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LAWS 2301
Ronald Saunders

Laws 2301 Chapter 3 The Production of Criminal Law pages 88 to 119 Focus of this chapter - The processes and the institutions which produce criminal law - Looking at Primary Sources of Criminal Law o The Parliament o The Courts o Administrative law (ignore) o Constitutional law Issues to keep in mind throughout this chapter 1. Input Who produces the criminal law and their qualications a. Who? If traditional assumptions are that law is representative of society as a whole, and that it is neutral, then the idea of input (who is making the decisions), doesnt really matter, as theyd be neutral and fair. However, in regards to a more critical or socio-legal stance, then the question takes on an important dimension. In this light, one would want to examine the class, gender, ethnicity of the state agents as a group and question whether such factors have signicant consequences for the criminal law which is produced, enforced, and applied. b. Lawyers - Its apparent that the production of criminal law is for the most part controlled by legal professionals. Its not only the lack of participation of a variety of groups in society which causes problems with the criminal code, it is also the type of approach and expertise that legal professionals bring to the job of criminal law reform. Problems with legal professionals i. Ignore what ought- Lawyers are by training and practice process-oriented, concentrating on rules and procedures. Also traditions and processes which consistently look backward to precedent and established practice, and which defend the status quo- lawyers tend to be quite limited and conservative in their vision. Further, they tend to ignore what ought to be accomplished the bigger picture. ii. Centrality of the trial and judge One sees a concentration on formal aspects of the criminal justice system, notably in regard to the centrality, which they give to the trial process and that of judges. The trial process cannot be dismissed as meaningless or unimportant, but the focus must shift to other segments of the system. Need to focus on more than just trial and judges. iii. What is needed- for the criminal justice system is the input of criminal justice and social policy experts, experts both in society and in the appropriate policy responses required. Ex: LRCC was an attempt, but failed as it was predominantly lawyers who thus focused on sterile, legalistic, technocratic approaches. We need more than this. c. Acceptability- those who make policy that affects all of society should be accountable and responsible in some manner to those who are affected by the policy. The point to be kept in mind is the judiciarys lack of accountability to the public, which it allegedly serves. This is particularly important when the lack of representation and the politics and secrecy surrounding the appointment process within the judicial branch are addressed. *Related to point a. 2. Certainty- idea that the law should be knowable and understandable for all citizens, that the law should be readily accessible. Criminal law remains the preserve of legal professionals with its arcane language and rituals that allow those professionals to maintain their control 3. Consistency of approach and purpose- in the past, legislative responses have proven to be haphazard and uneven. There is a lack of consistency not only internally with the individual units of the criminal justice system, but also between different components of the system. The courts have different goals or principles in mind as do the police, crown prosecutors, parole officers, and probation agencies. 4. Flexibility- Processes should possess a degree of exibility so as to allow the criminal law to adapt and adjust readily to changing social conventions and perspectives. In general, criminal law is not a given, ctional or a constant from the heavens, it expresses real values and choices have been made by real people who have been inuenced by concrete structures and perceptions. A nal point is that the relationship between processes can often be a problematic one in the sense that the failure of one institution or system to adequately deal with a problem can lead to change emanating from another group. 3.1 Legislation and the Role of the ParliamentThere are several dimensions to the role of the Parliament which require examination, including the nature and history of the process, the inherent problems of the current process, the reform mechanisms that attach to the process, the role of the provinces and the constitutional issues surrounding the creation of criminal law. - Only the federal parliament has the exclusive power to make acts criminal. However Provinces do have a role Province Role - This doesnt mean that provinces dont play a role. o They enact many laws that carry with them penal sanctions (quasi-criminal laws) o They also have an important role to play in the implementation and enforcement of the criminal law. - Provincial offences often serve important regulatory functions and the breaking of them can have serious consequences, if not immediately, then in the long term. Ex: Individual hunting violations may not be serious (considered criminal) but if these rules werent there or ignored, then wildlife may be endangered. Over time, they can become bigger issues if ignored. - The implementation role, played by the pro
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