Courts, Policing, and Corrections

Introduction by Erin Crandall and Kate Puddister

(This introduction is edited from a conversation between Erin Crandall and Kate Puddister, facilitated by Ryan Catney)

What are courts, policing, and corrections? Why are these things important to the study of Canadian Political Science?

Courts, policing, and corrections are key legal features of Canadian government and politics. Courts are part of the judicial branch, while police and corrections are part of the executive branch. We could also refer to the criminal justice system, but it is important to note that courts do a variety of things and do not only focus on criminal matters.

There is a tendency to think of courts and judges as outside of politics. We understand the courts (or the judicial branch) as an institution of government, but not necessarily a political institution. However, the courts are inherently political. There are different ways to understand the politics of the courts. One of these is to look at the process of appointing judges. Judicial appointments are political appointments and there are political features of this process, even if they are not necessarily as visible or explicit, as say, the politics of judicial appointments in the United States.

Like elected politicians, the work of judges and their decisions are political. Judges are intended to be independent, impartial, and nonpartisan, but the effect of their work is certainly political. The institution that judges work within has been constructed by politics, and the decisions they make can have significant impacts on politics and political actors. For example, if a court rules that a law is unconstitutional, a government will need to decide how to respond, either by passing a new law or leaving the policy space altogether. In either case, laws and politics have been affected. Thinking through who these actors are and the effects of their decisions is essential because they can have important consequences for our politics.

Police and corrections do not tend to get a lot of attention in the context of politics and political science. This is a mistake because the police are a symbol of the state that we see every day, and they are the government employees that are authorized to use force, including up to lethal force, against citizens. When we study political science, we focus on power. The police have immense power to criminalize and have a wide scope of discretion to decide whether they are going to arrest someone and if they are going to bring them into the justice system. These facts alone should make police a topic of focus for Canadian politics.

Police are a huge government undertaking and operate entirely on public dollars. How we spend public funds and whether we are funding the police to the detriment of other services, tells us a lot about a government’s politics and priorities. We usually think the police do not have a role to play in public policy, but this is not true. The police are a very important and powerful voice in public policy. When we think about shaping problems and public policy, how do we identify solutions? The police always have a seat at the table when we have policy discussions about the justice system because they are seen as the experts and their expertise is not often challenged.

In political science, how the correctional system operates, including the conditions of confinement, is not often front of mind. However, how a correctional system operates can tell us a lot about how we treat people in society. Prisons are the place where we see the impact of public policies, particularly the impact of failed policies, and they are a place where we see the impact of choosing to fund some programs in society and not others. It is easy for people to dismiss prisons and think, who cares what happens in prisons? The people there have done bad things and deserve to be there. However, almost all people who enter a correctional facility are going to come back into our communities in the future, very few people enter the prison system and never leave. Therefore, we should care deeply about how people are treated within correctional facilities, not only on compassionate grounds but even for self-preservation or selfish reasons.

Like police, the correctional system is a massive government undertaking that operates entirely on public dollars. This raises issues regarding management, oversight, and accountability to understand what goes on inside prisons. Many people really do not understand or want to understand what occurs in prisons and as a result, we have usually not focused on the correctional system or policy in Canadian politics. However, if part of understanding politics is understanding how power is exercised, then the correctional system is a critical thing to study. The ability of the government to completely take away someone’s liberty and institutionalize them in a correctional facility is the exercise of an immense amount of power. This is something we should be investigating and asking questions about.

How has it usually been taught?

Traditionally, the topics of courts, police and corrections were not a focus in Canadian politics classes. This narrow focus meant there was no critical engagement with the political nature of the courts, what judges and police do and why, what occurs in prisons, or questioning whether there were better alternatives. Major textbooks might have had a couple of paragraphs on the basic differences between private and public law, government expenditures or how federalism impacts the justice system, policing and corrections because these are areas of shared jurisdiction between the provinces and federal government. Federalism plays an important role in shaping these systems. The federal government has authority over criminal law, which includes defining criminal offences and the potential sentences upon conviction. Provincial governments have authority over the administration of justice and civil law, which includes policing. The federal government operates the Royal Canadian Mounted Police, which provides contract policing in eight of the ten provinces and in the territories.

Today, courts are a well-established component of any Canadian politics course, and it is understood that courts should be treated as political institutions. The entrenchment of the Charter of Rights and Freedoms in 1982 and the much more visible political role it brought to the courts over subsequent decades, particularly the Supreme Court of Canada, has been a crucial turning point in the recognition of the importance of the courts in Canadian political science. Because of the Charter, it is now difficult to imagine a contentious political issue that could not be challenged in court on rights grounds. Medical assistance in dying, sex work, same-sex marriage, and abortion are all political issues that have been decided in court cases.

How is this area changing?

On the topic of policing, students’ desire to better understand the actions and role of police has led to increased focus in classrooms. Students are deeply interested in thinking about the powers of police, particularly after the killing of George Floyd in the United States. While there have been police killings before in Canada, they have not galvanized the public to the same extent, and spring 2020 was a turning point for public attention on the police. In Canada, the winter 2022 freedom convoy in Ottawa also brought attention to the relationship between the police and the government. It raised questions such as the nature of police independence and whether the government can direct the police. In the wake of these events, critical questions about the police are being asked more generally such as what are police powers? Should police have a role in shaping criminal justice policy? Should they receive so many public dollars? These conversations were not taking place in Canadian politics classrooms only a few years ago, but as a result of student interest and recent events, they have taken on greater importance.

Opportunities for further change

Despite progress on how we teach these topics today, there is still room for improvement. In terms of policing and corrections, there is not a lot of space given to people who have lived experiences with these systems. When we are thinking about public policy, and how we can improve the systems that operate with public funds, those who have experienced these systems and are often marginalized tend to have no voice in public debates.

Another important future avenue is the abolition movement for both policing and for corrections. These questions have operated at the margins and not been part of mainstream political science. Considering questions like: who are we empowering? What are we spending public dollars on? What are we spending government resources on? These questions have not animated Canadian politics in the past but should in the future.

Questions of representation are also essential. Thinking about the powers of appointment, we can think of who we see in the court system. We can also raise questions about access. Access to justice is probably the biggest problem facing our justice system and few political scientists and political science students are thinking about this. What does it take to access the court system? Who is getting access? Who is getting their matters heard? We can also think about whether we have a system that treats everybody the same. How does your experience change based on who you are, what you look like or what your income is?

A criticism of the field of courts and politics in Canada would be that we focus too much on the Supreme Court and simply, we do. We also need to understand what is happening at lower courts, and not just the Supreme Court. It is important to understand the experiences of the people who go through these lower courts because this is where most people have direct experiences with the court system. The higher up the court hierarchy you go, the less an individual person has been directly affected and the focus becomes judges and lawyers. So, we need to focus more on the courts where people are and where they are most likely to be impacted.