Discretion in the Canadian Criminal Justice
Two examples of discretionary decision making within the system and discuss the advantages and disadvantages that discretion plays in the Canadian criminal justice system.
Discretional decision making is the power or the right to decide on the particular issue using reason and judgment among the many available alternatives. In Canada, many public officers including the president, the trial judges, governors, and even the police officers are endowed with the power of making discretion decisions while they are discharging their public duties. However, all discretion decisions are subject to review and are also subject to reversal and modification in the event they have violated the law (DeCunzo, 2017). Abuse of the discretional powers occurs when the decision seems unacceptable because it is not supported by the facts. In the Canadian criminal justice system, police officers are endowed with discretionary authority, which sometimes they misuse, although the power is crucial in helping them execute their duties effectively. The Canadian justice system has witnessed many instances where police officers apply discretionary power either appropriately or inappropriately. For example, the police officer can stop and detain an individual as a suspect even when there is no crime reported or that can be linked to the suspect. Secondly, police officers occasionally rely on their instinct to make discretion decision of detaining someone whom they may perceive as a suspect based on various reasons (Cordeau & Boivin, 2011). The cases where an individual can be wrongly arrested and detained are when found to be naturally present in a place where are not supposed to be, for example, when a stranger is found in private homes without the consent of the owners. Secondly, when a male individual is located in female hostel corridors at odd hours in areas where rape cases are rampant or even when an individual is found with dangerous weapons such as swords, and guns alone along the dark streets where crime is rampant.
In any of the above cases, the police would make discretion decision of arresting and detaining the person as a suspect even of when no crime has been reported. As such, it can be argued that the police officers sometimes make their discretion decision by considering the time, the situation, and the condition of the suspect (McQuigge, 2018). The facts of the situation may suggest that something is wrong and therefore, influencing the police make the decision of holding the suspect as investigation continuous.The second example of a discretion decision by the police officer is when police decide to shoot an individual to kill or disable him. At some circumstances, the police officers find themselves in endangering situations while on their duty and decide to shoot someone based on the number of circumstances. For instance, a police officer can shoot a suspect who seems to be non-cooperative, armed and dangerous. Any suspect who is ordered by the police to stop or to put up their hands and refuses including acting suggestively that they want to harm the police officers, they are automatically shot (DeCunzo, 2017). The discretion decision of shooting such people down is to do away with the imminent danger the suspect could be posing to both the police officers and the general public. A non-compliant suspect is termed to be dangerous, and the discretion decision of the police would be shooting such a person before causing harm.
The discretionary power among the police officers presents numerous benefits not only to the police themselves but also to the public. Firstly, the power of the police to make discretion decisions gives them a form of independence or autonomy in that they are given the opportunity to think on their own and make decisions of various situations according to their knowledge and skills in unpredictable conditions (Cordeau, & Boivin, 2011). When the police department is given the opportunity to utilize their skills and understanding of the law to make judgments in various circumstances in the line of their duties, they become competent in the applying the rules and regulations as required.
Secondly, discretion decision making by the police officers helps in improving their judgment skills as well as improving the officers’ courage in making individual decisions inputs. When the officers are allowed to make decisions on their own, it gives them a sense of belonging and acceptance and thus, they feel to one part of the justice system since their contributions are valued (McQuigge, 2018). Moreover, discretion decision making encourages the virtue of respect within the police force in that officers respects the decisions made by their fellows.Thirdly, discretion decisions by the police officers encourage them to be careful when making the decisions because their skills and competency would be gauged on them. Therefore, the officers do not carelessly make decisions since they know well that other officers would weigh their decisions and even by other authorities to determine if they made the right decisions (Cordeau, & Boivin, 2011). It should be noted that police promotions sometimes comes as a result of the quality of the decisions each officer has made in their course of service. As a result, the police officers are always cautious while handling certain situations that need discretionary decisions knowing that their best option can be part of their assessment to promotion. In other words, discretion decision making promotes discipline and professionality within the criminal justice system.
Lastly, discretion is a form of permission by the officers to go beyond the stipulated rules to make decisions that best suit the situation. For example, a police officer is forced to make a discretionary decision of shooting a suspect when the situation is forcing him to do so (DeCunzo, 2017). Even though the rules require that police officer should be arrest any suspect and arraign him/her in court when the situation is tough and dangerous the officers are forced to act beyond the laws to prevent more harm and potential damage to the public. Discretion decision making helps in fostering the accountability culture within the criminal justice system.
As much as there are also advantages of discretion decision making by the police officers, it is important to note that there are also disadvantages. Firstly, the police sometimes take advantage of the discretional powers they have at hand to harass the public and even make bad decisions. Since other authorities are not around the incidence scene, the police officer may make wrong decisions and look for false facts to justify their actions (McQuigge, 2018). Therefore, discretion powers could be dangerous to the efficiency of the justice system if the decisions of the police officers are not monitored well.Secondly, the prevailing laws and the statutory laws do not comprehensively cover every potential crime situations the police may encounter in the line of their duty. The above implies that the criminals may be let off the hook mostly in cases of discretion especially when the officers do not understand the facts surrounding the crime (Cordeau & Boivin, 2011). It is also possible for the lawbreakers to escape the hook due to corruption, and relations with the police, meaning that certain factors hamper officers from make right discretion decisions.
Discretion powers to the police force may be seen as a way of giving the police unlimited powers to do whatever they wish. The unscrupulous officers can take this to be a privilege to make their own “courts” that serve only their interests (DeCunzo, 2017). The public gets tempted to bribe the officers for fair judgment in such courts. Moreover, when police discretion is abused, it may encourage the public to commit offences knowing that the police would acquit them through their fair judgment.
The concept of discretion decision is not new in the criminal justice system. It is a bit controversial since some people argue that discretion powers should not exist in the justice system while others defend it. However, the concept has many advantages as well as many disadvantages. One point that should be noted is that for this approach of public policy to be effective, there should be a high degree of prudence and self-commitment by law enforcement officers. The criminal justice system should also monitor the actions and decisions of the police officers closely to ensure that they do not overstep on their mandate even if when they have the privilege of making discretion decisions.