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Lecture 6

LAWS 2301 Lecture Notes - Lecture 6: Vagueness, Preliminary Hearing, Practical Reason


Department
Law
Course Code
LAWS 2301
Professor
Ronald Saunders
Lecture
6

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Friday October 21 2011
Ewaschuk on codification:
Codified existing law in 1892
Nothing re principles
No common law o!ences, 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 di"cult 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 di"culty 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 =di"cult 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)
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