This thesis examines in detail the provisions of the Criminal Justice Act 1991 which allow for the incapacitation of the 'dangerous' offender. Incapacitation has been used as an example of a growing trend in criminal justice towards viewing crime in terms of risk. This risk discourse points to the use of actuarial practices and insurance techniques in this field, with a resultant 'abstraction' of the traditional view of crime as a moral wrong. The technologies of risk assessment are central to the very power of the discourse, it has been argued that these techniques further increase the effectiveness of control and that they are a response to a growing preoccupation in society with security. It is argued that risk is, in a sense, pre-political in that as risk takes hold, overtly political responses to crime become more difficult. Given that incapacitation has been used as an example of crime as risk, this thesis takes the form of a micro-study of the above incapacitatory legislation. It assesses the degree to which this legislation can be seen to be a part of the risk discourse. It is argued that on a general level the legislation does fit within the risk model, seeking to incapacitate 'bad risks'. However, it is argued that as the legislation has been conceived, formulated and employed, it does not make use of the actuarial techniques of risk assessment - seen as so central to 'internal dynamic' of the risk discourse - to a significant extent. Rather, it is argued that the legislation embodies a politically motivated appeal to the idea of risk rather than to risk assessment itself. It is concluded that this use of risk - once shed of its attendant technologies - far from making political responses more difficult, sits well with punitive responses demanded by a government of the right.

This thesis examines the conditions under which a defense of religious freedom can be successfully argued before the courts. It is acknowledged that freedom of religion has long existed in Canada but the defense of religious freedom in criminal prosecutions has not often been accepted by the Canadian Courts. The author thinks that the Canadian Charter of Rights and Freedoms puts the defense of religious freedom in a more favourable position by making it possible for Canadian judges to proceed to a balancing test that up to now they have been reluctant to use. Besides the question of the balancing test, various problems revolve around the defense of religious freedom in criminal prosecutions. The first section examines the social and historical context of religious freedom in Canada. The second section is located in a more legal perspective. A survey of the Canadian cases is made in order to comprehend the answers that Canadian judges have given in the criminal prosecutions where the defense of religious freedom was raised. In looking at the Canadian decisions on that issue, four basic problems call for solutions. The following sections deal respectively with those questions. Section 3 raises the issue of the definition of religion and religious activities. Section 4 points out a new understanding of the concept of infringement. In Section 5, the notion of balancing test is examined in light of American decisions and its application to the defense of religious freedom is considered. Finally, the necessity of a theory justifying the defense of religious freedom is explored in Section 6. In conclusion, this study stresses the impact the Charter will have upon the acceptance of the defense of religious freedom by Canadian courts. To the problems that have been identified, the author proposes some solutions, bearing in mind that the future of the defense of religious freedom in Canada depends on whether or not Canadian judges will consider that the Charter has introduced a new era in the exercise of fundamental freedoms in Canada. / Law, Peter A. Allard School of / Graduate

This thesis examines in detail the provisions of the Criminal Justice Act 1991 which allow for the incapacitation of the 'dangerous' offender. Incapacitation has been used as an example of a growing trend in criminal justice towards viewing crime in terms of risk. This risk discourse points to the use of actuarial practices and insurance techniques in this field, with a resultant 'abstraction' of the traditional view of crime as a moral wrong. The technologies of risk assessment are central to the very power of the discourse, it has been argued that these techniques further increase the effectiveness of control and that they are a response to a growing preoccupation in society with security. It is argued that risk is, in a sense, pre-political in that as risk takes hold, overtly political responses to crime become more difficult. Given that incapacitation has been used as an example of crime as risk, this thesis takes the form of a micro-study of the above incapacitatory legislation. It assesses the degree to which this legislation can be seen to be a part of the risk discourse. It is argued that on a general level the legislation does fit within the risk model, seeking to incapacitate 'bad risks'. However, it is argued that as the legislation has been conceived, formulated and employed, it does not make use of the actuarial techniques of risk assessment - seen as so central to 'internal dynamic' of the risk discourse - to a significant extent. Rather, it is argued that the legislation embodies a politically motivated appeal to the idea of risk rather than to risk assessment itself. It is concluded that this use of risk - once shed of its attendant technologies - far from making political responses more difficult, sits well with punitive responses demanded by a government of the right. / Law, Peter A. Allard School of / Graduate

In an effort to establish a clearer understanding of the sentencing of sexual assault offenders, this study analyzes data generated from a content analysis of sexual assault cases, using feminist theory as a backdrop for the analysis. The sample consists of ninety-seven sexual assault cases from across Canada for the period of August 15, 1992 through August 15, 1993. Using a statistical analysis, the data were analyzed for evidence of whether certain factors aggravated or mitigated sentence length. The findings indicate that factors not affecting sentence length include breach of trust, sex of the judge, sex of the complainant, plea and show of remorse. Factors that work to mitigate sentence length include the youth or old age of an offender. Finally, variables that, when present, aggravate an offender's sentence length are prior offences, force, sexual intercourse and psychiatric considerations. These findings indicate that while there has been some response to feminist concerns regarding criminal justice processing of sexual assault, some of the myths that have been traditionally associated with its victims and offenders are still influencing the judiciary.

No description available.

This thesis examines the amendments to Canada's Criminal Code which target the proceeds of crime by, inter alia, criminalizing money laundering and enabling the confiscation of assets. The amendments represent the central thrust of Canada's contribution in a global effort to stem the traffic in illicit drugs, Canada belatedly following the lead of the United States, Great Britain and Australia. In the thesis, I argue that the amendments go much further than earlier crime control initiatives and represent a paradigmatic shift from the traditional, single transaction, individual-oriented structure of criminal law to one which is both property-driven and premised upon multiple-transactions perpetrated by criminal organizations. The amendments focus on the proceeds of crime, as opposed to the offender, individual or corporate, their avowed purpose being to neutralize criminal organizations rather than punish offenders. The effectiveness of the amendments is inexorably tied to the speed by which criminal proceeds can be seized or restrained and thus they operate prospectively, in anticipation of a later conviction. In order to accomplish their objectives, the amendments draw upon concepts previously the preserve of the private law of contract and tort, introducing some which are foreign to the classic norms and traditions of criminal law and sentencing, both substantive and procedural. The thesis examines the amendments from both a textual and a Charter perspective. In so doing, considerable emphasis is accorded the presumption of innocence, a strong legitimating force in criminal law. Integral to the presumption is the Crown's burden of proof - beyond a reasonable doubt. The legislation's adoption of the civil balance of probabilities test is, therefore, considered its weakest link. Other aspects of the legislation give rise to interpretive and Charter challenges. The thesis also discusses the need for tracing mechanisms, mandatory financial transaction reporting, the development of a strike force approach to implementation and a sharing of proceeds by law enforcement agencies. Further, the thesis decries any use of the legislation as a tool for plea bargaining or to target petty criminals. / Law, Peter A. Allard School of / Graduate

Mémoire numérisé par la Direction des bibliothèques de l'Université de Montréal.

Mémoire numérisé par la Direction des bibliothèques de l'Université de Montréal.