The criminal justice system: police, courts and corrections

In the second week, Professor Desjardins draws a long line across the whiteboard. At the left end he writes 'a window is smashed at 2 a.m.' and at the right end 'a person walks out of a correctional centre'. Between the two, he says, sits a chain of decisions made by dozens of people in several institutions, most of whom never meet each other. The police are the gatekeepers of this chain, but they control only the first links. Amara asks why so many cases she reads about in the news seem to end with charges dropped. By the end of the class she has her answer: the justice system is designed to filter cases at every stage, and understanding those filters is essential to understanding what police can and cannot achieve.

A system, or a set of separate agencies?

People speak of the criminal justice system, but its parts are independent by design. In Canada, Parliament makes criminal law through the Criminal Code and other federal statutes, while the provinces administer justice: they run most police services, prosecute most offences through Crown attorneys and operate the courts and the correctional centres for shorter sentences. The federal government runs the RCMP, prosecutes drug and some other federal offences through the Public Prosecution Service of Canada, and operates penitentiaries for sentences of two years or more through the Correctional Service of Canada. Each agency has its own budget, its own leaders and its own priorities. Decisions in one part ripple through the others, but no single person is in charge of the whole.

This separation is deliberate. Police investigate and charge or refer cases, but an independent prosecutor decides whether to proceed, an independent judge decides guilt and sentence, and correctional officials carry out the sentence. Each stage is a check on the one before it. A police officer may be convinced a suspect is guilty, but that belief must survive the scrutiny of a Crown attorney, defence counsel, a judge and sometimes a jury. Professor Desjardins tells the class that some of the hardest moments of his career were cases where he believed someone was guilty and the evidence did not meet the standard. 'That's the system working,' he says, 'even when it doesn't feel like it.'

Stage one: police

The process usually begins when someone calls the police, or when an officer sees something on patrol. Most crime never reaches the police at all. Statistics Canada's General Social Survey on victimization found that fewer than a third of violent and household victimization incidents in 2019 were reported to police. Victims stay silent because the incident seemed minor, because they dealt with it another way, because they feared retaliation or because they did not believe the police could or would help. This gap between all crime and police-reported crime is sometimes called the dark figure of crime, and you will study it in the criminology course.

When a crime is reported, police record it, investigate and decide what to do. They may take no further action if there is no evidence or no offence. They may resolve it informally with a caution or a referral. For young people aged 12 to 17, the Youth Criminal Justice Act requires police to consider extrajudicial measures such as warnings, cautions and referrals to community programs before laying a charge. If police have reasonable grounds to believe an offence was committed by a particular person, they can arrest or require the person to attend court. In Ontario, police officers lay most charges themselves, after which the Crown reviews them; in British Columbia, Quebec and New Brunswick, Crown counsel must approve charges before they are laid. A case is said to be cleared or solved when police identify a suspect and have enough evidence to charge, even if the charge is later dropped.

Stage two: prosecution

The prosecutor is the most powerful decision-maker most people never think about. Crown attorneys in Ontario review every charge and continue the prosecution only if there is a reasonable prospect of conviction and it is in the public interest to proceed. Crown counsel are not supposed to seek a conviction at any cost; the Supreme Court of Canada has described their role as presenting all the credible evidence fairly, not winning. They must disclose to the defence all relevant information in their possession, a duty established in R. v. Stinchcombe (1991). A charge may be withdrawn, stayed or diverted to a program at this stage, which is why many cases that begin with an arrest never reach trial.

Stage three: the courts

A person charged with an offence may be released by police or held for a bail hearing, which must happen within 24 hours where a justice is available. Under the Criminal Code and the Charter's guarantee of reasonable bail, release is the default; the Supreme Court in R. v. Antic (2017) described a ladder principle under which the least onerous form of release is preferred. Most cases are heard in the Ontario Court of Justice; the most serious, such as murder, go to the Superior Court of Justice, sometimes with a jury. Offences are summary conviction (less serious), indictable (more serious) or hybrid, where the Crown chooses. The Charter guarantees a trial within a reasonable time, and in R. v. Jordan (2016) the Supreme Court set presumptive ceilings of 18 months in provincial court and 30 months in superior court, after which a case is stayed unless the Crown can justify the delay. At trial the prosecution must prove guilt beyond a reasonable doubt, the accused is presumed innocent and does not have to testify, and evidence obtained in breach of constitutional rights may be excluded. These rules exist because a wrongful conviction is considered a far worse outcome than a wrongful acquittal.

