Chapter 1: The Foundations of Criminal Justice PDF

Chapter 1 The Foundations of Criminal Justice Prepared by George P. Mason University of Windsor Cop...

Chapter 1 The Foundations of Criminal Justice Prepared by George P. Mason University of Windsor Copyright © 2019 by Nelson Education Limited. 1  Chapter Learning Objectives Describe what is meant by critical thinking. Define crime and discuss how crime is constructed. Discuss the differing perspectives on the origins and application of the criminal law. Identify the types of Canadian law and the functions of the criminal law. Discuss the key principles of Canadian law. Copyright © 2019 by Nelson Education Limited. 2  Chapter Learning Objectives Describe the origins and importance of the rule of law. Discuss the importance of the Canadian Charter of Rights and Freedoms. Describe the main provisions of the Canadian Charter of Rights and Freedoms. Discuss the Canadian Criminal Code. Discuss the issues surrounding the application of criminal law in a diverse society. Copyright © 2019 by Nelson Education Limited. 3 The Foundations of Criminal Justice The criminal justice system is an integral, and high-profile, component of Canadian society. It is also very dynamic, often controversial, and either very effective in achieving “justice” or not, depending upon one’s perspective and experience. Copyright © 2019 by Nelson Education Limited. 4  Thinking Critically about the Criminal Justice System Critical thinking (thorough thinking): In examining an issue, distinguishing between fact and opinion, considering multiple points of view, and being open- minded to all ideas Copyright © 2019 by Nelson Education Limited. 5  Thinking Critically about the Criminal Justice System To become a critical thinker, one must engage in the following: Ask questions: Engage curiosity and question statements and assertions. Consider multiple points of view: Be fair and open-minded to all ideas. Draw conclusions: Examine the outcome of your inquiry in a more demanding and critical way. Copyright © 2019 by Nelson Education Limited. 6  What Is a Crime? A crime is generally defined as an act or omission that is prohibited by criminal law. Two critical ingredients of a crime are: 1) the commission of an act (actus reus) 2) the mental intent to commit the act (mens rea) Copyright © 2019 by Nelson Education Limited. 7  What Is a Crime? A crime occurs when a person commits an act or fails to commit an act when under a legal responsibility to do so; has the intent, or mens rea, to commit the act; does not have a legal defence or justification for committing the act; and violates a provision in criminal law. Copyright © 2019 by Nelson Education Limited. 8 The Social Construction of Crime It is also important to distinguish between behaviours that may be considered deviant by a large portion of society and crimes. Deviance is behaviour that is contrary to the norms and values of the larger society. Crime is behaviour that breaks the law. Copyright © 2019 by Nelson Education Limited. 9 The Social Construction of Crime Deviance includes criminal behaviour and a wide range of other behaviours that are not against the law:  may be frowned upon by the larger society  what is viewed as deviant changes over time Copyright © 2019 by Nelson Education Limited. 10 The Social Construction of Crime Crime includes the social construction of crime the notion that the legal status of behaviours is not determined by the behaviour itself but is the result of the social response to the behaviour or to the persons or groups who are engaged in it Copyright © 2019 by Nelson Education Limited. 11 The Social Construction of Crime Criminologists often conduct historical analyses in an attempt to understand 1) the factors involved in the definition of behaviours as criminal 2) an increase or decrease in the severity of the criminal law 3) the response of the criminal justice system 4) the factors that influenced the repeal of a criminal law, resulting in the decriminalization of certain behaviours Copyright © 2019 by Nelson Education Limited. 12 The Social Construction of Crime Criminologists often conduct historical analyses in an attempt to understand how the social, economic, and political environment may influence legislation: Economic Environment Social Political Environment Environment Legislation Copyright © 2019 by Nelson Education Limited. 13 The Social Construction of Crime 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 behaviours and bring pressure on legislators to enact criminal statutes Copyright © 2019 by Nelson Education Limited. 14 AT ISSUE 1.1 Medical Assistance in Dying: The Tension between the Law, Religion, and Professional Practice In 2015, in the case of Carter v. Canada (Attorney General) (2015 SCC 5), the SCC ruled that section 14 and paragraph 241(b) of the Criminal Code were unconstitutional because they prohibited physicians from assisting in the consensual death of another person. In June 2016, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), received Royal Assent and made assisted dying legal for terminally ill patients. Copyright © 2019 by Nelson Education Limited. 15 AT ISSUE 1.1 Medical Assistance in Dying: The Tension between the Law, Religion, and Professional Practice Questions 1. How does one balance the legal and ethical issues surrounding assisted dying? 2. In your view, should this be a legal issue? 3. Should all physicians be required to abide by the law? 4. What position would you take regarding the refusal of some physicians to assist a patient in dying or to refer a patient to another physician who would assist the patient to die? 5. What does this issue illustrate about the interplay between the law, religious views, and professional ethics? Copyright © 2019 by Nelson Education Limited. 16  The Origins and Application of the Criminal Law The differing perspectives on where criminal laws come from and how they are applied via the criminal justice system are reflected in two models. 1) Value consensus model 2) Conflict model Copyright © 2019 by Nelson Education Limited. 17  The Origins and Application of the Criminal Law Value Consensus Model The view that what behaviours are defined as criminal and the punishment imposed on offenders reflect commonly held opinions and limits of tolerance. Through the application of laws, a society reaffirms the acceptable boundaries of behaviour and maintains social cohesion. Copyright © 2019 by Nelson Education Limited. 