administration of criminal law pre-1890 Flashcards
What is the doctrine of discovery?
How the Europeans claimed preemptive rights in the New World. It provided religious and legal authority to claim the resources and land. It gave Christian empires with authority to claim sovereignty, property, and trading rights
British and the French are the main players in Canada
They are primarily interested in resource extraction at first
This develops into trading networks, which makes them think about formal colonization
They start petitioning for Royal Charters - gives them trade monopolies in exchange to govern colonies and represent the interests of the crown
What is terra nullius?
no man’s land, the new world
What is New France?
King Henry IV wanted to create New France, which was all the land that the french had in the New World. It marked a turning point in Indigenous relations.
What is middle ground?
Several alliances (Great Lakes region) are established with New France and Indigenous People. This process of mutual accommodation guided formal and informal affiars. French law was usually modified or circumvented when it came to indigenous people. It was a hybrid model based on local socio-cultural and political custom that attempted to consider and implement INdigenous notions of law and justice
The French recognized that indigenous people were in their own nation and respected their autonomy (legally)
Attempted to get into mutually beneficial alliances
Middle ground - metaphysical and physical space
The French moving east were a small group who didn’t understand the winters, how to grow crops, and could not overpower them
The Indigenous people were also not native to this land and were displaced
Neither is able to take advantage of the land because they didn’t know it, so they kinda had to work together
This guided formal and informal affairs
When there was differences in the ideas of laws, both sides engaged with the idea of cooperation, so French law wasn’t always applied directly onto the indigenous people
In theory, they thought everyone should follow their laws, but they often changed these for the Indigenous people Ex. Murder
This meant that these laws where intertwined with the two, neither overpowered each other
The British replaced this when they became the more powerful colony
Middle power is left behind
□ This is still operating with colonization but it doesn’t completely overpower them
What is the Quebec Act, 1774?
It reconfirmed the customs and rights of French Catholic subjects and reintroduced French Civil Law after the attempt by the British to add uniformity to the law in British North America. This act revoked the Royal Proclamation that was issued by King George which said how the British was going to administer the new land. It was very practice in a lot of ways, reintroduces French Civil law but British Criminal Law for the mixed system.
What is the British North America Act?
It is the foudnational document of the Constitution; it is the country’s governing legal framework and structure. It was passed by British parliament and later renamed the Constitution Act
A mix of different things:
Statutes - laws passed by parliament
Orders - drafted by cabinet and then approved - without parliament’s passing
Court decisions - British and Canada
Constitutional convention
Creates lower and upper house
Defines federal vs. provincial powers
Its a compromise but way more power is given to the provinces then the federal gov wanted
The criminal law is based under the federal gov
This is because of how it was working out in the US
There is a little bit of space for provinces to have power over criminal law
Both levels have taxing powers but the feds have unrestricted powers
It lays out the strict rules but it also gives the peace, order, and good government power to the federal government, for anything not laid out
What is peace, order, and good government?
In section 91 of the British North America Act, the federal government is given the power and authority to make laws in the name of peace, order, and good government. This means that even though there are strict rules in the act, the federal government as power to create laws for anything not laid out in the act.
What is the Department of Justice Act, 1868?
It established a federal department that advises the government and supports the work of the attorney general and further creates the minister of justice post. Critics argued that the Act turned the attorney general into a poltical position that was ultimately submissive to the minister.
May 1868 Macdonald passes the Department of Justice Act: To advise the government and support the Attorney General
Who is the main legal advisor to the government
Minister of justice:
Manage and direct the DOJ
Supervise all matters related to the DOJ
Reviewed a lot of the legislation coming to the house and senate
First minister is John A. Macdonald
He was also the prime minister
Suddenly has direct influence on how the law was administered, viewed, and enacted in Canada
Conducted in ways that were less then legals
Attorney General was submissive to the minister of justice
Connected the legal and political worlds
The department wasn’t interested in the law as a tool of political reform but as a way to govern political interests
What is the Supreme Court?
The idea of the Supreme Court is intially contested by those who fear it will infringe on provincial rights. When its clear that a new criminal code is coming, the need for a court to standardize the law and provide constitutional interpretations becomes necessary. The Supreme Court Act is passed in 1875. In its early years, the court dealt primarily with constitutional cases. Decisions continued to be appealed to the Judicial Committee of the Privy Council in London until mid 20th century at which point the Supreme Court becomes the highest court in the land.
101 BNA that gave the feds the ability to create a supreme court
It was contested because it might infringe on provincial rights
Tide turns in favor of SCC because they need to standardize the criminal code and provide interpretations of the law
Liberal prime minister uses the moment to create the SCC
Supreme Court Act of 1875
Deals with constitutional cases and what part of government deals with what
A lot of the decisions are being appealed to London because it was not the highest court in the land
Judicial Committee didn’t really understand how Canadian Politics worked
Took sociopolitical issues more into account then SCC
Also tended to side with the provinces
Appeals to the Judicial Committee stopped 1933 - criminal and 1949 - Civil
What is the Criminal Code?
