LAWS 2301 F Midterm Assignment

Aaron Groh
101042073
Criminal Legal System
Submitted on: February 15, 2018
Submitted to: Dr. J. Dalton
Short Answer Questions (1, 3, 4, 5)

1.

The harm principle is a theory used to analyze the current legal system, and attempt to Commented [AG1]: I was using theory as in it is
theoretical, and not codified anywhere in government
documents. Does this not still apply here?
reform law. It “is premised on the ultimate goal of preventing harm.”1 On the far, almost
Commented [QD2]: It is a principle that underlies
extremist end of this system, some argue that the legal system should only work to counteract criminal law.
Commented [QD3]: In particular, the principle focuses on
actions which do the most harm to our society, such as murder, while letting other systems deal social harm and harm to society.
Commented [AG4]: I mention the social harm here, and
with smaller current crimes such as smoking, or gambling. There are some issues with this also at the end of the paragraph

approach, namely that what causes harm can sometimes be unknown, or simply difficult to agree

upon; take for example smoking: it was unknown for many years that smoking, and second-hand

smoke, could cause irreversible damage to the body, and as such was only regulated after this

harm became known and was agreed upon.2 If societal notions of harm change, so must the Commented [AG5]: In this case, I believe societal notions
of harm constitute the definition, which in turn reform the
law.
laws.3
Commented [QD6]: The definition of harm is the focus of
attempts at criminal law reforms.
3. Commented [QD7]: 6/10

Negative and positive rights are a means of determining which type of rights are afforded Commented [QD8]: There are also obligations for citizens
– to respect the rights of others and not infringe on them
through criminal behaviour.
to a person; negative rights are quite easy to understand, as they usually relate to criminal cases;
Commented [AG9]: I do not believe the obligations come
simply put, they afford a right from a particular action, such as harm or theft.4 Positive rights are into the question of the difference between positive and
negative rights.

slightly more complicated, as they confer a benefit, such as welfare, social services, and Commented [QD10]: The state is obligated to protect
people from forms of harm or infringements of rights (e.g.
discrimination)
Commented [AG11]: I believe this is what I covered in
the answer.

1
Dr. J. Dalton, Criminal Legal System, Notes (Faculty of Law, Carleton University, 2018) at Lecture 1
2
R.P. Saunders & Rebecca Bromwich, Criminal Law in Canada: An Introduction to the Theoretical, Social and Legal
Contexts, 5th ed (Toronto: Thomson Reuters Canada, 2016) at 45.
3
Supra note 1
4
Ibid
healthcare.5 It is in these rights that equal outcome must be given, not just equality of

opportunity. Commented [QD12]: You should have briefly expanded

4.

Responsible government is a characteristic of Canada’s constitution which manages the

role of the government; this characteristic is inherited from the UK’s model of government. This

doctrine focuses on the Queen, and removes all but the symbolic power of the Governor Commented [QD14]: Residual powers like prorogation
Commented [AG15]: This was a quote from the lecture, I
General.6 It has two requirements for the Governor General: that “the Governor General is only assumed it would be sufficient.

exercised on the word of the PM or the executive branch [, and that] they still have the

confidence of the house.”7 Commented [QD16]: 8.5

5.

The notion of entrenched constitution means that the constitution is supreme and

sovereign, and takes precedent over all other laws; this also means that it is very difficult to

amend, even by a supreme parliament. The core entrenched documents in the constitution Commented [QD17]: ?
Commented [AG18]: As in, a parliament which has
include the Constitution Act (1867), the Canada Act (1982), Constitution Act (1982 – with absolute sovereignty over other governmental institutions.

Charter of Rights and Freedoms), the Statute of Westminster (1931) and certain other statues that

amended the Constitution Act of 1867.8 This entrenchment also covers individual and group

rights, such as indigenous rights, and broader discriminated groups.9 Commented [QD19]: The key thing that you should have
emphasised is that statutes must adhere to the Constitution
and those that do not (or parts of them) can be struck down
by the courts through s. 52 (judicial review).
Commented [QD20]: 6.5

5
Ibid
6
Ibid at lecture 3
7
Ibid
8
Ibid
9
Ibid
Long Answer Questions

1.

