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LS 102 Lecture Notes

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University of Waterloo
Legal Studies
LS 202
Frances Chapman

LS 102 Notes Lecture 1: Introduction R. V. Dudley & Stephens (In textbook) *On Midterm - Court gave it a Special Verdict: The jury leaves it to the judge to decide - First the judge gave them death by hanging, then mercy (life in prison), were eventually released after 6 months in prison - Today in the Criminal Code of Canada: S 229 Culpable homicide is murder… a) person who causes the death of another human being i) means to cause death ii) bodily harm, likely to cause death, reckless whether death ensues or no Lecture 1: Supernatural Theories of Crime and Criminality What is Law? • System • Documents; legislation (federal and provincial), proclamation, regulations and order, constitutions, judicial/legal principles • Types • Structure • Imposed by the external • Enforced Civil Law vs. Criminal Law Civil: One act civil terminal, most intrusive form of public law Supernatural • Prior to the 1800’s, everything was believed to have a supernatural cause (droughts, floods, etc) including criminal behaviour • Two solutions: 1. Exorcism (to cleanse) 2. Punishment (to destroy evil) • “Witches” were number one criminals from 1400’s-1700’s, 100,000 convicted witches died Witch Trials • Crime was in relationship to religion • US: Salem Witch Trials in 1692 • Witchcraft: most common crime in Europe in 1700’s • Moral panic: Overreaction to crime to keep social control. Witch trials were to keep social order, and the church in control • Moral panic today example: Terrorism Supernatural Theories of Crime • Torture to extract from canon law (church law), required 2 eyewitnesses/a confession • Trial by Battle, Trial by Oath (swearing upon the Bible), Trial by Ordeal (Put the witch in water, if she floated she was guilty, if she sunk, she was innocent. The accused died either way) • Compurgation: 11 people to claim that the accused is innocent Witchcraft Today • S. 365 Everyone who fraudently a) use witchcraft/sorcery b) undertakes fortunes etc. can be punished by the law Biological & Psychological Theories of Crime • Physician Gambaltsia della Porta’s theory of physiognomy: criminal based on facial expressions • Lombroso’s theory of atavism: Criminals identified by sight. People with more primitive looks are said to be criminals; • Phrenology: Measures the size of the skull • Atavist man: big lower jaw, strong canine teeth, abnormal nose, insensitivity to pain, extreme sight, apelike arms, apelike ears, overall less evolved looking • Female Offender: Women have childlike characteristic, and had to overcome them to be a criminal, and where therefore worse, these women were also hairy and apelike (prostitutes) • Discrediting Lombroso: Charles Goring collected data over 3,000 English convicts and found no correlation, instead Lombroso’s description of criminals were close to that of Sicilians. • Eugenics: to breed better people • Crainometry: examine skull to find criminal • “ex post facto”: Latin for “after the fact” – Studying what happens to criminals after the fact, not why they committed the crime Lecture 2: Sources of Criminal Law Criminal Law is rampant? • No, be careful assume that there is a great deal of crime all the time. Journalists include what they want in the newspaper. Negative stories sell better than the positive. Immorality vs. Crime • What is considered “immoral” is not always considered a crime. Some may believe that fornication is immorally, however after the age of consent, pre-marital sex is not illegal. • Division of Powers: the power to prosecute criminal matters in the Constitution Act. • Federal: Federal Parliament of Canada (Constitution Act 1867 s. 91 (27)) has the power to enact criminal law/legislation • Provincial: Provincial offences are considered to be “quasi-criminal” • Rule of Law: No one is above the law • Sometimes two pieces of legislation work in conjunction • Legislation • Judicial decisions that interpret laws (s. 91 – make laws) Legislation • Crime: conduct that is prohibited because it has a negative impact on the public. Law dictates what penalty should be imposed when the law is changed. It cannot be retroactive – once a law is made, it must apply that way by everyone. Common Law • Not everything applies to the criminal law • Common Law Defense: Ex. Necessity as a defense is in the common law, not criminal code Criminal vs. Civil Law • Tort: a private wrong Criminal: Public, federal/provincial judge, the victim has little control/benefit, terms: name of state, crown, plead, victim/accused, found guilty/convicted, punished, the burden of proof must be beyond reasonable doubt (wrong judgment can question the entire system) Civil: Routine matters: statement of claim/statement of defense, client is in control and wants something (usually money), plaintiff/defendant, found liable/collects damages (only a few are impacted), the plaintiff has burden of proof Criminal Offenses • Summary Conviction Offenses • Section 787 of the Criminal Code • Less serious • Ex. Trespassing at night • Indictable Conviction Offenses • More serious, punishable by sentences of 2, 5, 10, 14/life in prison (25 years, no parole for 10-25 years depending on crime) st nd • Ex. 1 /2 degree murder • Hybrid Conviction Offenses • At the discretion of the crown, future plea negotiations • Indictable cases that are left to the crown • Ex. Abandoning a child Adversarial System • Disputes between parties are resolved by an impartial decision maker (judge/jury) after hearing the evidence of both sides • Crown Attorney • Defence Lawyer • Burden of Proof: Do not have to prove that there is no evidence of mistakes, but enough that the judge/jury would think BARD (Beyond a Reasonable Doubt. BARD is not 100%) • Crown Attorney: • Hired by the state • Also called Attorney General • Burden of Proof on the Crown • Duty: to protect the public (including the accused), present all the information • Defense Lawyer: • Duties of all lawyers: raise every issue, ask every question, advance every argument, however distasteful • Judges: • “Impartial Tribunal,” but no judge can ever be entirely impartial since no one can ever free themselves from their background/surroundings • In control of courtroom • 10 years’ experience • Justice of the Peace: administration of oaths, reviewing summons/warrants, administering oath, do not need to be a lawyer • Jury: • Understands and retains all evidence presented through the trial • Trial of Fact: the jury is there, hearing the facts • Obstruction of Justice: when someone tries to influence the jury • Selected randomly • Ch
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