WDW225 Lecture 1

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Woodsworth College Courses
Jim Davies

WDW225 Lecture 1 09/20/2012 Uses of Criminal Law 1. Regulate morality - Denounce immoral conduct - Reflect societal values 2. Define the limits of acceptable behavior - Forms the basis of the “social contract” o Giving up some freedoms - Boundaries change over time - Limited consensus of what should be crime o Possession of marijuana, abortion, homosexuality, prostitution 3. Justify imprisonment/deprivation of liberty 4. Protect society from harm Options? 1. Criminalize conduct 2. Formal social control - Regulation (non-criminal offences, licensing, regulatory framework etc.) - Incentive structures (i.t. tax incentives – Metropass) - Public education (i.e. M.A.D.D.) - Medical regulation 3. Informal social control – community/peer pressure 4. Nothing Uses of Criminal Law Must distinguish CRIME from other prohibited conduct or regulated conduct which carries potential for penalties (including jail) - Parking infraction (Highway Traffic Act) - Owning an illegal pit bull in Ontario (Dog Owners’ Liability Act) - Urinating in public - Operating a hot dog stand without a licence - Owning more than 6 ferrets in Toronto (Municipal Code, s. 349) - Practicing midwifery without authorization (Regulated Health Professions Act, s. 27) - Observing the seal hunt without a licence (Marine Mammal q Regulation, s. 33) o These are all regulations that one must follow The Criminal Justice System 1. Parliament (Federal) Enact legislation 2. Police - Investigate crime - Lead the investigation process, and finish it - Once the charges are filed with the court, the crown attorney can act 3. Crown attorney - Prosecute crime - Lead the evidence, and charge the criminals (do not investigate) 5. Defence counsel - Defend those accused of crime 6. Court/Judge/Jury (5,7,9 majority wins) - Interpret legislation, strike down unconstitutional legislation, apply legislation, determine guilt/innocence, impose sentence - Judges always makes the decision of the sentence Sources of Crimes in Canada 1. CRIMINAL CODE OF CANADA First enacted in 1892 Amended from time to time Everything in the Criminal Code of Canada is a crime 2. CONTROLLED DRUGS AND SUBSTANCES ACT Contains all drug offences Enacted in 1996 Divides different drugs into different “schedules” Possession, traffic, production …etc. Replaced the Narcotics Control Act Categories of Criminal Offences 1. Summary conviction offence (least serious offence) Most minor offences Examples: harassing phone calls (s.372(2)), carrying a weapon to a public meeting (s. 89), possession of a small amount of marijuana (CDSA, s. 4(5)), waterskiing at night (s. 250(2)) 6 months in prison 2. Indictable offences (most serious offence) Most serious offences Examples: murder (s. 229), cause explosion (s. 81), importing/exporting weapons (s. 103(1)), trafficking cocaine/oxycontin (CDSA, s. 5(3)(a)) 3. Hybrid offences Majority of offences 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)) The crown gets to decide depending on the seriousness of the allegation if the offence is to be charged as a summary or indictable offence Sources of Crimes in Canada Only the Federal Government has the power to enact criminal law in Canada - s. 91 and s. 92 of the Constitution - Set out the powers of Federal and Provincial governments - s. 91(27) – gives Federal government exclusive authority over “criminal law” - Provincial governments can regulate matters that fall within their jurisdiction BUT - s. 92(14) – gives the provincial legislature the authority over “the administration of justice in the province” including the constitution, maintenance and organization of criminal courts - s. 92(15) – gives the provincial legislation the authority over the imposition of punishment - CREATES OVERLAP Limits on Criminal Law TWO main sources of restrictions on power to enact Criminal Law: 1. s. 91/s. 92 of the Constitution Parliament cannot make anything a crime Courts play a role in defining what sorts of things can be crimes (as opposed to regulated some other way) 2. Canadian Charter of Rights and Freedoms Parliament cannot create a crime that violates any provision of the Charter Judges decide whether criminal law is outside the scope of s. 91(27) or violates the Charter – can strike down the provision of the Criminal Code if the are ultra vires or violate the Charter. - Section 91/92 imposes limits Xx7 Section 91/Section 92 “Turf War” Margarine Reference Case (1949, SCC) FACTS: federal government made it an offence to make, import or sell margarine in Canada if it was made with any fat other than from milk or cream (Dairy Industry Act) - Penalty -- fine for a first offence or up to 6 months in jail (with or without hard labour) for subsequent offences - Legislation was challenged as ultra vires the Federal Government [outside the scope of their powers under s. 91(27)] - Government tried to defend the legislation as valid criminal law SCC held that it was ultra vires the federal government (i.e. not valid criminal law) - Really a matter of “property and civil rights” which is a provincial power [s. 92(13)] - In addition, the Court held: - “A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.” Margarine Reference – SCC continued: “Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law, but they do not appear to be the object of
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