The courts also decide sentence. The Criminal Code states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Its purposes include denunciation, deterrence, separating offenders from society where necessary, rehabilitation, reparation and promoting a sense of responsibility. Section 718.2(e) directs judges to consider all reasonable alternatives to imprisonment, with particular attention to the circumstances of Indigenous offenders, a principle applied in R. v. Gladue (1999). Options range from a discharge or fine through probation and community supervision to custody.

Stage four: corrections

In Canada, a sentence of less than two years is served in a provincial correctional centre, often followed by probation, while a sentence of two years or more is served in a federal penitentiary. Federal offenders may apply to the Parole Board of Canada for day parole and full parole, and most are released before their sentence ends under supervision. Indigenous people are heavily overrepresented: they make up about one in twenty Canadian adults but roughly a third of people in federal custody. Corrections is the stage police see least, but it affects them directly. People released without housing, treatment or support often come back into contact with police, and some of the most persistent calls in any city involve the same small group of people cycling through jail, hospital and the street.

Two models of criminal justice

The law professor Herbert Packer described two models that help explain debates about the system. The crime control model emphasizes efficiency: it sees the system as an assembly line that should quickly identify the guilty, process them and protect the public, trusting police and prosecutors to screen out the innocent early. The due process model emphasizes reliability and rights: it sees the system as an obstacle course, with every stage designed to test the evidence and protect the individual from the power of the state. Neither model describes a real system exactly. Real systems blend both, and arguments about bail, disclosure, delay, police powers and plea bargaining are often arguments about where to strike the balance between them.

Professor Desjardins asks the students where they stand. Marco leans toward crime control: he wants offenders off the street. Linh leans toward due process: she has seen what happens when people are treated as guilty before they are proven so. Priya points out that in her bank fraud work, careful evidence gathering was what made prosecutions succeed, so due process and effective crime control are not always opposites. That is a good point to end the discussion, Professor Desjardins says, because police officers who understand both models make better decisions than those who cling to one.

What the funnel means for police

The filtering at each stage creates what criminologists call the justice funnel. Starting from all crimes committed, only a share is reported, only some reported crimes are solved, only some solved cases lead to charges that proceed, only some charges end in conviction and only some convictions lead to custody. The numbers in the code below are illustrative, roughly the right order of magnitude for property and minor violent crime in both countries, and they make the point that police decisions at the start of the funnel shape everything that follows.

# An illustrative justice funnel: how 1,000 incidents shrink at each stage.
stages = [
    ("incidents that occur", 1.00),
    ("reported to police", 0.35),
    ("solved: suspect identified", 0.30),
    ("charge proceeds after review", 0.70),
    ("conviction or guilty plea", 0.65),
    ("custody sentence", 0.30),
]
count = 1000.0
for name, rate in stages:
    count *= rate
    print(f"{name:32s} {count:7.1f}")
print(f"share of incidents ending in custody: {count / 1000:.1%}")

incidents that occur              1000.0
reported to police                 350.0
solved: suspect identified         105.0
charge proceeds after review        73.5
conviction or guilty plea           47.8
custody sentence                    14.3
share of incidents ending in custody: 1.4%

Only about six or seven incidents in a thousand end in custody under these assumptions. Small changes early in the funnel matter a great deal. If reporting rose from 35% to 45% because people trusted the police more, every later stage would grow by almost 30%. If poor investigation or a breach of rights caused more charges to collapse, all the work before that point would be wasted. This is why legitimacy, careful note-taking, respect for rights and good evidence handling are practical skills, not just ideals.

Victims in the justice system

For much of the twentieth century, victims were treated mainly as witnesses for the state. The prosecution was brought in the name of the Crown, and victims had little say and little information. Since the 1980s, both countries have recognized victims' rights more formally. The Canadian Victims Bill of Rights, in force since 2015, gives victims of crime rights to information about the investigation and prosecution, to protection, to participate by presenting a victim impact statement, and to seek restitution. Ontario has its own Victims' Bill of Rights and funds victim services programs, which in Port Ardent work out of the police building and are often the first people to contact a victim after a serious crime. Police are usually the first official a victim meets, and how that first contact goes shapes whether the victim stays involved in a long and often frustrating process. Professor Desjardins tells the class that the most common complaint he heard from victims was not about the outcome of a case but about never being told what was happening.