Criminal Law and Precrime: Legal Studies in Canadian Punishment and Surveillance in Anticipation of Criminal Guilt

139 Pages·2018·1.01 MB·English

by  Richard Jochelson

Criminal Law and Precrime
In Philip K. Dick’s short story M inority Report , the institution of Precrime pun-
ishes people with imprisonment for crimes they would have committed had they
not been prevented. With Dick’s allegorical inspiration, the authors of Criminal
Law and Precrime: Legal Studies in Canadian Punishment and Surveillance in
Anticipation of Criminal Guilt posit that recent developments in Canadian law
indicate a trend toward imposing punitive measures at increasingly earlier stages
of the prosecutorial process. The result is a potentially new field of criminal man-
agement that could be characterized as “precrime”—particularly the use of the
law as a technology of surveillance and prevention since “terror” became a justi-
fication for intervention.
The authors note that as risk management logics (based in actuarial sciences)
have shifted to precautionary ones (based in administrative sciences), the law has
responded by developing techniques in the arena of criminal regulation in light of
the “war on terror”: the need to ensure security, the proliferation of digital data,
and the development of drones, social networking, and cloud storage to gather
personal data. The authors view shifts in criminal investigation; the substantive
criminal law of sexual expression, conduct, and work; and civil forfeiture as
emblematic of precrime populism. The unifying theme of these techniques is that
they occur prior to state-identified crime, arise out of a precautionary philosophy,
and seek to presume (or circumvent) criminality.
The book is a provocative read for scholars and students in criminal law, polic-
ing, and surveillance, as well as for those interested in how areas of law, such as
immigration, health, and anti-terrorism, are mobilizing the logics of risk and sur-
veillance in new ways that emphasize precaution. The authors invite legal scholars
to place the analytical lens of precrime on criminal and regulatory practices in
Canada as well as other Western nations across the globe.
Richard Jochelson is an associate professor at the University of Manitoba Law
School in Canada.
James Gacek is a doctoral candidate at the University of Edinburgh Law School
in Scotland.
Lauren Menzie is a graduate student at Carleton University in the Department of
Law and Legal Studies in Canada.
Directions and Developments in Criminal Justice and Law
www.routledge.com/Directions-and-Developments-in-Criminal-Justice-
and-Law/book-series/DDCJL
The ways in which crime is constructed in society is of time-honored
interest to criminologists across the globe. The ever-changing landscape
of what is criminal and what is not affects scholars and policymakers in
their approach to the body of law defining prohibited conduct, how that
law evolves, and the modes by which it is administered. Rule of law cannot
exist without a transparent legal system, strong enforcement structures,
and an independent judiciary to protect against the arbitrary use of power.
Critical consideration of the mechanisms through which societies attempt
to make the rule of law a reality is essential to understanding and develop-
ing effectual criminal justice systems. The D irections and Developments
in Criminal Justice and Law series offers the best research on criminal
justice and law around the world, offering original insights on a broadly
defined range of socio-legal topics in law, criminal procedure, courts, jus-
tice, legislation, and jurisprudence. With an eye toward using innovative
and advanced methodologies, series monographs offer solid social science
scholarship illuminating issues and trends in law, crime, and justice. Books
in this series will appeal to criminologists, sociologists, and other social
scientists, as well as policymakers, legal researchers, and practitioners.
1 Criminal Law and Precrime
Legal Studies in Canadian Punishment and Surveillance
in Anticipation of Criminal Guilt
Richard Jochelson, James Gacek, Lauren Menzie,
Kirsten Kramar and Mark Doerksen
2 Manufacturing Crime
The Market’s Role in Crime Control
John Brent and Peter Kraska
Criminal Law and Precrime
Legal Studies in Canadian Punishment
and Surveillance in Anticipation of
Criminal Guilt
Richard Jochelson, James Gacek,
and Lauren Menzie
With contributions from Kirsten
Kramar and Mark Doerksen
First published 2018
by Routledge
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© 2018 Taylor & Francis
The right of Richard Jochelson, James Gacek, Lauren Menzie,
Kirsten Kramer and Mark Doerksen to be identified as authors of
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ISBN: 978-1-315-16595-0 (ebk)
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Contents
List of Contributors vii
1 Precriminalities: Police Investigation, Substantive Criminal
Law, and Administrative Processes 1
Towards a Theory of Precrime 1
Theoretical and Methodological Framework 5
Data Sources—Thinking by Case 6
Thinking Through the Supreme Court and the Legislative
Role: Is the Judiciary a Mere Sovereign Appendage or
an Institution of Delegation? 8
Overviews of the Chapters 10
Towards the Governance of Precrime: Precrime Populism 12
2 Creating Police Powers: A Canadian Judicial Innovation 15
Theorizing Visibility 19
Reasonable Expectation of Privacy 22
A Continuum from Private to Public 24
Ancillary Powers and the Growth of the Common
Law Doctrine 28
The Curious Case of the Digital Criminal and Other
Private Parts: Section 8 and the Common Law 29
Recent Empirical Information 33
Equivocating on the Charter’s Promise 34
3 Sex, Sexuality, and the Law: ‘Society’s Proper Functioning’
and Precautionary Governance of Sex Work 42
Making Sense of Sexual Expression and Performance 43
The Relevance of Privacy? 44
The Governance of the Indecent/Obscene in Canada 47
vi Contents
Exploring the Hicklin Court 48
The Dawn of Community Standards 49
Add Harm and Stir 50
Introducing the New Target of Harm: Political Morality
(Same as the Old One?) 52
The Rise and Fall of Free Sex Workers in Canada 54
