Winterdyk | Canadian Criminology
Winterdyk | Canadian Criminology
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Crime and Criminal Law
Learning Outcomes
After you have completed this chapter, you should be able to:
  • Understand the relative and evolving nature of law.
  • Realize the function and purpose of codified law as it relates to crime.
  • Understand the difference between common law and civil law and their relationship to crime.
  • Appreciate the impact the Charter of Rights and Freedoms has had on the meaning of crime and on our criminal justice system.
  • Understand the difference between conservative and liberal political philosophies and their impact on crime law and on how we view and respond to crime.
  • Become familiar with the various types of criminal defences and understand how the Canadian criminal trial process works, as well as its application to the study of crime and criminality.
  • Recognize the complexity surrounding the issue of determinism and free will and its implications for the study of crime and criminality.

"Is the law for purposes of social control and social engineering,
or for the purpose of moral condemnation and revenge?" B. Wootton, 1963.

The formal study of crime and criminality is relatively new and even newer in Canada (see Chapters 1 and 5). However, the history of crime dates back to earliest times. One of the oldest debates is whether we are born innately "good" or innately "bad." Given the number of federal laws in Canada today (approximately 90,000) and how busy the courts are (see Goff, 1997), we appear to have our share of evil in society. We also appear to have become more and more dependent on political law (i.e., formal or human-made law) rather than respecting the two common law principles (i.e., informal law or natural laws) of social control presented in this chapter. The notion that formal law has become the backbone that maintains social harmony in society today can perhaps best be illustrated by a quote from DeKeseredy and Schwartz (1996:67) who observe, "no one who depends on the law can afford to slip the slightest bit behind by using last year's books."

Criminologists are interested in the nature, meaning, impact, and origins of criminal law. To understand the principle of criminal law, criminologists need to appreciate the historical and socio-political origins of law.[2] And while most criminology programs offer a course on the sociology of law (an essential element of the foundation of the criminological enterprise (Chapter 1), we will focus on the foundation of crime and criminal law, fundamental legal concepts, and review the defences available to an accused. The purpose is to provide a framework for how criminal acts, such as arson, murder, and rape evolved into their present form. In addition, by understanding how social events have shaped criminal law and criminal procedures it will then be easier to appreciate the need for an interdisciplinary and integrated approach to understand criminal policy implications. The chapter will conclude with a brief discussion on the relationship between crime, criminal law and criminology.

Foundation of Criminal Law
The CanadianCriminal Code, certain federal statues, and other related municipal and provincial laws intended to maintain peace in society are the product of many centuries and influenced by many cultures. Within criminology, the sub-area commonly referred to as sociology of law focuses on economics, history, and political circumstances that impinge on the meaning of criminal law. Canadian criminal law is founded on four basic factors: (1) the history of the concept of "justice," (2) English legal history, (3) the liberal vs. conservative interpretative models, and (4) the relativity of outlawed behaviour.

Historical Concepts of Justice
Cultural anthropological, ethnological, and legal historical evidence has shown that in preliterate and semi-literate times justice was simpler. [3] During these times, social order was maintained in three ways. . First, acts that injured particular individuals were considered private wrongs. Second, the injured party or family personally resolved the harm against the wrongdoer(s), a kind of self-help justice, and third, exacting justice often took the form of blood feuds or vigilantism, as we sometimes refer to it today. Vengeancerepresented the instrument of social control. Justice was usually certain in coming, swift in its delivery, and exactingin the personal harm done. [4]Justice was based on revenge and retribution to help individuals protect themselves against personal wrongs.

"Self-help" Justice: The Roots of Criminal Law
Five different forms of revenge occur throughout history. They reflect the evolutionary process of justice and provide insight into the origin of some of the current foundations of criminal law (Shafer, 1978). In chronological order, they include:

  1. The era of private revenge in which personal "vengeance was his private instrument of social control" (p. 28). This occurred in the early days of social development, a period marked by self-administered justice. The victim, in the interests of self-preservation, would either take measures to protect him/herself or retaliate. Sometimes the relationship between "criminal-victim" was nebulous.
  2. The era of blood revenge marked a subtle shift from individual justice to kinship and familial relationships. Families and tribes became involved in administering justice. In some instances the feuding would go on for extended periods. Modern day equivalents of blood revenge are the conflicts between different Mafia families, Triads, and youth gangs.
  3. The era of superstitious revenge emerged when religious doctrines became a social and political force. Under church doctrine, crime took on a moral tone and became associated with sins - "a challenge to, or an act against God" (p. 29). Punishments were sanctioned by the church as a means of satisfying God. The talio(revenge) was to be proportionate to the injury caused. Religions were careful to define the limits of revenge. For example, some of the more recognizable principles of the Ten Commandments include, "Thou shalt not kill" - today we still severely punish the crime of murder (#6, Exodus 20:13); "Thou shalt not steal" - modern society still punishes theft (#8, Exodus 20:15).
  4. The legal rules of the Ten Commandments were based on the philosophy of theCode of Hammurabi (see below).
  5. The era of state revenge arose as national states began to emerge.During the Middle Ages, state revenge involved a type of victim compensation, or tariff system that varied according to situational and personal factors. However, as the state became more powerful, it was the state that exacted compensation. The victim was no longer protected under law.
  6. The era of general mitigation of revenge began, according to Schafer, on March 9, 1762 when the criminal court in Toulouse convicted and condemned to be broken on the wheel Jean Calas. Calas had been accused of murdering his son, "when in fact the mentally-deranged son had committed suicide"(p. 32). The great French philosopher and social reformer Voltaire, on hearing of the injustice, tried to get the state to overturn Calas' conviction posthumously. So moved was the public that its sense of justice was awakened.The public wanted to be better informed and have greater input into the administration of justice. This marked the beginning of the Enlightenmentperiod for criminal justice reform and the emergence of the classical school of criminological thought (see Chapter 5).

Now social conventions and rules of etiquette became the guiding principles for maintaining social harmony. Those guiding principles and practices became the basis of common law (see Box C-3) which even today our legal system uses as benchmarks for interpreting and legislating new laws. While some forms of exacting justice may appear harsh by today's standards, when little personal harm was involved, disputes were simply resolved through a handshake. The Inuitare an excellent example of how homogeneous, less complex societies can live almost crime-free with few formal guidelines, Justice among the Inuit was informal and was marked by strong customs, norms, traditions, and secular beliefs. Most societies of this type prospered under an acephalous (leaderless)structure, and date back to the beginning of humankind,[5] often lasting for 30 to 40 000 years. Nevertheless, even in simpler times, people still violated their customs and values. Why?

The Need for Social Control

Law should be like death, which spares no one. Baron de Montesquieu(1689-1755).

The slow evolution of societies from hunter and gatherer groups and tribes to chiefdoms and primitive states coincided with social and technological advancements. Communities became structurally and organizationally more complex as the division of power, wealth, and property started to infiltrate tribal existence. Societies became more heterogeneous in their structure. Chiefdoms, like tribes, depended on kinship in order to thrive, but slowly a need arose to have a more stable centralized leadership that could set guidelines for maintaining order. This marked the emergence of sovereign authority and the civil state. Customary folkways, values, mores, along with family empowerment were slowly consolidated into the arms of the state (Wrightand Fox, 1978).[6]

Codification of Laws
Informal practices of conduct gave way to a systematic compilation of law in written form. These compilations are referred to as Codes (e.g.,Canadian Criminal Code). In ancient times, the codes were mandated by the rulers whose names were often associated with the Code (see Box C-1). When governments were established, ruler-devised Codes were replaced with legislative bodies.

The evolution and development of law includes such issues as whether the laws that replace customs produce the desired objectives and whether they represent consensus or conflict of interests in society. Should punishment of criminal offences be based on the vengeance-based models of retribution or just deserts, or based on a social protectioncode as advocated by Canadian criminologist Grygier (see Chapter 5), or the restorative model as advocated by Fattah (Chapter 5)? What impact have these changes had on social order? These and related questions speak to the general function and purpose of law.

