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Lecture 2

Sociology 2266A/B Lecture 2: Lecture 2

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Sociology 2266A/B
Jennifer Reynolds

Tuesday, January 24, 2017 History of Criminal Law in Canada Origins of Law ‣ Mores • Universally followed behaviour Norm in every culture in the world • • Aligned with customs and conventions mainly ‣ Folkways Drugs • • Alcohol • Prostitution About the customs and traditions that exist that we decide to codify into criminal • code - not necessarily condemned in all cultures ‣ Constitution Act 1867 (TB) • Noted that a crime can normally be defined by two basic elements Prohibition against certain conduct Penalty for violating that prohibition But third element must added when the courts are required to decide whether Parliament has enacted legislation that falls within the scope of its criminal law power — SCC said that the penalty must be directed against a public evil or some form of behaviour that is having an injurious effect on the Canadian Public • Most important piece of legislation that deals with substantive and procedural law is the Criminal Code Substantive law = legislation that defines the nature of various criminal offences (like murder, manslaughter and theft) — also legislation that defines the nature and scope of such defences as provocation, duress and self defence 1 Tuesday, January 24, 2017 Criminal Procedure = body of legislation that specifies the procedures to be followed in the prosecution of a criminal case and that defines the nature and scope of the powers of criminal justice officials Early Sources of Criminal Law ‣ Criminal Law (TB) • Body of jurisprudence that includes the definition of various crimes, the specification of various penalties, a set of general principles concerning criminal responsibility and a series of defences to a criminal charge The Code of Hammurabi One of the first known bodies of law - 2000 BC -> King Dungi ‣ • Developed in an area where it is present day Iraq Later, the King Hammurabi came along in 1750 BC , King of Babylon and he decided to write the laws on rock, wrote the crime and the punishment ‣ Emphasis on retribution (Physical punishment) Lex talionis • Eye for an eye • Severity of punishment = Also based on class standings - slaves and underclass might be put to death where free man could only lose a limb for the same crime Focused on issues of theft, property, ownership, sexual relationships and ‣ interpersonal violence Mosaic Code ‣ 1200 BC ‣ Law presented to Moses, from God - also known as the 10 commandments Like: • Thou shalt not kill, steal, commit adultery, lie • Basis for the modern day criminal system 2 Tuesday, January 24, 2017 ‣ Foundation of Judeo-Christian moral teachings ‣ Basis for present-day legal system Early Roman Law ‣ Derived from the Twelve Tables (451 BC) • Developed by group of 10 men in response to the pressure of the lower class who thought that the way the system was set up was not equal for everyone Write them out so everyone follows it ๏ Written on bronze plaques ‣ Basic rules regulating family, religion, and economic life Based on common and fair practices ‣ • For Everyone ‣ The Justinian Code Public Law • Crimes against the state • Private law More about contracts Dark Ages ‣ Early formal legal codes lost Demonic Era ‣ • All about religion and good vs evil ‣ Guilt determined by ordeals • If you came out alive you were innocent • Could also challenge your accuser to a duel during these times Up until 19th century systems of crime and punishment were described as chaotic ‣ 3 Tuesday, January 24, 2017 • Law was also controlled by lords Trial by Ordeal Judicium Dei* ‣ • God’s verdict/judgement • Making people go through unpleasant experiences ‣ Ordeal of fire • Walking across hot coal or water pit or hold iron pit - no burn = innocent , if burned and you get infected means your guilty Ordeal of water ‣ • Hot water = pot or kettle of boiling water and you had to retrieve the stone if you didn't = guilty • Cold water = accuser in the stream with a rock on legs and if you survived = innocent Ordeal of the Cross ‣ • ‘To discourage’ • Introduced to try to stop duels from happening • Stand back to back with arms up and whoever dropped arms was guilty • Used until the 16th century and abolished because they thought it made a mockery of Christ Ordeal of ingestion ‣ • Gave you a piece bread (eucurus) while protesting your innocence and if you died by the end of the year you were guilty • Were given bread and cheese and if you choked on the food you were guilty Origins of Common Law ‣ Unwritten legal precedents supported by court decisiohhns ‣ Based on shared traditions and standards 4 Tuesday, January 24, 2017 Crime and Custom ‣ Crimes as personal wrongs — compensation to victims • If payment not made the family would try to forcibly collect the damages Recognized crimes: treason, homicide, rape, property theft, assault, battery ‣ • Treason = death Eventually compensation split between family and the King ‣ ‣ Scale of compensation • Compensation based on the severity of the crime Important people received harsher sentences (paid more money) ‣ • Eventually the nobility saw a benefit to this and said that they would take the compensation because they broke the formal contract Norman Conquest Replaced local tribunals with ‘royal administrators’ ‣ • Use local, custom and rules of conduct as guide in court • Wanted tomaintain military supremacy all over the country side • Would