WDW205H Chapter Two The Criminal Law and Its Process Notes

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Woodsworth College Courses
Breese Davies

th September 15 , 2012 Chapter 2 The Criminal Law and Its Process - Code of Hammurabi: the first written criminal code developed in Babylonia about 2000 BCE - Mosaic Code: by tradition, the covenant between God and the tribes of Israel in which they agreed to obey his law in return for God’s special care and protection - Wergild: under medieval law, the money paid by the offender to compensate the victim and the state for a criminal offence - Oath-helpers: during the Middle Ages, groups of 12 to 25 people who would support the accused’s innocence - Stare Decisis: the principle that the courts are bound to follow the law established in previously decided cases (precedent) unless the law was overruled by a higher authority - Common Law: early English that was developed by judges and incorporated Anglo- Saxon tribal custom, feudal rules and practices, and the everyday rules of behaviour of local villages - Inchoate crimes: incomplete or contemplated crimes such as solicitation or criminal attempts - Tort law: the law of personal wrongs and damage, such as negligence, libel, and slander - Indictable offence: a serious offence, such as murder, which carries a serious penalty - Summary offence: a minor offence who penalty is a maximum six months in jail, or a fine - Male in se: crimes that are rooted in the core values inherent in our culture - Mala prohibitum: crimes defined by current public opinion and social values, subject to change - Folkways: customs with no moral values attached, such as not interrupting people who are speaking - Mores: customs or conventions essential to a community, which often form the basis of criminal law - Vagrancy: a summary offence crime, meant to prohibit homelessness, begging, and loitering - General deterrence: measures, such as long prison sentences for violent crimes, aimed at convincing the potential law violator that the pains associated with crime outweigh its benefits - Specific deterrence: a punishment severe enough to convince convicted offenders never to repeat their crimes, which is based on the principle that an individual can be dissuaded from committing a crime if the cost outweighs the benefit - Actus reus: an illegal act, in the affirmative, such as taking money or shooting someone; also a failure to act, such as not taking property precautions while driving a car - Mens rea: the intent to commit the criminal act, needed for most offences except strict liability - Intent: carrying out an act intentionally, knowingly, and willingly - Transferred intent: an illegal yet unintended act results from the intent to commit a crime - Constructive intent: the finding of criminal liability for an unintentional act that is the result of negligence or recklessness th September 15 , 2012 - Strict-liability crimes: illegal acts with no need for intent, or mens rea; they are usually acts that endanger the public welfare, such as illegal dumping of toxic wastes - Mental disorder: a disease of the mind includes an abnormal condition that impairs functioning, excluding self-induced states caused by alcohol and transitory states such as hysteria - M’Naghten rule: in 1843, an English court established that Daniel M’Naghten could not be held responsible in a case of murder because his delusions had caused him to act. This finding underlies the principle of criminal responsibility, which states that an accused cannot be held legally liable for his or her act if he or she does not know what he or she is doing or cannot distinguish right from wrong - Duress: one of the grounds that excuse an accused from responsibility from an act, if it can be shown that the accused was forced or compelled by someone else to commit a criminal act - Entrapment: a criminal defence maintaining that the police initiated the criminal action - Disclosure: a principle established in R. v. Stinchcombe, which ruled that the prosecution must give all the evidence gathered by the police to the defendant in order to make a complete defence to the charges - Assisted suicide: the practice of seeking help in committing suicide; not legal in Canada - Stalking: the criminal offence of following or harassing a victim even though no actual assault or battery has occurred - Cyberstalking: the use of the Internet, email, or other electronic communication devices to stalk another person - Sex offender registration: requirement that released offenders register with the police report to them, and keep the police informed of their whereabouts, including any change of address - Community notification: legislation that requires convicted sex offenders to register with local police when they move into an area or neighbourhood Early Legal Codes - One of the earliest surviving legal codes was developed in 2000 BCE in Sumer. It was later adopted by Hammurabi, king of Babylon, in his written laws, the Code of Hammurabi o Punishment was based on physical retaliation, or lex talionis (“an eye for an eye”) o The severity of punishment depended on class standing: for assault, slaves would be put to death while freemen might lose a limb - Babylonian laws were strictly enforced by judges. If local officials did not catch burglars and thieves, they had to personally replace lost property; if murderers were not caught, the responsible official paid a fine to the