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1、CRIMINAL LAW MIDTERM SUMMARYSarah HugginsPART I: THE AIMS AND PURPOSES OF PUNISHMENT2PART II: SOURCES OF THE CRIMINAL LAW: CODIFICATION VS. COMMON LAW CRIMES5CASE: R. V. Sedley5CASE: Commonwealth v. Mochan5CASE: Frey v. Fedoruk5S. 177 Criminal Code Peeping Toms6Procedural Classification of Offences,
2、 page 161-1636A - Statutory Interpretation; Rule of “Strict Construction” of Penal Provisions7Using the Rule of Strict Construction7CASE: R v. Goulis8CASE: R. v. Par8Applying Rule from Par9CASE: R. v. Muchikekwanape10CASE: R v. Mac10PART III: CORNERSTONE PRECEPTS: THE PRESUMPTION OF INNOCENCE AND TH
3、E REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT11CASE: Woolmington v. D.P.P.11Golden Thread Quote12CASE: R v. Osolin13PART IV: THE ACTUS REUS (PHYSICAL) REQUIREMENT FOR CRIMINAL LIABILITY15A - The Unlawful Act Interpretation Principles151 Prostitution, etc.16CASE: Hutt v. R.16Notes on the Crime of
4、Prostitution (page 192-196)17Criminal Code: ss. 197, 210-21317Case: R v. DiGuiseppe182 The Unlawful Act for the Crime of Assault and Sexual Assault19S. 265 Criminal Code20CASE: R v. Jobidon20CASE: Bolduc and Bird v. R.22CASE: R v. Cuerrier233 The Proper Scope of the Criminal Law24Notes on the Proper
5、 Scope of the Criminal Law (page 167-173)244 The Unlawful Act in Breaking and Entering27Case: Johnson v. R275 The Unlawful Act of Causing a Public Disturbance28CASE: R. v. Lohnes28Interpreting a Statute29B Omissions29CASE: Fagan v. Commissioner of Metropolitan Police29CASE: R. v. Miller30CASE: Moore
6、 v. R.31C Causation31PART I: THE AIMS AND PURPOSES OF PUNISHMENTWhat does each author see as the function of the criminal law, the function of punishment (which is basically the criminal law “in action”)? On what basis is the criminal law (i.e. punishment of criminals usually by imprisonment) justif
7、ied? Goldstein and Goldstein: criminal law as a last resort processH.L.A. Hart: aim of the criminal law (i.e. criminal legislation) is denunciation of conduct. This is to be distinguished from justifications for punishment when those laws are violated deterrence, retribution, vengeance, reformation.
8、 note that Hart also believes that in favouring a modern, forward-looking, utilitarian justification for punishment over a back-ward looking, moral culpability justification for punishment, society has tended towards the “elimination of responsibility”Sweeny case (drunk driving): aim of punishment i
9、s NOT retribution (though court here misunderstands retribution as vengeance). Fundamental purpose of criminal sentencing is to enhance protection of society. In order to accomplish this purpose, punishment must be acceptable to society in order to achieve societal acceptance (1) fulfillment of the
10、various utilitarian goals, i.e. deterrence, isolation, rehabilitation and denunciation, is critical for societal acceptance ; (2) punishment should be proportionate to gravity of offence (moral culpability). Stephen: Main aim of the criminal law and punishment is the expression and gratification of
11、societys hatred towards the criminal and his conduct. (i.e. vengeance, revenge). Morton: Criminal law as a contemporary morality play. The main aim of the criminal law is to demonstrate fundamental values to citizens. Its object is to instill “abiding by the rules” values in ordinary citizens. Thus
12、the raison detre of the criminal law is the ordinary citizen, not the criminal. Criminal law is only one of the institutions by which values are demonstrated. H.R.S. Ryan: suggests that one aim of the criminal law should be to give citizens confidence in the legal order (this echoes Sweeny). This su
13、ggests that if we didnt balance interests (e.g. allow punishments to reflect the seriousness of the harm and the anger of the community), society would not have confidence in the system and might not abide by it. - Note that there is no general agreement as to the function of the criminal law/the ai
14、ms and justifications of punishment. Society has not come to any general consensus. Philosophers disagreed. Contemporary analysts disagree. (Talk about this disagreement. Who believes what?) (May also talk about discrepancies in understanding issues e.g. retribution). Will we ever agree? NO. Part of
15、 the reason no conclusive research as to which of the aims of the system are actually being fulfilled AND so much variation across different kinds of crimes. - Do we want to agree? Maybe not. Maybe the interests of society and the criminal are best served if we seek to balance the various justificat
16、ions and aims. Perhaps general societal acceptance of the system will be greatest if each person sees his/her values included as part of the balancing act. NO JUSTIFICATION IS APPROPRIATE ON ITS OWN. For example, Lewis points out that if deterrence were the only justification, we could justify punis
17、hing an innocent man so long as society thought he was guilty. In CAM case, court speaks to importance of BALANCE sees retribution as a restraint on the utilitarian justifications. And it is evident that if we did not meet societys demand to see punishment accord somewhat with the harm done, society
