CRIMINAL LAW – MIDTERM SUMMARYLaw Students' …：–中期总结刑法法律学生…

1、criminal law summaryfebruary 2003criminal law midterm summarysarah hugginspart i: the aims and purposes of punishment2part ii: sources of the criminal law: codification vs. common law crimes5case: r. v. sedley5case: commonwealth v. mochan5case: frey v. fedoruk5s. 177 criminal code peeping toms6proce

2、dural classification of offences, page 161-1636a - statutory interpretation; rule of “strict construction” of penal provisions7using the rule of strict construction7case: r v. goulis8case: r. v. par8applying rule from par9case: r. v. muchikekwanape10case: r v. mac10part iii: cornerstone precepts: th

3、e presumption of innocence and the requirement of proof beyond a reasonable doubt11case: woolmington v. d.p.p.11golden thread quote12case: r v. osolin13part iv: the actus reus (physical) requirement for criminal liability15a - the unlawful act interpretation principles151 prostitution, etc.16case: h

4、utt v. r.16notes on the crime of prostitution (page 192-196)17criminal code: ss. 197, 210-21317case: r v. diguiseppe182 the unlawful act for the crime of assault and sexual assault19s. 265 criminal code20case: r v. jobidon20case: bolduc and bird v. r.22case: r v. cuerrier233 the proper scope of the

5、criminal law24notes on the proper scope of the criminal law (page 167-173)244 the unlawful act in breaking and entering27case: johnson v. r275 the unlawful act of causing a public disturbance28case: r. v. lohnes28interpreting a statute29b omissions29case: fagan v. commissioner of metropolitan police

6、29case: r. v. miller30case: moore v. r.31c causation31part i: the aims and purposes of punishmentwhat does each author see as the function of the criminal law, the function of punishment (which is basically the criminal law “in action”)? on what basis is the criminal law (i.e. punishment of criminal

7、s usually by imprisonment) justified? goldstein and goldstein: criminal law as a last resort processh.l.a. hart: aim of the criminal law (i.e. criminal legislation) is denunciation of conduct. this is to be distinguished from justifications for punishment when those laws are violated deterrence, ret

8、ribution, vengeance, reformation. note that hart also believes that in favouring a modern, forward-looking, utilitarian justification for punishment over a back-ward looking, moral culpability justification for punishment, society has tended towards the “elimination of responsibility”sweeny case (dr

9、unk driving): aim of punishment is not retribution (though court here misunderstands retribution as vengeance). fundamental purpose of criminal sentencing is to enhance protection of society. in order to accomplish this purpose, punishment must be acceptable to society in order to achieve societal a

10、cceptance (1) fulfillment of the various utilitarian goals, i.e. deterrence, isolation, rehabilitation and denunciation, is critical for societal acceptance ; (2) punishment should be proportionate to gravity of offence (moral culpability). stephen: main aim of the criminal law and punishment is the

11、 expression and gratification of societys hatred towards the criminal and his conduct. (i.e. vengeance, revenge). morton: criminal law as a contemporary morality play. the main aim of the criminal law is to demonstrate fundamental values to citizens. its object is to instill “abiding by the rules” v

12、alues in ordinary citizens. thus the raison detre of the criminal law is the ordinary citizen, not the criminal. criminal law is only one of the institutions by which values are demonstrated. h.r.s. ryan: suggests that one aim of the criminal law should be to give citizens confidence in the legal or

13、der (this echoes sweeny). this suggests that if we didnt balance interests (e.g. allow punishments to reflect the seriousness of the harm and the anger of the community), society would not have confidence in the system and might not abide by it. - note that there is no general agreement as to the fu

14、nction of the criminal law/the aims and justifications of punishment. society has not come to any general consensus. philosophers disagreed. contemporary analysts disagree. (talk about this disagreement. who believes what?) (may also talk about discrepancies in understanding issues e.g. retribution)

15、. will we ever agree? no. part of the reason no conclusive research as to which of the aims of the system are actually being fulfilled and so much variation across different kinds of crimes. - do we want to agree? maybe not. maybe the interests of society and the criminal are best served if we seek

16、to balance the various justifications and aims. perhaps general societal acceptance of the system will be greatest if each person sees his/her values included as part of the balancing act. no justification is appropriate on its own. for example, lewis points out that if deterrence were the only just

17、ification, we could justify punishing an innocent man so long as society thought he was guilty. in cam case, court speaks to importance of balance sees retribution as a restraint on the utilitarian justifications. and it is evident that if we did not meet societys demand to see punishment accord som

18、ewhat with the harm done, society might not accept the criminal law system at all. (e.g. parliament has decided that impaired driving causing bodily harm deserves lesser sentence than that causing death). - also some disagreement as to who the law speaks to? does it speak to all citizens (as morton

