presided over by a federally appointed judge, such
as a district or county court judge. Cases can
also be tried in this court without a jury, so
long as it is presided over by a federally or
provincially appointed judge. (Kurain, 1989: 56;
Mewett, 1988: 67-68).
The lowest level of criminal court is the
summary conviction court. This is a court with
limited territorial jurisdiction presided over by
a provincial court judge or magistrate with
jurisdiction to try only summary conviction
offenses. (Mewett, 1988: 67-68).
2. Special courts.
* Youth court. Youth courts process cases
involving "young persons"; described by the Young
Offenders Act of 1985 to be offenders between 12
and 17 years-old. (Fourth United Nations Survey,
1993: 28).
Offenders under 12 years old cannot be
charged with a crime. They are usually dealt with
through mental health resources. Family courts
exist, but they do not handle domestic violence
cases. Domestic violence cases are handled by
criminal courts in all jurisdictions.
(Birkenmayer, 1993).
* Circle court. Circle courts are used in criminal
cases exclusively involving native Canadian
defendants, which tend to originate in the more
remote regions of Canada. Circle courts attempt
to integrate native culture with modern Canadian
law. Generally, the court actors (e.g. judge,
prosecutor, defense attorney, defendant, and
victim) sit in a circle along with the defendant's
peers. A panel of the defendant's peers, usually
the elder statesmen in the group, can then help
determine sentences by making recommendations to
the sentencing judge. Their recommendations are
almost always adhered to by the judge.
Birkenmayer, 1993).
3. Judges.
* Number of judges. In 1991, there was a total
of 1,817 judges and magistrates, of which 1,636
were male and 181 were female. (Fourth United
Nations Survey, 1993: 30).
* Appointment and qualifications. There are three
general levels of judges: Justice of the Peace,
Provincial court Judge, and Federal Judge. Judges
for the Supreme Court, Federal Court, and Tax
Court are all appointed by the Office of the
Commissioner for Federal Judicial Affairs.
Provincial superior, district, and county court
judges are appointed by the Provincial Attorney
General. (Canada Year Book 1990: 20.6; Fourth
United Nations Survey, 1993: 30).
All judges must be attorneys with at least 10
years experience before appointment (15 years is
the standard for some Federal judge positions).
Judicial manuals serve as a part of the training,
as well as mentoring systems whereby a new
appointee sits next to a practicing judge. After
appointment, judges annually attend continuing
education seminars. (Birkenmayer, 1993).
PENALTIES AND SENTENCING
1. Sentencing process.
* Who determines the sentence? It is the
discretion of the trial judge to pass sentence,
regardless of whether a jury is present. However,
for certain offenses, the judge may be limited by
the maximum, minimum, or fixed penalty provided
under statute. (Criminal Code Section 717).
When imposing sentences, judges refer to the
principle "justice must always be tempered with
mercy." for guidance. (Carswell, 1989: 377-378;
Mewett, 1988; Fiske, 1988: 241; Kurain, 1989: 56).
* Is there a special sentencing hearing? The
sentence may be imposed at the date of the verdict
or on a subsequent date. (Code of Penal Procedure,
1990: 228).
* Which persons have input into the sentencing
process? In certain cases, the psychological
profile of an offender may constitute an important
consideration in sentencing. The report of a
psychologist or psychiatrist is important in this
regard. If there are indications that the
offender is psychologically handicapped and
requires treatment, the judge will consider this
mental status when imposing sentence. The judge
can recommend to the penal authorities that such
treatment be arranged or provided for in an
institution. (Fiske, 1988: 245).
2. Types of penalties.
* Range of penalties. The range of penalties
typically in use is: life imprisonment,
deprivation of liberty, control in freedom,
warning or admonition, fine, Community Service
Order, and restitution/compensation. ("Deprivation
of liberty includes various forms of detention,
including security measures, combined or split
sentence (where at least one part of the sentence
involves deprivation of liberty) and all other
sanctions involving deprivation of liberty (i.e.
where the person is forced to stay at least one
night in an institution of any kind)." (Fourth
United Nations Survey, 1993: 29).)
