1. Common Law + Liberal Democracy
precedence, stare decicis + distinguishing on the facts
3. Crime control model v. due process model
4. Key Points – CJS legitimates states monopoly over use of force
CJS negotiates relationship b/w citizen and state.
Canadian Criminal Justice System – Continent/europe had Napoleonic code/civil law. Based on a
code of apriori principles which means you think of them first. It applies to all future eventualities.
England had common law system.
States authority rests on its monopoly over the use of force.
The government was the only body aloud to use force against its citizens. Only the army and the
police. Legitimizing the states authority when a state try’s to create legitimacy with its citizens
through use of force, rituals, or negotiation.
Itinerant judges are judges sent by the king that move around and travel from area to area and
solve disputes. They come up with a bunch of decisions about what to do about these disputes.
Decisions lead to definitions of crimes and remedies that grow on a casebycase basis. After a
while, to be fair, you start to apply the same rules over and over again. That sum of rules plus the
process of law making is common law.
There will always be competing legitimacies so the government has to eliminate the other
legitimacies of power. They have to claim legitimacy over other competing claims.
Common Law defined: a body of general rules; prescribe social conduct (thou shall not); enforced
by ordinary courts; rules developed by courts in actual legal cases; process is conducted in
accordance with a defined set of procedural rules (due process).
There was a tendency to apply the same rules because you wanted certainty, something for people
to rely on, avoid looking arbitrary, wanted to treat individuals equally and be efficient and run
through cases quickly.
Doctrine of Precedence: to resolve dispute you look back to past decisions and apply the rules you
created in the past. Use the current case to develop rules to apply in the future. In each province you have 3 levels of courts. Provincial, Superior, and Provincial Court of Appeal.
Above all provinces is the Supreme Court of Canada. Each court can develop its own rules under
the concept of precedent.
Doctrine of stare decisis: lower act are abound by decisions of higher courts.
The judge’s decisions are made from social values.
Common law is grounded in the political philosophy of liberalism.
Liberal view of law: society is and aggregate (made up of) of individuals. Not different races or
sexes just individuals.
Individuals are rational, they can weigh the costs and benefits of their actions and only decides to
do something when the benefits outweigh or are greater than the costs.
It assumes that individuals need to obey the law to protect their freedom from transgressors. This
is a rational decision. We all agree that the state is the only one who can use violence in order to
protect our freedoms.
If all these assumptions are true then the role of CJS is to maximize individual freedom.
The criminal law punished people by taking away their freedoms. Since freedom is so important,
we should only punish transgressors who make a rational decision to transgress.
BNA act 1967 (renamed the constitution act in 1982) – Quebec still uses civil law system for private
disputes and public law is for criminal law and disputes between individual and state. Quebec uses
a civil code and in the rest of Canada its common law. The entire country uses common law for
criminal cases. In 1892, we wrote a criminal code of Canada.
After 1955 the parliament can create crimes and the courts can continue to create defenses and
interpret parliamentary statutes.
Common law constrains 1 executive power Rule of law says that everybody, including the
government, has to obey the law.
It constrains 2 judicial powers. Common law protects the defendant from violence and misuse of
force from the states monopoly over violence. (Due Process).
Crime control models – repress crime, police screen out innocent people. They punish the guilty
but illegal evidence is admissible. (sometimes it will be let slide to get people in prison). Due Process Model – the important thing is to protect the individual and the individual’s liberty from
the abuses of state power. We control the officers of the state.
Remember sections 711 page 37. Justice McLaughlin compare; madame justice Wilson quote. On
exam maybe. Compare with 2 key points on CJS
Apply some rules:
• Rely on rules
• Avoid looking arbitrary
• Treat different individuals the same (equals)
• Common law defined:
• Bofy of general rules
• Prescribe social conduct (thou shall not)
• Enforced by ordinary courts
• Rules developed by actual legal cases
• Process is conducted in accord with a defined set of procedural rules
• Doctrine of precedence:
• Resolving disputes look back to past decisions to apply the rules you developed in the
past, use the current case to develop rules to apply in future
• Each case becomes a precedent that you apply the next time
• Each province usually hows its own court system
• Ont Provincia (Small claims, less serious crimes)l Superior (more serious cases, can be
an appeal for provincial), Provincial court of appeal
• On top of these, there is the Supreme Court of Canada
• Each court can develop there own rules under the doctrine of precedence
• Stare decisis Lower courts are bound by the decisions of higher courts
• Decisions the courts make are routed in culture and social values
• Common law is grounded in the political philosophy of liberalism
• Liberalism has a particular view of law, which is making a set of assumptions:
• Society is made up of individuals, these individuals are all rational
• Rational individual weighs the cost and benefits of their actions and only decides to do something when the benefits outweigh the costs (utilitarian calculus)
• Liberalism also assumes that individuals agree to obey the law to protect their freedom
• This has to do with violence
• We all agree that we are going to give a monopoly over violence to the state so they
enforce rules so you don’t experience violence
• This is a rational decision
• Its better that we all agree on such rules, so you are protected
• States authority rests on its monopoly over the use of force (army, police)
• If these assumptions are true, the role of the criminal justice system is to maximize
• The criminal law punishes transgressors by taking away their freedom, but since freedom
is so important, we shouldn’t punish unfairly, we should only punish transgressors who
make a rational decision to transgress
• Common law was brought to Canada by British settlers
• British North America Act 1867 (Constitution Act, 1982)
• Common law is imported into Canada
• Private law matters (wrongful termination, falling in water at walmart), Quebec still uses the
civil law system
• Civil law is private law, deals with private disputes
• Criminal law is public law, deals with disputes between individuals and the state
• Quebec uses a civil code
• In the rest of Canada, it is common law
• In criminal matters, in the entire country you use common law system
• 1992 Canada wrote a Criminal Code of Canada, just wrote down the common law rules we
• Up to 1955 the courts continued to create new crimes through the common law
• After 1955,