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Lecture 6

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LAWS 2301
Ronald Saunders

Friday October 21 2011 Ewaschuk on codification: • Codified existing law in 1892 • Nothing re principles • No common law offences, but common law defences allowed • Criminal law not just in code (other pieces of legislation, precedent cases, competition act) –other pieces of federal legislation –makes it difficult to know the criminal law. No fundamental revision of the criminal codes (rewording occasionally, but more reordering –change the wording, rearrange the sections etc. Some additions, not many laws are taken out.) • Mostly piecemeal change since 1892 (reference points in guiding the operations of changing the criminal law, political pandering/stupidity –not overall guide that tells what should be in the criminal code) Advantages of legislation (potential advantages) • Possibility of greater creativity (finding the wisdom of the past to support your case rather than looking forward. The idea of legislation of the very nature to look forward, but cases to look back.) • Possibility of greater certainty –setting up the rules more logically, more categorically, writing it in a more knowable, understandable way. It is not bound by a certain way of writing (unlike cases) • Possibility of better expertise (wider focus comes to legislation rather than to the court process) • Possibility of more accountability and transparency • More techniques of enforcement (a whole host of solutions you can choose from, whereas court is a standard. Relevant facts are very narrowed with what can be argued in court in a parliamentary cause you have a polycentric solution –more solutions you can choose from.) Experience/reality • Statute language often unintelligible (make sense of it, what does it mean in an everyday sense? Words in a plain and simple meaning, -real problems in the way it is worded, lack of principles (guiding in your understanding of it) • Language often too narrow and no principles set out to guide change • Little outside input (potential outside input –larger expertise • Greater difficulty in finding law (easier to find cases, • Rationales are often obscured (-this will make you safer etc. There have been names given to legislation i.e. safe roads act etc. = political pandering) • Statutes often delegate authority with few guidelines (regulations for police – worded very broadly, the rules and regulations comes within other documents and policies =difficult to know what the criminal law is. It is delegated to groups within the criminal justice system so it is hard to know the rules because there are other authorities that are not apparent yet they still are valid for all citizens of society) • Often very political re changes to criminal law (lack of information in terms of the production of criminal law –the reaction is “what is the results of ____” – doesn’t mean very much to your protection with criminal law) • Still no comprehensive codification of criminal law (no true codification, usually for political purposes. Morality and knowledge comes from the 1700s, something as important as the criminal law should be able to do better than that. Often a failure to clean up) Reform issues/trends • Influence of provinces on increase (provinces can say they don’t agree with that criminal law therefore they are not going to enforce it...if you want to enforce it then you need to bring in federal prosecutors, s. 92. –ominous bill of crime =$$ $ billions, who is going to pay?) • Shift of power to courts (federal gov has not taken responsibility –charter) • Increase in influence of various victims’ groups • Attempts to develop influential independent law reform body have failed • Influence of the profession remains high • The public remains very much ill-informed/uninformed (knowledge from the media is not obvious, when people are uninformed it makes it much easier to pander/misinformation) • Resort to criminal law often as solution, usually for political purposes (short term, highly reactive..visible –cheap easy solution) • Search for guiding principles for reform and operation of the criminal law system Ferguson (in text) • Bentham –common law development seen as uncertain, difficult to ascertain, ad hoc, undemocratic • Judicial discretion should be limited • Codification =enactment of a complete and comprehensive statement of the law, done in a rational and scientific manner, proceeding from general to specific principles, and written in clear and language understandable by all (clarity of logic, something understandable –all reflective in reference points of the criminal law and what we want. Ferguson talks about the law form of commission 1971 –society movement, looking for an independent voice in law and criminal law etc. Ad hoc approach, 1979 announce the fundamental review of the criminal law) Stuart (in text) –consensus perspective • Basic substantive principles are missing from CC (the general part is an attempt to stay in a comprehensive and coherent fashion with general principles that apply to the legislation
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