Discuss the differing perspectives on 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: - The value consensus model by definition: The view that what behaviours are defined as criminal and the punishment imposed on offenders reflect commonly held opinions and limits of tolerance. o Views crime and punishment as reflecting society's commonly held values as well as its limits of tolerance. This view assumes that there is a consensus on what should be against the law. Through the application of laws, a society reaffirms the acceptable boundaries of behaviour and maintains social cohesion. Murder and incest are offences called mala in se (wrong in themselves), and are perceived as so inherently evil as to constitute a violation of "natural law." - The conflict model by definition: The view that crime and punishment reflect the power some groups must influence the formulation and application of criminal law. o It draws our attention to the fact that some groups are better able than others to influence which behaviours and persons are criminalized. Conflict theorists see the rich and privileged as having an advantage in influencing law reform and in what happens to persons who become involved in the criminal justice system. Identify the types of Canadian law and the functions of the criminal law. The two basic types of law in Canada are substantive law and procedural law. - Substantive law by definition: Law that sets out the rights and obligations of each person in society; includes the Criminal Code. o This includes the Criminal Code and other legislation that defines criminal offences and the penalties for persons found guilty of committing criminal offences.
- Procedural law by definition: The legal process that protect and enforce the rights set out in substantive law. o Ex. the procedures for arresting a person or selecting a jury in a criminal trial The Canadian legal system is a common law (Law that is based on custom, tradition, and practice and is generally unwritten) system, except for Quebec, which has a civil law system. Judges in a common law system are guided by past decisions. It emerged from the decisions made by judges in the royal courts and was based on the notion of precedent (A judicial decision that may be used as a standard in subsequent similar cases.) "Whenever a judge makes a decision that is said to be legally enforced, this decision becomes a precedent. In contrast, civil law is composed of civil codes. Canadian courts are organized in a hierarchy, with the Supreme Court of Canada at the top. The principle whereby higher courts set precedents that lower courts must follow is known as stare decisis. Once the SCC rules on a thorny legal issue, all courts below it must apply that ruling in subsequent cases.
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- Summer '20