Function and Purpose of Criminal Law

The more law and order are made prominent the more thieves and robbers there will be. Lao-tzu (604-531 BC).

The formalization of Codes serves several fundamental functions:
  1. Maintaining order: refers to protecting the lives of its citizenry through prescribed laws (e.g., sexual offence laws);
  2. Promoting morality by defining vices (e.g., solicitation laws, pornography,and gambling - see Chapter 12);
  3. Resolving disputes and "the conciliation of estranged parties" (p. 232)(e.g., civil laws); and
  4. Defining the boundaries for the administration of law (e.g., Highway traffic Act, Income Tax Act, and Controlled Drugs and Substance Act) (Hoebel, 1954).

The degree of respect afforded the law is directly proportional to the "sense of justice" that justice system portrays. As the noted English judge Haines once stated, "in order for justice to be done, it must be seen to be done."

In one of the first Canadian-authored textbooks on criminal justice, McGrath(1976) notes that trying to achieve a sense of justice that all can benefit from is a daunting, if not impossible, task. McGrath further suggests we do not appear to be able to find uniformity in corrections (e.g., punishment vs.rehabilitation) or within and across other elements of the criminal justice system.[7] Legal scholars and criminologists are particularly interested in the extent to which this A review of cross-cultural and historical events can provide a sound understanding of our current legal practices and the role of law in defining crime -- an essential issue in the study of criminology.

The purpose of criminal law, under our adversarial-accusatorial model(see below), became twofold. Criminal laws were meant to ensure social order,but they were also intended to be educational by providing written decisions of the courts and conducting open court and extensive media coverage (with the exception of Youth Court).

The Evolution of Modern Criminal Law
Although the process of formally codifying norms and values in society dominate our approach to maintaining social order, we have continued many of the informal practices that enabled our ancestors to coexist. Perhaps the most essential and enduring common law principles, which can be found in virtually every society and within all religious doctrines, are:

  1. Do all you have agreed to do, and
  2. Do not encroach on other persons or their property (Maybury,1993:36).

Maybury suggests that if we could all agree to once again embrace these seventeen simple words-- these two natural laws (see Box C-2) and all encompassing common law doctrines-- there would be little, if any, need for the complex and often convoluted legal system we have today. However, various"moral entrepreneurs," those who influence and shape our legal policy, have their own vested interests. [8]As we have become more organic and moved towards a capitalist model, somewhat at the expense of nationalism (i.e., mechanical),[9] we have become more dependent on formal measures of social control. Today, our supreme law is the Canadian Constitution which includes theCanadian Charter of Rights and Freedoms,[10] signed in 1982. The Constitution of Canada consists of almost two dozen written Acts and unwritten conventions. TheConstitution Act (1982), although better known, is only a portion of our Constitution.

The Charter guarantees such fundamental freedoms as freedom of belief,expression, opinion, peaceful assembly and association, thought, and that each individual, regardless of age, mental or physical disability, race, and gender is protected equally. And while the Charter has been heralded as a major breakthrough in providing protection of individual rights and the establishment of social justice, it has not gone uncriticized. Caputo, Kennedy, Reasons, and Brannigan (1989) present a number of articles (see Part 7 of their report) that debate some of the limitations of the Charter. Even though it is beyond the scope of this chapter, the point is simply intended to illustrate that no human-made laws, however carefully constructed, can replace natural laws. We will return to the Charter and its role in law and criminality later in this chapter.

In summary, as far back as the early days of human cultural development the concept of crime represented the violation of aspects of a person or their property. In early times justice was based on individualized revenge and retribution. Societies evolved and moved to family or kinship justice, and eventually to the process of codification --state-defined crime and justice. With urban growth and diversity in cultures,the process of administering justice began to mix natural law principles with political law principles. The meaning of crime began to evolve but lawmakers sought to ensure a consensus of public values underlying society's laws.

Early Law and the Meaning of Crime
In the opening comments to his book on the history of criminal justice, Johnson(1988:1) notes the "roots of civilization reach deep into antiquity as so do the problems of crime and punishment." As noted above, the Hammurabi's Code is one of the earliest complete legal codes. It contained 282 sections(i.e., laws) describing behaviour which was either socially unacceptable or constituted a criminal violation. While most of its principles have not been carried forward, the Code provided two principles which exist to this day: (1)punishment should be regulated and, (2) governments have a responsibility to compensate victims of crime (Mueller, 1955).

The following points highlight some of the major historical legal doctrines,some of whose common law and civil principles (see Box C-3) can be found in Canadian law today.

  • Circa 1700 BC: From Hammurabi's Code of Babylon came the principle that it is the state's responsibility to compensate victims of crime.In addition, Hammurabi introduced lex talionis, the principle of "an eye for an eye and a tooth for a tooth" - just deserts and retaliatory thinking (the purpose of punishment).
  • Circa 1200 BC: The Mosaic Law of Israel set the foundation for formalizing the difference between crime and tort law Mosaic Law also required that at least two witnesses testify concerning the guilt of the accused. Today,we refer to this practice as providing corroborating evidence.
  • Circa 450 BC: The Twelve Tables of Rome codified customary practices pertaining to such matters as: payment of debts, property, fairness of law, and the need for laws to be formalized so that all could see and learn(Durham, 1988). For example, by law, patricians, knights and plebians were equally represented on juries. Along with some of the changes incorporated by the Justinian Code, Roman Law has become the foundation of civil law codes (see Box C-3) in many countries, including Belgium, France, and Japan In North America the state of Louisiana (a former French colony) and the province of Quebec use a civil code based on the French civil law codes dating back to the Napoleonic Code of 1804 (Adler, Mueller, and Laufer,1991).
  • Circa 7 BC: The Greeks introduced "democratic" justice with the Laws of Gortyn (named after the goddess on the island of Crete). These laws established tribunals, called a discastry, consisting of up to fifty local citizens who would serve as either judge or jury. Each member cast a secret ballot to determine the guilt or innocence of the accused. Their position could change from case to case since there was no clear distinction between law and issues of fact, and the concept of precedent did not exist.The Greeks did however have rules of evidence -- another of the practices that has been passed down is the "taking of Oath." Both the accused and defendant were required to take an oath, pleading that their testimony was the truth.
  • Circa 400-500 AD: Hebrew Law was based on the oral interpretations of the Law of Moses and was dependent on a rabbi's interpretation until approximately 400-500 AD when the laws were first put into written form. This code is called the Talmud. Since then two versions of the Talmud (the Palestinian and Babylonian) have emerged. Talmudic scholars continue to debate and interpret the civil and religious meanings. From Hebrew Law we have inherited the practice of interpreting and defining law via trained scholars --judges and lawyers (Vito and Holmes, 1994).
  • Civil law systems seldom use juries. Depending on the gravity of the offence, the courts will use a number of professional judges or lay persons who act as judges to preside over a case. Civil law judges tend to be participatory and will ask and challenge the defendant on points of law and the facts of the charges.

The demarcation between civil and common law, while very clear in a number of areas, is more nebulous in others. Their common ground can be found in the results reached by both systems (Wales, 1996).

In summary, even though most of these early penal codes were primarily laws of torts - private wrongs (Maine, 1905 cited in Barlow, 1990) as opposed to laws of crime, the history of early law shows that the process of codifying an act as a crime reflects an intricate interplay of sovereign, cultural and public interests as well as social and economic resources. The overview also demonstrates that the history of law is "forever repeating itself and the same stages that were reached many thousand of years ago" are being recycled(Diamond, 1935 cited in Mueller, 1955:323). History also shows that law is an issue of power (i.e., consensus vs. conflict). This notion significantly influences the way we view law as a viable entity for establishing and maintaining social order. One such enduring influence on the Canadian legal system has been English law.

