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Canada

Historically Canada has been inhabited initially by Asians over 10,000 years ago, then by Vikings around 1000 A.D., and eventually by the French and English beginning in the 15th century. While the English dominated in the United States, the French and English have continued rivalry throughout Canada's history, particularly in Quebec. Victorious in the French and Indian Wars, the British were ceded all of France's possessions East of the Mississippi after the Treaty of Paris in 1763. During and after the American Revolution, loyalists fled to Quebec and Nova Scotia to form the Province of New Brunswick (formerly part of Nova Scotia). The influx of Protestant English from America fueled antagonism between Catholic French Canadians and the Protestant British. As a remedy, the British partitioned Quebec into the mostly British Protestant Upper Canada (to become Ontario) and the predominantly French Catholic Lower Canada (which became Quebec) in the Constitutional Act of 1791. Despite differences, the two Canadas became one province as result of the Act of Union of 1841, and a government for Canada was formed in 1849.

Canada was formed into a federation by the British North American Act in 1867. The federation originally included Ontario, Quebec, Nova Scotia, and New Brunswick, to be joined later by Manitoba, Prince Edward Island, alberta, Saskatchewan, Newfoundland and Labrador. A separatist movement took place in Quebec in 1968, and this was a central issue during the leadership of Pierre Elliot Trudeau as prime minister (1968-1984). Quebec voted in 1980 not to leave the Canadian federation, and the Canada Act of 1982 that granted full independence from Britain was passed during Trudeau's administration. Since Trudeau, leadership and membership in Parliament has swung from conservative to liberal. Brian Mulroney's Progressive Conservatives in 1984 achieved a victory in a landslide, and his administration was successful in leading the way to participation in the North American Free Trade Agreement (NAFTA), signed in 1992. However, recession and high unemployment led to a swing to Liberal leadership in 1993, when Jean Chretien became prime minister, and the conservatives were left with only two seats in Parliament. Chretien and his Liberal party have prevailed through three elections since then, following a policy of fiscal discipline and paying down the national debt.

CRIMINAL CODES

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.

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 1867. 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 infringed upon any of the rights and freedoms guaranteed in the Charter and in the old BNA Act.

Four significant criminal justice acts have been enacted in recent history. 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.. The Narcotic Control Act of 1970 was 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. 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. Finally, the Young Offenders Act of 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 are 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.

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. 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.

Summary offenses are less serious, such as motor-vehicle offenses and creating a disturbance. Sentences can range from fines, up to a maximum of $2,000, probation, or up to to a maximum of 6 months incarceration in a provincial prison. 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. Hybrid or dual offenses can be prosecuted either as summary or indictable offenses, at the decision of the prosecutor.

The Canadian Center 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 of 1985, lists the following drugs 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.

INCIDENCE OF CRIME

The crime rate in Canada is comparable to the United States for property crimes (quite high), but comparatively low for intentional homicide and major assault. However, Canada exceeds the United States in its rate of rape and auto theft. According to the United Nations Sixth Annual Survey on Crime, crime recorded in police statistics shows the crime rate for the grand total of recorded crimes in Canada to be 8705.38, per 100,000 inhabitants in 1997. This compares with 1,506.50 for Japan (country with a low crime rate) and 9,622.10 for USA (country with high crime rate). For intentional homicides, the rate in 1997 was 1.73 for Canada, 0.54 for Japan, and 6.80 for USA. For major assaults, the rate in 1997 was 8.73 for Canada, compared with 382.31 for USA (no data given for Japan). For rapes, the rate in 1997 was 89.19 for Canada, 1.31 for Japan, and 35.93 for USA. For robberies, the rate in 1997 was 97.69 for Canada, 2.23 for Japan, and 186.27 for USA. For automobile theft, the rate in 1997 was 584.85 for Canada, 213.49 for Japan, and 505.99 for USA. The rate of burglaries for 1997 was 1232.61 for Canada, 175.81 for Japan, and 919.35 for USA. The rate for thefts in 1997 was 2583.08 for Canada, compared with 931.65 for Japan and 2893.41 for USA.

