Chapter 5: The History and Structure of Criminal Law

Question 1

Substantive Criminal Law

Answer 1

Statutory and common law that prohibits undesirable conduct and that prescribes punishment for specific offences.

Question 2

Precedent

Answer 2

In common-law legal systems, an authoritative rule or principle established in a prior case that subsequent courts are obligated to apply in future cases.

Question 3

What are the 3 main sources of criminal law?

Answer 3

1. The Canadian Constitution.
2. The Criminal Code and other statutes enacted by Parliament.
3. Common law.

Question 4

Common Law

Answer 4

Law that is developed by judges when deciding cases, rather than through legislative enactments.

Question 5

Indigenous criminal law is remarkably ___ to European criminal law in form and in substance.

Answer 5

Similar.

Question 6

The division of political authority and geographic realities meant that pre-Confederation criminal law was…

Answer 6

Highly decentralized and fragmented.

Question 7

Why is common law called “common” law?

Answer 7

Because it contains legal principles held by virtually all communities.

Question 8

Stare decisis

Answer 8

A legal principle by which judges are obliged to respect and apply legal principles established by prior decisions.

Question 9

Rule of law

Answer 9

The principle that all political authority must be exercised in accordance with fixed and predetermined legal rules and principles.

Question 10

List some of the principles associated with the rule of law:

Answer 10

• Laws should be prospective rather than retroactive.
• Laws should be stable and resistant to frequent or arbitrary change.
• There should be clear rules and procedures for making laws.
• The independence of the judiciary is to be guaranteed.
• Principles of natural justice should be observed.
• Courts should have the power of judicial review.
• The discretion of law enforcement and crime prevention agencies should be exercised in accordance with fixed and pre-determined rules.

Question 11

Judicial review

Answer 11

The process by which judges scrutinize laws, policies, and governmental practices to ensure their consistency with the Constitution, including the Charter.

Question 12

How is common law “inductive?”

Answer 12

Judges’ collective experiences working through recurring social problems gradually produce a small set of reasonable and sustainable solutions in the form of decisions.

Question 13

What statute made the Supreme Court of Canada the court of last resort in Canada?

Answer 13

The Statute of Winchester.

Question 14

What are the two basic elements of crime?

Answer 14

Actus reus and mens rea.

Question 15

Actus reus

Answer 15

The guilty act or external element of a criminal offence– that is, those actions and omissions that are prohibited by criminal law. If actus res is proven beyond a reasonable doubt in combination with mens rea, an accused may be held criminally responsible for his or her conduct.

Question 16

Mens rea

Answer 16

The guilty mind of intentional element of a criminal offence– that is, what an accused knew or ought to have known about the consequences of prohibited conduct. If mens rea is proven beyond a reasonable doubt in combination with acts res, an accused my be held criminally responsible for his or her conduct.

Question 17

Culpable homicide

Answer 17

Causing the death of another person, directly or indirectly, by any means; divided into the 3 categories of murder, manslaughter, and infanticide.

Question 18

What are the two fundamental principles found within the Constitution Act that facilitated codification?

Answer 18

1. Parliamentary sovereignty.

2. Federalism.

Question 19

Parliamentary sovereignty

Answer 19

The principle by which Parliament is supreme over all other governmental institutions.

Question 20

Federalism

Answer 20

A system of government in which all political authority is divided among a central, national, or federal government and regional political units, such as provinces.

Question 21

Quasi-criminal law

Answer 21

Law that performs some of the same functions as criminal law (such as punishment, denunciation, protecting law and order) but through different procedures.

Question 22

Give examples of quasi-criminal law.

Answer 22

Highway Traffic Act or Child and Family Services Act.

Question 23

Who are the 3 main stakeholders in the criminal justice system?

Answer 23

1. The accused.
2. The victim.
3. The public.

Question 24

What are the two mechanisms that would enable an accused to justify or excuse conduct?

Answer 24

Morally right or morally involuntary.

Question 25

What is the standard that the accused is held to in cases of justified or excusable conduct?

Answer 25

The “reasonable man.”

Question 26

Modified objective standard

Answer 26

When the court changes the objective standard by which an accused’s behaviour is judged. Used in the provocation defence, where a person is found guilty of a lesser charge because the victim’s insulting or wrongful acts could have led to the person losing self control.

Question 27

Battered Woman Syndrome

Answer 27

Based on the idea of the cycle of fear, successfully applied as a self defence in Canada, as psychologists have shown that it can lead to women believing they have no other choice.