English Legal History
The transition of common folkways, norms, values, and customs into state law represented the first formalization of criminal law.These common law principles were based on a history of precedent (i.e.,case law). Under this model of settling disputes, outcome decisions were based on the outcome of previous incidents with similar sets of circumstances.The judge made laws became known as the common law.

For Western cultures, the practice of precedence began in medieval times when the ruling monarchs and feudal lords recruited officials to oversee the king's laws and criminal trials. The church was thought to be fair in its judgement and was already familiar with the use of precedent through interpreting it sown doctrines. However, as the practice gained acceptance the king appointed circuit court judges to assist the church. This practice continued until 1215when King John (1167-1216), youngest son of Henry II, signed the MagnaCarta, which returned the decision-making power back to the king.

, The Magna Carta was the first legal document to grant constitutional liberties., After refusing to accept the election of Stephen Langton as Archbishop of Canterbury and faring poorly in war with France, John was forced to make peace with his barons in order to preserve his throne. The barons, led by Langton, rebelled against John raising taxes, extorting money and confiscating land to support his war efforts.

In addition to defining the relationship between the king and the barons, the Magna Carta guaranteed feudal rights and made the king subject, rather than superior, to the law. Most fundamental of the feudal rights was the statement,"No freeman shall be taken and imprisoned or disseized or exiled or in any way destroyed, nor shall we go upon him nor send upon him, except by the lawful judgement of his peers and by the law of the land." This meant life, liberty,and property were protected by law unless the law was broken and only then could the processes of law be justifiably applied (Encarta, 1996 - see Box C-4). The Magna Carta formalized the judicial system, especially the rudimentary judicial guarantees such as freedom of the church, fair taxation,and controls over imprisonment (habeas corpus). It has been called the"blueprint of English Common Law" (Wales, 1996).

Between its signing in 1215 and 1297, there was no formal body to enforce or interpret the Magna Carta's meaning and intention. When King Edward I ascended the throne in 1272 he setup a Parliament that would become the forerunner of all future Parliaments. Its objective was to ratify the Magna Carta. Although subject to interpretation, the Charter is still in effect to this day. However,it was not until the 1700s that formal accounts of decisions were published independently by various legal scholars. In the 1800s, the courts of Britain began to reproduce court decisions -- primarily appellate decisions as they dealt with precedents and the possible establishment of new ones. It was these decisions that laid the foundation of English Common law and that have influenced Canadian criminal law.

As the state gained more control in administering law, it relied more and more on precedent as a way of ensuring justice. The practice came about after the king's council[14] began to experience case "backlog" problems since the traveling justices could not be everywhere at once. As judges gained the right to settle disputes, they recorded their decisions. Thus their records could be referred to when deciding new cases. Judges attempted, as best as possible, to follow precedent --especially when established by a higher court (McCormick and Greene, 1990). It is from this practice that we derived the concept stare decisis -"let decided matters stand."[15]

Contrary to some perceptions, stare decisis is not rigid. For example,judges have the power to "distinguish," or set aside otherwise appropriate precedents. However, such decisions occur in fewer than 25 per cent of cases heard (McCormick and Greene, 1990). In August of 1996, a Manitoba judge was presented with an interesting dilemma that potentially involved challenging a precedent. A case involving a pregnant woman with a long history of glue sniffing was brought before the court. Social Services wanted to have the court make a ruling but on August 6th, 1996, Court of Queen's Bench Justice Perry Schulman avoided the issue of the rights of the fetus by ordering the woman to receive treatment. She was subsequently placed under the care of Winnipeg Child and Family Services. (Under Canadian Law (s. 287 C.C.) a fetus has no legal rights) (Baby born to..., 1996).

A few years earlier, , in a case involving Dr. Henry Morgentaler, in 1988, the Supreme Court of Canada was called on to challenge an existing precedent involving the right to an abortion. However, in a controversial decision, the Supreme Court ruled that enacting a new federal criminal law regulating therapeutic abortions could not be constitutionally justified. It would have represented "an unjustified violation of the rights of women under section 7 of the Charter" (Roach, 1996: 184). The influence of the Magna Carta and common law principles were further reflected in the decision by the Supreme Court of Canada when it ruled that provincial efforts to deny government funding were also unconstitutional.

The courts became increasingly more responsible for deciding cases that dealt with wrongs against citizens. This process set the foundation for ourstate-administered criminal laws today. Neither the Prime Minister, nor any other government official, can try a citizen unless authorized under law.

In Canada, legal scholars and criminologists are interested in studying the role of law in maintaining social order in matters pertaining to both criminal and civil activity. They may also be interested in understanding the role interest groups and power groups play in lawmaking (see, Burtch, 1992).However, with the growing movement of trans national corporations and transnational crime (e.g., Internet crime, drug cartels, and international smuggling rings), local or national laws are less adept at addressing such crimes. Veltmeyer (1987) found, for example, that 46 of the top 100 largest economies in the world are trans national corporations and they are expanding two to three times faster than national economies.

While much has been written about the intent of law and whose interests are best served by law, early laws helped to set the boundaries for the administration of law and the meaning of crime. We also know that the concept of crime varies according to cultures, values, and social and political trends.Therefore, it can be said that the process of law is social and political. For example, some citizens' freedoms were compromised during the expulsion of Japanese Canadians during World War II and the 1970 FLQ crisis as a result of a perceived threat to Canadian sovereignty. . Then-Prime Minister Trudeau rationalized his use of the War Measures Act by suggesting the FLQ was a threat to the duly elected government of Canada (political), the "elected representatives of the people" (cited in Berger, 1982: 197).

From our overview of the cross-cultural and historical evolution of law two ideological and political orientations which reflect the views of the state on social control can be identified. On the one hand, some believe state control and interference should be minimized. As former Liberal Prime Minister Pierre Elliott Trudeau once said, "the state has no place in the bedrooms of its citizens." The other view maintains that the state not only has the right, but the duty to exercise social control over its citizens in order to maintain peace and harmony.

Another major influence on our system derives from the Norman Conquest in 1066AD when William the Conquerer (1028-1087),invaded and defeated the English.Based on his success in Normandy, King William I tried to separate state and church law. However, the church's long history made this difficult and the church continued to play a role in defining crime and punishment. Applying the Christian doctrine to the criminal laws, the church rationalized trial bycompugatory oath and by ordeal. The former requires the accused to swear an oath and to have witnesses ("oath takers") aid in their defence.

Trial by ordeal involved elaborate tests of torture in which survival was rationalized to be in the hands of God.[16]Over time these superstitious practices gave way to trial by jury (Johnson, 1988),largely due to the church's waning influence. Yet some of these concepts remain entrenched in our legal system.

From the Normans we acquired the practice of consolidating the ruling power of law. However, as England became more urban and structured, competing interest groups emerged. This set the stage for the consensus and conflictviews of law and crime. And as discussed in Chapter 1, these interpretation shave formed the traditional basis for understanding the development of legal systems, and criminal justice in particular. (It may be worth reviewing these models before moving on).

Liberalism and Conservatism
The liberal philosophy is not as different from its conservative counterpart as we might think. Among other issues, both crime and the national debt have mushroomed under both political parties. However, one area where the two do fundamentally differ is in their explanations of criminal behaviour. Where conservatives focus on individual moral failure (a positivist model - Chapter 5), liberals point to social factors (a classical approach -Chapter 5). liberals attribute criminal behaviour to poor parenting, peer group pressures, poor educational systems, and lack of economic and social opportunity. Hence, while conservatives focus on reshaping the individual,liberal ideology calls for reforming society. The liberal legacy to criminal justice reforms includes penal reforms, inmate rights, and rehabilitation programs.

The liberal or utilitarian view, was developed by Jeremy Bentham(1748-1832), John Stuart Mill (1806-1873), and John Locke(1632-1704) (see Chapter 5), among others, and maintains that we are social creatures who prefer pleasurable situations over painful ones. When was the last time you looked forward to having a tooth pulled without any painreliever?

