Criminal law & procedure

For my first subject-specific post, I’ve chosen to talk about teaching criminal law to first year students.

This coming year, I’ll be using Roach et al Criminal Law & Procedure (11th ed) for the first time – in the past, I have used custom materials that were first prepared by Isabel Grant but have more recently been kept up to date by Christine Boyle, Janine Benedet and myself.  There are trade offs to both choices.

I like very much that the Roach casebook foregrounds the troubled relationship between the Canadian criminal legal system and Indigenous people, in part through its extended use of the Donald Marshall Jr wrongful conviction as a case study (ch 4).  Prof Roach is coming to speak to our students about Marshall in October.  But I’d like to make sure that they are introduced to some of the difficult issues before then.  In September, I will ask them to read the extracts from the Report of the Aboriginal Justice Inquiry of Manitoba and from Dr Mary Ellen Turpel (LaFond)’s 1993 paper ‘On the Question of Adapting the Canadian Criminal Justice System for Aboriginal People’s: Don’t Fence Me In’ (both contained in chapter 4 of Roach et al).  Alongside these texts, I will set pages 211 – 215 and 217 – 228 of the Summary of the Truth and Reconciliation Commission Report (http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_Summary_2015_05_31_web_o.pdf).

I considered inviting students to read an extract from Jane McMillan’s excellent recent article on the Marshall Inquiry: L Jane McMillan, ‘Still Seeking Justice: The Marshall Inquiry Narratives’ (2014) 47:3 UBC Law Review 927 – 991 (http://ubclawreview.ca/issues/volume-473/l-jane-mcmillan-still-seeking-justice-the-marshall-inquiry-narratives/), but I think that the sheer amount of reading and the complexity of the issues risks overwhelming students who will still be in their first month of law school.  Ditto Sherene Razack’s piece, ‘Gendered Racial Violence and Spacialized Justice’ from Razack’s edited collection Race, Space and the Law (a copy is online here: http://web.uvic.ca/~ayh/104%20Razack%20WS104.PDF).  But both are excellent resources and worth mentioning to students who are interested in pursuing these questions.  As I will post in a future update, I use the Razack chapter in my jurisprudence course.

One challenge I have experienced in teaching classes regarding Indigenous people and the criminal legal system is that our students vary widely in their past exposure to and understanding of Canada’s colonial history and present, and the impact of that history and present on Indigenous people.  The TRC Summary offers a very helpful resource for students who have less understanding of this history.  My plan for these classes will be to take things slowly and to adopt Tracey Lindberg’s extremely helpful principles for pedagogy when teaching students who are encountering Indigenous perspectives and Indigenous culture for the first time (http://www.cbc.ca/radio/q/post-show-notes-shad-s-week-seven-highlights-1.3106456).  In fact, I will post these principles (with due credit, of course!) into my syllabus and invite students to discuss them early in the term.  I would appreciate hearing from others about how you handle this challenge, and whether you have resources you can share to help with this.

The Canadian criminal legal system is and has historically been a source of enormous harm to Indigenous Canadians.  I find it difficult to teach classes about Indigenous encounters with the Canadian criminal law because I want to:

a.  ensure students have a sense of the magnitude of over-representation of Indigenous Canadians in most aspects of the criminal legal system (as victims, in prisons, as children, as women, …) and the relative under-representation of Indigenous Canadians as judges and lawyers (and, Kokepenace reminds me, as jurors); but also

b.  resist reinforcing pejorative stereotypes of Indigenous people as leading disordered lives of addiction and violence.

I think the TRC will help me do this, but I am interested to hear ideas from others about how to walk this line.

I will seek to return to the principles introduced in these classes throughout the year.

Towards the end of the year, we reach a module on sentencing. Gladue and Ipeelee present teaching challenges of their own, as does the increasing reliance on mandatory minimum sentences and the restrictions on conditional sentences.  I will put up a separate post on these issues.

Advertisements

4 thoughts on “Criminal law & procedure

  1. Ok, disregard my cryptic response above! What I meant to post was a thank you to Emma for these great ideas. I haven’t taught Criminal Law for a number of years and I miss it. I do teach an upper year Sentencing & Penal Policy seminar these days in which I start with the sanction of imprisonment, providing an introduction to the reality of incarceration in Canada which is decidedly different from the abstract notions of “deprivations of liberty” that infuse the substantive criminal law and sentencing. (This material includes excerpts from the Fifth Estate doc on Ashley Smith, accounts of imprisonment, solitary confinement, and some of the gendered and racialized inequalities in our systems of punishment, as well as some context on criminal justice policy in Canada an the increasingly reliance on imprisonment). I want to ground all of our discussions in that lived reality – and all the harm and violence of incarceration – so that hopefully students will be reflective as scholars and practitioners of criminal law – that they will be cognizant of what is at stake and what the state does to people in the name of all the objectives of the criminal law, the abstract principles of sentencing (rehabilitation, deterrence, etc.). I want them to ask questions about the ability of the criminal law to deliver on its promises/achieve its objectives, given how much we rely on imprisonment to be that vehicle of delivery. Not just to be critics of imprisonment (and, of course, they are free to be unpersuaded that it is a failed institution) but to connect that reality to the doctrine and practice of criminal law.

    When I teach Criminal Law again, my plan is to do something similar. I used to always teach the Donald Marshall Jr. wrongful conviction and some of the finding of the MB Aboriginal Justice Inquiry in the first few classes of Criminal Law to contextualize what comes later. I want to think more about how to incorporate this material, as well as ideas from Emma’s post above, and some material on incarceration, into those first few classes, and to weave it into subsequent topic discussions in the course, including of substantive criminal law doctrines like mens rea, etc.

    Liked by 2 people

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s