LAWS 2301 Chapter Notes -John Stuart Mill, Indictable Offence, Jeremy Bentham
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…
oAdministrative law (ignore)
Issues to keep in mind throughout this chapter…
1. Input – Who produces the criminal law and their qualiﬁcations
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), doesn’t really matter, as
they’d 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 signiﬁcant
consequences for the criminal law which is produced,
enforced, and applied.
b. Lawyers - It’s apparent that the production of criminal law is
for the most part controlled by legal professionals. It’s 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
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 a!ects all of
society should be accountable and responsible in some
manner to those who are a!ected by the policy. The point to
be kept in mind is the judiciary’s 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 di!erent components of
the system. The courts have di!erent goals or principles in mind as
do the police, crown prosecutors, parole o"cers, and probation
4. Flexibility- Processes should possess a degree of ﬂexibility 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, ﬁctional or a constant from the
heavens, it expresses real values and choices have been made by real
people who have been inﬂuenced by concrete structures and perceptions.
A ﬁnal 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
3.1 Legislation and the Role of the Parliament
There 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…
- This doesn’t mean that provinces don’t play a role.
oThey enact many laws that carry with them penal sanctions
oThey also have an important role to play in the
implementation and enforcement of the criminal law.
- Provincial o!ences 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 weren’t there or ignored, then wildlife may be endangered.
Over time, they can become bigger issues if ignored.
- The implementation role, played by the provinces, how the law is
enforced and in what areas also have an e!ect.
Historical Development of the Criminal Law in Canada
One of the original problems was the lack of a consistent and
comprehensive set of principles and a consequent lack of direction to
guide the evolution of criminal law.
1982- the ﬁrst adoption of the Canadian Criminal Code, which was a
compilation of the criminal common law and criminal legislation up to
that point in time. What this means, on the one hand, of course, is that
the Criminal Code at the outset was not a break with the past and a new
beginning, but rather was a continuation of laws and rules reﬂecting
older conceptions of society. The problem with this enactment can be
seen throughout the years. It was a haphazard and piecemeal
development that responded to a series of crises and issues, political
responses that resulted in various add-ons to the code and to criminal
legislation in general.
How do we ﬁx this?
1971- created of LRCC. Intended to remove politics from the process,
and review the code. However, failed. Not much success.
It is legislation that…
- Deﬁnes which acts or omissions constitute criminal o!ences