18、 might not accept the criminal law system at all. (e.g. parliament has decided that impaired driving causing bodily harm deserves lesser sentence than that causing death). - Also some disagreement as to who the law speaks to? Does it speak to all citizens (as Morton suggests) or only to some? - Sign
19、ificance of what view you take what institutions are engaged? Institutional actors themselves may have incentive to promote the justification that engages their institution. Hart: when use utilitarian justifications, need reason, experience and science; Lewis: this necessarily creates role for exper
20、ts and precludes ordinary citizen participation. When use more traditional justification (retribution) engage jurists and citizens (they are capable of making the determination). Devlin (sort of suggests): when use rehab as justification engage social workers and psychologists. When use moral retrib
21、ution as a justification engage courts and lawyers. When use isolation/deterrence as a justification may engage prison system. When use denunciation as a justification (a la Hart) engage legislatorsArguments for/against various justifications of punishment:UTILITARIAN JUSTIFICATIONS:Hart sees these
22、as the modern conception of punishment goal of the criminal law is to reduce crime and protect society from the criminalthus punishment is justified on the basis that it deters/reforms a criminal, deters potential criminals, isolates criminals from society. According to this utilitarian view, the ol
23、der conception of punishment, under which the justification for punishment is in the moral responsibility of the criminal, is irrational. He believes that in this way, the criminal law has tended toward the elimination of responsibility. C.S. Lewis refers to these utilitarian justifications as the “
24、humanitarian theory of punishment” which he believes is only disguised as being humane. In fact, b/c it has no place for the moral culpability of the wrongdoer, it is unjust and cruel: “mercy detached from justice grows unmerciful”. see below for his specific criticismsMichael and Wexler: Deterrence
25、Defn (Sweeny) General Deterrence: legal sanction imposed on actual offenders will discourage potential offenders. Specific Deterrence: legal sanction imposed on an offender will discourage that individual from re-offending. Pros: supports the notion that the goal of the criminal law is the protectio
26、n of society (Sweeney)Cons: - Empirical Research: Little empirical research to support deterrence claims (mostly based on common sense). Success of deterrence varies widely depending on the crime (murder vs. tax evasion); this holds true for specific deterrence also (rates of recidivism vary from cr
27、ime to crime) No evidence that more severe sanctions have a greater deterrent effect (esp for crimes of passion). (cite editors of S&D)- Lewis: Exemplary punishments (using criminal as an example or a means to someone elses end) are wicked; deterrence justification alone could support punishing an i
28、nnocent man (so long as society thinks him guilty). - There are some acts that just cannot be deterred negligence is one of them; crimes of passion are another- Lack of intention = difficult if not impossible to deter. RehabilitationDefn: idea that we can cure the offender and thus permanently ensur
29、e that he does not re-offend. Sweeny case: rehabilitation is not accomplished by custodial sentences. For: Devlin social workers, medical people like this argument. Against: - Research: little evidence as to the effectiveness of various punishments. Grave methodological problems associated with cond
30、ucting this research. Also, experts/psychiatrists have little ability to predict dangerousnessand yet such predictions/determinations are necessary if offenders are to be released once they have been fully “treated” or “cured”.- Lewis: - “Cures” sounds more just and merciful than “punishments” but (
31、1) “cures” are just as compulsory and (2) a “cure” includes most of the elements for which punishment is feared (loss of liberty, normality, property, etc.). - Problem of fixing the right sentence requires reliance on expert opinion; no longer a role for the ordinary man; thus considerations of just
32、ice and rights may not be employed. - If crime is a disease, how can it be pardoned? VengeanceDefn: Reprisal for harm that is motivated by emotion and angerC.A.M.: has no role to play in a civilized system of sentencing. J.F. Stephen: vengeance is a valid aim of punishment. Hatred and vengeance are
33、deeply rooted in human nature; and criminal punishment is a necessary and desirable means by which this hatred can be expressed. Punishments should reflect the degree of hatred towards the criminal. Expression of hatred is the primary aim of criminal justice; direct prevention of crime is the second
34、ary aim. Sweeney case Judge Wood confuses retribution and vengeance. *THIS IS A VALID JUSTIFICATION see s. 80 of the criminal law long sentence for negligent conduct. Doesnt serve a highly deterrent function or retributive function.so maybe it is vengeance. Maybe parl wanted societys anger to be abl
35、e to be expressed (when someone died as result of negligent use of explosives). DenunciationDefn (C.A.M. Case): symbolic, collective statement that offender has encroached on societal values. A statement that these types of conduct are not acceptable in this society b/c they offend shared values. C.