It becomes the law in 1892. It is influenced by the theories by Jeremy Bentham and broader pressures for legal reform. The Enlish Draft Bill, aka the Stephen code, inspires, Macdonald, and he uses it as the basis for the Canadian code, which becomes the main source of criminal law in Canada (alongside common law and federal statutes). The code consists of general principles, a description of offences, procedures, and sentencing. The code has seen serval revisions, most notably in 1952-53 when the system of punishments was rationalized, procedural reforms were introduced, specific offences were redefined/introduced, and almost all common law offences were abolished.
Allows the convicted to appeal on their own but they still needed approval from the attorney general until 1920 when it was amended to allow appeals even with no dissent or approval if there was a conflict in the law.
Criminal Code:
General principles
Descriptions of offences, ex. Sexual offences
Procedures
Sentencing
It has seen some revisions
1952-53 Royal changes
System of punishments get rationalized
Procedural reforms were introduced
Offences were redefined/introduced
Almost all common law offences were abolished
○ Reduces almost all criminal law into a streamline package
Other then contempt of court
What was Laliberte v. the Queen?
It was the first criminal cases decided by the Supreme Court. In June 1876, Michel Laliberte raped 16-year-old Philomene Michaud. During the trial, the defence asked Michaud about whether she ahd previously had itnercourse with other men, which the court refused. Laliberte was found guilty and appealed to the Quebec superior court. 3/4 judges agreed with the guilty verdict, but the dissenting judge argued that questions affecting witness character may be asked in cross-examination. Defence then served notice of Supreme Court appeal who concluded that the dissent was correct and defence can ask about earlier sexual conduct. Laliberte’s guilty verdict was overturned.
Rape is a federal crime that was punishable by death, hanging
Forced her to drink then dragged her to the woods and raped her before bribing her to keep quiet
Several witnesses came forward with sworn statements
He was held without bail
A true bill is found against him and he is charged
His defense was a future prime minister
He goes to trial in the fall
It lasts 4 days
She testifies and in cross she was asked if she had ever had sex before, she said no, before admitting she knows two brothers
Was the judge right to not allow the question about her prior conduct?
The court has a liberal tune so the court was unanimous and they said the defence could ask about previous sexual conduct but the witness didn’t have to answer and they had to then respect that answer and not bring it up
Matter was then dropped
Cases involving sexual assault and sexual history continue to be heard by the SCC and reinforcing the limits of the complaints sexual history
What is R V. M(C.A.)?
In this case, the accused pled gulty to numerous counts related to the sexual, physical, and emotional abuse of his children. The trial judge sentenced the accused to 25 years. The BC Court of Appeals reduced the setence, arguing that the Criminal Code capped these criminals at 20 years and that the Charter protected against cruel and unusual punishment. The Supreme Court ruled that the court of appeal erred in reducing the sentence as there was no a priori ceiling on fixed-term sentences.
The trial judge remarked that this was a horrible case and so he charged him for 25 years, for separate charges
Court of Appeal considered the sentence not proportionate and reduced it to 18
SCC said the court of appeal could not reduce the sentence and said there is no assumption of a cap on fixed-term sentences
The criminal process to the best way to prevent acts that society deems as wrong. This is the case that reenforces the fundamentals of criminal law in Canada. Reenforces the purpose to commitment to the criminal code.
What is R. v. S (R. D)?
In this case, a youth “S” was arrested for allegedly assaulting a police officer while he was arresting another individual. S said he stopped his bike to see what was happening and tried to talk to his cousin to see how to best help him and the officer threatens him and then arrests him. The only evidence against s was the testimony of the officer and the crown had not proved beyond a reasonable doubt. The charges were dismissed by Corrine Sparks, the first Black Canadian Woman to become a judge in Canada (and first Black judge in NS). Sparks argued that the Crown had not proven its case beyond a reasonable doubt and referenced that the officer likely subscribed to the “prevalent attitude of the day”. In her ruling, she talks about how officers were known to overreact when it comes to black individuals. The crown appeals her decision because of this mention of the attitudes of the day was not about the facts of the case he Crown appealed, arguing that this proved a reasonable apprehension of bias. The Supreme Court restored Sparks’ acquittal noting that “a judge who happens to be Black is no more likely to be biased in dealing with Black litigants, than a white judge is likely to be baised in favour of white litigants”. SCC said that the crown had not proved the reasonable apprehension of bias and that the reasonable person, with the knowledge of the day, would not find the statement to be showing bias. This gives us insight into how the judge makes their decisions.
The first time the Supreme Court was asked to address racism. It shows the depth of bias of people who work and exist in the justice system
The only case where a member of the justice system was accused with bias; not a coincidence
Who is Jeremy Bantham?
Jeremy Bentham argued that every country needed a code of law because as it was, the law was unknowable and hard to apply. He believed a code of law needed to do away with lots of judges.
Legal reform was in the air - reformers in colony seize on the pressures for reform. His theories inspired the criminal code.
