CRM 2300 B Exam Prep midterm 1 (The Underlying Philosophy of Canadian Criminal Law)

Canadian Criminal Law

• Canadian criminal law is based on the laws of England.
• The written codified law came into existence in Canada in 1892.
• Canadian criminal law is created based on the principles of liberalism and the social contract theory.

Philosophy behind Canadian Criminal Law

• The philosophy behind Canadian criminal law is based on the assumptions that individuals have free will and are responsible for their actions, and that the state has the power to limit individual freedom to protect society.

Laws that Limit Freedom

• Examples of laws that limit our freedom minimally in order to better how society functions include traffic laws, taxation laws, and laws related to public health and safety.

Abuse of Power

• If the state abuses the power when it comes to enforcing laws, it can lead to the violation of individual rights and freedoms.
• The state should punish crimes that harm others or society, and not punish individuals for their personal choices.

Thomas Hobbes

• Thomas Hobbes believed that society is inherently violent and that individuals need a strong state to protect them from each other.

Limitation of Individual Freedom

• Law does limit individuals' freedom and ability to act in their self-interest, but it is necessary to protect society and maintain social order.

The Canadian Criminal Justice System (CCJS)

• The CCJS was developed in 1892.
• The CCJS is based on the principles of liberalism and the social contract theory.

Goal of Criminal Law

• The goal of criminal law is to protect society and maintain social order by punishing crimes that harm others or society.

Sources of Canadian Criminal Law

• The sources of Canadian criminal law are legislation (statute law), judicial decisions (common law), and the Canadian Charter of Rights and Freedoms.

Legislation

• Legislation refers to statute law, which is created by the federal and provincial governments.
• a. Examples of legislation include the Criminal Code of Canada and the Youth Criminal Justice Act.
• b. Legislation can be reversed through a charter challenge.

Judicial Decisions

• Judicial decisions refer to common law, which is based on court cases and precedents.
• a. Examples of judicial decisions include cases that are decided by judges and set precedents for future cases.
• b. Judicial decisions can be used to test the constitutionality of legislation.

Power to Enact Criminal Law

• The federal government has the power to enact criminal law under the Constitution Act.

Conflict between Statute Law and Common Law

• If there is a conflict between statute law and common law, statute law overrules common law.

Nette Case

• Nette was found guilty of second-degree murder because he did not intend to kill the victim, but his actions showed reckless disregard for human life.

The Criminal Code of Canada (CCC)

• The CCC was enacted in 1892.
• The CCC defines substantive criminal law, which specifies the elements of an offence and the penalties for committing an offence.

Substantive Criminal Law

• Substantive criminal law defines the elements of an offence and the penalties for committing an offence.
• Section 229 of the CCC defines the offence of murder.

Procedural Criminal Law

• Procedural criminal law outlines the procedures for investigating and prosecuting crimes.
• Procedural criminal law defines the steps involved in the criminal justice process, from investigation to trial.

Categorization of Offences

• There are three categories of offences in the CCC: summary offences, indictable offences, and hybrid offences.
• Summary offences are tried before a provincial court judge and are punishable by a fine or imprisonment.
• Indictable offences are tried before a superior court judge and jury, and are punishable by imprisonment.
• Hybrid offences can be tried either summarily or by indictment.

The Accusatorial/Adversarial System

• The accusatorial/adversarial system includes the prosecution and the defence, who present their cases to a judge or jury.
• The prosecution seeks to prove the guilt of the accused, while the defence seeks to prove their innocence.

The Inquisitorial System

• The inquisitorial system is used in some countries, where the judge plays an active role in investigating and questioning witnesses.

The Canadian Court System

• The Canadian court system includes provincial and territorial courts, superior courts, and the Supreme Court of Canada.
• Provincial and territorial courts hear federal and provincial cases, and deal with matters such as traffic violations and family law.

Superior Courts

• Superior courts have criminal jurisdiction and deal with serious crimes such as murder and treason.
• Appeals from superior courts go to the court of appeal.

Court of Appeal

• The court of appeal hears appeals from superior court decisions, and can dismiss or overturn a conviction.
• The court of appeal has three judges who review the case and make a decision.

The Supreme Court of Canada (SCC)

• The SCC is the highest court in Canada and has the final say on matters of law and justice.
• The SCC has nine judges who are appointed by the Governor General.
• The SCC has jurisdiction over appeals from the court of appeal, and can hear cases that involve important questions of law and justice.

Trial Courts

• If tried in federal courts, appeals go to the federal court of appeal.
• If tried in provincial courts, appeals go to the provincial court of appeal.

Categories of Offences

• There are three categories of offences in the CCC: summary offences, indictable offences, and hybrid offences.
• Offence 1: summary offences are tried before a provincial court judge and are punishable by a fine or imprisonment. Examples include traffic violations and mischief.
• Offence 2: indictable offences are tried before a superior court judge and jury, and are punishable by imprisonment. Examples include murder and treason.
• Offence 3: hybrid offences can be tried either summarily or by indictment. Examples include theft and fraud.