deceased’s relatives - Another ancient legal code still surviving is the Mosaic Code of the Israelites o God entered into a covenant or contract with the tribes of Israel in which they agreed to obey God’s law in return for care and protection. This code is the foundation of Judeo-Christian moral teachers and also a basis for our present-day legal system o Its prohibitions against theft, murder, perjury, and adultery precede by several thousand years the same laws found today th September 15 , 2012 - Also surviving is the Roman law contained in the Twelve Tables, formulated in response to pressure from the lower classes who believed that an unwritten code gave arbitrary and unlimited power to the wealthy Early Crime, Punishment, and Law - They early formal legal codes were lost during the Dark Ages, which lasted for hundreds of years after the fall of Rome - The regulation of crime during the early feudal period involved monetary payments as the main punishments for crimes - Guilt was determined by ordeals, such as having the accused place his or her hand in boiling water to see whether God would intervene and heal the wounds - The judgment of the glowing iron was a method of proof used in early Germanic law - Without the use of the ordeal in disputes, sometimes guilt could be disputed with the aid of oath-helpers, who would support the accused’s innocence - Until 18 century the systems of crime, punishment, law, and justice were chaotic Origins of Common Law - Law and crime were guided by superstition and local custom during the Middle Ages - Before the Norman Conquest in 1066, the legal system among the Anglo-Saxons in England was decentralized. Each country was divided into units of 100 families, and then further divided into groups of 10 call tithings, which were responsible for maintaining order among themselves and dealing with disturbances, etc o Petty cases were tried by courts of the hundred group. More serious and important cases could be heard by an assemblage of local landholders or by the local nobleman Crime and Custom - Crime was viewed as personal wrong, and compensation was paid to the victims - If payment was not made, the victims’ families would attempt to forcibly collect damages or seek revenge - For treasonous acts, the punishment was death. Theft during the Anglo-Saxon era could result in slavery for the thieves and their families - A scale of compensation existed for less injuries. Important persons received greater restitution than the general population. This scale became the precursor of the modern- day criminal fine. This criminal law was designed to provide an equitable solution to what was considered a private dispute The Norman Conquest - Stare decisis (“to stand by decided cases”), meant that courts were bound to follow the law established in previously decided cases (precedent) unless the law was overruled by a higher authority, such as the king or the pope - The current English system of law came into existence during the reign of Henry II - The catholic churches banned trials by ordeal - British justices adapted a method that had been long used to determine real estate taxes. In the time of William the Conqueror, 12 knights in each district had been called before th September 15 , 2012 an inquest of the king’s justices to give local tax information. These 12 free and lawful men of the neighbourhood would view the land and testify as to who last had peaceful possession and settle disputes over land. Under King Henry II, these juries were local landholders whom judges called on to decide the facts of cases, investigate crimes, accuse suspected offenders, and even give testimony at trials - At first, jurors were like witnesses, telling the judge what they knew about the case (these courts werethnown as assise or assize [from Latin meaning to sit together]) - By the 14 century, jurors had become the deciders of fact The Common Law - The common law is meant to apply to people wihout regard to social differences - When new situations arose, judges either invented new solutions or borrowed from European countries - In their meetings the judges shared and discussed their decisions, developing an oral tradition law - Common law is judge-made law, case derived from previously decided cases - Crimes like murder, burglary, arson, and rape are common law crimes – they were initially defined and created by judges Common Law and Statutory Law - The common law was a constantly evolving legal code, based on legal decisions made from the ground up o I.e. the definition was constantly changing. Each form of murder was given a different tile and a different degree of punishment - Criminal attempt is defined as a crime in section 24 of the CCC - Luddite: refers to someone who opposes technological change - Statutory laws reflect existing social conditions that deal with issues of morality, such as gambling, sexual activity, drug-related offences, etc The Development of Law in Canada - The early Canadian criminal justice system was strongly influenced by the common law of England and by geographic, economic, political, and cultural factors - The military was the first to maintain law and order, especially in naval ports - The Police of Canada Act (1868) created the Dominion Police, and the NWMP began in 1873. The NWMP was sent to protect the aboriginal population from the Americans and to bring the Queen’s justice to a dangerous territory. The NWMP was able to use criminal