The liberal view asserts that we are rational thinking beings who will freely embrace the norms and values of society as long as they meet our needs, a perspective similar to the consensus model. The liberal view maintains that state interference should be at a minimum and the rights of individuals are supreme. At its extreme, Karl Marx's doctrine advocated the need for total state control -- hence, communism. The Marxian or conflict doctrine maintains that crime is a product of state systems, and that any interference in our natural freedoms is bound to produce resistance, retaliation, and conflict.Factors such as social inequality, unemployment and discretionary punishment are used as examples of injustice. We could go on at length over this issue,but it belongs in other criminology and political science courses.

The Charter of Rights is intended to respect individual rights and ensure due process. For example, as noted earlier, section 7 of theCharter states, "Everyone has the right to life, liberty and security..." and section 11 protects the rights of an accused to a fair trial.In accordance with the utilitarian doctrine, crime control must ensure due process (see s. 11), the right to a jury trial (see below), and punishment based on retribution and justice. We also have a right to fair compensation but the legal ideology of retribution and revenge is deemed to be debasing.What would be the utility of personal revenge that does not benefit the whole?We might like to "get our pound of flesh" but what kind of example and precedent would we be setting for others? What would happen if everyone acted in such a manner?

On the other hand, is the purpose of law not to allow the victim (i.e.,self-help justice), and society at large, to express its disdain and seek revenge? The great American judge Oliver Wendell Holmes argued that the meaning and purpose of law should be to deter and reform criminals. It is much more civil and utilitarian. The use of such reactive measures as retribution orjust deserts is a regressive response to crime. It denies the use of such proactive measures such as reform, treatment and prevention and it does not try to prevent crime or reduce the crime rate. Reactive measures as a means of treatment or rehabilitation have generally been found to be less effective than proactive measures (see Romig, Cleland, and Romig, 1989; Ross and Gendreau, 1980).

It has generally been found that empowering people to take responsibility for their actions and "treatment" has proven more fruitful. As discussed in other chapters, the restorative model (see Fattah, 1995, Zehr, 1995) and relapse prevention programs represent "a self-control program designed to teach individuals who are trying to change their behaviour how to anticipate and cope with the problem of relapse"(George and Marlett, 1989 cited in Bartol,1995:317).

Another element of the liberal view is the guarantee to be protected from expost facto law. When Ontario, in 1975, became the first jurisdiction in North America to pass a law making seatbelt use mandatory, or when emission control standards were set, vehicles built before the enactment of the lawswere not equipped or designed to comply with them (see Friedland, Trebilock,and Roach, 1990). For certain changes, owners were given a grace period in which to either convert their vehicles or offered a "buyout" option. Owning vintage vehicles is a pastime of many Canadians, especially baby boomers (Foot,1996), and unless retro-fitted, they have no seatbelts. To enforce seat- belt legislation would surely have resulted in many disgruntled Canadians! So the utilitarian thing to do was to exempt cars built before the advent of seatbelts. But is this fair to those of us who pay for seat belts even though we may not necessarily want to wear them? Do vintage car owners represent a sizable enough segment of the population to warrant special consideration?

Other examples that might be closer to home include: banning all smoking in public places and setting a minimum age for the legal consumption and purchase of alcohol. Not only do some of these laws vary between provinces, they do not coincide with other "adult" rights such as owning a passport, having a driver's licence, or being legally eligible to marry. Why so many discrepancies? Well,part of it is, as suggested earlier, due to the fact that our laws(Charter and C.C.) are human-made and subject to the socio-political environment of the time.

The conservative philosophy was largely influenced by the works of the philosopher Thomas Hobbes (1588-1679) and the great statesman and oratorEdmund Burke (1729-97), as well as by Sigmund Freud (Chapter 7). They believed the causes of crime and deviance lie within the individual, not the state. Criminals lack self-control and are predisposed to acting criminally.The conservative philosophy asserts that we are selfish and needy creatures who will manipulate situations to get what we want (see, for example, Shostrom,1972). Who has not, "put his best foot forward" in order to obtain some good,exaggerated the truth to protect oneself cheated a little on one's income tax,attempted to get a peek at another's answers on an exam? Do you know of anyone,who has dug himself, , in so deeply that he could do nothing to help himself?Even after the now-famous shoe pictures were introduced at his murder trial,O.J. Simpson denied not only owning the shoes but continued to deny having killed his wife. At times, our "passion" or "id" (Chapter 7) gets the better of us. Therefore, criminal law represents an important mechanism for establishing boundaries to regulate behaviour. In criminological jargon this process is known as specific (i.e., punishing the offender) and general(i.e., the threat of punishing anyone who might be thinking about committing a crime) deterrence.

Hobbes believed that the need for control takes precedence over individual needs and rights. Without law there would be social unrest and chaos. From a conservative perspective, laws are necessary to maintain social order and harmony. To be a member of a community we must be prepared to surrender some of our personal desires, i.e., "if you want to live in this house, you'll have to do your part." Marriage partners agree to honour, respect, and obey one another. Car drivers must (informally) agree to abide by the rules of etiquette. All agreements are based on past traditions and precedents, a process that helps to ensure we are not subjected to sudden change (hence the term conservatism). In fact, under conservative governments, legal reforms tend to be drawn-out processes. The purpose of law then is crime control or "law and order" (see Box C-5), with the focus on enforcing the law through the police and maintaining order by incarcerating criminals. Rehabilitation and social reform are not part of the conservative platform. Instead, retribution and revenge become the motive of law, as in the early legal codes.

The conservative model of crime control is analogous to the patriarchal family.The father, (the state), uses discipline to address wrongdoing and yet also exercises compassion and understanding. For example, under the conservative leadership of Ralph Klein during much of the 1990s, Alberta experienced major cutbacks to social services, health care and education as a result of trying to balance the budget. In addition, the province entertained the ideas of bringing back chain gangs, work/boot camps for young offenders, restricting prisoners 'rights to vote and the removal of amenities such as colour television and computers in the provincial prison cells. These measures all fall within the parameters of a conservative framework.

Now that you know the fundamental differences between conservative and liberal doctrines, as a class exercise you might consider looking at a 10-15 year time period in Canadian history when we had alternating liberal and conservative federal governments. Did the legal practices of the time support the political philosophy of the time? Perhaps you could discuss this in class and/or among your classmates. What kind of socio-political observations can you conclude?What were the crime trends? What were the dominate theoretical perspectives an dhow did we typically respond to crime?

Before we look at some of the elements of Canadian law let's recap the principles underlying the above material as well as offer some additional food for thought.

As a student interested in criminology, you might have observed that, whether humankind relied on informal (e.g., folkways, customs, and values) measures of social control or formal measures (common law or civil law), neither form of control has eliminated crime. So what is the purpose of law? What is crime?Have we missed something?

Part of the difficulty in trying to answer the above questions is the general lack of consensus over what constitutes a crime (see Chapter 1). Using Canadian examples, Parker (1996) reviews eight different crimes which, depending on their context, were either recognized or not recognized as being criminal. For example, former mayor of Toronto, William Lyon Mackenzie (1795-1861) was once accused of treason after leading a rebellion in Upper Canada in 1837. If a wife has been subjected to years of abuse and then kills her partner, her charge can be reduced to manslaughter. During war, killing another is acceptable. Parker(1996) offers similar examples for crimes of morality, property crimes, false pretences, fraud, and public welfare offences. They all show that the meaning of crime is relative and dynamic or evolving. Or as Heraclitus(540-480 BC) once said, "all is in flux, nothing stays still." Given their lack of success in controlling crime the conservative and liberal ideologies appear to rest more on misguided ideological faith than on facts.

If we cannot reach societal, let alone universal, agreement on the role of law in defining crime, how can we expect to do anything about it? Part of our dilemma lies in the debate as to how we account for human behaviour. To date,we have tended to rely on either the liberal or conservative positions,. and it is true they have spawned the models for rules of law, procedures of law, the definition of law and justification for punishment or treatment. --

Now that we have traced the origins of law, its meaning, and its intent, we can look specifically at Canadian criminal law.

