THE PURPOSE OF CRIMINAL LAW

1. THE PURPOSE OF CRIMINAL LAW

2. What is the purpose of Criminal Law? • The main purpose is to prevent and control conduct that society believes may be harmful or potentially harmful – to provide retribution when this conduct exists and to protect society from it. • In exchange for peace and security, citizens give the government the power to make and enforce criminal law. • Often, criminal law restricts personal liberties in exchange for peace and security - finding a balance between personal liberty and the protection of society is a constant challenge.

3. Purpose explained: • To control and prevent conduct that society believes may be harmful or potentially harmful by: • PROVIDING RETRIBUTION • The public denouncement and punishment of wrongful behaviour that is FAIR; • To reaffirm social values and deliver “justice”. • PROTECTING OF SOCIETY • Justified state use of criminal law power in accordance with 5 principles of justification.

4. The Principles of Justification (functions of Criminal Law)‏ • Private Harm Principle • The prevention of harm to individuals and their property, i.e. Physically harming someone • Public Harm Principle • Preventing action that challenges government authority and institutions, i.e. The prevention of treason • Offence Principle • The prevention of offence to others/personal revenge – such as deterring a parent from avenging the killer of their child (personal revenge, or vigilantism)‏ • Legal Paternalism • The prevention of harm to oneself, i.e. Possession of drugs, obscene material, assisting suicide, and prostitution • Legal Moralism • Expressing and enforcing morality.

5. The Functions of Criminal Law • Some functions are widely accepted. Most people, for example, would agree that the law should prohibit behaviours that are harmful to others. • Other functions, however, are more controversial, such as those that deter personal revenge, legal paternalism, and legal moralism.

6. DETERRING PERSONAL REVENGE • We recognize that private retribution could lead to anarchy so we give the government the responsibility for punishing people who harm others. • To deter vigilantism, or acts of personal revenge, the government must be able to demonstrate that it is capable of apprehending and punishing criminals.

7. LEGAL PATERNALISM • The idea of government as a kind of father figure. • Involves crimes that prohibit people from harming themselves, i.e. possession of drugs, obscene material, an enlisting someone’s help to commit suicide.

8. LEGAL MORALISM • The Criminal Code is a reflection of our moral values – most of us would agree that people who kill or physically injure others should be punished. • Some offences shift with the changing attitudes and values of society. • When the laws are out of step with public opinion, the results are apparent. • For example: Abortion laws were deemed unconstitutional and consequently, overturned (struck down). Dr. Morgentaler kept defying the law by performing abortions that were not approved, and is was prosecuted and acquitted until the S.C.C. finally rendered the relevant section of the Criminal Code invalid. • BUT WHAT IF THERE IS NO VICTIM TO THE CRIME?

9. LEGAL MORALISM CONTINUED • If there is no victim, should there be a law? • CONSIDER: • A prostitute wilfully engages in sexual acts, but to solicit business is illegal. • People who have obscene or (child) pornographic material in their possession generally know what they have purchased – but its illegal for them to have it. • What about those who knowingly purchase illegal drugs? Are they “victims”? • Some might argue that what people decide to do is their own decision, and its not the responsibility of the government to impose sanctions on their morals. • Critics, however, argue that these crimes ultimately impact society, hence the reason why they exist: • The prostitute. It can be argued that prostitution dehumanizes and objectifies women. The argument is the same for pornography. • Drug users. They can be a financial burden on the health care system. It can also be argued that drug addicts are often coerced into prostitution • THE FACT THAT THESE CRIMES ARE IN THE CRIMINAL CODE MEANS THAT THEY ARE NOT TOLERATED BY OUR SOCIETY BECAUSE THEY ARE AGAINST OUR COLLECTIVE MORALS.

10. Legal Moralism – the Dilemma • It is almost impossible to define morality. If we could, how is it possible that: • Slavery was allowed to exist? • Women were not allowed the right to vote? • Women were not considered persons? • Aboriginal children were taken from their parents and placed in residential schools, far from their families? • More currently, why do we consider allowing someone to assist someone with a terminal/serious illness commit suicide if they so desire a crime, but not make it criminal to perform these same acts on animals who have no say in whether they live or die?

12. BONUS ASSIGNMENT – Due BEFORE in-class exams • Supported Opinion Response – Should the laws preventing Doctor-Assisted Suicide be changed? • 2 pages typed, proper essay format • References where needed • Submit to turnitin.com • You should mention the applicable laws and make reference to any cases possible.

13. THE VELMA DEMERSON CASE • P. 238-239 of DOL text.