Published on November 28, 2008
Today’s Lecture Criminal Law: Basic Concepts and Procedure
Purposes of Criminal Law
Establisment of minimum standards of behaviour
Punishment (Tort-style payment is insufficient)
Purposes of Criminal Law deters against harmful behaviour promotes order protects economic interests promotes moral views
Limits of legal moralism “Hart-Devlin debate” Is there a private realm that is not the law’s business? Should Criminal Law be concerned with issues where moral standards change? “There's no place for the state in the bedrooms of the nation” – Prime Minister Trudeau
Power and Moral Values Who decides what is moral? Consider criminalization of Marijuana Prostitution
Importance of “Fault” Two elements of a crime: 1. Actus reus (physical element) 2. Mens rea (mental element)
Overview of criminal procedure “prosecution”, and “defendant” or “accused” Government is the prosecutor. in Canada, “Crown” Crown’s responsibility: to advance the public interest Different from private law, where expected each side will fight tooth and nail for their interests If present, jury is the finder of facts, and judge is finder of law If no jury, judge has both roles, and is responsible for sentencing
Criminal Procedure Similar to private law (contracts, torts), but more rooted in tradition Notice requirement -> charges read in open court Discovery in private law -> Disclosure in criminal law only disclosure by Crown R. v. Stinchcombe, 1991 SCC: Accused has right to full disclosure Parties are the Attorney General (the Crown) and the Accused Two kinds of offences: Summary conviction offences and Indictable offences summary: less serious offences; maximum 6mo and $2000 fine Indictible offences: up to minimum life sentence with no parole for 25 years and any amount of fine
Summary Procedure Defendant brought before a judge in Inferior Court; “information” is read Plea – guilty or not guilty If pleads not-guilty then trial at provincial inferior court Crown bears burden of proof beyond a reasonable doubt Calls witnesses and to prove case: “examination in chief” Defence can “cross-examine” Crown witnesses Defence can request summary acquittal if there is no prima facie case Defence calls witnesses for examination in chief; Crown cross-examines Voir dire is a “trial within a trial” Closing arguments; verdict; if guilty, then submissions on sentencing; finally sentencing Appeal route: Provincial Superior Court, then Court of Appeal, then Supreme Court of Canada
Indictable Procedure Defendant brought before a judge in Inferior Court; “information” read Plea: guilty or not guilty Accused selects summary procedure in inferior court, or indictable procedure in superior court If proceeding with indictment, Accused can apply to have a preliminary inquiry at the inferior court judge decides whether there is enough evidence that could be found guilty Trial in Superior Court; Indictment read aloud Accused selects jury trial or by judge alone Then essentially the same procedure as in Summary procedure Appeal route: Court of Appeal, then Supreme Court of Canada
Variations Hybrid offences Crown often has choice of whether to charge as a summary or an indictable offence Direct Indictment In serious cases, Crown can lay a direct indictment against the accused and skip the information and preliminary inquiry, going straight to trial at superior court and reading the indictment. AG must personally order this, so only most serious cases
Goals of Sentencing: s. 718 denunciation deterrence separation of offender from society rehabilitation provide reparations restoration (promote sense of responsibility in offender)
Young People and Criminal Law Until 19th Century, children over 14 were treated as adults by criminal law also kids 7-14 if they could tell right from wrong 1908 Juvenile Delinquents Act treated children as needing care, not punishment delinquents, not criminals Young Offenders Act in 1982 gave youth Charter protections and was more punitive, allowing more young people to be treated as adults Youth Criminal Justice Act from 2003 is more punitive still, distinguishing between kids who commit minor offences and serious offences
Next class… • Criminal Law and Police Powers • Put the final exam in your calendar: Dec 18, 2pm−5pm, in Colonel By Hall, rm B012
CML2117 Introduction to Law, 2008 - Lecture 22 - Criminal Law Concepts and Procedure
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