Winterdyk | Canadian Criminology
Winterdyk | Canadian Criminology
Crime & Criminal Law Criminal Law Discussion Common Law Principles References Footnotes PowerPoint Presentations
[ 1 ] I would like to thank Don Fetherston and Johnathan Hak, both educators and practicing lawyers, for reviewing drafts of this chapter.
[ 2 ] Historically, law has been one of the most frequently studied disciplines. Virtually ever discipline has courses that focus of the importance of law as it relates to their area of study.
[ 3 ] See, for example, the classic works of Calhoun, 1927 and/or Hoebel, 1954.
[ 4 ] See Ch. 5 and the Classical principles for elaboration.
[ 5 ] Michalowski (1985) notes that such societies were characterized as being more orderly and cooperative than representing chaos and competition. In essence, life was simple - you learned to get along and support one another or justice would be swift and certain incoming. The great French sociologist Emile Durkheim, in this classic work The division of labour , published in 1893, use the term mechanical to describe those societies in which people behave and think similarly and share group-oriented goals - as was the case with the Inuit.Conversely, Durkheim used the term organic to describe the highly specialized, heterogeneous societies in which labour and organizations have become more complex and specialized (e.g., virtually every Western nation in the world today).
[ 6 ] As mentioned above, history has already provided clear evidence that folkways, mores, and other forms of informal control were regularly broken. Norms and customs alone were (and are) not enough to control human behaviour. Explanations for why humans commit crimes are the subject of Section II.
[ 7 ] See Boydell and Connides (1995) for a Canadian perspective.
[ 8 ] See, for example, Hagan and Leon,1977; Platt, 1969 regarding the child saving movement or Hay's (1975)observations on the origins of English criminal law and how the special interest groups played a major role in law-making), within Canada have shifted the order of authority.
[ 9 ] For an insightful Canadian perspective See Grant (1971).
[ 10 ] You can find a copy of the Charter of Rights at the back of most Canadian Criminal Codes.
[ 11 ] Although criminal and civil law are the best known types of modern law students there are other areas of law that govern and regulate other aspects of society. Case law comes from judicial decisions, procedural law is a body of statutory laws and judicial decisions that regulate the processing of an offender in the criminal justice system, and regulatory law that is concerned with the regulatory aspects of society. Examples, include tax laws, health codes, environmental laws, customs and immigration, etc. For a more comprehensive overview see Boyd(1995).
[ 12 ] Even though the relative number of jury trials has declined over the past 25 years, McCormick and Greene (1990) found that of the judges they interviewed the judges still viewed jury trials as an important element of the system. The judges expressed the opinion that jury trials were less stressful on judges as they were not burdened with the responsibility of determining guilt or liability. Yet, they also pointed out that the advantages were counterbalanced by the extra attention and time required informing jury members about the details on procedural law. The judges also felt jury trials took longer partly because of the time spent parading the jurors in and out of the courtroom while lawyers argued about the admissibility of evidence. Interestingly, very few studies have been conducted to verify the judges observations - especially studies in Canada. There have, however, been a plethora of studies done on jury verdicts, jury composition, and decision-making. Several excellent sources include, Kalven and Zeisel (1966);Saks, (1977) and the more recent work research of Hastie, Penrod, and Pennigton(1983). Their research was instrumental in addressing the problems associated with memory, comprehension, and application of the law by jurors. Today,American jurors are entitled to written transcripts, to review audio/video recordings of key evidence, and under some circumstances allowed to take notes during the trial.
[ 13 ] Today, because many couples remarry, it is becoming legally more difficult to divide property. Therefore,many couples who remarry will have prenuptial agreements made up to protect each other's assets.
[ 14 ] After Henry II inherited a justice system that relied primarily on local, traditional courts, the King and his advisory council "created legislation to standardize some of the criminal and commercial laws across England, the council itself heard disputes arising out of these cases" (McCormick & Greene, 1990:8).
[ 15 ] Today, Canadian lawyers will often cite earlier decisions, similar in fact to argue their case should result in a similar outcome. However, since our neo-classical conventions and positivist ideology (Ch. 5) say that no two cases are identical in their characteristics, judges must deliberate and resolve the subtleties of each case presented before them. The result becomes the setting of new precedent.