Persons Working in the Sex Industry (PWSI) and
Regulating Sex Work 54
The Bedford Case 55
After Bedford: Bill C-36 58
Law’s Protection from the Risk of Harm 64
4 Administering Criminal Law: Preventing Crime and
Punishing the Precriminal 70
Civil Forfeiture 73
Governance in the Interests of Harm Reduction
and Economic Reasoning 73
Due Process Concerns Inherent Within Civil Forfeiture 76
Chatterjee and the Civil Remedies Act 77
Forfeiture Legislation in Practice 79
Implications of Legislative Precaution 90
Peace Bonds: Reviewing Doerksen’s Work 91
Examining Peace Bonds Through a Critical Legal
Studies Lens 92
Peace Bonds and Neoliberal Harms 92
Traditional vs. Specialized Peace Bonds 93
Specialized Peace Bonds 94
Quantification of Offence: Counting Forfeitures
and Bonds 100
Conclusion 101
5 The Future of Precrime: Where Do We Go Now? 106
Law and Precrime—The Role of the Social 106
The Administrative Shift 108
The Facets of Precrime: Risk of Harm, Temporality,
and Widened Nets 111
Future Directions 113
References 116
Index 127
Contributors
Mark Doerksen is a PhD candidate in the Social and Cultural Analysis
program in in the Department of Sociology/Anthropology at Con-
cordia University, Montreal, Canada . His work explores practices of
transhumanism. He has published on work dealing with courts, peace
bonds, policing, intensive probation and parole supervision in Canada.
James Gacek is currently a doctoral candidate at Edinburgh Law School,
University of Edinburgh, Scotland. He has lectured in criminology
and criminal justice at the University of Manitoba and the Univer-
sity of Winnipeg. While he has many research interests, he has begun
to publish in the areas of incarceration, genocidal carcerality, critical
issues in media and justice studies, the sociology of police powers, the
regulation of obscenity and indecency, critical security studies, and the
broader politics of judicial reasoning. Gacek is an American Sociologi-
cal Association Paper Award winner (2014).
Richard Jochelson is an associate professor on the Faculty of Law at
the University of Manitoba, Canada, and holds his PhD in Law from
Osgoode Hall Law School at York University, a master’s in law from
University of Toronto Law School, and a law degree from University
of Calgary Law School (Gold Medal). A former law clerk, he worked
for ten years teaching criminal and constitutional law at the University
of Winnipeg prior to joining Robson Hall. Jochelson is a member of
the Bar of Manitoba, a co-applicant on several Social Sciences and
Humanities Research Council of Canada (SSHRC) awards, and has
co-authored and co-edited several peer-reviewed articles and books,
most recently The Disappearance of Criminal Law: Police Powers and
the Supreme Court.
Kirsten Kramar currently teaches in the Department of Sociology at the
University of Calgary, Canada. She is a notable law and society scholar.
She has published several academic books and monographs dealing
with sexuality and the law, moral regulation, and the law of infanti-
cide. She is also widely published in the area of the law of policing. She
viii Contributors
was a professor of sociology at the University of Winnipeg for eleven
years prior to moving to Calgary. She is a winner of multiple SSHRC
grants and a notable expert in the area of forensic evidence in cases of
infanticide.
Lauren Menzie is a graduate student in the Department of Law and Legal
Studies at Carleton University in Ottawa, Canada. She is working as a
section instructor in the Department of Law and Legal Studies at Car-
leton. Her research interests are centered on the evolution of Canadian
criminal law and governance, including the legal regulation of sex and
criminal law’s emergence into the realm of administrative civil pro-
cesses. Her research examines the regulation of nonconsensual sexual
interaction, the social and legal discourses surrounding consent, and
how law denunciates certain expressions of sexuality.
Chapter 1
Precriminalities
Police Investigation, Substantive
Criminal Law, and Administrative
Processes
Towards a Theory of Precrime
This book is an exploration of some recent developments in criminal
and administrative law that have engaged emerging logics of governance
in the new millennium. Using the fields of critical security studies and
surveillance studies, we note that as risk management logics (based in
actuarial sciences) have shifted to precautionary ones (based in adminis-
trative sciences), the law has responded by developing opaque and flexible
techniques in the arena of criminal regulation (McCulloch and Pickering
2009; McCulloch and Wilson 2016; Mythen and Walklate 2006). The
result is a potentially new field of criminal management that could be
characterized as precrime (McCulloch and Pickering 2009; McCulloch
and Wilson 2016).
In the criminological literature, Zedner used the term “precrime” to
indicate a shift from a post-crime society to that of a pre-crime society
(Zedner 2007). Zedner argued that our system of governance had in the
past focused on the panoply of the justice apparatuses and actors such
as criminals, the victimized, prosecution of crimes, and a system that bal-
ances crime control with due process: ultimately this model culminates
in trial and subsequent punishment (Zedner 2007: 262). Now, Zedner
argues, governance is focused on actuarial calculations, notions of risk
and precaution, prevention, and surveillance in pursuit of security (Zed-
ner 2007: 262). Thus, a criminology of precrime would shift its gaze from
the reactive study of criminality and its systems to the study of the actors
and systems in advance of criminal events. Zedner also placed the moti-
vating ethics of precrime as relating to minimizing and displacing loss,
both moral and commercial; it would follow that security as a commodity
would be a useful criminological focus for future studies (Zedner 2007:
274). Zedner called on criminologists to embrace the interdisciplinary
nature of criminology to embark on her ambitious clarion call to trans-
form criminological study.
Inspired by Zedner’s call to action, but also knowing that our work
is grounded in doctrinal legal analysis, we noticed similar shifts were