Doctor of Philosophy in Law (PhD)
Reconciling Democracy and Technocracy in the Age of Courtroom Neuroscience
She is amazing! It is a real pleasure to work and learn from her. She is patient and sweet, with outstanding suggestions and ideas. She makes me feel comfortable and generates a great environment for brainstorming; she always has new insights to offer. My supervisor is great like no other!
This dissertation examines when overlapping criminal offences contribute to the problem of overcriminalisation, using two case studies of gendered harms that are specifically criminalised by offences that overlap with other more general offences.Overcriminalisation literature notes that the “too much-ness” of the criminal law extends in two directions. Criminal law is both: too broad, criminalising conduct that it should not, and too deep, frequently criminalising the conduct that it does cover by many overlapping offences. However, the existing literature focuses most of its energies on issues of overbreadth, with overdepth mentioned frequently, but in a more cursory manner. This thesis addresses this gap in the literature. In assessing what portion of overlapping offences is part of overcriminalisation, it treats two questions separately: what does it mean in descriptive terms to say that two or more offences overlap with one another? and when in normative terms is descriptive overlap between two offences part of the problem of overcriminalisation? A key original contribution of my research is a taxonomical analysis of types of descriptive overlap. I also propose and apply to two case studies a collection of normative criteria which help to distinguish benign or justified overlap from problematic overlap. The thesis uses two gendered harm case studies to investigate these conceptual and philosophical dimensions of overlap in the criminal law: New Zealand’s proposed offence of non-fatal strangulation in an intimate partner violence context, which will descriptively overlap with general assault offences; and offences of sexual violence known in various jurisdictions as rape or sexual assault, which can be seen as overlapping with general assault offences. Gendered harm is a pressing problem in the Anglo-American jurisdictions that are the focus of this thesis. It is a problem the law historically has addressed badly. This makes gendered harm an illuminating lens through which to consider questions of overlap: the importance of effectively criminalising gendered harms such as strangulation in intimate partner violence settings makes it no less pressing that overlapping offences be scrutinised to assess whether they contribute to overcriminalisation.
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.
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.