Debra Parkes

Part XXIV of the Criminal Code contains a legislative mechanism to detain indefinitely people who have repeatedly committed violent offences and who are deemed too dangerous to be released into society because of their history of violent offending. Sentencing under Part XXIV involves judicial consideration of statutorily mandated risk assessment reports. These reports are conducted by psychological experts who present their testimony surrounding their report in a DO hearing. Judges rely heavily on the information contained within these reports when deciding whether to impose an indeterminate sentence on an individual who has been designated dangerous. Despite being challenged over time, the DO regime has been upheld as constitutional. Notwithstanding, there is a growing body of research questioning the socio-cultural validity of Part XXIV’s sentencing mechanism, specifically its great emphasis on predictions of future risk. The purpose of this thesis is to examine how and why judges decide to impose and indeterminate sentences on certain individuals designated dangerous, while others not. I first question whether indeterminate sentences, as a practice, can be theoretically justified. Through examining caselaw I look at how judges determine the appropriate disposition for designated dangerous offenders, and the factors which judges appear to give the most weight in deciding whether to impose an indeterminate sentence. Specifically, I examine the impact that offender/victim relationships had on disposition outcome, and how judges consider the Indigeneity of the offender in assessing whether the indeterminate sentence is appropriate. Ultimately, I flag the need for further research into cultural bias in the context of risk assessment under Part XXIV and how judges activate their remedial role by adopting a ‘Gladue forward approach’ and refusing to impose indeterminate sentences on Indigenous people.

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This study examines habeas corpus prison decisions from Khela (March 27, 2014) to August 4, 2020. The types of administrative decisions reviewed were security reclassification and transfer and solitary confinement. Habeas corpus review of decision-making in the prison context should be more robust because of the special vulnerability of the affected individuals and the deeply problematic discretionary nature of these decisions and procedures. There are new possibilities set out in Vavilov to have robust reasonableness review and the accompanying culture of justification inform and reshape this area of administrative decision-making so that it better accords with the demands of the rule of law, protects and vindicates prisoners’ rights, and redresses wrongs.The same behaviour by prisoners can lead to either a formal disciplinary charge or security reclassification and transfer. The formal disciplinary system is advantageous to prisoners as it has more procedural safeguards and limited negative consequences. The reclassification and transfer process allows for problematic exercises of discretion by decision makers. Security reclassification and transfer and the former administration segregation regime complemented and propped each other up in creating a parallel system of punishment to the formal system. At an institutional level, prison administrators and decision makers did not demonstrate legal expertise during the cases examined in my study.Many judges on habeas corpus review misinterpreted the text of Khela to stand for the principle that wardens should be granted “significant” deference. Some reviewing judges would say they did not want to “micromanage” the prison because they appeared to be uncomfortable exercising their jurisdiction. A careful analysis of language used by government lawyers, prison administrators, and judges was conducted. The question was also raised as to whether statutory procedural rights should be considered a ceiling or a floor, and the impact of either option. Reviewing judges have attenuated prisoners’ rights by using qualifying language. There are also recent doctrinal developments where respondents are trying to introduce a test where a prisoner has to show how they were prejudiced by the breach. The general body of case law in this area shows an underenforcement of prisoners’ rights.

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Gender inequality in the distribution of unpaid care work and participation in the labour market is a critical issue around the world. Many countries have introduced parental leave policies as a mechanism to mitigate this gender disparity, having a direct impact on two main aspects of a person’s life: family and work. Nevertheless, most of these policies continue to be based on a nuclear family and the standard worker models, which are outdated. Families and work have recently experienced profound transformations, becoming more complex and diverse. Several families and types of employment have emerged, disputing the prevalence of the nuclear family and standard worker models. This leads to questioning whether parental leave policies have addressed these transformations and ensured equal protection for all parents across different families and employment relationships, closing the gender gaps or, conversely, these policies have reinforced not only gender but also social inequalities. Through a comprehensive comparative study of the Argentine and Canadian laws, this thesis deconstructs the assumptions about an ideal family and worker that underpin the parental leave regulations and the outcomes for parents in various families and employment relationships. Despite the Canadian legislation appearing to be more progressive and gender-inclusive than the Argentine, this thesis argues that both countries' parental leave laws fall short in ensuring equal access to and scope of leave benefits for parents in different families and employment arrangements. Through feminist and intersectional lenses, several indicators of the preference for an ideal nuclear family and standard worker that persist in the parental leave regulations of Argentina and Canada are identified. Furthermore, the negative effects experienced by certain non-traditional families and non-standard workers when trying to access parental leave benefits in the compared jurisdictions are discussed. This thesis concludes that in Argentina and Canada, non-traditional families and non-standard workers encounter greater barriers to access to and receive less parental leave benefits than parents in nuclear families and standard employment, which reinforces gender and social inequalities. The understanding of the unequal protection granted to different families and workers in the context of parental leave policies may benefit future legal reforms.

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The criminal justice system’s response to the opioid crisis exacerbates risks faced by people using drugs and is harmful to public health. Through a literature review, caselaw analysis, and key-informant interviews in the Greater Vancouver area, this thesis analyzes elements of the criminal justice system’s response to the opioid crisis and provides recommendations to reduce harms experienced by people who use drugs and to promote community health and safety.An analysis of the British Columbia fentanyl trafficking sentencing decisions reveals that courts are emphasizing the need for enhanced deterrence as a response to the fentanyl crisis. In the street-level trafficking cases examined, 12 of the 14 people were motivated to traffic in order to support their own addiction. Interviews with 11 people including defence counsel, probation officers, and public interest lawyers and advocates, revealed challenges of working in the criminal justice system during the opioid crisis. Advocates described the main barrier as a fundamental misunderstanding of addiction within the criminal justice system. Advocates shared their insights into ways the criminal justice system can improve its approach. The key recommendation was for actors and policies within the criminal justice system to begin understanding the opioid crisis as a public health crisis and not a criminal crisis.A review of the literature reveals that lengthening custodial sentences for people who are trafficking fentanyl will not deter street-level trafficking. Instead, the court’s punitive approach will increase the number of individuals in custody, and disproportionately impact Indigenous people and those with substance abuse issues. Evidence-based harm reduction practices can be implemented in the justice system to reduce harm, from bail orders to prison conditions. There is a strong need for more rehabilitative options, community supports, and diversion opportunities to address the overrepresentation of people who use substances within custody.

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