Canada’s constitution follows some influence from the UK, but in general, the

characteristics which define it (and in turn the country itself), are as follows: a federal system,

constitutional monarchy, responsible government, constitutionally entrenched individual and

group rights, judicial independence, and flexibility v stability.10 The more governmental oriented Commented [QD21]: Also, the concentration of power in
the PM rather than the separation of power.
discussion will take place in the following paragraph, with a more individual oriented discussion

after that.

The federal system is defined by a separation of powers between provincial and federal

government, and is straightforward. Canada’s constitutional monarchy can be succinctly Commented [QD22]: s. 91 federal criminal law power
and s. 92 provincial administration of justice power.
described as the result of the British origins of Canada; however, to discuss it, one must address

the role the Queen plays in Canada’s government: quite the small role, in fact. In a constitutional

monarchy, the sovereign monarch’s powers are restrained by parliament, and in this case, the

constitution of Canada. This drastically limits Her powers in Canada, and is largely symbolised

by the role of Governor General. Responsible government, covered in depth in question 4, is a

notion which limits the power of the government through the constitution, and relies on two

requirements for the Governor General to stay in power: that they have the confidence of the

house, and that they are only exercised on the word of the Prime Minister or house. 11

10
Ibid
11
Ibid
 For a constitution to be socially viable, it must strike a balance between flexibility and

stability. This can be reduced to the notion that it must adapt to changing social landscapes, but

provide the stability needed to be enforceable.12 This also addresses the concept of entrenched

individual and group rights, which address discriminated and minority groups in a manner which

cannot be changed easily (hence the entrenched aspect). The final characteristic of Canada’s

constitution is the idea of judicial independence, which relates to the importance of concentration

v separation of power.13 In the adversarial system, judges hold a great deal of power, with

precedent and judge made law being primary forms of legal creation; this leads to a concern that

judges can be quite activist.14 This is not ideal, as judges are not meant to try the cases in front of

them, not set out with the specific intent to create laws. The ideal of judicial independence

effects this, as it states that judges “are meant to be above the political fray;”15 however, this is

not always the case. Thankfully, in Canada, there are many safeguards to prevent prejudice,

activist, or biased judges from taking the stand. First off, judges must use transparency when

presenting their decisions, leading to greater accountability in both the public eye, and by the

government.16 Lastly, judges are appointed and not elected (the lack of elections helps to create

judicial independence by not allowing for ‘campaign donations’ and the like to legally bribe

judges), leading to a fairer system of judicial independence. Commented [QD23]: 13/15

3.

The Critical theorists may see the back and forth of law and society defining each other Commented [AG24]: Not sure what happened here,
sorry.
as the main reason for the disproportionate treatment of aboriginal people in society. The fact Commented [QD25]: Font?

12
Ibid
13
Ibid
14
Ibid
15
Ibid
16
Ibid at lecture 4
that laws came about in a time of residential schools helped to influence them, which in turn

kept these schools’ values (to an obviously lesser degree) up and running. The trickle-down of

this has been lessened over the years, but that discrimination still exists because of the initial

creation of law. The amendment to the criminal code in s. 718.2(e), the ‘Gladue report’ system,

comes from the voices of critical theorists.

Legal pluralists are striving for the greatest good for the greatest number of people.

Seeing that Canada’s population is approximately 79 percent white, the greatest good would Commented [QD26]: Citation? How do you know this?
Commented [AG27]: Stats Can, not sure why I didn’t use
involve keeping that majority happy, and not addressing the systemic racism against Aboriginal a citation here, I’m sorry.

people; However, they also see law as a reflection of society’s values, so the values which

society held during the time of residential schools and colonialism may have affected the law as

it stands today. The consensus between important values and conflict must also be addressed,

as it plays a major role in the thought process of legal pluralists – simply put, this theory is not

as effective for this issue as others. Summed up, the reason for this discrimination is innate and

would be ineffectual to address. Legal pluralists may see that the law should serve the majority,

effecting the need for addressing it.

Conflict theorists see society is a social construct to serve the elites; seeing as most of

the elites are white, the law will be shaped to serve them, and as such won’t address the issues Commented [AG28]: Ok? Didn’t know I could lose marks
for this.
faced by Aboriginal people in society. The conflict theorist may also not address the work by Commented [QD29]: Refrain from using contractions.

