Chapter 1–2 Criminology and the Criminal Law – Study Notes
What is Criminology?
Criminology is the scientific approach to the study of criminal behaviour and society’s reaction to crime. It is defined, in classic terms, as the body of knowledge regarding crime as a social phenomenon; it includes the processes of making laws, of breaking laws, and of social control. This definition originates with Edwin Sutherland and Donald Cressey.
It is multidisciplinary: draws on history, sociology, psychology, biology, and economics among others. Its scope includes questions such as: What counts as crime? How is crime researched? What ethical issues arise for researchers? How do crises (e.g., pandemics) affect criminological inquiry and social attitudes?
Criminology is distinct from, but overlaps with, criminal justice. Criminologists explain the origin, extent, and causes of crime; criminal justice scholars study the operations of police, courts, and corrections and design crime-control and rehabilitation methods.
Important distinctions:
Crime vs deviance: not all crime is deviant, and not all deviance is illegal. The relationship is complex; deviance involves behaviour that departs from social norms, while crime involves violation of the criminal law. See Fig. 1.1 and related discussion.
The media shapes public perception and fear of crime, often more than actual victimization rates.
Cannabis example: historically, use and possession were criminal; decriminalization and eventual legalization reflect shifting social norms and policy responses (e.g., 1923 prohibition, 1923–2018 changes, legalization in 2018). 1923, 2018, 1923{ ext{–}}2018
Key questions for criminology include:
How do deviant behaviours become crimes? How do laws change over time?
When should acts be legalized or decriminalized? What is the role of artistic, educational, or scientific merit in restricting expression (e.g., R. v. Sharpe)?
Figure 1.1 (Hagan’s Varieties of Deviance) illustrates the relationship among social harm, normative agreement, and severity of sanctions.
Figure 1.2 shows relationships among Criminology, Criminal Justice, and Deviance.
A Brief History of Criminology
Classical Criminology (late 18th–early 19th c.): Beccaria’s utilitarian framework. Key ideas:
Crime is a rational choice; punishments should be public, prompt, necessary, the least possible, and proportional to the crime ("Let the punishment fit the crime").
Severe, certain, swift punishments deter crime; prison as reform rather than recreation of punishment.
19th-Century Positivism: Shift to scientific methods for understanding crime.
Lombroso (born-criminals, atavistic traits, biological determinism).
Other early positivists explored brain function, intelligence, and physiological/psychological traits (trait theory later linked to Chapter 6).
Biological and environmental factors were seen as interacting to influence behaviour (biosocial theory).
Development of Sociological Criminology: Sociology as a lens to study crime in the context of social structure and change.
Adolphe Quetelet and the cartographic school studied social factors (season, climate, sex, age) and crime statistics.
Durkheim argued crime is normal and inevitable in all societies; crime can be functional and signal social change; he introduced anomie and linked it to social regulation.
Division of labor and the shift to urban life (mechanical to organic solidarity) tie to Durkheim’s anomie concept.
The Chicago School and McGill School (early 20th c.): Social ecology and urban crime; the ecological/situational approach to crime emphasized how neighbourhood conditions shape crime patterns (e.g., concentric zone models).
Marxist/Conflict Criminology (1960s–1970s): Emphasizes conflict, power, and inequality; crime results from economic structure and class conflict; radical criminology highlights how laws protect the powerful and criminalize the less powerful.
Contemporary Criminology: Integrated, multidisciplinary, and international; emphasizes multiple theories and methods to understand crime and its control. The major schools are not mutually exclusive; many researchers use integrated perspectives.
The Criminological Enterprise
Subareas (Concept Summary 1.3): the field comprises several specialized domains that together form the criminological enterprise.
Criminal Statistics: Measure crime magnitude, patterns, and trends; analyze police and court records; develop surveys to estimate unreported crime; study victims.
Sociology of Law: Examine the origin and evolution of law; study how law shapes society and how social forces influence law and vice versa.
Theory Construction: Predict and explain crime; examine whether crime is caused by biology, psychology, social processes, economics, or combinations; develop testable theories.
Criminal Behaviour Systems: Focus on patterns and typologies of crime (e.g., violent crime, property crime, white-collar crime); examine connections among criminals and crimes.
Penology: The correction and control of offenders; balance rehabilitation versus deterrence; evaluate punishment models.
Victimology: Study victimization, factors that increase risk, victim experiences, and the economic and social costs of crime.
These subareas overlap and inform each other; criminologists draw on multiple disciplines to understand crime, control, and justice.
