CRIM 1100 Unit 1 Notes PDF

UNIT 1: THE FOUNDATIONS OF CRIMINAL JUSTICE Notes Critical thinking (thorough thinking): In examining an issue, it is important to distinguish between fact and opinion, considering multiple points of view, and being open-minded to all ideas. To become a critical thinker, one must engage in the follo...

UNIT 1: THE FOUNDATIONS OF CRIMINAL JUSTICE Notes Critical thinking (thorough thinking): In examining an issue, it is important to distinguish between fact and opinion, considering multiple points of view, and being open-minded to all ideas. 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. What Is a Crime and Why? Thinking Critically: What is a crime? Is crime related to a particular time and location? Is the notion of crime subjective, or are some behaviors inherently criminal, regardless of time and place? 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) 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. 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. 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 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 Crimes fall into two philosophical categories: Mala in Se: Acts that are evil in themselves. Mala Prohibita: Acts that are criminal because they are prohibited by law. Criminologists often conduct historical analyses to understand how the social, economic, and political environment may influence legislation. Thinking Critically Take a look at AT ISSUE 1.1: Medical Assistance in Dying: The Tension between the Law, Religion, and Professional Practice. Think about the 5 questions. The Origins and Application of the Criminal Law A key component of the study of the criminal justice system is understanding 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 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. For example, there is consensus that murder should be against the law. Incest is another act that is widely condemned. Such offences, (mala in se- wrong in themselves), are perceived as so inherently evil as to constitute a violation of “natural law.” Through the application of laws, a society reaffirms the acceptable boundaries of behaviour and maintains social cohesion. 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. Thinking Critically Think about the following questions (in Canadian Criminal Justice): Why does a person who steals less than $100 from a convenience store often receive a much more severe sentence than a stockbroker who defrauds investors of millions of dollars of investors’ money? Why are Canadian correctional institutions populated by large numbers of Indigenous persons, Blacks, and at-risk and vulnerable persons with low education and skill levels, high rates of alcohol and drug addiction, and dysfunctional family backgrounds? Are these groups more criminal than other groups in society? What role do interest groups play in influencing the enactment of criminal legislation or in decriminalizing certain behaviour? 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. Examples of substantive law regulating criminal behaviour include the Criminal Code and other federal statutes such as the Controlled Drugs and Substances Act, Youth Criminal Justice Act, and Canadian Environmental Protection Act. Procedural laws are the legal process that protect and enforce the rights set out in substantive law (for example bail).  The Canadian Legal System The Canadian legal system is a common law system (other than Quebec). Common law is law that is based on custom, tradition, and practice and is generally unwritten. Statute Law Written laws that have been enacted by a legislative body, such as Parliament of Canada. Case Law is established by previous court decisions and based on the rule of precedent. Precedent is a judicial decision that may be used as a standard in subsequent similar cases. Criminal Law The body of law that deals with conduct considered so harmful to society that it is prohibited by statute and prosecuted and punished by the government. The criminal law defines which acts (or omissions) are against the law and sets out the available penalties. It also sets out the rules that police and judges must follow in criminal matters, including procedures for making arrests, gathering evidence, and presenting evidence in court. Private law, by contrast, regulates relationships between individuals other than the state and is used to resolve disputes between private citizens. Functions of the Criminal Law In Canadian society, the criminal law provides the following functions (Box 1.1 in Canadian Criminal Justice): 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 The Sources of Criminal Law In Canada, there are two primary sources of criminal law: legislation and judicial decisions. However, this tells us very little about the process of law-making or the factors that influence the creation of criminal law. We will discuss this in more detail shortly. Principles of Canadian Law There are several principles that provide the foundation for Canadian law. These are set out in Table 1.1., THE PRINCIPLES OF CANADIAN LAW, of your textbook. A crime has two components. The first is actus reus, or the act of doing something. The second is mens rea, or the guilty intent. To be convicted of most crimes (but not all), a person must have done something criminal, and usually (but not always) must have intended to do it. In addition: No crime without a law, no punishment without a law. Ignorance of the law is no excuse. No one is compelled to incriminate himself. No one should be twice troubled by the same cause. The Rule of Law The requirement that governments, as well as individuals, be subjected to and abide by the law. Take a look at the Criminal Justice File 1.1 KEY PRINCIPLES OF THE RULE OF LAW, in Canadian Criminal Justice. The government and its officials and agents, as well as individuals and private entities, are accountable under the law. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property. The process by which the laws are enacted, administered, and enforced is accessible, fair and efficient. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of local communities. 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 While an admirable principle, the materials presented in this course will reveal that this ideal is often not achieved. 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.” 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 (1892) Federal legislation that sets out criminal laws, procedures for prosecuting federal offences, and sentences and procedures for the administration of justice. It is a “living” document and has been revised many times since 1892 to reflect changes in society. Thinking Critically EXERCISE 1.1: The Ever-Changing Criminal Code (Canadian criminal justice). The discussion in this section will reveal that what we consider criminal has changed over time. Questions 1. Can you think of a behaviour that is currently against the law that may become legal in the future? 2. What factors might contribute to changes in what behaviours are considered criminal? 3. In your view, should a particular drug that is currently illegal be legalized if it is used widely? Criminal Law vs. Civil (Tort) Law: What’s the Difference? There are several legal systems that exist in Canada. The criminal justice system concerns itself only with criminal law and offenders who are criminally liable for wrongdoing. The government assumes the responsibility for prosecuting the alleged offender. In contrast, civil law cases are disputes between individuals. The person who feels wronged brings the legal action, and the “loser” may be required to pay damages. The Criminal Law in a Diverse Society The application of criminal is challenging in a diverse society such as Canada. Thinking Critically Take a look at “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. 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. 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? Also take a look at CRIMINAL JUSTICE FILE 1.2 The Shafia Honour Killings: Culture Clash and the Law.