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
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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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