The field also includes applied components, such as assessing the effectiveness of crime-prevention programs and policy analysis.
How Do Criminologists View Crime?
Criminology is multidisciplinary and guided by underlying philosophical perspectives:
Consensus Perspective: Crimes are acts that offend most members of society; laws reflect shared values and moral consensus; e.g., homicide as a broadly agreed-upon crime, though there are variations (death penalty debates, MAID).
Conflict Perspective: The law reflects the interests of the powerful; crime is a political concept used to control the underclass; criminalization serves to maintain the status quo (e.g., labor violations, environmental harms, etc.).
Interactionist Perspective: Crime is defined by social reactions and labels; deviance is a socially constructed category; criminals are people society labels as such; labeling can transform a person’s identity and career.
These perspectives inform debates about what counts as crime, why it occurs, and how best to reduce it. They also shape research questions and policy recommendations.
The politics of crime section highlights how governments and interest groups influence how crime is defined and how it is fought (e.g., surveillance of protest movements, security-state actions).
The three-way framework is often integrated: a comprehensive approach considers biological, psychological, social, economic, and political factors.
Doing Criminology
Research Methods: Criminologists use a variety of methods similar to other social sciences:
Cross-sectional surveys: Snapshot data across a cross-section of the population; uses sampling; can involve self-report and victimization surveys; limitations include no time-based change unless repeated.
Longitudinal (cohort) research: Track a group sharing a characteristic over time; e.g., NLSCY; helps examine onset and progression of offending.
Experiments: Random assignment, control groups, and an experimental condition to determine causal effects (e.g., treatment vs. no treatment on recidivism).
Aggregate (secondary) data analysis: Use large databases (e.g., Statistics Canada) to study trends and relationships (poverty-crime link, unemployment-crime link).
Focus on Research boxes illustrate crime trends and data interpretation.
Observational and interview research: Fieldwork with criminals or victims; life-history or profile-building; lab-based experiments on aggression; qualitative insights.
Ethical Issues in Criminology:
Researchers have social responsibilities because findings influence policy; funding sources may shape research agendas; researcher–participant confidentiality vs. public interest; potential for bias against or toward marginalized groups.
Research must balance public benefit against potential harms; controversial topics (gun control, capital punishment, etc.) require rigorous ethics and safeguards.
Applied Criminology and Policy:
Researchers assess the effectiveness of laws and programs; e.g., evaluating sex-offender registries and public notification; some policies may stigmatize offenders or reduce access to services.
Discourse on how to balance civil liberties with public safety in high-stakes policy areas (digital crime, terrorism, cybercrime).
Ethical Issues in Criminology
Criminologists must maintain integrity and objectivity; they should defend their methods and findings when policies are debated.
Examples of applied scrutiny include evaluating the impact of surveillance, wartime or counter-terrorism measures, and the effect of media reporting on public perception of crime.
The Relationship Between Crime and Deviance (Conceptual Basis)
Deviance: Behaviour that departs from social norms but is not necessarily illegal; deviance and crime are related but not identical.
The relationship is illustrated in Figure 1.1 (Hagan’s Varieties of Deviance): a three-dimensional model showing how acts vary in perception of harm, normative agreement, and societal response.
Key questions for criminologists:
How do deviant behaviours become crimes?
When should criminal acts be legalized or decriminalized?
The line between deviance and crime is historically contingent; e.g., cannabis use and possession were illegal for much of the 20th century but have become widely accepted and, in some jurisdictions, legalized; similar trajectories exist in other areas (pornography, abortion, etc.).
The link between crime and deviance is contextual and dynamic; criminologists examine how social norms, moral panics, and political considerations shape definitions of crime and deviance.
The Criminological Enterprise: Concept Summary 1.3 (Overview of Subareas)
Criminal Statistics: Focus on the measurement of crime; validity and reliability; sources include police, courts, victim surveys.
Sociology of Law: Explores how law originates, how it changes, and how it interacts with society; looks at law’s role in shaping social order.
Theory Construction: Seeks to explain causes of crime and to predict crime rates and trends; evaluates competing explanations.
Criminal Behaviour Systems: Patterns and typologies of crime; includes analysis of different offender groups and crime categories.
Penology: The study of correction and social control; rehabilitation vs punishment; consequences for offenders and society.
Victimology: Investigation of victimization; risk factors; victim-support needs and costs; role of victims in crime processes.
The Canadian Criminal Justice System: From Law to Practice (Chapter 2 context)
The criminal law defines what is illegal; the process enforces these rules through police, courts, and corrections.
