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Lecture

Crim Class 6.doc


Department
Law
Course Code
LAWS 2301
Professor
Ronald Saunders

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Criminal Justice October 21, 2011
Role of Parliament (3.1 in text)
History/issues
Trends/lessons
Codification; role of a General Part
Role of the Courts (3.2 in text)
Levels/powers (Hoskins; Murray)
Interpretation role (Kloepfer; Pare)
Ewaschuk on codification
Codified existing law in 1892
Nothing re principles (not a true code)
No common law offences, but common law defences allowed
Necessity, entrapment, intoxication not found in code
Criminal law not just in codes (in cases, etc too)
Mostly piecemeal change since 1892 (mostly wording change and add-ons; don’t
take anything away usually)
Advantages of legislation
Potential advantages
Possibility of greater creativity
Possibility of greater certainty
More knowable and understandable
Possibility of better expertise
Possibility of more accountability and transparency
More techniques of enforcement (in terms of addressing a problem) (guilt or
innocence and disposing of case- remedy)
More expertise, accountability etc
Courts- give liability or not
Guilty, liability or innocence
Dichotic- arguing for this or against this
Host of solutions- policy solutions
Polycentric- so many different policy solutions
Nature of form- dispute resolution
Different than resolving policy
More narrow than legislative form
Courts take on policy form around dispute resolution
Experience/Reality
Statute language often unintelligible
Culpable homicide- murder where person just means to cause bodily harm which
will likely cause death
One push for new code is to put it in language people understand
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Language often too narrow and no principles set out to guide change
Only one section in code with sentencing provisions
Little outside input
Women and victims used to have much success (lobbying government)
Great difficulty in finding law (Quicklaw is good)
Rationales often obscured
Statutes often delegate authority with few guidelines
Phrased broadly
Often very political re changes to criminal law
Result: lack of information in terms of criminal law
Still no comprehensive codification of criminal law
Pretending to practice witchcraft, selling a drug- crime to claim restores
sexual virility, anal, abortion are all still technically crimes
Reform issues/trends
Influence of provinces on increase
Shift of power to courts
Increase in influence of various victims groups
Attempts to develop influential independent law reform body have failed
Influence of profession high
Public remains very much ill-informed/uninformed
Resort to criminal law often as a solution, usually for political purposes
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 ...) talking about principles of responsibility, excuse, that apply to the
application of the criminal law. In the code put in what “intent” “reckless” means.
How do we define mens rea, actus reas etc. Mental excuses?
Considerable inconsistency and undue complexity in law (how do you give a
meaning to “reckless etc.)
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