Some inmates with a sentence of 90 days or
less, are given intermittent sentences, which is
mandated by the court, in which they serve time
inprison on the weekends. The maximum term of
imprisonment is life for indictable offenses and 6
months for summary offenses. (Birkenmayer, 1993,
Kurain, 1989: 56).)("Control in freedom includes a
probation order, a conditional sentence with
additional supervision requirement and other forms
of so-called liberty (i.e. cases where the person
is required to fulfill special requirements with
regard to supervision)." (Fourth United Nations
Survey, 1993: 29).
Some probation conditions may include having
to attend a government sponsored community
correctional center or a privately run
community-based residential center, both aiming
towards offender reintegration into the community
through guidance, supervision, and training. In
addition, government sponsored Attendance Centre
programs are used alone or as a condition of
probation. They require the offender to attend a
specified program on a regular basis. Probation
orders vary across Canadian jurisdictions, with
some offenders having very little contact with the
probation agency. (Annual Report, 1991; Ekstedt
and Griffiths, 1988: 83).) ("Warnings and
admonition include suspended sentences,
conditional sentences, finding of guilt without
sanctions, formal admonitions, formal warnings,
imposing of duties without control, conditional
dismissal, conditional discharge." (Fourth United
Nations Survey, 1993: 29).) (If the offender is
unable to pay the fine, the offender has the
choice of participating in a Fine Option Program.
Under this program, an offender can work toward
fine payment by donating time and effort toward
community service. (Ekstedt and Griffith, 1988:
84).)
(Often as a probation condition, an offender is
ordered to donate time and effort to the community
by performing an assigned task or contributing a
certain number of hours towards the completion of
a service-oriented task. (Ekstedt and Griffiths,
1988: 84).) (Offenders are required to repay
their victim(s) for costs incurred as a result of
their crime. (Ekstedt and Griffith, 1988: 83-4;
Fourth United Nations Survey, 1993: 29).)
Prisons are typically used as a last resort
in sentencing. Barring a serious crime such as
murder, it is unusual for a first- time offender
to be incarcerated. The majority of offenders
have served 4 or 5 probationary terms before they
are given prison sentences. The emphasis in
Canadian corrections on reintegrating the offender
into the community has led to community-based
corrections, such as probation and Attendance
Centre Programs, frequently being used as a
sentencing option. (Birkenmayer, 1993; Ekstedt and
Griffiths, 1988: 83-84; Kurain, 1989: 56).
* Death penalty. The death penalty was abolished
by the Parliament of Canada in 1976. (Ekstedt and
Griffiths, 1988: 402).PRISON
1. Description.
* Number of prisons and type. As of December 31,
1990, there was a total of 221 small adult
prisons, from a 100 to 499 inmate capacity. There
were 162 provincial prisons, including jails, and
2 municipal prisons. There were 59 Federal
penitentiaries. Data do not exist as to the
number of minimum or maximum prisons because most
prisons are a hybrid, having both maximum and
minimum security wings and sometimes, even a
half-way house on the premises. (Birkenmayer,
1993; Fourth United Nations Survey, 1993: 40).
* Number of prison beds. As of December 31, 1990,
there were a total of 32,916 prison beds. (Fourth
United Nations Survey, 1993: 40).
* Number of annual admissions. In fiscal year
1990-1991, there was a total of 114,818 admissions
into both federal and provincial prisons, of which
105,267 were male and 9,551 were female. There
were 4,296 admissions into the Federal
Penitentiaries. (Birkenmayer, 1993; Fourth United
Nations Survey, 1993: 43-44).
* Average daily population/number of prisoners.
In fiscal year 1990-1991, the average daily
population in prisons was 29,509. (Fourth United
Nations Survey, 1993: 43).
* Actual or estimated proportions of inmates
incarcerated. The following are the yearly
percentages for Federal prison admissions in
fiscal year 1990-1991 by crime type. (Fourth
United Nations Survey, 1993: 43).
Drug Crimes (includes illicit
trafficking and simple
possession). 15%
Violent Crimes (includes
intentional and nonintentional
homicide, assault, rape,
and robbery). 50%
Property Crimes (includes
theft, burglary, fraud, and
embezzlement). 22%
Other Crimes (includes
kidnapping, criminal
negligence, and offensive
weapons). 13%
2. Administration.
* Administration. The prison system is organized
according to sentence length. Initially, all
inmates with incarcerative sentences are placed in
provincial prisons. Those with a sentence total
of 2 or more years imprisonment are eventually
transferred to federal penitentiaries, while
offenders with a sentence of 2 years-less one day
are held in the provincial prisons. (Birkenmayer,
1993; Ekstedt and Griffiths, 1988: 71-72).
