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Chapter 2

WDW101Y1 Chapter Notes - Chapter 2: Indictable Offence, Summary Offence, Eye For An Eye


Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
Scot Wortley
Chapter
2

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Chapter 2: The Criminal Law and Its Process
-Criminal law is a living concept, constantly evolving to keep pace with society
-Law defines the behaviours that society labels as criminal
The Origins of Law Pg. 32
Early Legal Codes
-Code of Hammurabi: developed by Sumer, adopted by Hammurabi … punishment was based on
physical retaliation or lex talionis (an eye for an eye)
-Mosaic Code of Israelites: 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
-Foundation of Judeo-Christian moral teachings and also basis for present day legal system
Early Crime, Punishment and Law
-regulation of crime during the early feudal period involved monetary payments as the main
punishments for crimes
-ex: compensation paid for killing a freewoman of child-bearing age was 24,000 denars; if the
woman was part child bearing age, the wergild was reduced to 8,000 denars
-Guilt was determined by ordeals (accused placing hand in boiling water to see if God would save/heal
wounds)
-Until 18th century, systems of crime, punishment, law and justice were chaotic
Origins of Common Law Pg. 33
-Each country (shire) was divided into units of 100 families , divided into groups of 10 (tithings) …
each responsible for maintaining order among themselves and dealing with disturbances, fires, wild
animals etc
Crime and Custom
-Crimes were viewed as personal wrongs, compensation paid to victims
-Theft during Anglo Saxon era could result in slavery for the thieves and their families
-Criminal law was designed to provide an equitable solution to what was considered a private dispute
The Norma Conquest
-the church courts handled acts that might be considered single + local manorial courts death with most
secular violations
-stare decisis: to stand by decided cases, means that courts were bound to follow the law established in
previously decided cases
-jurors like witnesses: told judge what they know about the case (assie or assize)
-14th century: jurors have become the deciders of fact
The Common Law
-common law: apply to people without regard to social differences
-common law is judge-made law, case law derived from previously decided cases
Common Law and Statutory Law Pg. 35
-the common law was and still is the law of the land in England
-For offenders to be found guilty:
(1) planned the crime
(2) intentionally killed the victim out of spite or hatred
-common law was constantly evolving legal code; based on legal decisions made from the ground up
-common law is still the basis for understand statutory law today
-statutory law reflect existing social conditions dealing with issues of morality (gambling, sexual
activity, drug-related offences)

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The Development of Law in Canada Pg.36
-Before confederation in 1867, Canada did not have a standard criminal justice system
-Military = first to maintain law and order
-Before Confederation: British common law was used for criminal prosecutions then crime control was
centralized in the fed gov’t through BNA act
Classifications of Law
-Classified in many ways
(1) crimes and torts
(2) indictable and summary offences
(3) mala in se and mala prohibition
Criminal and Civil Law
-Civil law includes such areas as property law (law governing transfer and ownership of property
-Contract law ( law of personal agreements)
-Tort law: most similar in intent and form to the criminal law
-Some torts are similar to some criminal acts a person ca possibly be held both criminally and civilly
liable for one action
-Key difference between criminal 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
-Civil law: harm is considered private and individuals are compensated for harm done tot hem by others
-Burden of proof required to establish liability; criminal defendant’s guilt must be proved beyond a
reasonable doubt…civil case: lower standard of proof is required, based on a balance of probabilities
Indictable and Summary offences
-indictable offence: serious offence such as murder
-summary offence: loitering … minor/petty crime
-summary offences have a sex-month limitation period on prosecution, they are heard in provincial or
territorial court, max fine is $2000
-indictable offence: have no limitation period on prosecution and can result in much more serious
penalties if the defendant is found guilty
-involve trial by jury
-charges may or may not be laid, but if they are then the prosecution decides how the case will proceed
-there must be enough evidence to prove a case beyond reasonable doubt
Mala in Se and 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
-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 Pg. 42
-centralized law-making in federal gov’t enables greater social control / accounts for Canadians’ higher
respect for authority
-consensus pov: law reflects interests of majority
-conflict pov: law reflects interests of powerful
-criminal codes have several distinct functions:
(1) providing social control
(2) discouraging revenge
(3) expressing public opinion and morality
(4) deterring criminal behaviour
(5) maintaining the social order

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Providing Social Control
-written statement of rules to which people must conform
-folkways: ordinary customs and conventions
-example: criminal law incorporates centuries old prohibitions against: taking another’s possessions,
physically harming another person, and damaging property
Discouraging Revenge
-delegating enforcement to others, criminal law controls an individual’s need to seek revenge or
vengeance against those who have violated their rights
-if people took law into their own hands, the risks would be excessively violent
Expressing Public Opinion and Morality
-reflects constantly changing public opinion sand moral values
-Mala in se: murder and forcible rape are almost universally prohibited
-Mala prohibitum: traffic law and gambling violations, changes according to shifting social
conditions and attitudes
-Government has the power to define the boundaries of moral and immoral behaviour through the
criminal law
-Difficult to control public morality through the law because of the problems associated with:
(1) gauging the will of the majority
(2) respecting the rights of minority
(3) enforcing laws that many people consider trivial or self-serving
-conflict pov: vagrancy laws reproduce inequality in society
Deterring Criminal Behaviour Pg.43
-the threat of punishment is designed to prevent crimes before they occur
-general deterrence: people are less likely to commit crimes when they know they will be penalized
-specific deterrent: power of the criminal law is tied to the power it gives the state to sanction offenders
Maintaining the Social Order Pg.44
-maintain a legal climate in which capitalism can thrive is an underlying goal of the criminal law
-1473: Carrier’s case, English court ruled that a merchant who held and transported merchandise for
another was guilty of theft if he kept the goods for his own purposes
-Before carrier’s case, law did not consider it a crime for people to keep something that was already in
their possession
The Legal Definition of Crime
-for the state to prove that a crime occurred and that the defendant committed tit, prosecutor must show
that the accused engaged in the guilty act (acts reus) and had intent (mens rea)
-acts reus: an illegal act. The acts reus can be an affirmative act, such as taking money or shooting
someone, or a failure to act, such as failing to take proper precautions while driving a car
-mens rea: the intent to commit the criminal act; one of the key elements in defining and proving a
crime
-intent: carrying out an act intentionally
-most crimes: acts reus & mens rea must be present for the act to be considered a crime
Acts Reus
-for an act to be illegal, the action must be voluntary
-central issue concerning voluntariness is whether the individual has control over his or her actions
Mens Rea
-to be a crime; must be elements of guilty mind
-intent: carrying out an act intentionally, knowingly and willingly
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