TRENDS IN CRIME

Between 1995 and 1997, according to the Sixth Annual Survey, the rate for all recorded crime decreased from 9243.25 to 8705.38 per 100,000 in Canada, a decrease of 5.8 percent. The rate of intentional homicide decreased from 1.82 to 1.73, an decrease of 4.9 percent. The rate for major assaults decreased from 9.33 to 8.73, a decrease of 6.4 percent. The rate of rape decreased from 95.34 to 89.19, a decrease of 6.5 percent. The rate for robberies decreased from 102.42 to 97.69 per 100,000, a decrease of 4.6 percent. The rate for automobile theft increased from 545.99 to 584.85, an increase of 7.1 percent. The rate of burglaries decreased from 1319.55 to 1232.61, an decrease of 6.6 percent. Thefts decreased from 2914.02 to 2583.08, a decrease of 11.3 percent.

LEGAL 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.

In the 1867 Constitution Act, the Canadian Parliament was given exclusive jurisdiction to pass criminal laws and legislate rules for criminal procedures. 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.

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.

The Canadian legal system emerges from two traditions: Roman law and English common law. The English common law came to Canada via the English settlers and was even partially introduced into Quebec through the Conquest in 1763. Today, civil law in Quebec is based on the Code Civil du Quebec that is derived from the French code Napoleon; whereas in the other Canadian provinces, civil law is based on the English common law.

POLICE

Police forces are generally divided into provincial, municipal, and federal units. 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.

Municipal police forces have jurisdiction over the most heavily populated areas, utilize the largest amount of police resources, and are comprised of city, village, county, and township police forces. 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. Police services can be contracted out on the municipal level as well. Various cities and towns may contract the provincial police or the RCMP, which acts as provincial police in eight provinces, in lieu of establishing their own municipal police. Provincial policing is largely decentralized.

COURTS

The law provides for an independent judiciary, and the Government generally respects this provision in practice. The judiciary provides citizens with a fair and efficient judicial process and vigorously enforces the right to a fair trial. The court system is divided into federal and provincial courts, which handle both civil and criminal matters. The highest federal court is the Supreme Court, which exercises general appellate jurisdiction and advises on constitutional matters.

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. Generally, the hierarchy of courts can be listed 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); and Courts for Summary Offenses, Municipal Offenses, Provincial Offenses, and Traffic Offenses(Summary Trials). 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. The Superior Court of Criminal Jurisdiction has jurisdiction to try all indictable offenses and, in criminal cases, usually sits with a jury. It is the discretion of the trial judge to pass sentence, for certain offenses, the judge may be limited by the maximum, minimum, or fixed penalty provided under statute. When imposing sentences, judges refer to the principle "justice must always be tempered with mercy," for guidance.

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.

CORRECTIONS

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 two or more years imprisonment are eventually transferred to federal penitentiaries, while offenders with a sentence of two years-less one day are held in the provincial prisons.

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. Correctional programs are administered through line ministries or departments. Each government has a ministry or department that is responsible for correctional service administration. 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 correctional facilities are used primarily as minimum security lock up facilities.

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. Although the two systems may interact through exchange of service agreements. Federal offenders, who serve an average of three years, can serve time in provincial institutions and are processed through exchange of service agreements which are entered into primarily for programming reasons. There are no private prisons. Private halfway houses or group homes are available to provide inmates access to community resources and programs that would not be available under a government facility.

WOMEN

The law prohibits violence against women, including spousal abuse; however, it remained a problem. The Government's publication on family violence statistics for 1999 indicated that an estimated 8 percent of women (and 7 percent of men) who were married or living in a common-law relationship during the previous 5-year period experienced some type of violence committed by their partner on at least one occasion. The economic costs of violence against women are estimated to be $2.7 billion (Can $4.2 billion). Services available to abused women have decreased significantly over the past 2 decades, and there were 508 shelters for abused women across the country in 2000.