go todifferent towns and hear the cases of the people that have had issues and make decisions then continue to travel around to hear all of the cases (were like judges) ‣ Henry II (1154-1189) • Called royal administrators as circuit judges • Current English system of law • Jury Members of the town of the community would decide based on the facts -> judge just spoke their decision • Prosecutors Submitted evidence and brought witnesses before the jury 5 Tuesday, January 24, 2017 • Witnesses A little while later they also allowed the accused to bring the witnesses The Common Law ‣ ‘refers to a law applied to all subjects of the land, without regard for geographic or social differences’ ‣ Henry’s judges applied ‘national law’ instead of the law from local jurisdictions Wanted a system of national law who all had to abide by that law • ‣ Cases began to be written down — concrete examples of common-law decision emerged ‣ Produced fixed body of legal rule and principle Law in Canada Before Confederation (1867) no Canadian law ‣ • Used Common Law for Criminal Prosecutions ‣ Police of Canada Act (1868) First time that different types of police forces are developed instead of just RCMP • (municipal, federal, provincial police forces now) ‣ Canadian Criminal Code (1892) • Quebec: Civil Napoleonic Code Comes from France Interesting Laws* ‣ CCC include laws defining the following as crimes: Dueling (Section 71): It is an indictable offence to challenge or accept to challenge • to fight a duel • Having a stink bomb (Section 178): It is a summary offence for anyone except a peace officer to possess an offensive volatile substance 6 Tuesday, January 24, 2017 Pretending to practice witchcraft (Section 365): It is a summary offence to • fraudulently pretend to use witchcraft or sorcery; it is legal to be a witch Some judge decided at one point in time that it was not ok to do this Classification of Law ‣ (1) Crimes and Torts ‣ (2) Indictable and Summary Offences (3) Mala in SE and Mala Prohibitum ‣ Crimes & Torts ‣ Civil Law (suing people) • Tort law: Personally harmed someone for what they have done or ought to have done • Tort: A compensation for that harm Can also occur when a behaviour is a negligent cause of injury You can go to both courts for the same issue -> can go to criminal court and be heard in criminal code and civil court to be heard ๏ Based on how much evidence you have -> civil = balance of probabilities (50% or higher chance you did it), criminal = beyond a reasonable doubt ‣ This is why people mainly choose to charge in civil code ‣ Criminal Law • Criminal Code of Canada Both attempt to control people’s behaviour by setting limits on what acts are ‣ permissible; both accomplish this through state-imposed sanctions ‣ Differences: (1) public vs private wrongdoing; (2) state initiates & imposes punishment (criminal code) vs victim initiates & receives compensation; (3) burden of proof 7 Tuesday, January 24, 2017 Indictable and Summary Offences ‣ Criminal laws classified as: • Indictable: Serious offences -> no time limit on prosecution Get to choose trial by judge or trial by judge and jury • Summary: Less serious -> 6 month limit on prosecution Heard in provincial court Max fine = $2k or 6 month jail term Mala in Se & Mala Prohibitum* ‣ Mala in Se • Rooted in core values in Western civilization • ‘natural laws’ Universally followed behaviour and universally condemned • • Designed to control behaviour like inflicting physical harm on someone or harming someone else's property ‣ Mala Prohibitum • Reflect current public opinion and social values • Things are illegal because we have decided to prohibit them (drugs, guns etc) Functions of the Criminal Law ‣ Social control ‣ Discouraging revenge Burden of retribution from individual -> on the State instead • ‣ Expressing public opinion and morality • Mala in se, mala prohibitum ‣ Deterring criminal behaviour 8 Tuesday, January 24, 2017 • Social control realized through deterrence • General vs specific Deterrence General = as a society we wont commit crimes because we don't want to be punished Specific = punishing individuals because they don’t want them to do that crime again ‣ Maintaining social order • Its not so much for the greater group but also to insure the existing climate or system is upheld Legal Definitions What is Criminal Law? ‘a body of jurisprudence that includes the definition of various crimes, the ‣ specification of various penalties, a set of general principles concerning criminal responsibility, and a series of defences to criminal charges’ What is a ‘Crime’ ‣ ‘A crime consists of a prohibition against a certain conduct and a penal sanction (such as imprisonment or a fine) associated with the prohibited action’ ‣ Crime as social construction* • How do we know? Homo’s used to be a punishment where as it is not now because of the changes in the social construction Elements of a Crime: Actus Rea ‣ Must be shown that an event was ‘caused’ by the accused person’s conduct ‣ Consists of: Hitting and breaking a nose: • 9 Tuesday, January 24, 2017 Conduct ๏ Punching in the face Circumstances ๏ No consent Consequences ๏ Force caused the bodily harm ‣ What about failure to act? Doesn’t matter unless it is the parents who have to provide the necessities of life • to their children Mens Rea — The Mental Element* ‣ Refers to the mental elements (other than voluntariness) contained in the definition of a criminal offence ‣ Accused should not b
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