The Criminal Law and its Process (Chapter 2)
Criminal Law is what defines everything that is criminal in the real world, and it can be
and is constantly changed.
Code of Hammurabi: First written criminal code. Babylonia, 2000BCE
Early Crime, Punishment and Law
After written criminal law codes were lost, dark thinking and fear of magic took
Oath-helpers: those who helped the accused. Group of 12-25
18th century system of law, crime and punishment were disorganized, and
punishment was unruly and cruel
Origins of Common Law
After the fall of ancient legal codes, England began their own legal system, where
communities or cities were divided up and were responsible for their own laws
Similar to modern times, the important and wealthy were given lesser physical
punishment, but had to pay more in fines
Common Law: Early English law that incorporated Anglo-Saxon law and the everday
rules of behaviour for local villagers. Created by the judges. Became backbone for
Common law was constantly evolving due to more complex crimes and the variations of
crimes. Such as the variations of murdering. Ex. Negligence, out of the course of
committing another crime, first degree murder.
Strange cases can sometimes create a new common law.
Development of Law in Canada
Before Confederation in 1867 Canada did not have its own official justice system
NWMP became the RCMP after time, and they kept law enforcement and crime
under control. This was highly apparent when dealing with the Aboriginal
Before Confederation, British law was used for criminals in Canada. After CON,
Canada was given the right to create and govern their own laws
All laws that were existing were finally consolidated in Canada.
Consolidate: Make something physically stronger or more solid.
Classification of Law
Criminal and Civil Law Civil law: property law, contract law.
Tort Law: law of personal wrongs and damage. Ex. Negligence, libel and slander
When some is personally harmed, they can go through a tort. This is a civil action
that demands that the offender gives compensation. (Sueing)
Offender can be charged criminally and civilly. Ex. being charged with assault is
criminal and the victim sueing you for damages, which is civil
Difference: Criminal law protects the victim through the justice laws and courts,
and the state can issue punishment towards actions that disrupt social order. Civil
law is private, and it entails compensation from individual to individual
In criminal law cases, the offender must be proven guilty beyond any doubt. Law
system ensures that they are prosecuted and punished accordingly.
In civil cases, less evidence can be presented, as long as there is one side
Indictable and Summary Offenses
Criminal law can be split into 2 categories, Indictable and Summary
Indictable: major offenses, such as murder
Summary: minor offenses. Maximum is 6 months jail time or a fine.
Mala in Se and mala Prohibitum
Mala in Se: crimes that are rooted in our culture, and rooted in the core values in
our culture. Ex. Murder, rape.
Mala Prohibitum: crimes defined by current public opinion and social values. Can
Functions of Criminal Law
Criminal Law: written code defining what is criminal and not, the punishments and it is
centralized under the federal govt
1) Providing Social Control
Criminal law tries to maintian social order and provides a norm that people follow
It forces people to conform to social norms
It formally prohibits acts that are considered criminal, or mala in se.
Prevents acts that harm people and society and also acts that go against the govt
and and legitimacy of it.
2) Discouraging Revenge
The criminal law sets the justice system so as to prevent individuals from taking
their own revenge
The burden of punishment is taken up by the state and criminal law system, and
not given to the victim or family of the victim 3) Expressing Public Opinion and Morality
used to reflect the concerns, morals and view of the public
4) Deterring Criminal Behaviour
Prevent crimes before they even occur
General deterrence: measures, such as long prison sentences that try and convince
potential law violaters that pains associated with crime outweigh the benefits
Specific Deterrence: punishment severe enough to prevent any repeat offending
5) Maintaining the Social Order
All of the laws combined allow society to function.
Laws that protect the capitalist allow the economy to function
Protects the economic and political systems
Legal Definition of a Crime
Both the actus reus and the mens rea must be present in the evi