Origins of criminal law and social characteristics of criminal behaviour
Defining Crime and Criminal Justice
Crime: violation of legal statutes; typically under the Criminal Code. True crime: violation of the Criminal Code and societal norms.
The Criminal Code proscribes unlawful conduct and determines penalties; an offence falls under the Code if an unlawful act inflicts ‘public evil’. Distinction seen in parking tickets vs. dangerous driving.
Sources of criminal law: common law (case law) and legislation; substantive vs. procedural law.
Offence types and processing: summary, indictable, hybrid; police powers, arrest, detention, judge/jury, Superior/Provincial Court, etc.
Common law fills gaps in legislated law and relates to defences.
The Charter of Rights and Freedoms and Criminal Law
The Charter is foundational to freedom and democracy; sets out protected rights and freedoms.
The Charter can invalidate criminal law if it contravenes rights (e.g., life, liberty, security of the person, s. 7).
Key cases:
Canada (Attorney General) v. Bedford (2013): challenges sections 286.1–286.5 of the Criminal Code protecting sex workers; Supreme Court struck down prostitution laws.
Carter v. Canada (Attorney General) (2015): assisted dying rights under s. 241(b) of the CC; implications for criminal law.
The Fundamentals of Criminal Conduct
Actus reus: the physical element of the offence – act, omission, surrounding circumstances, consequences.
Exceptions: perjury (absence of consequences) & care and control (commission).
Omission: failure to act.
Voluntariness: consequences of an action; defence of automatism.
Mens rea: the mental element – guilty mind.
Subjective mens rea: deliberation, knowledge of intent, recklessness, wilful blindness.
Objective standard: the reasonable person test; foresee risks arising from conduct.
Some offences require objective or combined mens rea (e.g., manslaughter, dangerous operation of a motor vehicle, criminal negligence causing death).
Parties to a Criminal Offence
Direct commission; aiding (assisting); and abetting (encouraging).
Additional concepts: common purpose; knew/ought to have known.
Group offences: multiple accomplices can be charged with different offences for the same conduct (e.g., targeting a kidnapped victim).
Abandonment: reasonable exit from the common purpose before the offence is completed.
Criminal Law and Inchoate Offences
Inchoate offences: crimes that attempt or plan but do not complete the substantive offence.
Conspiracy to commit and counselling to commit:
Conspiracy: exists between intent and action; typically require 2+ participants; actus reus = implementation; mens rea = intent remains.
Exception: spousal immunity in some contexts.
Counseling: the act itself is a criminal offence even if the underlying offense is not completed.
Criminal attempt: requires a fully developed mens rea and a substantial step toward the completed actus reus.
Criminal Defences
Mental disorder and mens rea:
Not criminally responsible on account of mental disorder (NCRMD): inability to appreciate gravity or form intent; burden on defence counsel.
NCRMD ≠ Not guilty; may lead to absolute/conditional discharge or institutionalization.
Mistake of fact: not a defence to ignore the law; believing erroneous facts can negate mens rea.
Intoxication as a defence: focus on mens rea; may mitigate for serious crimes; generally not a complete defence.
Necessity and duress: circumstances/another actor can excuse or justify conduct.
Reasonable steps to prevent; provocation as a partial defence (as of 2015, victim’s provocation must relate to an indictable offence).
Self-defence: force must be reasonable; complex with personal factors and IPV cases.
Social Explanations of Criminal Conduct
Correlation vs. causation: social factors correlate with crime but do not prove causation.
Social characteristics: gender, ethnicity/race, age, SES, Indigeneity, sexual orientation.
Age patterns: crime peaks in young adulthood, declines with age.
Victim/offender patterns: crimes against persons/property are common; white-collar crime and political corruption increase with age.
Life-course concepts: maturational reform, detachment from conventional values, shifts in attachment with age.
Education, employment, and social stability reduce offending; SES operates through multiple pathways (peer networks, opportunities, etc.).
Crime as a Gendered Terrain
Women and girls: historically lower charges/imprisonment, but involvement has increased.
Top offences for men: sexual assault, robbery, burglary and breaking & entering.
Homicide: ~86% of offenders male; ~75% of victims male.
Dangerous offender designations and long-term custody considerations.
Structural contributors:
Violent behaviour learned socially; gender norms and parental discipline shape conduct.
Marginalization and IPV context influence female crime; gender gap narrowing explanations include shifts in charges and emergence of corporate crime.
Race, Crime, and Social Structures
Race is difficult to track; data show over-representation of non-White offenders in contacts with law.
Racial profiling, arrests, and searches can be inflated despite lower overall criminality.
Over-representation in corrections and death penalty stats.
Key questions: differential offending vs differential treatment; structural barriers and geography shaping police decisions.
Indigenous Offenders and Criminal Law
Over-representation: Indigenous peoples are highly represented in custody relative to population
Gen pop 4.9% vs. custody 31%.
Inequalities span pre-trial detention to incarceration.
Theoretical approaches:
Cultural theories: risk essentialism; ignore diversity; cultures imagined as static.
Structural theories: unequal resource distribution, education access, living conditions.
settler colonial framework: elimination/assimilation of Indigenous peoples; imposition of external governance.
Psychological and material consequences: historical trauma, transmission through memory, storytelling, and social disruption.
Critical Race Theory (CRT)
CRT applies to Indigenous and other marginalized groups; crime is socially constructed.
Examines how race structures the criminal justice process; intersects with gender and class.
Law as tool of social control by dominant groups; crime as exclusion from opportunity structures (education, jobs).
CRT and racialization: groups positioned as superior or inferior; justice system viewed through the perspective of marginalized groups.
Drugs and Alcohol as Contributing Factors
High association with custody levels (up to of inmates).
Pathways: addiction (economic), intoxication (pharmacological), possession/systemic factors.
Economic dimension: theft, robbery; systemic factors: territorial disputes, gangs, trafficking, retribution.
Psychopharmacological effects: violence, neglect, abuse, threats.
Illicit substance use linked to more frequent legal problems; emphasis on hard drugs (e.g., heroin, crack cocaine).
Socioeconomic Status and Crime
SES: income, education, occupation/prestige.
Question: are the poor criminals or simply more likely to be caught?
SES as a correlate operates through multiple variables: peer networks, family circumstances, opportunities, financial hardship, and alienation.
Low SES associated with violent acts; higher education linked to lower property crime.
Employment correlates with lower violent and property crime and can reduce incarceration and interpersonal violence.
Geographical Pattern and Crime
Cross-national homicide: US leader; Canada ranked around .
In Canada: crime higher in the Territories; most severe in cities like Winnipeg, Saskatoon, and Thunder Bay.
Explanations: residential racial segregation creates ghettos; uneven distribution of resources and opportunities.
Collective efficacy reduces crime; high SES, home ownership, and age relate to lower crime.
Offenders returning to poor neighborhoods contribute to cycles of crime.
Policing approaches such as incongruity procedures and high-risk neighborhood designation can lead to over-policing and surveillance in certain areas.