The Canadian Charter of Rights and Freedoms (1982)
Before the Seven Years War (1757-1763),, Canada with the exception of Quebec(then New France), was a colony of Britain.English criminal law applied to English-speaking Canada while the French Penal Code (civil law) was used in New France (Quebec). After the war ended in 1763, Quebec was required, under the Royal Proclamation of October 7, 1763, to adopt English criminal law. The Proclamation guaranteed the residents of Quebec the right to maintain their civil code practices for civil matters - "so far as the laws of England permit."

In 1867 the thirty fathers of the Canadian Confederation, led by Sir John A.MacDonald (a conservative), met in Prince Edward Island, to sign the document that would define the powers of the federal and provincial levels of government. The British North America Act (BNA Act), as it was called, gave power to enact criminal law to the federal government (Section91(27)). Was this a well thought out concept? Only 10 of 400 members we represent in the British House of Commons when the BNA Act received third and final reading!

The fathers of the Canadian confederation deemed it essential to have a centralized criminal code so that rules of evidence and procedure (s. 91(27))would make laws more accessible for all Canadians - regardless of where one lived. At one time, the final court of appeal in all civil and criminal cases was the judicial committee of the Privy Council in England. Then, after amendments to the Criminal Code and after a series of cases from 1926 to 1935,the Supreme Court of Canada became the final writ of appeal in all criminal cases -- and in civil ones in 1947.

Recognizing the diversity of Canada, and a need to satisfy provincial interests (e.g., Atlantic provinces and fishing rights, prairie provinces and their resources), the provinces were granted autonomy over territorial matters. In this way, the BNA Act created a two-tier model of jurisdictional control. However, appreciating the need for a sense of uniformity, the provinces and federal government powers were designed to complement one another(see Sussman, 1976: 26-27, for a concise summary of federal and provincial distribution of law-making powers).

In 1982, the BNA Act was renamed the Constitution Act. Among the other things it created the Charter. The Charter places new conditions on the state's ability to legislate and enforce criminal law. It represents the culmination of thousands of years of tradition and precedent, a blend of natural (common law) and civil law supplemented by political law --legislation.

The Criminal Code
Our first Criminal Code was proclaimed in 1892.Other than including some sections relating to crimes specific to Canada"such as those relating to lumber, railroads, and fencing frozen ponds (Parker,1996:42), the Code was modeled after England's draft Criminal Code..

Unlike the civil law-based codes in Europe, our Code is not organized around,and derived from, articulated rational principles, that are adhered to consistently and coherently throughout the body of the code. While it does have a set of guiding principles, or rules of law (see below), the CanadianCriminal Code was little more than a collection of laws premised on common law principles. In addition, over the years, through piecemeal amendments, the code had become convoluted.

Not wanting to abandon the common law tradition, but given the incompleteness of the Code, it was subjected to numerous challenges as Canada evolved as a nation. Being, by design, a fluid and flexible Act, virtually every original law has been supplemented in some form or another (see the Criminal Code Table of Concordance). In 1955, all common law offences were abolished except for contempt of court. Other major Code revisions were undertaken in 1970 and again in 1985. For example, a number of offences were abolished and other offences added (e.g., hate crime - s. 318 and 319 and child pornography - s. 163C.C.). Students interested in the sociology of law and criminologists in general try to understand the reasons for such reforms and the implications for criminal justice and society at large.

In an effort to ensure continuity of lawmaking, the government of Canada established the Law Reform Commission of Canada in 1970. Its mandate:

  1. Adopt a multi-disciplinary approach to the study of law and the legal system. In order to recognize the broader social and economic climate of Canada, the Commission seeks contributions from a wide range of legal and non-legal expertise, both from individuals and groups.
  2. Be innovative in its research, consultations and management practices. The use of new technologies, statistical and information gathering techniques, as well as dissemination of information should be, where feasible,flexible, yet progressive.
  3. Be responsive and accountable to key groups who are directly and indirectly concerned with law reform, special interest groups, etc. The Commission is expected to work together building on existing knowledge and expertise through a cooperative partnership with relevant individuals and organizations.
  4. Provide advice and recommendations that not only fit into the current legal system but that will be cost effective. The emphasis is on improving Canada's legal system.

The governing principles of the Commission were intended to reflect the interests and needs of Canada's institutions of common law and civil law systems, while defining constructive changes to any new criminal legislation.The Commission was created in 1967 and operated until March 1997, when funding was discontinued. The Commission produced more than 140 reports on a variety of topics. Many can still be accessed through the Internet Commission's WWW site.

Rules of Law and Burden of Proof
Criminologists and legal scholars have long debated the meaning and intention of rules of law. While such rules have a long history in common law tradition,their interpretation and transformation over the years have been enshrined into the Canadian Charter of Rights.

The Canadian legal system has been described as an adversarial model(Griffiths and Verdun-Jones, 1994)(see below). Under this model one is presumed innocent until proven guilty. It is incumbent on the Crown/prosecution to prove the guilt of the accused.

Following common law tradition, the burden of proof entails two essential elements which are expressed in the Charter and the Criminal Codeand which can be traced back to the Magna Carta (see above). These elements include the physical and mental components of any presumptive criminal act.The physical element, or actus reus - "to act," requires that the Crown must prove beyond a reasonable doubt, that the accused did commit the prohibited act. The mental element, or mens rea - "the knowledge of wrongdoing" requires that the Crown must prove that the accused committed the offence with criminal intent. For most offences, both conditions must be met in order to obtain a conviction. Therefore, evidence to support a case is a critical element of a trial process. This is why the police must have evidence in order to lay charges and why we have improved evidence-gathering technology such as DNA printing, wiretapping, surveillance techniques, so as to increase the likelihood that a conviction can be achieved in court. Evidence-gathering techniques have become a major area of criminological research today as can be seen by the growing number of forensic courses.

Criminologists interested in the administration of justice want to examine the limits to which evidence may be gathered. Even though the Charterprotects us against unreasonable "search and seizure" (see section 8 in theCharter) and other fundamental rights that date back to many of the common law principles, the criminal justice system and in particular the courts are constantly striving to ensure that the law is upheld, at the same time ensuring that the rules of law and burden of proof are respected.[17]

In his widely-read book, Thinking about Crime, James Q. Wilson (1983)suggests that criminal behaviour is fundamentally shaped by cultural factors(e.g., family, the processes of moral development, and extent of individual freedom). Addressing criminal behaviour in this way calls for an interdisciplinary approach that focuses on providing social and economic opportunity rather than on revising or amending criminal laws. We will return to this issue in the final chapter. Let us take an abbreviated look at the court system and the elements of a criminal defence.

The Court System
As was noted above, common law tradition adopted a tiered system of courts. Under the BNA Act, federal (sec. 91(27)) and provincial (sec. 92(15))legal jurisdictions were defined. Figure C-1 illustrates the Canadian court system as it currently exists.

While the federal courts have changed little since Confederation, provincial criminal courts systems have. Depending on where one lives provincially, there are different names for courts that serve a similar function. The nomenclature differences, in part, reflect the different ideological philosophies of the Acts they support.[18]These distinctions illustrate the fluidity of Canadian law, its linkage to common law tradition, and the utilitarian notion that a degree of provincial autonomy serves the provinces' and countries' interests. Unfortunately, the good intentions of our tiered judicial system (see Figure C-1) have not always had the expected results as the present court system across the country reflects both diversity and complexity. To this end, the Law Reform Commission (1989)produced a working paper calling for a move towards a more unified criminal court system. However, their recommendations have remained largely untested.