A federal offender usually spends a
minimum of 30 days in a provincial prison before
he or she is transferred to a federal prison. In
those 30 days, the offender may appeal a
conviction or sentence. If the appeal is waived,
he or she is moved to a federal prison within two
weeks. During those two weeks, the offender is
given a classification assessment (e.g. maximum or
minimum security risk). If the sentence is
successfully appealed, the inmate can be let out
on bail and the sentencing scheme becomes
invalidated. Other federal offenders are held in
provincial institutions under transfer agreements
that exist between the province and the federal
government (Prince Edward Island and Ontario are
the only provinces which do not have such an
agreement). (Annual Report, 1991: 18-19;
Birkenmayer, 1993).
Correctional programs are administered
through line ministries or departments.
("Jurisdictions...vary in the degree of
centralization found within their individual
government agencies. Correctional systems also
differ in the number of agencies assigned
responsibility for corrections. For example, the
provinces of Quebec, Ontario, and British Columbia
have autonomous parole boards, while in the
remaining provinces and territories, provincial
cases are referred to the National Parole Board.
Other jurisdictional differences can be found in
the services available to correctional agencies,
such as those relating to computer systems,
financial services, and research analysis."
(Annual Report, 1991: 18).) Each
government has a ministry or department that is
responsible for correctional service
administration (e.g. Ministry of Attorney General,
Correctional Services Division in British
Columbia; Department of Social Services,
Corrections Service in Northwest Territories).
(Ekstedt and Griffiths, 1988: 91).
Maximum security facilities are
administered by both federal and provincial
governments. Federal penitentiaries are headed by
Commissioners, who are supervised by the Solicitor
General of Canada.
Provincial jails are operated under the
domain of the Department of Social Services or
Department of Health and Welfare. All prisons
have a warden or superintendent who oversees
prison operations. Municipal correction
facilities are used primarily as minimum security
lock-up facilities. (Birkenmayer, 1993; Ekstedt
and Griffiths, 1988: 95; Kurain, 1989: 57).
Under the Constitution Act, the Penitentiary
Act, and the Criminal Code, federal and provincial
jurisdictions each have distinct responsibilities
in regards to the provision of correctional
services. However, the 2 systems may interact
through exchange-of-service agreements. Federal
offenders, who serve an average of 3 years, can
serve time in provincial institutions and
visa-versa. About 200 inmates a year are
processed through exchange of service agreements
which are entered into primarily for programming
reasons. For example, provincial prisons may have
better employment programs than federal prisons.
These agreements often concern inmate transfer
across jurisdictions, parole and community
assessments, and the delivery of health,
psychiatric, and educational services. (Exchange
of service agreements present the possibility of
double counting prisoners, which would effect the
national statistics. "This is a function of
combining data retrieved from individual
information systems across Canada." (Annual
Report, 1991: 18).) (Birkenmayer, 1993; Ekstedt
and Griffiths, 1988:4-5; Annual Report, 1991).
Under the Prison and Reformatories Act, each
province or territory must follow the general
guidelines for the administration and operation of
the prison, but they abide by their own
legislative and regulatory guidelines in
determining the manner in which correctional
services are to be delivered. (Annual Report,
1991).
There are no private prisons. Private
half-way houses or group homes are available to
provide inmates access to community resources and
programs that would not be available under a
government facility. (Annual Report, 1991:
20; Birkenmayer, 1993).
* Number of prison guards. As of 1990, there
were a total of 1,930 persons on the management
staff and 11,955 on the custodial staff in adult
prisons. ("Management staff refers to the staff
whose primary responsibility is the management and
policy administration of staff and institutional
programmes.") ("Custodial staff refers to the
staff whose primary responsibility is the guarding
of all inmates both to prevent escape and to
maintain order in the institution." (Fourth United
Nations Survey, 1993: 41-2).)
