Chapter 2 Notes

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Woodsworth College Courses
Jim Davies

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 over  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 and order  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 Canadian law 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 be changed. 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
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