Canadian Court Structure

Criminal Defences
The following discussion is not always considered an essential element of an introductory course in criminology. However, in addition to providing an overview of the essential elements of a criminal defence, it show criminal law has converted informal rules and common law principles into formal criminal law sanctions. It also illustrates that law is flexible.What may appear to be a criminal offence (based on the evidence) may not holdup in court. Examples, that may readily come to mind include O.J. Simpson,David Walsh and Bre-X, Albert Walker and Sue Rodriguez.[19]

At the onset of the chapter, we saw how self-help justice dominated the practice of justice in earlier times. Then, as the state acquired increasing control of the administration of justice, the delicate balance between respect for individual rights and proving guilt spawned the debate as to whether laws represented a consensus or conflict view. Whereas the Criminal Codedefines what constitutes a crime, procedural criminal law prescribes the powers of the state and certain rights of the accused against the power of the state. The primary powers of the state are defined under the Charterwhile the Criminal Code defines some of the criminal defences available to the accused. However, not all defences are defined in the Criminal Code. Many are found in case law. The right to a criminal defence is one of our fundamental rights that can be traced back to common law principles (see Appendix A).

The list of excuses to absolve oneself of criminal responsibility are many, and some are well known to us: "I was framed," "The devil made me do it," "I didn't know it was a crime," "I had no choice, it was either him or me," "I just couldn't take it any more," "I was sleepwalking when it happened," or "I have a blood sugar sensitivity." The point is that even when the evidence against an accused may appear overwhelming, the defendant may still have grounds to plead not guilty or to argue a lack of culpability.

In Canada, there are a number of legitimate defences available to an accused,including automatism, consent, insanity, mistake, provocation, and self-defence.[20] Although a great deal has been written on criminal defences, coverage in this chapter will be limited to some of the problematic defences that pose a challenge to criminal law and the study of crime.

Under section 16 of the Criminal Code, automatism refers to acts which are supposedly done unconsciously or involuntarily. - The range of such conditions could be the result of a brain tumour, epilepsy, drunkenness or intoxication, hypnotism, somnambulism (sleepwalking - see sidebar), somnolence(drowsiness), or in some cases amnesia.

While crimes committed involuntarily pertain to the element of actus reus,[21] some criminologists are more interested in understanding the etiological link. For example, many people drink excessively but do not commit crimes. What differentiates those who are intoxicated and commit a crime from those who are similarly intoxicated but do not commit any crime? Why is it that a comparatively small percentage of people who are affected or afflicted by any of the above commit a crime? Is there some biological, sociological, environmental, or interdisciplinary link?Criminal law does not provide an opportunity for understanding or discerning causal behavioural links. Rather the burden of proof rests simply on mental capacity.

Consent - "Mercy killing"
The Sue Rodriguez case of the mid 1990s is one of Canada's most infamous cases involving consent. Ms. Rodriguez had been suffering from amyotrophic lateral sclerosis for several years before the pain and loss of self-control led her to want to have an assisted suicide. She was 43 years of age at the time. Since she was no longer able to take her own life Rodriguez wanted to die with a sense of dignity. And while there are vague provisions in the Criminal Code (s. 227) that exempt culpability if the death occurs one year and one day "from the time of occurrence of the last event by means of which the person caused or contributed to the cause of death," Osborne (1995: 279) suggests there is no rationale for the stated time period. Osborne points out that the law does not provide for clear "closure to the uncertainty of human survival."However, the constitutionality of the Rodriguez case was more specifically about section 241 of the Criminal Code - counselling or aiding suicide.[22]

Cases of this nature involve ethical and moral issues. Does law have a right to legislate morality and ethics? Is it a violation of utilitarian principles, or can it be argued to be in the best interests of society to establish moral standards? ? Dr. T. Douglas Kinsella, Director of Medical Bioethics at the University of Calgary is quoted as saying "I am honestly fearful of what would occur if the law were generally relaxed" (Osborne, 1995:283). If we do allow mercy killing or euthanasia, where and how should we draw the line?[23]

Insanity - "Defence of Mental Disorder"
To find someone insane, the courts in Canada apply criteria used in the seminal case in Britain from 1843, which resulted in the M'Naghten Rule (see Chapter 5). Although the criteria have been modernized somewhat since the M'Naghten case, the essential principles are the same. As of 1996, section 16(Defence of Mental Disorder) of the Criminal Code reads:

  • 16(1)... No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
  • 16(2)... Every person is presumed not to suffer from mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
  • 16(3)... The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raised that issue.

It is often mistakenly thought that the insanity plea is both common and usually successful. This misconception is due largely to the high-profile cases in which the insanity plea has been successful. However, Sections 16(2) and16(3) of the Criminal Code provide that every person is presumednot to suffer from a mental disorder that would exempt them from criminal responsibility. Typically, when we think of "mad murderers" we think of American figures. including John Hinckley who tried to assassinate President Reagan, Mark David Chapman, who shot and killed John Lennon or David Berkowitz,the "Son of Sam" (Hickey, 1991).Then there was the unusual case of a former San Francisco County Supervisor, Dan White, who was convicted of voluntary manslaughter in the deaths of San Francisco Mayor George Moscone and Supervisor Harvey Milk. His successful defence was that he suffered from "diminished capacity" caused by a biochemical change in his brain aggravated by his compulsive diet of junk food (in particular Twinkies)

Clifford Olson is perhaps the most notorious Canadian serial killer. At his August 1997 hearing for early release under section 745.6 of the C.C.("commonly referred to as the "faint hope" clause) Tony Marcus, a B.C.psychiatrist described Olson as being self-deluded and a "quintessential psychopath" (Olson "morally insane": Hearing, 1997).

In the case of Olson, and also Marc Lepine, despite their histories of emotional instability, neither defence counsel chose to use the insanity plea as a possible defence.Although Canadian courts have been more willing than American and British courts to allow the Crown to raise the mental disorder defence, under section 7 of the Charter, and in keeping with common law practice, it cannot be done until after the accused has been found guilty[24] (Roach, 1996). The party who raises the possibility of a mental disorder must provide, beyond reasonable doubt,evidence as to the state of the individual's ability to (have) formed the mental thought - mens rea. Gomme (1998) points out that pleading insanity has become more common because of the very lengthy sentences now meted out for homicide. This has been the case, more or less since 1976, after capital punishment was officially abolished.

Not only is there public misconception about the use of the mental disorder defence , but within the legal profession it has also been the subject of much controversy. In court, the concept of "mental illness" is by definition a sickness of the mind. Today, the term "insanity" is now referred to as "criminally responsible on account of mental disorder." One's fitness to stand trial (s. 672.22-672.33) is based on a psychiatric interview.However, as Faust and Ziskin (1988) observed, psychiatrists are unable to make accurate clinical judgements about the mental status of a defendant. This dilemma in the courtroom is commonly referred to as the "battle of psychiatrists" (Jeffery, 1985). For every opinion confirming the mental illness of an accused, another can be found to oppose the diagnosis. One of the more famous American cases in which such a "battle" took place involved the serial killer Ted Bundy (see Hickey, 1991).

One of the more vocal, and influential, anti-psychiatry spokespersons is Thomas Szasz. Szasz (1987) claims that mental illness is a myth. Referring to the general lack of consensus among psychiatrists in their diagnosis of clients,Szasz argues that the labels are simply an excuse for the profession to control and manipulate people. Sanity or lack of sanity, is simply an artifact of social, moral, and life experiences. The distinction between sanity and madness, according to Szasz, is based in politics and ideology. For example, he notes, it was during the Industrial Revolution, with the rise of capitalism,that a need to control certain individuals began and when the concepts of feeble-mindedness and "moral imbecility" were given a special status. Within a short time asylums and mental hospitals emerged (see Foucault, 1965 for an interesting account) (see Box C-8).

By contrast, Andrews and Bonita (1994), are strong proponents of the medical model for explaining insanity. They argue that mental illness is a disease of the brain and is qualitatively different from emotional disease. Relying on their diagnostic skills and using the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), psychiatrists try to provide the court with an objective assessment as to the mental stability of the client -- the client's ability to stand trial, ability to understand criminal responsibility, and potential danger or risk to society and/or themselves.

