LS202 Lecture Notes - Provincial Superior, Eugenics, Atavism

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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?
Documents; legislation (federal and provincial), proclamation,
regulations and order, constitutions, judicial/legal principles
Imposed by the external
Civil Law vs. Criminal Law
Civil: One act civil terminal, most intrusive form of public law
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
Rule of Law: No one is above the law
Sometimes two pieces of legislation work in conjunction
Judicial decisions that interpret laws (s. 91 make laws)
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
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)
Ex. 1st/2nd 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