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LAWS 2301
Ronald Saunders

Criminal Justice ReadingPage 119145The General Part in CanadaLaw Reform Commission of CanadaThe General Part was basically left to common lawIn 1982 however Parliament enacted a Criminal Code based on Stephens Digest and his Draft Code which the English Parliament had rejected This first Criminal Code recognized the idea of the General PartIt kept in force such commonlaw excuses and justifications as were not inconsistent with the Code itselfSimilarly the Criminal Code revised in 1955 has a chapter of rules about insanity duress criminal participation and other mattersFor while a general part of criminal law contains provisions relating to jurisdiction and responsibility Part I includes numerous additional items and at the same time omits several matters of relevance to responsibilityBy no means all matters relating to responsibility are dealt with by Part I General which only governs infancy insanity duress ignorance of law participation attempts and various justifications such as legal duty selfdefence defence of property exercise of authority performance of surgical operations and consentMany matters regarding responsibility are dealt with elsewhere in the Criminal CodeCausation and provocation are treated in the Part on HomicideThe only definition of recklessness is found in the provisions concerning the offence of mischiefMistake of act is dealt with only in an ad hoc manner in provisions like those on obscenity illicit sexual intercourse and other offencesSome matters relating to responsibility are still regulated by common lawIt is to common law that we must turn for the basic concepts of actus reus and mens rea the principles underlying the rules on infancy and insanity the definitions of key terms like intent recklessness and negligence and the rules relating to defences like necessity and drunkennessThe General Part of Criminal Law in Canada therefore is found in these three different areas in Criminal Code Part IGeneral in the rest of the Criminal Code and in the common lawAny attempt to evaluate its adequacy must rest on an assessment of the purpose and function of a general partPurpose and Function of a General PartJerome HallHalls General Principles of Criminal Law which provides the first comprehensive theoretical treatment in general of the criminal law and in particular of the General Part divides criminal law into three different constituent elements RulesSecondary principlesBasic principlesRules are relatively specific concern relatively narrow issues and are found mainly in the Special PartSecondary principles principles relating to insanity mistake and other defences are wider than rules concern more general matters and are found mainly in the General PartBasic principles eg basic principle of culpability are widest of all relate to the most broad and fundamental issues and in Halls view stand strictly outside the law itselfRules specify what is distinctive about each offenceSecondary principles complete the rules by specifying factors common to all offences Basic principles comprise the fundamental axioms from which the secondary principles are derived Three ingredients are to be found unequally distributed in the criminal lawEach of these ingredients then performs a different functionBasic principles illuminate and systemize the criminal law the principle of responsibility for example articulates the moral basis of the criminal law and orients it towards freedom of choiceSecondary principles provide concrete applications of the basic principles for instance the principles about mistake ignorance of fact and various other defences afford specific instances of the principle of responsibilityFinally there are general rules neither derived from basic or secondary principles nor belonging to evidence or procedure which should find their place within the General Part eg the rules relating to jurisdiction and to limitation of timeIdeally there are three functions for the General Part to avoid repetition in the criminal law to facilitate its systemization and to provide it with a theoretical basisAvoidance of repetition is primarily the function of general rules Rules of more general application must either be located in a general part or else be reiterated with reference to each offenceSystemization results from primary and secondary principles Various rules and particularly those relating to defences were interrelated and connected by reference to the underlying principles These principles provide the structure and organization of the criminal lawFinally theory is concerned with the ultimate ideas which comprise foundation of a science or a social discipline Legal theory can do the same for law providing it with rationale and coherence giving practitioners a deeper insight into all the different rules and which make up that law and enabling courts and lawyers to deal confidently with new unfamiliar problems with questions arising from social change and with issues surfacing in the field of law reformCriminal law theory provides a set of ideas by reference to which every penal law can be significantly placed and thus explained
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