19、suggests) or only to some? - significance of what view you take what institutions are engaged? institutional actors themselves may have incentive to promote the justification that engages their institution. hart: when use utilitarian justifications, need reason, experience and science; lewis: this n

20、ecessarily creates role for experts and precludes ordinary citizen participation. when use more traditional justification (retribution) engage jurists and citizens (they are capable of making the determination). devlin (sort of suggests): when use rehab as justification engage social workers and psy

21、chologists. when use moral retribution as a justification engage courts and lawyers. when use isolation/deterrence as a justification may engage prison system. when use denunciation as a justification (a la hart) engage legislatorsarguments for/against various justifications of punishment:utilitaria

22、n justifications:hart sees these as the modern conception of punishment goal of the criminal law is to reduce crime and protect society from the criminalthus punishment is justified on the basis that it deters/reforms a criminal, deters potential criminals, isolates criminals from society. according

23、 to this utilitarian view, the older conception of punishment, under which the justification for punishment is in the moral responsibility of the criminal, is irrational. he believes that in this way, the criminal law has tended toward the elimination of responsibility. c.s. lewis refers to these ut

24、ilitarian justifications as the “humanitarian theory of punishment” which he believes is only disguised as being humane. in fact, b/c it has no place for the moral culpability of the wrongdoer, it is unjust and cruel: “mercy detached from justice grows unmerciful”. see below for his specific critici

25、smsmichael and wexler: deterrencedefn (sweeny) general deterrence: legal sanction imposed on actual offenders will discourage potential offenders. specific deterrence: legal sanction imposed on an offender will discourage that individual from re-offending. pros: supports the notion that the goal of

26、the criminal law is the protection of society (sweeney)cons: - empirical research: little empirical research to support deterrence claims (mostly based on common sense). success of deterrence varies widely depending on the crime (murder vs. tax evasion); this holds true for specific deterrence also

27、(rates of recidivism vary from crime to crime) no evidence that more severe sanctions have a greater deterrent effect (esp for crimes of passion). (cite editors of s&d)- lewis: exemplary punishments (using criminal as an example or a means to someone elses end) are wicked; deterrence justification a

28、lone could support punishing an innocent man (so long as society thinks him guilty). - there are some acts that just cannot be deterred negligence is one of them; crimes of passion are another- lack of intention = difficult if not impossible to deter. rehabilitationdefn: idea that we can cure the of

29、fender and thus permanently ensure that he does not re-offend. sweeny case: rehabilitation is not accomplished by custodial sentences. for: devlin social workers, medical people like this argument. against: - research: little evidence as to the effectiveness of various punishments. grave methodologi

30、cal problems associated with conducting this research. also, experts/psychiatrists have little ability to predict dangerousnessand yet such predictions/determinations are necessary if offenders are to be released once they have been fully “treated” or “cured”.- lewis: - “cures” sounds more just and

31、merciful than “punishments” but (1) “cures” are just as compulsory and (2) a “cure” includes most of the elements for which punishment is feared (loss of liberty, normality, property, etc.). - problem of fixing the right sentence requires reliance on expert opinion; no longer a role for the ordinary

32、 man; thus considerations of justice and rights may not be employed. - if crime is a disease, how can it be pardoned? vengeancedefn: reprisal for harm that is motivated by emotion and angerc.a.m.: has no role to play in a civilized system of sentencing. j.f. stephen: vengeance is a valid aim of puni

33、shment. hatred and vengeance are deeply rooted in human nature; and criminal punishment is a necessary and desirable means by which this hatred can be expressed. punishments should reflect the degree of hatred towards the criminal. expression of hatred is the primary aim of criminal justice; direct

34、prevention of crime is the secondary aim. sweeney case judge wood confuses retribution and vengeance. *this is a valid justification see s. 80 of the criminal law long sentence for negligent conduct. doesnt serve a highly deterrent function or retributive function.so maybe it is vengeance. maybe par

35、l wanted societys anger to be able to be expressed (when someone died as result of negligent use of explosives). denunciationdefn (c.a.m. case): symbolic, collective statement that offender has encroached on societal values. a statement that these types of conduct are not acceptable in this society

36、b/c they offend shared values. c.a.m. case says that denunciation is a justification for punishmenthart emphasizes that denunciation is the aim not of punishment but of the criminal law (i.e. legislation) more generally. morton: criminal law is a contemporary morality play. the purpose of the crimin

37、al trial is to demonstrate societys values to its citizens (instill in them “rule-abiding” values). non-utilitarian justification: retribution/just deserts(?): defn (cam case): determination of a punishment which reflects the moral culpability of an offender. takes account of intentional risk-taking

38、 of offender, consequential harm caused, normative character of conduct. example: pros: - balances utilitarian justifications; may act as a restraint on them and thus result in more just sanctions (i.e. where utilitarian justifications alone might lead to harsh/severe/unfair sanctions) (sweeny case)

