Emma Cunliffe

This thesis examines the implementation of trial by jury in Argentina as an encouraging example of a successful transplant. It further considers how jury implementation became a powerful instrument to transform justice. The transplanted Anglo-American jury model to a civil law country with a rooted inquisitorial heritage – one that has been slowly transitioning to adversarial procedures for over three decades – represented a major enterprise. Through literature review, case law analysis and the study of local jury laws, this thesis tracks the history of a legal reform whose path has been affected by military governments, economic crises, and socio-political events. It also examines the characteristics of Argentine legal culture, including the dominant burden of the inquisitorial heritage from Continental Europe. The thesis explains that Argentina’s National Constitution was inspired by the United States Constitution -and has guaranteed the right to trial by jury since 1853- and yet jury trials were only implemented in Argentina in the 21st century. It argues that the transplant of the jury represents the culmination of a series of reforms that started more than 30 years ago. Through the analysis of case law, and study data collected in surveys conducted by other groups in two Argentine provinces, the thesis concludes that a more accountable, open and legitimate judiciary has been advanced by the implementation of a justice system with lay participation. These sources also help to explain why the imported system was adapted to fit local needs. The implementation of equal gender composition of the jury panel and the adoption of a rule regarding Indigenous representation are examples of innovation and adaptation of foreign rules to the local culture. Finally, beyond its domestic significance the thesis also argues that this transplant conveys an important message that surpasses the Argentine borders. At a time when the use of jurors is in decline in many common-law jurisdictions, the Argentine jury puts lay participation into a place of prominence. It works as a reminder of the significance of the benefits of this form of justice.

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Criminalized Aboriginal women continue to be overrepresented in Canadian prisons. Research demonstrates they often have extensive experiences of victimization. This thesis explores how judges navigate these issues on sentencing, primarily by examining discourses about victimization in selected judgments. This author identified and reviewed 91 decisions sentencing Aboriginal women offenders, focusing those dealing with conditional sentences where possible. This author uses the feminist theory of the victimization-criminalization continuum to inform her thesis. Parliament attempted to respond to the overincarceration of Aboriginal peoples in 1996 with the enactment of amendments to the sentencing regime: s. 718.2(e) requires judges to consider alternatives to imprisonment for Aboriginal offenders where appropriate, and s. 742.1 offers one such alternative through the conditional sentence order. In R. v. Gladue, the Supreme Court of Canada directed how judges are to engage in the sentencing analysis for Aboriginal offenders. In 2012, the Court offered further clarification on this direction in R. v. Ipeelee. This is the context for this thesis. The histories of victimization of criminalized Aboriginal women being sentenced generally overlap with factors that comprise the Gladue analysis, and are interrelated. However, this author suggests that the focuses of the victimization-criminalization continuum and the Gladue analysis differ: the victimization-criminalization continuum most directly focuses on gendered vulnerabilities and reactions to victimization, whereas the Gladue analysis most directly focuses on reverberations of colonization (and how that should impact sentencing). This author uses various judgments to examine the overlap between these analyses, highlighting decisions that successfully integrate gendered understandings of victimization histories within the Gladue analysis, and those demonstrating more decontextualized reasoning.This author then discusses how judicial discourses about victimization intersect with discourses about rehabilitation and treatment. This author suggests associated problems that appear at this intersection – particularly where imprisonment is regarded as a place of healing (despite documented deleterious effects of incarceration).Finally, this author argues that recent incursions into the conditional sentencing regime through amendments to the Criminal Code that restrict its availability (first through the passage of Bill C-9 and then Bill C-10) are problematic for criminalized Aboriginal women who may otherwise be sent to prison.

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Aboriginal women are dramatically over-represented within Canada’s prison population, accounting for 41% of the women in sentenced custody, while constituting but 4% of the country’s female population. Moreover, their rates of over-incarceration have risen dramatically over the course of the last decade, and show no signs of slowing down. Nevertheless, the over-incarceration of Indigenous women in Canada (as distinct from Aboriginal over-incarceration more generally) has been understudied. This has left a significant gap in the academic understanding of how and why Aboriginal women experience such disproportionate rates of incarceration. There is equally a dearth of research on the subject of what criminalized Indigenous women themselves have to say about their experiences within the criminal justice system and the factors underlying their criminalization. Based on a qualitative research study undertaken with ten previously-incarcerated Aboriginal women, this thesis tells the stories of how Indigenous Canadian women can be brought into conflict with the criminal justice system, and of how the system in turn responds to the factors underlying their criminalization. After surveying the existing studies and analyses that have been undertaken on the subject of Indigenous women’s over-incarceration in Canada, this author relays the stories of the ten women who participated in her research project, focussing on the factors that brought them into conflict with the law and their experiences of incarceration. This author then analyses the lived experiences of the research participants, identifying themes and patterns in their narratives. Drawing connections to existing research and identifying gaps in the literature, this author explores the participants’ experiences within various facets of the Canadian criminal justice system, including in penitentiaries, provincial prisons, remand centres, healing lodges, parole offices, and in their relationships with their own lawyers. This thesis argues that the participants’ experiences illustrate the inadequacy of many of the criminal justice interventions that have been developed with the aim of reducing Aboriginal over-incarceration in Canada. This thesis concludes with a summary of the research project’s findings and its limitations, followed by a discussion of the impact that recent criminal justice reforms are likely to have on the over-incarceration experienced by Aboriginal Canadians.

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Moral ordering is fundamental to Canada’s criminal law and justice systems, and is most explicitly encountered in post-conviction sentencing proceedings. Beginning with the premise that the law’s order is founded upon both ‘universal’ wrongs and ‘individualized’ responses, this thesis considers some of the problems and opportunities that guilty plea-based resolution processes pose for the moral ordering that criminal courts are convened to undertake.Chapter One conceptualizes sentencing hearings as formal occasions for the expressive discernment and application of moral values. ‘Proportionality’, or the gravity of an offence and the degree of responsibility borne by an offender, is the guiding principle by which courts undertake this gauging. This chapter also considers how an offender’s normative orientation towards their criminal conduct (commonly expressed as remorse) informs sentencing hearings’ function as forums of moral enquiry and ordering. Chapter Two confronts some of the practical difficulties in plea and sentencing proceedings that inhibit and distort the moral ordering that the law aspires towards. The formation and use of guilty pleas, as the dominant means by which criminal charges are formally resolved, are examined for their capacity to open or constrict avenues of moral communication. Other mechanisms, such as the statutory-based tools of offender allocution and victim impact statements, are also assessed as means by which sentencing courts are able to act as forums of informed, dialogic moral ordering. Chapter Two also considers the influence that professional legal actors have in shaping and mediating the experience of lay participants in these forums. Chapters Three and Four present empirical research into how the law’s concern for moral ordering operates in sentencing courts, with particular regard to the engagement of offenders. Eleven justice system professionals, mostly lawyers, were asked for their perspectives and experiences, and observations of four provincial courts in British Columbia were conducted to analyze a court’s “moral speech”. It was observed that while a language of moral ordering could be heard in a majority of sentencing hearings, its expression flourished in contexts that afforded focus on an offender’s full circumstances, thus drawing upon both individual voices and shared values.

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