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Chapter 2

CRM 100 Chapter 2.docx

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Ryerson University
CRM 100
Tsasha Awong

CRM 100: Chapter 2 9/12/2013 7:58:00 PM Criminal Law and Criminal Justice in Canada -Substantive Criminal Law: Body of legislation that declares which actions will be punished by the state  Substantive criminal law legally defines crime in our society -Procedural Criminal Law: Tells us how rights and duties of individuals can be enforced. (“Due Process”)  Focuses on the criminal process (legal steps an offender passes)  Ex: Rules of evidence, law of search and seizure, & right to counsel  Most procedural law is found in S.8-14 of the Charter Sexual Assault Laws Changed over the years because it was mislead. a. The complainant had to be female. b. The accused had to be male. c. The complained and accused were not married to each other. d. Sexual intercourse did occur e. The act of intercourse occurred without the consent of the women -Bill c-127 (On Jan 1,1983) brought many changes, including: spouses can be charged for sexual assault, it could be male or female -Sexual Assault has 3 degrees, depending on how serious  1 (S.247): Victim suffers least physical injury (most common)  2 (S.272): Involves use of a weapon, threats to use a weapon, or bodily harm; maximum punishment of 14 years imprisonment  3 (S.273): Wounding, maiming, disfiguring, or endangering the life of the victim. Offenders can receive max term of life imprisonment -L1=hybrid offence: Crown prosecutor has the power of discretion to proceed by way of indictment/summary conviction, key role on punishment. Sources of the Criminal Law in Canada -Derived from British Common law, modeled closely to the common law -Common law is an important source in Criminal law and substantive law  Originated during reign of Henry II (1154-1189)  Wanted a court system that would try cases on basis of laws passed by the government -Common law is gradually developed, forming legal principles that were equally relevant to all citizens regardless of local customs/place of residence -Stare decisis (“based on situations of similar facts”), requires judiciary to follow previous decisions in similar cases, lower courts follow higher courts Written Sources of the Criminal Law -Common law was uncodified, judges had to discuss the rulings among themselves, it took too long leading to written sources of criminal law -Contemporary Canadian criminal law has four main sources:  The Constitution, Statute Law, Case law, and Administrative law Constitution -Fundamental principles that guide the enactment of laws and the application of those laws by the courts are found in the Constitution Act -Only federal gov’t can enact criminal laws and procedure Statute Law -Statutes are laws that prohibit or mandate certain acts -Considered the most important source of law in Canada today Case Law -Involves judicial application and interpretation of laws as they apply in a particular case Administrative Law -Administrative Regulations: considered to have the power of criminal law -Written by regulatory agencies that have been give the power of the gov’t to develop and enforce rules in specific areas (ex: Environment, competition policy) The Rule of Law -Society must be governed by clear legal rules rather than arbitrary personal wishes and desires -No one individual or groups has privileged exemption from the law -Rule of law ensures that law is created, administered, and enforced on the basis of acceptable procedures that promote fairness and equality to protect society  Scope of the law: No privileged exemptions to the law. All come under rule of law  Charter of the law: Law should be public, clear enough that most people can understand it, and relatively clear and determinate its requirements  Institution of the law: Certain rules that institutions of law must produce in order for the law to be fair and just. Includes independent judiciary, written laws, & right to a fair hearing Access to Justice -Involves the ideal of legal equality, which is found in S.15 (equality section) of the CRF  Each individual is equal under the law and is entitled to be treated without discrimination (ex: age, sexual orientation, sex, race, ethnicity, religion) The Canadian Charter of Rights and Freedoms (CRF) -Enacted on April 17, 1982 -Differs from common & statute law; applies mainly to protect legal rights of criminal suspects & convicted persons, powers of criminal justice agencies, & criminal procedure during trial -S. 7: Guarantees that no individual will be denied his/her basic rights in Canadian society “except in accordance with the principles of fundamental justice” -S. 8,9,10 deal with rights of individuals when detained and arrested by the police  S.8 provides the right to be secure against unreasonable search or seizure  Police are required to justify their need to search by producing evidence  Sometimes evidence isn’t required (ex: “hot pursuit”, emergency) -S.9 guarantees that everyone has the right to be free from arbitrary detention/imprisonment  3 Types of detention: Arrest  Detained, legal consequences when one decides not to comply with a request from police, psychological detention -S. 10 deals with certain specific rights given to individuals when they are detained by police  10(a): Everyone who is arrested has the right to be informed ASAP of the reason  10(b): “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”  10(c): Related to Habeas corpus, common law remedy against unlawful detention o Habeas corpus entitles an individual who is detained to request an assessment as to whether they are being unlawfully detained  You have to be informed you’re in police custody before being questioned -S. 11 outlines the rights of individuals charged with a criminal offence as they proceed through criminal courts  11(a): Police must tell the accused the precise nature of the charge without delay  11(b): Right of the defendant to be tried within a reasonable time  11(c): Protects the accused from having to testify during trial  11(d): “Presumption of innocence”, innocent until proven guilty  11(e): Right to reasonable bail  11(f): Right to jury trial for any offence with a max punishment of 5 years or more  11(g): Act/omission can be construed as an offence only if it was illegal at the time  11(h): Individuals are protected from double jeop
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