Law and Public Policy

D11(a) - The Politics of Criminal Trials

Date: Jun 4 | Time: 10:15am to 11:45am | Location:

Chair/Président/Présidente : Matt Hennigar (Brock University)

Discussant/Commentateur/Commentatrice : Matt Hennigar (Brock University)

“We Are Not Talking About a Rodney King Situation”: Breaching the Public Trust and Sentencing Canadian Police Officers: Danielle McNabb (Brock University), Kate Puddister (University of Guelph)
Abstract: When a police officer commits a criminal offence or engages in misconduct, it not only violates the law and professional standards, but it also violates the public’s trust. The importance of public trust is recognized through the criminal offence of “breach of trust by a public officer”. Responding to cases of police misconduct and criminality are challenging for the justice system because they often arise out of routine police work-- investigation and arrest of those suspected of criminal activity. As a result, the conduct and credibility of the police officer – whether it constitutes criminality or professional misconduct – is weighed against the actions of the person being investigated or arrested. These tensions are brought to the fore when sentencing police officers because judges must consider how being a police officer impacts proportionality and the punishment imposed. We examine a relatively unknown aspect of police oversight and accountability – the sentencing of police officers. Through a qualitative and quantitative content analysis of over twenty years of sentencing decisions of Canadian police officers convicted of breach of trust, we explore how judges engage with questions regarding public trust, legitimacy, and oversight of police officers and how this impacts the sanctions imposed. With particular attention paid to the aggravating/mitigating sentencing calculus, we also examine how courts consider the credibility of the police officer as an offender compared to that of the complainant or victim, including whether the victim’s criminal activity and characteristics impact sentencing.

A Victim-Centred Approach: Evaluating Policy Implementation in Sexual Assault Trials: Shauna Hughey (McMaster University), Andrea Lawlor (McMaster University), Sidra Hashmi (Queen's University)
Abstract: In R. v. J.A. (2011), the Supreme Court of Canada ruled on the former definition of consent outlined in the Criminal Code. Parliament responded to this decision in 2017 by introducing Bill C-51 to introduce a definition of consent which includes the ‘conscious mind’ of the victim while outlawing advance consent (Koshan, 2017). This policy primarily responds to J.A. and other prominent Supreme Court cases, but it has been criticized for potential implementation issues for judicial actors in the lower courts (McNabb & Baker, 2021). There is limited research assessing the effectiveness and implementation of sexual assault policies. This paper presents findings from a content analysis of 524 Canadian sexual assault cases dated between 2011 and 2023. Findings primarily demonstrate the policy is effective, given that the majority of cases resulted in convictions and judges often challenged longstanding stereotypes, such as accepting evidence from complainants who were intoxicated at the time of the incident. However, the analysis also demonstrates some discrepancies between law and judicial practice, whereby some cases went against policy. In using Canada as a case study, this paper effectively analyzes the outcomes of policy changes and findings can be used to inform the implementation of consent law at the trial level. This study provides a relevant contribution in understanding the substantive impacts for victims in the implementation of updated consent laws. Further, this paper provides a contribution to the theoretical understanding between policy and judicial practice when there is an incongruence between federal institutions.

Comparing Policy and Practice in Canadian Trial Courts: Indigenous Sentencing and Community Justice: Emma Gill-Alderson (University of Toronto), Andrea Olive (University of Toronto)
Abstract: Indigenous overincarceration and justice discrimination has been well documented in Canada since the 1980s, and there have been many policies implemented to address these problems, including training to reduce discriminatory treatment in the courts and in custody, and the consideration of an offender’s Indigenous status in sentencing. As rates of Indigenous incarceration have continued to rise despite these targeted policies, it is not surprising that the 2015 Truth and Reconciliation Commission reiterated the need for alternatives to imprisonment for Indigenous accused. There is an urgent need to understand why, despite the development of policies aimed at this issue, has the severity of Indigenous overincarceration continued to rise. My paper analyzes the role of trial court judges and Crown prosecutors in determining how innovative policy is applied in the sentencing of Indigenous accused. In particular, I examine the up-take (or lack thereof) of community justice options in sentencing using data from interviews in three case study communities in Ontario and comparing them to written policy and guidelines surrounding Indigenous sentencing and community justice. My framework explores the role of trial court actors as street-level bureaucrats who directly impact Indigenous sentencing policy outputs at the granular level. I find that the consistent use of community justice options depends on three key factors: the development of strong interpersonal relationships between court actors and community justice workers; the development of institutional relationships between courts and community justice programs, and the presence of institutionalized supports for sentencing alternatives in the courts. This paper tells a story about the disjoint between written and applied policy in the context of Indigenous justice reform, and more broadly, about the success and failure of concrete policy-based reconciliation efforts in Canada.

Discrepancies in Evidence Exclusion: Understanding Variations Across Courts of Appeal: Lori Hausegger (Boise State University), Danielle McNabb (Brock University), Troy Riddell (University of Guelph)
Abstract: One of the benefits of a democratic society is the protection of rights. And courts are an institution instrumental in this protection. In this project we hold the institution type (provincial courts of appeal) and judicial selection methods (appointed by the federal government) constant, and attempt to determine how rights protections differ and what factors are influencing the differences. In doing so we focus on the rights of criminal defendants and the exclusion of evidence. Section 24(2) of the Charter of Rights and Freedoms states that judges should exclude evidence if its admission would “bring the administration of justice into disrepute.” This raises the question of what meets the bar of “disrepute” and allows for the possibility of differences across judges and courts. Using data from provincial courts of appeal, our paper explores hierarchical relationships amongst courts—how and to what degree are provincial courts of appeal following guidance from the Supreme Court of Canada about how to apply the exclusionary rule in s.24(2)? We investigate whether judicial discretion to exclude evidence is mediated by differences across provinces so that the rate of exclusion varies regionally. We then attempt to determine which factors are significant in explaining these regional differences. In exploring our questions, the paper controls for such judicial characteristics as ideology, gender, and professional background. Our findings, based on quantitative analysis of coded s.24(2) decisions, supplemented by qualitative examples from cases, will be placed in the broader context of judicial decision-making and the protection of rights.