Criminal Law, Comparative Law, Canada, Europe, Islam, Restorative Justice Approaches
This paper examines Canadian models of criminal justice in a European and Islamic comparative perspective. The traditional model of Canadian criminal justice is a state centred adversarial one intended to punish, deter and/or rehabilitate offenders who are accorded formal due process protections embedded in a liberal constitutional and procedural rights. This model has been transformed recently into an ambiguously tripartite adversarial model through an overlay of victims’ rights at all stages. However, Canadian law also recognizes alternative processes through various forms of problem solving courts and sometimes comprehensive restorative justice approaches, the latter rooted in relational notions of rights. Meanwhile, criminal models in Europe have been evolving as well. The British common law model of criminal justice has arguably been transformed by statute into a state-centred managerial approach which has shifted the balance from due process toward crime control in a somewhat continental manner, while tolerating restorative justice experimentation at its periphery. On continental Europe, traditional judge-centered investigatory/accusatorial models have been the subject of adversarial due process reforms in differing ways, while “penal mediation” has been introduced to enhance victim satisfaction beyond historically available civil party recovery procedures. In the Muslim world, there has been a revival of Shar’iah law to varying degrees in many states, centered upon Islamic jurisprudential sources based on the Qu’ran, and Sunnah or Hadith, and reasoning through qiyas (analogy) to achieve consensus (ijma) in relation to the three traditional forms of Islamic offences with their distinct procedural characteristics. The victim-centred nature of flexible aspects of Islamic criminal law has led some to characterize Shar’iah as being suffused with restorative justice principles, despite widespread views to the contrary. Examination of the differences and similarities among these various models of criminal justice from “pure” and “applied” perspectives, leads to reflection on the capacity for criminal justice systems to evolve and change, and to tolerate significant levels of internal diversity, while demonstrating a wide range of potential forms for the instantiation of plausibly common values.
Bruce P Archibald, "Criminal Justice Models: Canadian Experience in European and Islamic Comparative Perspective" (Paper delivered at the Conference on Comparative Law University of Qatar, Doha, Qatar, 7-8 October 2012) [unpublished].