The law has both historical and social dimensions; it has evolved from multiple bodies of law (customary, religious, and civil) to modern statutes and common law.
The flow of a case typically proceeds as follows: incident reported → police investigation → charges laid → prosecution → court trial or adjudication → sentencing and corrections. The system emphasizes due process and the presumption of innocence, with the burden of proof beyond a reasonable doubt.
The Canadian Criminal Code combines common-law origins with statutory laws; the balance between common law and statute shapes many offences and procedures.
A key distinction in criminal law is between mala in se (intrinsic crimes rooted in universal moral norms, e.g., murder) and mala prohibitum (crimes defined by statute, e.g., traffic offences).
The system distinguishes indictable offences (serious crimes) from summary offences (minor offences); the procedure and penalties differ significantly.
The flow through the system is depicted in Figure 2.3 (charge, trial, verdict, sentence, etc.).
Common Law and Statutory Law; Mala in Se vs Mala Prohibitum
Common Law: Judge-made law based on precedent (stare decisis); evolved from English medieval systems to Canada’s system; many offences originated as common-law crimes (e.g., murder, burglary).
Statutory Law: Written laws enacted by Parliament; supplements and sometimes replaces common-law rules; cannabis legislation is an example of statutory evolution.
The difference between criminal law and tort (civil law): criminal law initiates state action; tort law is a civil remedy for private harm; standard of proof differs: beyond a reasonable doubt vs balance of probabilities.
The concept of a duty to act (e.g., parental duties) can create liability when failing to act leads to harm, illustrating how civil-law concepts intersect with criminal-law notions.
The Elements of a Crime: Actus Reus and Mens Rea; Defences (Chapter 2)
Actus Reus (the guilty act): The voluntary physical conduct or a qualifying omission where there is a legal duty to act. Sleepwalking may negate voluntariness; a known condition may still lead to liability if precautions are not taken.
Mens Rea (the guilty mind): The intent to commit the act, or recklessness or negligence in some cases. Some offences require specific intent; others only require general intent.
The transfer of intent: If a crime targets one victim but harms another, liability may still attach to the intended crime (e.g., intending to kill one person but killing another).
Constructive intent: Liability for negligent or reckless outcomes even when the act was not intended to cause the ultimate harm.
The concept of strict liability: Some offences require no proof of mens rea (intent) and hold the accused liable based on the act alone, with limited or no defence of due diligence. Examples include certain health and safety or regulatory offences.
Defences to criminal liability:
Mistake of fact (honest); ignorance of the law is generally no excuse but can apply in certain circumstances.
Mental disorder (NCRMD): Not criminally responsible due to mental illness; the disposition ranges from supervision to detention.
Intoxication: Generally not a defence for general-intent crimes, but can affect specific-intent crimes; recent changes and Supreme Court decisions have clarified the role of intoxication.
Necessity, Duress, Self-defence, and Entrapment: Justifications or excuses depending on the circumstance; entrapment involves police-induced commission of a crime.
Key case references: R. v. Parks (sleepwalking acquittal on insanity grounds), R. v. Lavallee (battered-woman syndrome in self-defence), Regina v. Dudley and Stephens (necessity in shipwreck homicide), R. v. Ryan (battered-woman defence), etc.
The Canadian Charter of Rights and Freedoms and Its Impact
The Charter (1982) constitutionalizes a range of rights that affect criminal procedure and law enforcement, including life, liberty, security of the person; protection against unreasonable search and seizure; rights on arrest/detention; right to a fair and public hearing; protection against cruel or unusual punishment; and rights to counsel and to a timely trial.
The Charter has shaped key cases:
R. v. Oakes: established the proportionality test for limiting rights under section 1; on search and seizure and the right to be presumed innocent; interpretation of limits.
R. v. Askov: delay in trials; helped shape rules to ensure reasonable time and efficient judicial resources; influenced subsequent reforms.
R. v. Gladue: indigenous sentencing considerations; recognizing disproportionate incarceration and the need for culturally informed sentences.
R. v. Hart: cautionary approach to Mr. Big sting operations and admissibility of confessions.
The Charter shapes policing, trial procedures, disclosure obligations (Stinchcombe), and protections against wrongful convictions.
Wrongful Convictions and Accountability (Profile of a Crime Boxes)
Wrongful convictions have occurred due to tunnel vision, nondisclosure, eyewitness misidentification, false confessions, and other systemic issues.
Institutions such as Innocence Canada (formerly AIDWYC) advocate for reviews and exonerations; cases include Milgaard, Marshall, Morin, Sophonow, etc.