A total of 24,049 cases of sexual assault were reported in 2000, an increase of 177 cases from 1999. The courts consider such cases seriously and those convicted of sexual assault face up to 10 years in prison. Cases involving weapons, threats, wounding, or endangerment of life carry longer sentences, up to life imprisonment.

Prostitution is legal, but pimping and operating, being found in, or working in a brothel are not. Living (wholly or partially) on the earnings of prostitution of others is illegal. Communicating in public for the purpose of prostitution (solicitation) is also illegal, but is considered a lesser offense than the other offenses related to prostitution.

Women were trafficked for purposes of sexual exploitation.

The Criminal Code prohibits criminal harassment (stalking) and makes it punishable by imprisonment for up to 5 years. The law prohibits sexual harassment, and the Government generally enforces this provision. Women continue to complain of harassment in the armed forces, and the Government has established mechanisms to try to resolve complaints.

Women are well represented in the labor force, including business and the professions. Employment equity laws and regulations cover federal employees in all but the security and defense services. Women have marriage and property rights equal to those of men. Women head over 85 percent of single-parent households.

TRAFFICKING IN PEOPLE

The law does not prohibit trafficking in persons, although the Government prosecutes such offenses as violations of immigration policies; trafficking in women and children is a problem. The country is primarily a transit and destination point for trafficking in persons into sexual exploitation and involuntary servitude. There are no overall estimates as to the extent of the problem. There have been several widely reported cases of smuggling and trafficking, including hundreds of Chinese who arrived illegally by ship in British Columbia during the summer of 1999. There are reports that Honduran boys were trafficked to Canada for the purpose of drug trafficking. There are also reports that Mexican and Haitian men and women are trafficked to Canada.

Vancouver and Toronto serve as hubs for organized crime groups that traffic in persons, including trafficking for prostitution. East Asian crime groups have targeted Canada, and Vancouver in particular, because of lax immigration laws, benefits available to immigrants, and the proximity to the U.S. border.

Thousands of persons, including at least 15,000 Chinese, have entered Canada illegally over the last decade. These persons come primarily from East Asia (especially China and Korea; also Malaysia), Eastern Europe, Russia, Latin America (including Mexico, Honduras, and Haiti), and South Africa. Many of these illegal immigrants have paid large sums to be smuggled to the country and are indentured to their traffickers upon arrival. Almost all work at lower than minimum wage and use most of their salaries to pay down their debt at usurious interest rates. The traffickers use violence to ensure that their clients pay and that they do not inform the police. Asian women and girls who are smuggled into Canada often are forced into prostitution. Traffickers use intimidation and violence, as well as the illegal immigrants' inability to speak English, to keep these victims from running away or informing the police.

Parliament passed the Government's proposed Immigration Act and the Governor General signed it into law in November 2000. Part three of the act contains a section on Human Smuggling and Trafficking, which makes such action an offense punishable by fine or imprisonment, but this section of the act had not entered into force at year's end. The Government investigates and prosecutes cases of trafficking; however, law enforcement efforts directed at trafficking remain limited because trafficking is not yet a criminal offense. The RCMP does charge traffickers for violating a variety of other statutes when its investigations turn up instances of trafficking. In Toronto a combined federal and local task force (Operation Almonzo), which includes Toronto police, the RCMP, immigration officials, and social services groups, specifically is devoted to investigating the trafficking of women into sexual exploitation.

DRUG TRAFFICKING

Canada is an illicit producer of cannabis for the domestic drug market. The use of hydroponics technology permits growers to plant large quantities of high-quality marijuana indoors. Canada also serves as a transit point for heroin and cocaine entering the US market.


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Dr. Robert Winslow
rwinslow@mail.sdsu.edu
San Diego State University