Defining Crime Flashcards
Normative Vs Positive
Normative perspective: is behaviour or activity a crime?
Positive perspective: what distinguishes crime and other offences
What is the distinction between crime and other offences?
Crime is a public wrong, as opposed to common law and private wrong (breaches in contract, individual property damage etc.)
+ it has to be committed against Society, and thus the CROWN prosecutes (Regina/Rex v Accused)
What is the most substantive in Canada?
The Criminal Code
Frey v Fedoruk
+ Peeping case
+ Fedoruk detains Frey until the police arrives
+ Peeping was not codified, thus it wasn’t an offence
Criminal offences _______ be created by judges
“cannot”
Judges cannot make the decision on criminal offences, but can interpret the law
Role of judges in Criminal Law
Application and interpreting; they can’t create but they can interpret existing offences and non-codified defences
They also have the power to declare null and void
Judges are bound to stand by what courts have done in the past in the common law system
Criminal law system does not do this
Common Law precedents
Precedents in the common law system are binding and are persuasive if they’re from the same level or at a higher court in a different province
Constitution Act 1867
Divides legislative authority between the federal Parliament and provincial legislatures
+ Legislatures govern property and civil rights in the province and provincial criminal/civil offences
+ Parliament governs criminal law
Category of Conviction
Summary, Hybrid (Crown elects to proceed summarily or by indictment ), Indictable
Why is there a code for the Criminal Law system?
Judges have too much freedom in determination, and it’s not consistent with how the court operates. This uncertainty in justice is why courts think crimes should be codified and standardised (so no one should be convicted unless it’s codified)