In Canada, we have only one standard for testing mental disorders, legally defined as insanity Such is not the case in other parts of the world. For example, in the United States, which allows individual state jurisdiction over such matters, there are six different models in use. They range from: No standards (e.g., Montana and Idaho), several which use the M'Naghten Rules(Arizona, Kansas, Maine, and Florida, among others), others, such as New Mexico and Colorado which use the M'Naghten Rules and Irresistible Impulse Test, while states, such as California, Oregon, and Ohio rely on the Model Penal Code. Only New Hampshire uses the Durham Rule, and a few states (e.g., New York and North Dakota) use a combination of the above tests (Vito and Holmes, 1994).

In spite of the controversy surrounding the meaning of insanity, numerous examples can be found in criminological literature showing a relationship between mental illness, emotional disturbances and crime. See Chapter 7 for an exploration of the psychological explanations of crime.

Mistake of Fact
"But officer, I did not know that I was carrying a controlled substance for my friend. He told me it was some special powder for his grandmother!" While the accused is admitting to the act (actus reus) he/she claims he/she was operating under mistaken facts (lack of mens rea). Should the person be exempt from culpability?

Although the law clearly requires both elements to be present in order to find guilt, the defence of mistake of fact is an example of how subjective the law can be in interpreting criminal responsibility. In order for an accused to use such a defence two conditions must be met:

  1. The mistake must be an honest one, and
  2. No offence would have been committed if the circumstances had been as the accused believed them to be.

In the scenario above, the carrier could be acquitted on the basis that he honestly did not know he was carrying a banned substance. Such was the case ofR. v. Beaver in 1957. Beaver was charged with possession of heroin. The defence argued that Beaver honestly believed the package contained nothing unlawful. Although the Supreme Court of Canada upheld the defence, in recent years the decision has come under criticism.

While the Supreme Court agreed there might have been a mistake of fact, the conviction was upheld because Mr. Justice Dickson ruled that while the mistake of fact might be reasonable it was not honest. Therefore, the guilt was dependent not on the act but on personal responsibility.

Controversy around mistake of fact drew considerable attention when feminist lawyers argued that "mistake of fact" should not be reason for men to commit asexual assault because they thought the woman was consenting. It was the case of Pappajohn v. The Queen (1980) in which the accused alleged the woman was consenting to the sexual liaison (not unlike the Mike Tyson v.Desirée Washington case in the early 1990s, in which Tyson was convicted).

Mistake of fact has been described as a very complex law (see Barnhorst,Barnhorst, and Clarke, 1992). Today, with the Charter, changing values,the proliferation of laws, and the growing diversity of multi-cultural and multi-ethnic groups, it seems unrealistic for all Canadians to be able to know everything let alone be able to find proof of mistake of fact or mistake of law.

Mistake of Law
In spite of the fact that there are thousands of federal, provincial, and municipal laws, Canadian courts do not recognize ignorance of the law as a viable defence. However, if the accused can convince the court that his orchestrations were based on a "mistake of fact" he or she may have a legal defence.

Interpretation what constitutes a mistake of fact defence tends to be very subjective and the law has been subject to challenges. And while the law may have a practical basis, it has posed numerous difficulties when applied to situations involving ethnic groups and Aboriginal peoples of Canada who are often unaware of our legal concepts. Is it fair that new immigrants should be expected to know all the laws?[25] Is it right that our Aboriginal peoples who survived for many centuries before Caucasians arrived and who had their own systems of justice, should be expected to understand and know our laws? For example, the Inuit do not even have a word in their language for "guilty."

Self-Defence and Compulsion
Section 34 of the Criminal Code provides that a person may use force inorder to protect him or herself against unprovoked assaults, and section 35protects one from provoked assault. However, Roach (1996:174) notes that the"statutory provisions in the Criminal Code governing self-defence are notoriously complex." He further notes that the basic elements of self-defence are concerned with "the accused's subjective perceptions and reasonableness of those perceptions" (ibid, 174). Self-defence was developed as a specific application of the common law defence of necessity and traditionally required no choice since it was the result of immediate danger.

If someone breaks into your house and you defend your family by killing an intruder in the ensuing struggle you might not be charged with a crime. The law recognizes that we have the right to save our lives or those close to us.However, if you were to use excessive force and simply shot the intruder without due provocation then the defence provided by section 34 is not available. You could be charged with homicide.

Perhaps one of the more controversial examples of self-defence pertains to cases in which abused wives/partners kill their significant others. In R. v.Lavellee (1990), the Supreme Court of Canada had to decide whether evidence relating to "battered-wife syndrome" could be used as a defence. Issues of sufficient threat, justifiable force, and the necessity to force a person to kill in self-defence are difficult issues to address legally. While in theory such defences are justifiable, in Canadian courts they seldom work in practice.

A related defence that is also unclear under Canadian law is related to superior orders. In 1996, the Somalia inquiry examined certain actions[26] taken by Canadian soldiers, that fell outside professional military conduct, against innocent Somalian citizens..Several of those accused claimed they were simply responding to orders from their superiors. Part of the dilemma was that the shooting incident was unprovoked and resulted in grievous bodily harm. However, using s. 17(compulsion by threats) it was argued that the soldiers were ordered by a former U.S. Green Beret to carry out the order during a riot. Yet the law (s.17) does not apply to acts of murder, assault with a weapon, etc.[27]

A final example of self-defence and compulsion pertains to laws involving war criminals. Section 7(3.71) of the Criminal Code allows the prosecution of individuals who committed mass murders, executions, or other heinous crimes during times of war. In the interests of society, many might argue that such heinous behaviour can never be condoned under any circumstances. However, under the duress of war, could it be argued that some acts were the result of self-defence or compulsion? Should such laws be binding for the natural life of the individual? (see Box C-9)

We have only done a cursory overview of the major types of criminal defences.Students interested in learning more about criminal defence should take a class in criminal law and/or evidence and procedure. In these courses you will go into greater depth and examine specific cases and the controversial issues that surround the applications of various defence strategies.

In this section, we have examined some of the major criminal defences as they relate to the intention of the act. The accused can either deny the actus reus (e.g., self-defence or entrapment) or argue that he or she has been wrongly accused or lacked the mens rea (insanity, intoxication, duress,etc.). The various defences clearly demonstrate the difficulty of proving intent and also illustrate how norms and values continue to raise new issues as to what should or should not be socially sanctioned. Because of their relative nature, many summary offences have statutes of limitation,-- after a prescribed period of time those crimes can no longer be prosecuted. During the Vietnam War, numerous draft dodgers fled into Canada trying to avoid the draft and wait out the prosecution period. The fact that people attempt to avoid prosecution, and have a viable "out" raises the question as to the purpose and effectiveness of punishment as a deterrent (see Chapter 2 re classical principles and the purpose of punishment). It also raises questions aboutdecriminalization (the process of removing the criminal law), lack of deterrence effect, disrespect for the law, development of a subculture (e.g.,creation of organized crime groups such as the recent invasion of the Hell's Angels into western Canada).

These and related questions speak directly and indirectly to the meaning of crime, criminality, its etiology, and its control and also raise questions about the role of science in law. Therefore, as part of the criminological enterprise, it is essential to study the concepts and purpose of law.

Adversarial vs. Inquisitorial Model of Justice
A Canadian criminal trial is nothing like what we see on American television.The process is formal and there is very little, if any, posturing, leading questions, or trickery in court. Goff (1997:219) describes the trial process as"extremely complicated, with the judge having to make decisions about questions of procedure and what evidence can be allowed to enter the court." The great American jurist Roscoe Pound (cited in Boyd, 1986) argued that social control could only be attained through an organized and systematized exercise of power and that law was the operative vehicle. Parker (1968) defined the process as a"due process model" as opposed to a "crime control model" (which describes the inquisitorial system). Given some of the misconceptions that may exist surrounding our criminal trial proceedings we should look at how these models operate.

