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LAWS 2301 (138)

Desiree Hayward

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LAWS 2301
Saunders- Carleton University

October 29 2012 LAWS2301A Lecture 7 Production: Role of the Court > levels/powers (Hoskins; Murray) > CCRF role (Cromwell) > process issues: - adversary process (Cohen) - adversary process and the Charter (Young) Police > history Assignment Sources of Courts’ Power (Text) •Criminal Code gives power to different courts to try different offenses •federal/provincial legislation establishing/ continuing the courts •inherent jurisdiction of common law (most serious power is that of contempt) Ex: Entrapment- Comes as a defense meaning police cannot trick you into doing bad things that are against the law. Therefore the defense of entrapment allows the person to a series of defenses where the court stops the proceedings because of an abuse on the proceedings caused by the polices’ bad decisions or enforcement SAYS THIS IS WRONG AND WE WILL NOT BE PARTY TO IT Levels of Courts; NOTE: WE WILL NOT BE TESTED ON THESE Provincial courts: - Try summary conviction, absolute jurisdiction offenses - Receive info, bails - Preliminary hearings: the prosecution was to lay out evidence of offense; court can say whether there exists sufficient evidence to charge Federal superior courts: - Try any non-summary conviction offenses - Appeals from lower courts - Federally appointed - Development of policy issues in terms of case pronouncements and policy making NOTE: It is rare that courts of appeal will take on new evidence; therefore if the evidence is bad it can lead to wrongful convictions Courts of appeal: - Rights of appeal - Questions of law - Allows dismiss of case NOTE: Most cases start and end in provincial courts *** First case to come before the charter was brought forth by a newspaper company How is CL produced in courts? •Interpretation role –jurisdictional issues: Who has the right to make criminal law? –Courts decide who has this right –common law defences: The Code says the court cannot make new criminal law, but they do have the right to develop new common law defenses REMEMBER Stuart- We need them in the Code in one place! –statutory meaning (Kloepfer & Paré readings): Produce statutory meaning through interpretation of statutes- Articles talk about ambiguity and vagueness of legislation as giving power to courts •Charter role (Cromwell and Young readings): The legal rights existing in the Charter •Process issues: Not how criminal law is produced, but the effectiveness of the processes the courts have; the inquisitorial and adversarial processes Adversarial- responsibility on party Inquisitorial- responsibility on judges Kloepher: Ambiguity and Vagueness as diseases that affect criminal law - The more vagueness the more power that goes to the judges to make and interpret criminal law - To prevent this, we need to discern where this ambiguity and vagueness creeps in the criminal code in order to better draft the law - In terms of ambiguity, he means that words are understood in more than one way; this presents judicial choice - Types of ambiguity; semantic (independent of context, we don’t know what these words mean- term of “together with”), synaptic (the grammatical structure gives rise to problems- know Parray case), contextual - Vagueness is the idea that it is not a choice, but it can have a host of meanings: the term “gross indecency”- What is indecent to you may be satisfying to someone else - External vagueness: Giving a favorable strict construction of legislation to the defendant/ accused- this is very vague Parray was a case that went to the Supreme Court in 1987. Parray killed a 7 year old boy, he lured him under a bridge, assaulted him and then started talking to the boy when the boy said he was going to tell the mother what happened Parray killed the boy. Parray was found and charged with first degree murder, but the question was; was it done “while committing indecent assault.” Therefore, as it was found that he was not assaulting the boy while he killed him, the New Brunswick court of Appeal found him guilty of second degree murder. In this case, the literal construction of the meaning of first degree murder favored the accused. However, they said that even if you take a strict construction of the term, you must ask if it’s a “reasonable construct
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