Chapter 1 - Foundation of Criminal Law Flashcards
What is a crime?
generally defined as an act or omission that is prohibited by criminal law
- It includes the social construction of crime and
- the notion that the legal status of behaviors is not determined by the behavior itself but is the result of the social response to the behavior or to the persons engaged in it
2 critical ingredients of a crime
actus reus - The commission of an act
mens rea - The mental intent to commit the act
a crime occurs when a person does what?
- commits an act or fails to commit an act when under a legal responsibility to do so (not taking care of elderly person in your care would be negligence)
- Has the intent, or mens rea, to commit the act
- Does not have a legal defence or justification for committing the act
- Violates a provision in criminal law
deviance
behavior that is contrary to the norms and values of larger society (being nude at a beach, having tattoos used to be deviant)
- It includes criminal behavior and a wide range of other behaviors that are not against the law
- May be frowned upon by the larger society
- What is viewed as deviant changes over time (hair color, tattoos, etc)
social construction of a crime
The same behaviour may be criminal in one society, and an act of honour in another. The social construction of crime is the notion that whether a behavior is defined as a “crime” is not a consequence of the behavior itself, but is the result of the social response to the behavior
moral entrepreneurs
- Often play a key role in criminalizing certain activities
- Are individuals, groups, or organizations who seek action against certain groups of people or certain behaviors and bring pressure on legislators to enact criminal statutes
- ex: actively seeking action to criminalize intimate partner violence, drunk driving, etc
consensus model
- an agreed-upon set of rules in society, whether enshrined in law or not, the violation of which should be the focus of criminology
- agreement in society about what is right and wrong
- ex: murder, robbery, sexual abuse of children
- called mala in se (wrong in themselves)
conflict model
- groups in society are in conflict to assert their political power and leave their impression on criminal law
- ex: gambling, marijuana use, income tax violation, etc are all things that have conflicting views
- crime is ultimately defined by wealth and political power, rather than being a product of a shared morality
common law
- Based on custom, tradition, and practice and is generally unwritten
- Guided by past decisions
precedent
- A judicial decision that may be used as a standard in subsequent similar cases
- Decisions should not change based off how they look, if the judge likes them, how they talk, etc
- Needs to be objective
civil law system
Composed of civil codes (comprehensive rules to be followed by judges)
codes first
Judges first refer to the codes and then to previous court decisions
stare decisis
Higher courts set precedents that lower courts must follow (a part of the hierarchy)
statute law
Written laws that have been enacted by a legislative body such as the Parliament of Canada
case law
Law that is established by previous court decisions and is based upon the rule of precedent
substantive vs. procedural laws
substantive law - Sets out the rights and obligations of each person in society
- ex: The Criminal Code and other legislation that defines criminal offences and the penalties for those found guilty of them
procedural laws - The legal process that protect and enforce the rights set out in substantive law
- ex: the procedure for arresting someone and selecting a jury in a criminal trial
functions of the criminal law
- Acts as a mechanism of social control
- Maintains order
- Defines the parameters of acceptable behaviour
- Reduces the risk of personal retaliation
- Assists in general and specific deterrence
- Can prevent people from committing crime, and also punish others to deter others from committing the same crime
- Prosecutes criminalized behaviour
- Protects groups interests
sources of criminal law
- 2 primary sources of criminal law: legislation and judicial decisions
- In the past it was mainly focused on individual offenders and what distinguishes criminals from non-criminals
- Recently, it focuses on how laws are made and applied, and the activities of legislators, special interest groups, and criminal justice decision makers
- When someone has been charged with a crime and must go to court, it must be within a time period (a judicial decision), usually 18 months. When charged, it should be done quickly
- You cannot be charged twice for the same crime
the rule of law
The requirement that government, as well as individuals, be subjected to and abide by the law. It can be traced back to the English Magna Carta. The essence of the rule of law is that:
- No one person is above the law
- All persons are bound by the law
- All are entitled to protection by the law
- The law should be observed and enforced equally
- There is a standard to which criminal justice officials must adhere and will be held accountable
what are the 4 things law must have?
Accountability - government, individuals, and private entities are accountable under the law
Public and clear - laws are clear, publicized, stable, just, applied evenly, and protect fundamental rights
Fair and efficient - processes for enacting, administering, and enforcing laws are fair and efficient
Timely and ethical - justice is delivered in timely way by competent, ethical, independent, well-resourced, and neutral representatives
- there should be no biases towards anyone in order to be ethical- you cannot put your personal opinion on the stand
the canadian charter of rights
- Guarantees fundamental freedoms, legal rights, and quality rights for all citizens of Canada
- Includes those accused of crimes
- “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”
Among the “fundamental freedoms” given to all Canadian citizens are the following:
- Freedom of conscience and religion
- Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication
- Freedom of peaceful assembly
- Freedom of association
criminal code of canada
- Federal legislation that sets out criminal laws, procedures for prosecuting federal offences, and sentences and procedures for the administration of justice
- The first complete Criminal Code was produced in 1892
- It is a “living” document and has been revised many times since 1892 to reflect the changes in Canadian Society
- ex: in the beginning, if a woman was accused of killing someone, she would be hanged, but if she was pregnant they would wait for the baby to be delivered and then hang her
criminal law vs. civil (tort) law
Criminal law - a public law, looking at one person and determine if they have done something wrong. The government is the one acting and will assume the punishment. There must be guilt beyond a reasonable doubt. Must look at the harm and loss (death of people)
Civil law - private law, it is a private dispute between individuals, where one may be required to pay charges. It is a balance of possibilities, over 50%