Based on common law tradition, an accused is presumed innocent until proven guilty. In American movies we regularly see defendants taking the Fifth Amendment. This simply means they can refuse to say anything so that nothing can be used against them. It prevents an accused from self-incrimination. Who has not heard the following words in a cops and robbers movie, "Whatever you say can be used as evidence against you."

Under our adversarial (also called accusatorial) model of due process,it is incumbent on the Crown to prove (legal) guilt - not the responsibility of the accused to prove his or her innocence. In the O.J. Simpson case, Mr.Simpson never took the stand to testify in his own behalf. In the Airbus scandal involving former Prime Minister Brian Mulroney , Mulroney also refused to testify. In Canada, these rights are protected under the Charter(s.11(c)). On the eve of the Airbus trial on January 5, 1997, the RCMP settled out of court (Airbus letter wrong..., 1997)![28]

The adversarial model can trace its roots to the earlier practices involving trial by ordeal and trial by battle (see Chapter 2). It grew in popularity during the tenth to thirteenth centuries. These practices were eventually replaced by the civil process of trial by judge, or by judge and jury. Today,both the Crown and defence are responsible for structuring the legal issues to be decided in the criminal trial. Battles occur as both sides play an aggressive role in summoning and questioning witnesses. To ensure proper decorum, the judge acts as a referee to ensure the various rules of evidence are followed by both parties and that the jury (if there is one)is properly instructed in the relevant legal issues (Law Reform Commission,1974; Griffiths, Verdun-Jones, and Klein, 1980).

Countries that practice civil law (see Box C-3) more commonly use aninquisitorial (non-adversarial) approach. This system had become a standard and required procedure for all French courts by the mid-sixteenth century (Reichel, 1994). Under this model, judges play a much more active role in the criminal process. For example, during the investigation into Diana's car crash, the judge questioned the witnesses, something that would not occur in our system. As Hackler (1996) observed while viewing court procedures in France, the judiciary plays a vital role in both the collecting of evidence and in defining the issues that are to be settled by the criminal trial. The process of determining guilt is more factual than legally-based. In contrast to our model, the Crown and defence assume a relatively passive role (see Box C-10). Also contrary to our legal adversarial process, a trial under the inquisitorial system is more like a continuing investigation where the parties in the case must provide all relevant evidence during the proceedings. The trial becomes a type of screening process in which evidence is carefully examined to arrive at the truth. Furthermore, the judge, not the Crown or defence, calls and actively examines witnesses and the defendant.

Under the civil law system, trials are an important element of the proceedings.Ingraham (1987) points out that an admission of guilt by the defendant is not the same as a guilty plea. It acts instead as additional evidence to be evaluated. It is still possible, however, in certain countries (e.g., France,Italy, and Germany) to have uncontested trials in which the defendant provides support for the charges laid against him or her. In such instances a case can be completed in as little as 15 minutes (Ingraham, 1987).

Both adjudication processes reflect how social control mechanisms have evolved.Under the accusatorial model, the means of extracting justice (i.e., vengeance)evolved from the wronged person, to relatives of the victim, then to any member of the person's group, before responsibility for the well-being of the person finally rested with the government (Reichel, 1994). The process of resolving disputes is still characterized by many of these early practices, except that today it is more formal and considered to be fairer..

The inquisitorial system followed a slightly different path. Reichel (1994:149)notes that "the wronged person is eliminated as private accuser and replaced with a public official." Over time the private accuser's role was replaced with an investigative process which complemented the development of its civil lawroots and socialist traditions. By contrast, the Islamic legal system is the only one that "offers a unique combination relying on private accusation in an inquisitorial-type setting" (Reichel, 1994:149). During a trial the accused sits at arm's length from the judge and "questions and answers flow, as at a conference rather than a formal trial" (Daniszawski, 1997:C1). The underlying principle of all Islamic law is that God is the law and disputes are addressed from the point of view that the accused and the court are "doing God's work to reach the truth" (ibid, C1).

Criminology and Law
So far, we have examined both the historical roots of law as well as the key elements of law in Canada today. What we have been examining is the philosophy and sociology of law, or jurisprudence, as it is commonly known.Jurisprudence involves four major areas of study:

  1. Law and philosophy: pertains to the relationship of law to morality,natural law doctrine, God, and ethics. The assumption is that we are rational beings who recognize certain inalienable and natural laws which are revealed to us through a deity. However, we noted earlier that most laws today are positive laws, or human-made laws. So what then is the meaning and purpose of law today?Is it possible to separate natural law from people's social, psychological,and biological natures ? History has clearly shown us that it is not possible,since law cannot exist without the workings of human behaviour.
  2. Law and power: involves the relationship of law to the state system.Maybury (1993) referred to this type of law and positive law (see above). The advent of the idea of the divine right of kings began a shift from law as given to us through the church (i.e., God) to law being prescribed by kings and later governments. These are the human-made laws that we have today.
  3. Law and society: the relationship of law to major social and historical events. As noted in Chapter 1, this is known as the sociology of law.
  4. Law and science: the relationship between law and the physical and social sciences. Referred to as legal realism, in Chapter 1 it was noted as the weakest area of study within jurisprudence.

The first of these views can be described as idealistic while the latter three are supposedly based on empiricism, science, and human experience. Aside from the inherent contradiction between what Maybury (1993) described as natural vs.scientific law, all are premised on the classical (Chapter 5) philosophy of free will and moral responsibility.

From a consensus perspective, law is supposed to reflect public opinion and natural law, but as we have seen throughout this chapter, law is no longer natural nor is public opinion consensual (a conflict perspective). For example,the Young Offenders Act, though a federal act, is administered provincially and not necessarily uniformly. Transfer rates to adult court, for example, are higher in some provinces than others. Similarly, some provinces 'young offender systems are considered more liberal than others (see, generally Tanner, 1996, Winterdyk, 1996).

The future direction of criminal law in Canada, and globally, will continue to present challenges for the legal system and criminology in general. In the1990s, for example, we have been victim- conscious and there has been a need for criminologists to better understand the relationship between victims and offenders. Science and technology has also been increasingly used in the courtroom. This has prompted criminology to further expand its boundaries into forensics.New crimes (computer, credit cards, trans national crime, etc.) will require new legal responses. Criminologists will need to examine how best to prevent and respond to these emerging forms of criminal activity.

Criminal law is a vital force that provides the framework for our individual, political, and social lives. Criminal law, and laws in general,help to maintain social order. Laws reflect the values held by society. As Boyd(1995:4) suggests, criminal law is a "barometer of the nation's view of human relations." Laws are the formal expression of human values and norms and their origins run deep.

In this chapter, we traced the roots of criminal law, and its function and purpose in Canadian society. We looked at how Canadian criminal law came to be and how it is administered. We saw that a criminal offence entails two fundamental elements -- the act and the unlawful intentions behind the act. In addition, we have seen how self-help justice has been codified to promote social order through the threat of punishment. We also looked at the role of the Charter in protecting our individual rights while also ensuring that society's interests are protected. The Charter has entrenched many of our traditional and common law principles. Many of these concepts make up a wide range of defences to a criminal charge. The overview of some of the more innovative and controversial criminal defences illustrated how important it is for criminologists to be familiar with sociology of law and jurisprudence, to integrate law and the social sciences and to embrace the role of law in the study of crime. As the social sciences and behavioural sciences continue to play an increasingly important role in the outcome of criminal trials, it is imperative that the legal profession embrace the social sciences.

Questions were raised as to the effectiveness of criminal law in maintaining crime control. These questions evolved around the philosophical doctrines underlying the premises of common law and civil law. The chapter concluded with a brief discussion about the nature of criminology and law. It was further noted that criminal law has continued to evolve as society, technology, and norms change. Criminologists must be aware of these inter-relationships and be prepared to study (criminal) law from an integrated and interdisciplinary approach in order to appreciate the social and political nature of law.

Crime and Criminal Law | Criminal Law Discussion
Common Law Principles | References | Footnotes
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