About 10% of the custodial staff are
female. There are no data on ethnicity.
(Birkenmayer, 1993).
* Training and qualifications. Correctional
officers must generally obtain community college
or university degrees, which include law and
security courses. They must also participate in
local training programs, consisting of about 6
weeks of class work and on-the job training using
a buddy system (Ontario uses 3 weeks of field
work). In all prisons, training for correctional
officers is an on-going process throughout the
year. The training officer, usually an assistant
or deputy superintendent, conducts drills and
day-long training sessions. (Birkenmayer, 1993).
* Expenditure on prison system. In fiscal year
1990-1991, budget allocations for prisons totaled
$1,766,294,000. (Fourth United Nations Survey,
1993: 45).
3. Prison conditions.
* Remissions. After serving at least one-sixth
of their sentence, federal and provincial inmates
can be released on full or day parole. The
National Parole Board, run under the Ministry of
the Solicitor General, is responsible for granting
parole to all federal inmates. Inmates in
provincial prisons can also be granted parole by
the NPB if no provincially-run parole program is
available. Currently, only the provinces of
Quebec, Ontario, and British Columbia have their
own parole programs. Although the NPB may make
the initial decision about whether to grant
parole, there are separate federal and provincial
correctional services responsible for overseeing
parolees. (Annual Report, 1991; Ekstedt and
Griffith, 1988: 87-88).
The Mandatory Release Program is a federal
program in which inmates who have served 2/3 of
their sentence with good-time behavior are
released into the community but remain under
correctional authority until their time warrant
expires. Although they are accountable to a
parole officer, they are technically not on parole
as there is no parole board (NPB or provincial)
that makes a decision concerning their release.
The parole officer serves as a resource for the
inmate, aiding in obtaining housing and
employment, and helping with personal problems.
(Birkenmayer, 1993).
Temporary Absence programs are used in
provincial prisons and allow inmates to be
released, unsupervised, for a mandated period of
up to 15 days. If they do not return, they are
deemed absent without leave (AWOL). Since
prisoners can be given a back-to-back series of 15
day releases, these programs are sometimes used as
an early release mechanism for provincial
prisoners (avoiding the initial parole process).
Temporary absence is generally granted by the
prison superintendent for humanitarian reasons.
For example, the inmate may be needed to attend to
a family matter or require care that is only
available at a hospital. The program also gives
pre-parolees time to situate themselves with
housing and employment. (Birkenmayer, 1993;
Ekstedt and Griffith, 1988: 83-84).
* Work/education. All correctional facilities
(except jails, where inmates stay up to 90 days)
have opportunities for work inside the prison.
Prisoners can work in an industrial laundry, on
farms, machines, and make license plates, shoes,
and clothes. There are also opportunities,
through temporary absence programs, to work
outside of the prison.
Inmates can also pursue an education and
obtain a degree up to a PhD, although they are
usually released before they finish their
doctorate. Professors typically visit the prison
to teach courses. (Birkenmayer, 1993).
* Amenities/privileges. Most prisons do not allow
conjugal visits, however provincial prisons allow
inmates to be released on a weekend pass for
conjugal visitation. Inmates in both federal and
provincial prisons must compile a list of people
they wish to have visit them in the prison.
Generally, provincial inmates are allowed 2
face-to-face visits a week which take place in
open low- security areas within the prison. Some
minimum security facilities have outside areas
designated for visitation. Federal inmates are
allowed 1 visit per week under high security,
often through glass. (Birkenmayer, 1993).
Offenders in the Northwest Territories are
often placed in a Land Program. This program is
designed to accommodate the hunter-gatherer
culture and lifestyle still prevalent among the
native people of those regions. The inmates,
mostly Eskimo, are allowed to be armed for the
purpose of hunting caribou. The caribou they hunt
provide meat for themselves, their families, and
the community. Spousal and child support is
counted by the number of caribou obtained (they
would otherwise starve if the primary hunter was
incarcerated and not allowed to hunt). The guards
are not armed themselves, but oversee the inmates.
Since the program's establishment in 1990, there
have been no incidents of escapes or violence.
(Birkenmayer, 1993).
