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University of Toronto St. George
Woodsworth College Courses
Dena Demos

NUTS AND BOLTS OF CRIMINAL LAW USES OF CRIMINAL LAW 1) Regulate morality (was one of the primary function of law historically) - Denounce immoral conduct - Reflect societal values 2) Define the limits of acceptable behaviour - Forms the basis of “social contract” o What we essential agree to do and not do in society - Boundaries change over time o Certain things that were crime now, no longer are…vice versa - Limited consensus of what should be crime; debates where it should be decriminalized/criminalized o E.g. possession of marijuana, abortion, homosexuality, prostitution 3) Justify imprisonment/deprivation of liberty 4) Protect society from harm o Could be economic, social, physical, etc. OTHER MECHANISMS 1) Informal social control—community/peer pressure 2) Formal social control - Regulation (i.e. non-criminal offense, licensing, etc.);don’t have to criminalize something to regulate it - Incentive structures (i.e. tax incentives charity, RRSP) - Public education (i.e. M.A.D.D.) not mutually exclusive - Therapeutic model; regulation through medical route 3) Nothing; may be things in the criminal code that we don’t think should even be regulated, e.g. waterskiing at night QUESTIONS Through the course, ask yourself: 1) What sorts of activities should the state criminalize? (Should the state have ability to criminalize whatever they want, are the limits for creating criminal law enough?) 2) What limits should be placed to the state’s ability to enact criminal law? 3) What should the role of the court be in defining/applying criminal law? PLAYERS IN THE SYSTEM? 1) Parliament - Enact legislation, explains what constitute crime 2) Police - Investigate crime - First step in program 3) Crown attorney - Prosecute crime 4) Defence counsel - Defence those accused of crime 5) Court - Interpret legislation, strike down unconstitutional legislation, apply legislation, determine guilt/innocence, impose sentence WHAT IS CRIME? - Basic definition: Crime = prohibited act + potential for penal sanction - will be distinguishing CRIME from other prohibited or regulated conduct which carrier potential for penalties o parking enforcement o owning an illegal pit bull o operating a hot dog stand w/t licence - crown decides if charges should be charge/dismissed after police first arrests - before trial, the first thing to decide if they will be release on bail, or held until trial…for most offences you get bail, others like murder you don’t get bail, once bail is resolved get into holding pattern until trial date, SOURCES OF CRIMES IN CANADA - only the Federal Government has the power to enact criminal law in Canada 1 o s. 91 and s.92 of the constitution o set out the powers of federal and provincial government o s.91 (2)—gives federal government exclusive authority over “criminal law” - federal legislation is the same across Canada BUT - s.92(14)—gives the provincial legislature the authority over “the administration of justice in the province” including organization, maintenance, and organization of criminal courts…get to create the rules for courts - s.92(15)—gives the provincial legislation the authority over the imposition of punishment CREATES OVERLAP - sometimes the same conduct is a crime AND a provincial offence, e.g. insane driving and ran over cyclist, can be charged with dangerous driving (federal) AND reckless driving (provincial) - federal government enact crime, provincial government administers is MAIN SOURCES OF CRIMES IN CANADA 1) CRIMIANL CODE OF CANADA - First enacted in 1882 - Amended from to time - Does not deal with drug offences 2) CONTROLLED DRUGS AND SUBSTANCES ACT - Contains all drug offences - Enacted in 1996 - Divides different drugs in to different “Schedules” base on how dangerous and horrible they are to determine seriousness - Replaced the Narcotics Control Act - Because the province has the power under the constitution to administer criminal law, the people who prosecute crimes under the criminal code are employed by the province, they are provincial crime attorney, but charged under DRUGS AND SUBSTANCE ACT, will be prosecuted by federal crowns CATEGORIES OF OFFENCES 1) Summary conviction offences - Most minor offences - Max. penalty of 6months in jail, and $2000 in fines - Super summary offences: increased the penalty to 18 months in jail - Much more streamline process from arrest to trial - Examples: harassing phone calls (s.372(2)), carrying a weapons to a public meeting (s.89), possession of a small amount of marijuana (CDSA, s.4(5)), waterskiing at night (s.250(2)) 2) Indictable offences - Most serious offence - Much higher maximum penal punishment - Get more procedural protection, pre-hearing before trial - Examples; murder (s.229), cause explosions (s.81), importing/exporting weapons (s. 103(1)), trafficking cocaine/oxycontine (CDSA, s5(3)(a)) 3) Hybrid offences - Majority of offences - Offence which the Crown decides if they want to proceed as summary conviction or indictable…can go either way - The offences can be minor to very serious - Look at the criminal code to determine if it’s a hybrid offence - Example: assault (s.266), sexual assault (s.271), false fire alarm (s. 437), promoting hatred (s. 319(2)), theft under $5000 (s. 334(b)), trafficking anabolic steroids (CDSA, s. 5(3)(C)) CAN JUDGES CREATE CRIMES? - Short answer –“not anymore” - S.9(a) of the Criminal Code “No person shall be convicted..of an offence at common law” o Judge cannot create law COMOMN LAW SYSTEM CIVIL LAW SYSTEM - Law is developed by judges - Judges cannot create law, everything has an underline statute, the provincial government legislate everything in quebec - No underlying statute - Applicable to provincial law in quebec - Lower courts are bounded by decisions of higher - Laws are written and codified 2 courts - In Canada we have a pure common law system, E.g. - Judges simply apply the law contract law; need to look at what judges before decide what a contract is, etc., based on cases and decisions of judges - In a strict common law system, judges are bounded - by the decisions of previous judges Supreme Court of Canada ( 9 judges, their decisions are - bounded to the judges of all the over judges of Canada, must follow decisions from Supreme Court of Canada)  Provincial Appeal Court  Superior Court of Justice (trial court, only trials indictable offences, but not all)  Ontario Court of Justice (aka. Provincial court, every single criminal case, all start at the Ontario Court of Justice, intake court for every criminal matter in Ontario, same structure in every province, most bail hearings and trials take place there, some indictable offences have to be tried there, accused can choose to trial at Superior or Ontario court), if you don’t like the trial outcome can appeal, and the Supreme Court of Canada hears the trial, very few cases get heard - In Canada, we have a hybrid between common and civil law…but in criminal law there is an underlining state therefore more similar to civil law system, does the common law power
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