Introduction


The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. … But certainty generally is illusion. ... Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions.

Oliver Wendell Holmes Jnr


This course is a course about "criminal justice." Its aim is to cover both theoretical, institutional, substantive and procedural aspects of criminal justice with an emphasis on Canada, adopting a transystemic approach. Canadian criminal law is mostly common law, but its codification, the rise of the Charter and the influence of international law mean that it can no longer be studied in isolation. A comparative lens is meant to shed light not so much on other judicial systems as such but, through them, on Canadian criminal justice itself. It is in understanding what is specific about Canadian criminal justice that you will be led to problematize it and see some of the outcomes it has arrived at as only some among many possible other outcomes.

This is also a first year course, one that will include a range of general elements about the law, and not only legal technique. This background will serve you well on the long run in order to understand what overall system you are asked to be a participant of. The course also addresses you in the various guises and roles that you will occupy. Statistically, it is a fact that the vast majority of you will not practice criminal law, but that does not mean that the criminal law may not have a considerable impact on what you do indirectly. Indeed, the point of the criminal law is often that it outlines the fundamental boundaries of what is acceptable, and that much legal activity occurs in that bounded space. Although it may be fairly clear to most people what murder is, you may be called upon, for example, to advise on the propriety of complex financial transactions where it is not that clear that they may run afoul of the criminal law. Moreover, although many of you will practice law, these days this could mean many things beyond litigating in court. You could be an adviser to a minister, a corporate legal counsel, work for an NGO or an international organization, advise a foreign country on legal reform, etc. It is important to have an idea of these different possible roles, and the course will endeavor to put you in different "situations."

There are three things that one can surmise from a short title such as "criminal justice." First the course is about a form of justice rather than only about a branch of the law. The course will certainly feature plenty of criminal law, given that criminal justice is heavily mediated by the criminal law. Nonetheless, the suggestion is that criminal justice is not reducible to the criminal law, that there is a dimension of justice that is more than the sum of applicable rules, or at least has much to do with their social and institutional context. In fact, the suggestion may even be that focusing too much on the law will distract you from the overall justice issue. For example, you could focus only on Supreme Court judgments (as many criminal law courses traditionally did), and not think that anything was particularly amiss about the criminal justice system.

Justice, in turn, can be understood in two quite distinct ways: in the institutional sense of the totality of actors and institutions devoted to the administration of the criminal law on the one hand; and as an ideal of fair treatment on the other hand. This course will discuss both, because they are interrelated. As to the former, the effort will be to move beyond (i) rules by focusing on principles seen in a transystemic fashion (ii) doctrine by also looking at the "law in action", (iii) the gravest offences (e.g.: murder) as opposed to the myriad of areas in which the criminal law affects the day-to-day life of citizens, (iv) the trial as opposed to what comes before (policing) and after (the administration of penalties), and (v) Supreme Courts as opposed to lower courts. As to the actual justice, the course will also discuss how "criminal justice" as an institution can be unjust - or at least not readily assume that simply because something calls itself justice it has any a priori claim to our recognition as something just. 

Second the course is about a particular form of justice - justice of the criminal kind - that does not offer a comprehensive theory of the just, but merely a theory of, as it were, its own justice. Criminal justice is a rather minimal justice that hardly exhausts our appetite for justice more generally, even as it is also crucially connected to the broader pursuit of justice: for example criminal justice is extremely significant for social justice. Because the criminal law is the body of law that potentially has the most dramatic consequences on individuals, it is constantly called upon to show both how it is just in certain cases, and how it is just in and of itself. This then begs the question of what is specific about criminal justice that one does not find in other forms of justice, and how it can be best defended. In many ways the nature of criminal justice is constituted in opposition - but also, therefore, in a dependency to- other forms of justice: civil, distributive, etc. We will try to understand criminal justice as sui generis but also powerfully connected to various constitutional, international and human rights norms.

Third, the course is about criminal justice tout court, and therefore not exclusively about the Canadian criminal justice system. Although most examples and cases will be taken from Canada, there will be a particular effort to contextualize Canadian criminal justice within broader trends. Indeed, criminal justice has become, remarkably, a global phenomenon in which, in addition, jurisdictions borrow from each other. Understanding the Canadian criminal justice system not only in its own terms but as part of a global and transnational process to forge the most just and effective criminal justice system is crucial. The emphasis on the Canadian criminal justice system is thus in part simply due recognition of the fact that the course is taught in Montreal, Québec, Canada, North America, and the West, within a settler and multicultural society marked by the collision of several legal traditions. But it is also a recognition of the fact that the Canadian criminal justice system is itself a byproduct of several legal traditions. Although over time some of these traditions have come to dominate (for example, Canadian criminal law clearly falls mostly within the common law family), the resulting model continues to be haunted by other traditions and approaches. For example, Canadian criminal law is involved in an ongoing dialogue with various alternatives to Western criminal justice, particularly those emanating from First Nations; the codification of Canadian criminal law is in part a result of the influence of the Napoleonic model; and the common law itself is a broad family evolving intellectual and judicial exchanges over the course of centuries. Finally, international law increasingly constraints the development of domestic criminal justice systems.

The course, in short, will not only be about answering the question "what rules apply in Canada here and now" but ask the question: "what are the rules applicable in Canada a deeper reflection of" and how can one understand them as being in conversation with a myriad of other rules to be found in other local or supranational sites?" 

Note: this course replaces what used to be the "Criminal law" and "Criminal procedure" courses as part of the curriculum reform implemented in 2016-2017. The idea was not to simply teach these courses back to back under a new heading, but rather to adopt a broader take on "criminal justice" that includes elements of substantive and procedural law, as well as an attention to broader institutional and policy issues, and a strong transystemic theoretical background. You may elect to take more specialized criminal law courses in upper years.

Preparation:



Introduction