[ 16 ] Today in the Appalachian Mountains in the eastern United States, a religious group practices the handling of deadly snakes as a testament to a person's faith. According to their interpretation of the scriptures, as long as your faith is strong, you cannot be harmed by snake bites.
[ 17 ] Over the years the Law Reform Commission has produced a variety of working reports that have attempted to clarify and ensure that the rules of law and burden of proof remain fair and just for all.The line between ensuring due process (i.e., liberal doctrine) and crime control (i.e., conservative doctrine) is, to say the least, a challenging one!Can we improve the quality of justice? Will it result in a reduction of crime?If crime trends are any indication, the answer would appear to be NO! For example, in-spite of changes to criminal laws since 1892, crime rates have not been affected by the changes (see Part III). In fact, given the number of theoretical perspectives (see Ch.'s 6-9), it would appear quite evident that we understand little about criminal behaviour. From an optimistic perspective, it could be restated that what we currently do and how we have traditionally attempted to address crime and criminal behaviour is in need of a different line of inquiry and action. In Chapter 9 we will explore some of the newer theoretical perspectives which may hold some promise and in Chapter 14 we will examine of the proactive measures that are currently being used that represent a novel approach to addressing crime and criminal behaviour.
[ 18 ] For example, child welfare legislation in Alberta is called the Child Welfare Act while in Ontario it is called the Childrens Protection Act . Similarly, some provinces(e.g., B.C., Nfld., and N.S.) call their Superior Court the Supreme Court (which is confusing with the Supreme Court of Canada) while other provinces call it Superior Court (e.g., Quebec). Alberta and Saskatchewan call their Superior Court the Court of Queen's Bench .
[ 19 ] Although not all of those named were found innocent, in some cases they raised formidable defences that challenge the notion of what constitutes a crime.
[ 20 ] Age is perhaps the most basic of personal defences. Based on early doctrine in the Christian church and later becoming part of the common, anyone under the age of 12, it was believed that children can not reason logically. However, the minimum age of responsibility varies in different countries. In India, for example, the age of responsibility begins at age 7 but the upper limit for boys is 16 and 18 for girls (Winterdyk,1997).
[ 21 ] R . v. Parks (1992), 75 CCC (3d) 287 (SCC).
[ 22 ] In addition, to representing a contentious legal case (informal surveys at the time showed that most respondents were supportive of free choice under such circumstances), Sven Robinson, then a New Democrat MP, got involved and offered to assist Rodriguez.In 1992, Chris Considine, Rodriguez's lawyer, tried to get the B.C. Supreme Court to overturn the existing punitive law. The court rejected her plea as did the B.C. Court of Appeal. Even when the case made it to the Supreme Court of Canada it narrowly lost by a vote of 5-4 in favour of the original B.C. Supreme Court ruling. Sue Rodriguez passed away on February 12, 1994.
[ 23 ] Since 1984 The Netherlands is the only country in the world where euthanasia is openly practice. Euthanasia is not allowed by statute but the law accepts a standard defence from doctors that have adhered to official guidelines. In 1993, assisted deaths occurred in1 of 25 who died at home; 1 in 75 who died at hospitals, and 1 in 800 who died in nursing homes. In July of 1996, euthanasia became legal in the Northern Territory in Australia ( Lifestyle highlights, 1996).
[ 24 ] R . v. Swain (1991), 63 CCC(3d) 481 (SCC).
[ 25 ] Cultural defences have been used but they usually only amount to reduced sentence, not acquittals.
[ 26 ] One of the major incidents involved a shooting that left one Somalian dead and another wounded after an incident in March 1993.
[ 27 ] By July 1996, the Somalia inquiry has cost $7.6 million in taxpayers money and by January 1997 the Inquiry was slowly grinding to a halt with no clear answer and allegations of military cover-ups (Somalia Inquiry..., 1997). The incident marked a dark day in a series of recent events that tarnished the former pristine image of the Canadian Armed Forces.
[ 28 ] In October, 1997, Mulroney was finally awarded $2-million in settlement to cover his legal and public relations expenses in the Airbus affair.

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