39、- lewis: leads to justice. who supports which justifications? may depend on the extent to which it engages certain institutional actors. if you are a social worker, you would likely support a rehabilitation function. ultimately, in order for any theory of punishment or system of sentencing to be suc

40、cessful, it must be acceptable to the public (cam case and ryan make this point). this suggests a need to balance all the competing considerations and justifications. alsoask, are there institutions that would better serve these goals wrt this act/conduct/criminal? cetkovic case: part ii: sources of

41、 the criminal law: codification vs. common law crimescase: r. v. sedleyr. v. sedley (1663), page 1sedley was indicted at common law for several misdemeanors against the kings peace. crime against the kings peace or a misdemeanor.threw piss down off a balcony. very similar to mochan. case: commonweal

42、th v. mochancommonwealth v. mochan (1955)facts: - dft, over 1 month period, on numerous occasions, telephoned a woman. his language on calls was obscene, lude and filthy. - no statute in penn. that punished such conduct. no case that had been decided in the state that made such conduct criminal. not

43、e that while canada has a federal criminal law, crim law in usa is regulated by the individual statesjudgement: - not impt that there is no precedent which decides this q. - test is not whether there is precedent in the books but rather whether offence can be punished under common law. any act which

44、 tends to injure the public, to such an extent to require state to interfere and punish wrongdoer, as in the case of acts which injure public morality or obstruct governance. - whatever openly outrages decency and injures public morals is a crime. commentary: - notethere is a control here must be so

45、mething that society agrees would outrage decency. cant just punish any old conduct. (control is on judge, police and prosecutor). - concern that a judge might have too much power to decide what public morals are. - concern uncertainty wrt what actions are allowed or not allowed. (rights of the offe

46、nder/individual) at the time when the guy made the call, he didnt know it would be a crime. but whats the philosophy behind protecting this kind of guy? the idea that we want to protect rights that he had before he became a lude caller. - this decision puts the society over the individual rights. pr

47、otects society at the expense of an individual. - argument for “flexible” criminal law (giving judges power) impossible to make an exhaustive list of all behaviours that might engage criminal liability willis article: he wants flexibility; no constraint of code and statutes- an aside statutes are no

48、t retroactive; case law is retroactive (but in many casesonly when court says it was retroactive) once crime is declared, it was always a crimecase: frey v. fedorukfrey v. fedoruk, 1950 s.c.c. page 3facts:- frey was seen on fedoruks property peeping into a window of the house. fedoruk chased him wit

49、h a butchers knife, caught him and detained him. a police officer arrived and arrested him w/o warrant. - frey sued for malicious prosecution and false imprisonment. the trial judge and court of appeal dismissed the case, saying that a common law crime was justification for arrest w/o warrant. issue

50、:is the commission of a common-law crime a justification for arrest/imprisonment without warrant? is the act committed by frey a crime at common law? held:no.ratio:- criminal offences are found only in the criminal code and established common law. no person can be convicted of a crime that is not fo

51、und in one of these two places. since being a “peeping tom” was not an offence known to the law, there was no justification in law for fedoruk and stone to have imprisoned frey. - it cannot be held as a matter of law that conduct not otherwise criminal becomes criminal because a natural and probable

52、 result thereof will be to provoke others to violent retributive action. this would result in great uncertainty. - judicial officers do not have the power to declare anything to be an offence which is injurious to the public although it may not have been previously regarded as such. commentary: j. w

53、illis, 1950, page 5- where do we now stand w/ peeping toms? not prohibited by any section in the code and is not a criminal offence at common law- where do we stand w/ common law offences? fear that if crimes are confined to those established in statutes, lose advantage of common law; its advantage

54、of being capable of application to new combinations of circumstances that recur. when criminal code was first introduced into h of c, common law was preservedin order to give the code “elasticity”. - in this case, the supreme court rejected this notion of elasticity in favour of certainty in adminis

55、tration no one shall be punished for anything that is not expressly prohibited by law. s.c. chose to place the protection of the individual from oppression above the protection of the state from disorder. - note: 1955 revision of the criminal code abolished common-law offences (s. 9) but preserved c

56、ommon law defences. it also made it a crime to be a peeping tom. - q: have professor williss fears been satisfied by legislative action? sklar:- rule from this case puts burden on legislature (to declare acts that are injurious to society criminal)- s. 9 eliminates common law offences goes beyond f

57、v. f which held that crimes had to be written (in code or in common case law)- response to f v. f s. 177 criminal coderule: law must be written down before person can be convicted of a crime. (not equivalent to s. 9 of code which eliminates all common law offences). note that this is the principle of legality citizens should know beforehand what is punishable. s. 177 criminal code peeping tomseveryone who, withou