18  The Origins and Application of the Criminal Law Conflict Model This is the view that crime and punishment reflect the power some groups have to influence the formulation and application of criminal law. Conflict theorists see the rich and privileged as having an advantage in influencing law reform and what happens to persons who become involved in the criminal justice system. Copyright © 2019 by Nelson Education Limited. 19  The Types of Canadian Law The two basic types of law in Canada are substantive law and procedural law. Substantive law sets out the rights and obligations of each person in society. Procedural laws are the legal process that protect and enforce the rights set out in substantive law. Copyright © 2019 by Nelson Education Limited. 20 The Types of Canadian Law Copyright © 2019 by Nelson Education Limited. 21  The Canadian Legal System The Canadian legal system is a common law system, with the exception of Quebec, which has a civil law system (based on the French Code Napoléon). Common law is law that is based on custom, tradition, and practice and is generally unwritten. Precedent is a judicial decision that may be used as a standard in subsequent similar cases. Copyright © 2019 by Nelson Education Limited. 22  The Canadian Legal System Common Law Statute Law Case Law Law that is based on Written laws that have Law that is established by custom, tradition, and been enacted by a previous court decisions practice and is generally legislative body, such as and based on the rule of unwritten the Parliament of Canada precedent Copyright © 2019 by Nelson Education Limited. 23  Canadian Courts Canadian courts are organized in a hierarchy. The Supreme Court of Canada is the highest court. Stare decisis is the principle whereby higher courts set precedents that lower courts must follow.  “to stand by what was decided”  like cases should be treated alike  all courts below SCC bound to apply that same ruling in subsequent cases Copyright © 2019 by Nelson Education Limited. 24  Criminal Law That body of law that deals with conduct considered so harmful to society as a whole that it is prohibited by statute, and prosecuted and punished by the government Copyright © 2019 by Nelson Education Limited. 25  Functions of the Criminal Law In Canadian society, the criminal law provides the following functions (Box 1.1): 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 prosecutes criminalized behaviour protects group interests Copyright © 2019 by Nelson Education Limited. 26  The Sources of Criminal Law In Canada, there are two primary sources of criminal law: legislation and judicial decisions. Merely denoting the sources of criminal law, however, tells us very little about the process of law-making or the factors that influence the creation of criminal law. Copyright © 2019 by Nelson Education Limited. 27 Principles of Canadian Law Copyright © 2019 by Nelson Education Limited. 28  The Rule of Law The requirement that governments, as well as individuals, be subjected to and abide by the law The rule of law can be traced back to the English Magna Carta. Copyright © 2019 by Nelson Education Limited. 29  The Rule of Law 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. Copyright © 2019 by Nelson Education Limited. 30  The Rule of Law 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 Copyright © 2019 by Nelson Education Limited. 31  The Canadian Charter of Rights and Freedoms guarantees fundamental freedoms, legal rights and quality rights for all citizens of Canada, including those accused of crimes, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Copyright © 2019 by Nelson Education Limited. 32  The Canadian Charter of Rights and Freedoms 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 Copyright © 2019 by Nelson Education Limited. 33 Criminal Code of Canada (1892) 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 under the leadership of Sir John Thompson. It is a “living” document and has been revised many times since 1892 to reflect changes in Canadian society. Copyright © 2019 by Nelson Education Limited. 34  Criminal Law vs. Civil (Tort) Law Criminal Law Civil Law Category Public law Private law Subject Criminal offenders liable for Private disputes wrongdoing Responsibility Government assumes responsibility Disputes between individuals, where for prosecution and punishment the “loser” may be required to pay damages Standard of Guilt beyond a reasonable doubt Balance of probabilities Proof Example OJ Simpson criminal trial; OJ Simpson civil suit; prosecution did not prove beyond a preponderance of evidence sufficient reasonable doubt that he was guilty to show that his conduct resulted in of murder the deaths of the two victims Copyright © 2019 by Nelson Education Ltd. 35 AT ISSUE 1.2 Should the Criminal Law Be Applied to Religious Practices? In 2017, the Quebec National Assembly passed Bill 62 (2017, c. 19), An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies. This legislation requires citizens to uncover their faces while giving and receiving government services. The “religious neutrality law” requires a woman to have her face uncovered to check out a book from the library, while riding on transit, when accessing health services, or when working in a daycare centre, among other scenarios. Copyright © 2019 by Nelson Education Limited. 36 AT ISSUE 1.2 Should the Criminal Law Be Applied to Religious Practices? Copyright © 2019 by Nelson Education Limited. 37 AT ISSUE 1.2 Should the Criminal Law Be Applied to Religious Practices? Questions 1. What is your view of this legislation? 2. In your view, does the legislation violate the fundamental rights of citizens as guaranteed by the Charter of Rights and Freedoms? 3. In your view, is this an instance in which the law is being used as an instrument of social policy? If yes, should it be? Copyright © 2019 by Nelson Education Limited. 38  Summary Crime is a social construction and is a reflection of changing times and mores. Criminal law is not static, and what behaviour legislatively defined as criminal can change overnight. There are instances in which controversy arises when the criminal law is applied to issues of ethics, morality, and religion. The criminal law was identified as one type of public law and the functions of the criminal law were set out. Copyright © 2019 by Nelson Education Limited. 39  Summary The rule of law and the Charter of Rights and Freedoms are two key parts of the foundation of the criminal justice system. There are several principles that also provide the foundation for Canadian law. The role, principles, origins, and application of the criminal law were examined, and a number of case studies were presented to illustrate the dynamic nature of the criminal law as well as the challenges of applying the criminal law in a diverse society. Copyright © 2019 by Nelson Education Limited. 40