Chapter two: The Criminal Law and Its Process

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University of Toronto St. George
Woodsworth College Courses
Scot Wortley

1 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 Gods 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) th - Until 18 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) - 14 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) 2 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 govt 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 defendants guilt must be proved beyond a reasonable doubtcivil 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 govt 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 order3 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 anothers possessions, physically harming another person, and damaging property Discouraging Revenge - delegating enforcement to others, criminal law controls an individuals 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 penaliz
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