EXTRADITION AND TREATIES
* Extradition. Canada has a signed extradition
treaty with the following countries: Albania,
Argentina, Austria, Belgium, Bolivia, Chile,
Columbia, Cuba, Czechoslovakia, Denmark, Ecuador,
Finland, France, Germany, Greece, Guatemala,
Haiti, Hungary, India, Israel, Italy, Liberia,
Lithuania, Luxembourg, Mexico, Monaco,
Netherlands, Nicaragua, Norway, Panama, Paraguay,
Peru, Philippines, Portugal, Romania, Salvador,
San Marino, Spain, Sweden, Switzerland, Thailand,
Togo, Uruguay, United States, Yugoslavia (Serbia)
(Birkenmayer, 1993).
* Exchange and transfer of prisoners. The
Transfer of Offenders Act (1978) allows for the
prison transfer and exchange of Canadian and
foreign offenders to their home country (Ekstedt
and Griffiths, 1988: 423).
Canada has prison transfer agreements with
the following countries: United States, Mexico,
Peru, France, Spain, Sweden, United Kingdom,
Bolivia, Cyprus, Austria, Denmark, Finland,
Greece, Luxembourg, Netherlands, Switzerland,
Turkey, Thailand, Italy, Belgium, Germany, Malta,
Bahamas, Norway, Czech Republic, and Slovak
Republic. (Birkenmayer, 1993).
* Specified conditions. The following Articles
describe some of the requirements of the
extradition treaty signed between Canada and the
U.S. on December 3, 1971 in Washington D.C.
Article 1: "Each Contracting Party agrees to
extradite to the other,...persons found in its
territory who have been charged with, or convicted
of, any of the offenses covered by Article 2 of
the Treaty committed within the territory of the
other, or outside thereof under the conditions
specified in Article 3(3) of this Treaty." (United
States Treaties and Other International
Agreements, 1977: 986).
Article 2: "(1) Persons shall be delivered
up according to the provisions of this Treaty for
any of the offenses listed in the Schedule annexed
to this Treaty, provided these offenses are
punishable by the laws of both Contracting Parties
by a term of imprisonment exceeding one year. (2)
Extradition shall also be granted for attempts to
commit, or conspiracy to commit or being a party
to any of the offenses listed in the annexed
schedule. (United States Treaties and Other
International Agreements, 1977: 986).
Article 6: "When the offense for which
extradition is requested is punishable by death
under the laws of the requesting State and the
laws of the requested State do not permit such
punishment for that offense, extradition may be
refused unless the requesting State provides such
assurances as the requested State considers
sufficient that the death penalty shall not be
imposed, or, if imposed, shall not be executed."
(United States Treaties and Other International
Agreements, 1977: 989).
Article 10: "(1) Extradition shall be granted
only if the evidence be found sufficient,
according to the laws of the place where the
person being sought shall be found, either to
justify his committal for trial if the offense of
which he is accused had been committed in its
territory or to prove that he is the identical
person convicted by the courts of the requesting
State." (United States Treaties and Other
International Agreements, 1977: 991).
Article 11: "(1) In case of urgency a
Contracting Party may apply for the provisional
arrest of the person sought pending the
presentation of the request for extradition
through the diplomatic channel...(3) A person
arrested shall be set at liberty upon the
expiration of forty-five days from the date of his
arrest pursuant to such application if a request
for his extradition accompanied by the documents
specified in Article 9 shall not have been
received." (United States Treaties and Other
International Agreements, 1977: 992).
Article 14: "(2) If a warrant or order for
the extradition of a person sought has been issued
by the competent authority and he is not removed
from the territory of the requested State within
such time as may be prescribed by the laws of that
State, he may be set at liberty and the requested
State may subsequently refuse to extradite that
person for the same offense." (United States
Treaties and Other International Agreements, 1977:
993).
A protocol signed at Ottawa on January 11,
1988 amended the 1971 extradition treaty between
the U.S. and Canada by replacing the scheduled
list of specific crimes with a "dual criminality"
clause. The clause makes any crime which is
punishable by one or more years in prison, in both
the USA and Canada, an extraditable offense.
Parental child abduction became a new offense
subject to extradition under this protocol. In
addition, terrorist acts or crimes associated with
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assault, kidnapping, and specified explosives
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from http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjcan.txt accessed Nov 26 2007
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