Aboriginal people to gain traction in society, and may not see the reflection of this in current

social values. The elites perpetuate a generalization of aboriginal traits in the system.

Feminist theorists may see the law as a reflection of the power relations between white

people and Aboriginals in Canadian society. They may also view, in Aboriginal societies, the

intersection of race and class (generally, aboriginal people have a greater poverty rate than

non-minorities) and how that shapes the approach to law, and the approach which the

government takes when creating policies and legal doctrines to address this. The differentness
of aboriginal peoples leads to judges being forced to use Gladue reports, and addressing the

history of Aboriginal peoples. Commented [QD30]: You should have properly defined
each theory before arguing how they would explain the
issue of Indigenous overrepresentation in the CJS.
4.
12/15

The different approaches of defining crime have sought to not just define all crime, but Commented [AG31]: This was not asked in the question;
if it was, I would have gladly explained them but I don’t
believe I should lose marks for not inferring information
specifically the grey areas, where it is more difficult to apply a normative approach to the task.17 which wasn’t given.

When defining what should be classified as a crime, the Traditionalist method focuses on

norms, and what customary societies view as ‘wrong’. These norms solidify over time, and are

not particularly malleable, and are quite static. This contrasts with the intuitional method, which

focuses on feelings and emotions. 18 Commented [QD32]: A more in-depth explanation of the
method is warranted.

The intuitional method focuses on these visceral feelings, which while still rooted in

norms and values, are much faster to change and generally can be seen in hot-button topics

such as the legalization of marijuana; however, both the intuitional method and the traditional

approach to defining crime are learned responses, and must be enculturated, 19 relying more on

societal feelings than the consequences to an act, which is what the Consequentialist method

addresses.

The consequentialist method relies on a broader notion of harm, and is closely related to Commented [QD33]: Social harm and harm to society

the harm principle discussed in question 1. Ethical and legal behaviour is believed to be bringing Commented [AG34]: I didn’t believe I should waste
words on discussing a question which I had already
the most amount of happiness to the greatest amount of people, which means that negative answered.

behaviour is a result of negative consequences to a set amount of people; however, this theory

is extremely difficult to apply, because there is no standard on what the outcomes of these

wrongful acts are, and what total of ‘people harmed’ should qualify as criminal behaviour.20 Commented [QD35]: It is difficult to tabulate.
Commented [QD36]: 12/15

17
Ibid at lecture 1
18
Ibid
19
Ibid
20
Ibid
5.

In a federal system, the tension in creating laws between federal and provincial

government is quite clear to see; however, it can broadly be defined as the federal role as taking

up the ‘macro’ responsibilities, and the provincial government accounting for the ‘micro’ aspect

of creating and enforcing. These responsibilities are set out by Section 91 (27) and Section 92

(14) respectively.21 While the tension exists, these Constitution Act sections help to define and

manage the Federal and Provincial powers, and help resolve conflicts when they arise.

Section 91(27) of the Constitution Act defines all federal powers, namely that “Federal

government has the very broad authority to create and define the criminal law.” 22 When it comes

to jurisdictional rulings, the federal government is given the power to create and define, but

provincial governments have long been the enforcers to the laws which federal government

creates.23 In cases of interjurisdictional conflict, cases overtime (ex: The Margarine Reference,

R v Hydro-Quebec) have shown that Federal government holds the majority of power. When the

federal government is deemed to be acting ultra vires (out of jurisdiction), the provincial

government is addressed to manage and maintain these laws.

Section 92 (14) of the Constitution Act sets out provincial powers, mainly that provinces

and enforce the laws created by the federal government, and that they are responsible for the

administration of justice insofar as they can; establish and maintain the police force; enforce the Commented [QD37]: Keep in mind that only Ontario and
Quebec have provincial police forces.
criminal code through the police; enforce federal legislation with the police force, and; prosecute

offences, which falls to the Attorney General.24 These powers, while important, do not compare Commented [QD38]: Keep in mind that the federal
government also has the power of federal prosecutions.
to the federal powers, merely enforce and maintain them. Commented [QD39]: 13.5/15
Commented [QD40]: Short – 28.5/40
Long – 50.5/60
Total – 79

21
Ibid at lecture 3
22
Ibid
23
Ibid
24
Ibid