sanctions to repress political dissent, control the Aboriginal peoples, and maintain sovereignty - Before Confederation, British common law was used for criminal prosecutions; after Confederation, crime control was centralized in the federal government through the British North America Act o The federal government was given the power to create criminal statute law, and the provinces and territories were responsible for its administration - Parliament codified the first CCC in 1892, supplemented by subordinate legislation in municipal bylaws and provincial or territorial department regulations. This centralization th September 15 , 2012 was significant because judicial precedent and legislative amendments had created substantial variation across the country - Section 163 of CCC is offences tending to corrupt morals, where it is an offence to publish, distribute, or possess a crime comic Classification of Law - Three of the most important classifications are law are 1. Crimes and torts, 2. Indictable and summary offences, and 3. Male in se and mala prohibitum Criminal and Civil Law - Law can be divided into two broad, exclusive categories: the criminal law and civil law - Civil law includes such areas as property law (the law governing transfer and ownership of property) and contract law (the law of personal agreements) - Tort law (the law of personal wrongs and damage) is most similar in intent and inform to the criminal law - A tort is a civil action in which an individual asks to be compensated for personal harm caused by the actions of another o Harm can be either physical or mental and includes such acts as trespass, assault and battery, invasion of privacy, libel (false and injurious writings), and slander (false and injurious statements) - A tort may also occur when a behaviour is an indirect cause of injury, such as when it sets off a chain of events that leads to injury or death - A person can be held both criminally and civilly liable for one action o I.e. if one man punches another, he can be both charged with criminal assault and sued by the victim and perhaps required to pay monetary damages - A key difference between criminal law and civil law is that the state has the power to protect the public from harm by punishing individuals whose actions threaten the social order; whereas in civil law, the harm is considered private, and individuals are compensated for harm done to them by others - In a criminal action, the state initiates legal proceedings by bringing charges and prosecuting the violator Comparison of criminal and tort law Criminal Law Tort Law Crime is a public offense Tort is a civil or private wrong The sanction associated with a criminal law is The sanction associated with a tort is monetary incarceration or death damages The right of enforcement belongs to the state The individual brings the action The government ordinarily does not appeal Both parties can appeal Fines go to the state The individual receives compensation for harm done The standard of proof is beyond a reasonable Guilt is established by a preponderance of the doubt evidence Indictable and Summary Offences th September 15 , 2012 - Criminal laws can be further classified as either indictable offences or offences punishable on summary conviction - An indictable offence is a serious offence, such as murder, whereas a summary offence, such as loitering, is a minor or petty crime - The main differences involve procedure and penalty - Summary offences, which have a six-month limitation period on prosecution, are heard in provincial or territorial court, and the maximum fine is $2000, or a six-month jail term, or both - Indictable offences have no limitation period on prosecution and can result in much more serious penalties if the defendant is found guilty. Indictable offences involve a choice of trial by judge or jury. Most preliminary inquiries (whether there is enough evidence for a full trial) are concluded in less than a day - Criminal procedure: An incident usually must be reported to the police, whereupon the police decide whether it is founded in fact. Charges may or may not be laid, but if they are, the prosecution then decides how the case will proceed. If the case makes it to court, then the defendant can either be found guilty or acquitted. Mala in Se and Mala Prohibitum - Criminologists also classify crimes as being either mala in se or mala prohibitum - Mala in se crimes are rooted in the core values inherent in our culture and are designed to control such behaviours as inflicting physical harm on others (assault, rape, murder), taking possessions that rightfully belong to another, , or harming another person’s property - Mala prohibitum crime involves violations of laws that reflect current public opinion and social values that are more relative in nature Functions of the Criminal Law - The criminal law is a written code defining crime and punishments, centralized under the jurisdiction of the federal government - From the consensus viewpoint, the law reflects the interests of the majority - The conflict view sees the law reflecting the interests of the powerful - Criminal codes have several distinct functions: 1. Providing social control, 2. Discouraging revenge, 3. Expressing public opinion and morality, 4. Deterring criminal behavior, and 5. Maintain the social order Providing Social Control - The first and primary purpose
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