36、A.M. case says that denunciation is a justification for punishmentHart emphasizes that denunciation is the aim not of punishment but of the criminal law (i.e. legislation) more generally. Morton: criminal law is a contemporary morality play. The purpose of the criminal trial is to demonstrate societ
37、ys values to its citizens (instill in them “rule-abiding” values). NON-UTILITARIAN JUSTIFICATION: Retribution/Just Deserts(?): Defn (CAM case): determination of a punishment which reflects the moral culpability of an offender. Takes account of intentional risk-taking of offender, consequential harm
38、caused, normative character of conduct. Example: Pros: - Balances utilitarian justifications; may act as a restraint on them and thus result in more just sanctions (i.e. where utilitarian justifications alone might lead to harsh/severe/unfair sanctions) (Sweeny case)- Lewis: leads to justice. Who su
39、pports which justifications? May depend on the extent to which it engages certain institutional actors. If you are a social worker, you would likely support a rehabilitation function. Ultimately, in order for any theory of punishment or system of sentencing to be successful, it must be acceptable to
40、 the public (CAM case and Ryan make this point). This suggests a need to balance all the competing considerations and justifications. ALSOask, are there institutions that would better serve these goals wrt this act/conduct/criminal? Cetkovic case: PART II: SOURCES OF THE CRIMINAL LAW: CODIFICATION V
41、S. COMMON LAW CRIMESCASE: R. V. SedleyR. v. Sedley (1663), page 1Sedley was indicted at common law for several misdemeanors against the Kings peace. Crime against the kings peace or a misdemeanor.Threw piss down off a balcony. Very similar to Mochan. CASE: Commonwealth v. MochanCommonwealth v. Mocha
42、n (1955)Facts: - Dft, over 1 month period, on numerous occasions, telephoned a woman. His language on calls was obscene, lude and filthy. - No statute in Penn. that punished such conduct. No case that had been decided in the state that made such conduct criminal. Note that while Canada has a federal
43、 criminal law, crim law in USA is regulated by the individual statesJudgement: - Not impt that there is no precedent which decides this Q. - Test is not whether there is precedent in the books but rather whether offence can be punished under common law. Any act which tends to injure the public, to s
44、uch an extent to require state to interfere and punish wrongdoer, as in the case of acts which injure public morality or obstruct governance. - Whatever openly outrages decency and injures public morals is a crime. Commentary: - Notethere is a control here must be something that society agrees would
45、 outrage decency. Cant just punish any old conduct. (Control is on judge, police and prosecutor). - Concern that a judge might have too much power to decide what public morals are. - Concern uncertainty wrt what actions are allowed or not allowed. (Rights of the offender/individual) at the time when
46、 the guy made the call, he didnt know it would be a crime. But whats the philosophy behind protecting this kind of guy? The idea that we want to protect rights that he had before he became a lude caller. - This decision puts the society over the individual rights. Protects society at the expense of
47、an individual. - Argument for “flexible” criminal law (giving judges power) impossible to make an exhaustive list of all behaviours that might engage criminal liability Willis article: he wants flexibility; no constraint of code and statutes- an aside statutes are not retroactive; case law is retroactive (but in many casesonly when court says it was retroactive) once crime is declared, it was always a crimeCASE: Frey v. FedorukFrey v. Fedoruk, 1950 S.C.C. page 3Facts:- Frey was seen on Fedoruks property peeping into a w