Disclosure is a crucial principle: prosecutors must provide the defence with all relevant case information (Stinchcombe).
The Charter’s protections and post-trial remedies help prevent and rectify miscarriages of justice, though concerns about balancing individual rights with public safety persist.
The Law in Canada: Developments and Contemporary Issues
Cannabis legislation: moving toward legalization (Cannabis Act, 2018); decriminalization and regulation by provinces; 30 grams possession limit; home cultivation allowances; road safety testing.
Youth Justice: The Youth Criminal Justice Act (YCJA, replacing the Young Offenders Act) introduced reforms to reduce youth incarceration, emphasize reintegration, and curb transfers to adult court.
Corporate accountability: Bill C-45 (Westray bill) establishes corporate criminal liability for negligent acts, with penalties up to 100{,}000; aligns with global trends in corporate responsibility.
Indigenous rights and resource disputes: Marshall decision and subsequent Burnt Church and lobster fishery disputes illustrate the ongoing tension between Indigenous rights and state regulation; the law evolves to recognize treaty rights while balancing public policy and resources.
The role of technology: DNA databases, surveillance technology, and cybercrime legislation shape contemporary enforcement and civil liberties.
The Criminal Law in Practice: Chapter 2 Highlights
The structure of legal classification:
Criminal vs Civil (torts): criminal law creates public offences; tort law addresses private wrongs; different standard of proof and enforcement by the state.
Indictable vs Summary Offences: Indictable offences are serious; procedures involve a trial by judge or jury; no time limits on prosecution; summary offences are minor with quicker processes.
Mala in se vs Mala prohibitum: crimes rooted in universal moral norms vs offences created by statute reflecting social norms.
The flow of cases through the Canadian system (Fig. 2.3): incident → police involvement → charges → prosecution decisions → court outcomes → sentencing and corrections. The system uses both restorative and punitive elements depending on the crime and context.
Functions of the Criminal Law (Key five):
Providing social control; delegating retribution to the state; expressing public opinion and morality; deterring crime (general and specific deterrence); maintaining social order.
The concept of prevention and punishment: general deterrence discourages others from offending; specific deterrence aims to deter behaviour by those already convicted. The law also serves to regulate public morality in the face of changing social attitudes (e.g., vagrancy historically; modern equivalents).
The elements of a crime (Actus Reus and Mens Rea):
Actus Reus: the guilty act; must be voluntary; omissions may amount to liability if there is a legal duty to act.
Mens Rea: the guilty mind; intent, recklessness, or negligence; some offences require specific intent; others do not.
Defences and pivotal cases:
Mistake of fact; intoxication; mental disorder (NCRMD); necessity; duress; self-defence; entrapment.
The role of M’Naghten rule in insanity defence (1843): “disease of the mind” and not knowing the nature or wrongfulness of the act.
The duty to disclose evidence (Stinchcombe) and the impact on fair trials.
Important contemporary topics: assisted suicide/MAID; cybercrime; stalking and cyberstalking; sex-offender registration; indigenous rights; proven wrongful convictions; ongoing evolution of the law through policy changes and court decisions.
Connections and Implications
Criminology connects to policy: research methods inform policy decisions in policing, sentencing, and social programs; funding sources can shape research directions and priorities.
The field prompts ethical reflection on how to balance public safety with civil liberties, particularly in areas such as surveillance, predictive risk testing, and post-conviction rights.
The law evolves with social values: decriminalization and legalization of substances; expanded rights for victims; recognition of Indigenous rights; responses to new technologies and forms of crime.
Key Terms (select definitions)
actus reus: the guilty act; the physical component of a crime. ext{actus reus}
mens rea: the guilty mind; the mental element of a crime. ext{mens rea}
mala in se: crimes rooted in core moral norms. ext{mala in se}
mala prohibitum: offences defined by law, not universal morality. ext{mala prohibitum}
strict-liability crimes: offences requiring no proof of mens rea; due diligence may be a defence in some cases.
s- indictable offence: a serious crime (e.g., murder). ext{indictable offence}summary offence: a minor offence with lighter penalties. ext{summary offence}
Charter rights: fundamental rights and freedoms that constrain state power in criminal proceedings. See §11, §7–§15, etc.
Stinchcombe disclosure: obligation to disclose case information to the defence.
NCRMD: Not Criminally Responsible on account of Mental Disorder.
Battered Woman Syndrome: a legal consideration in self-defence in cases of domestic violence.
R. v. Sharpe: key case on child pornography and artistic merit; balancing free expression with protection of children; later amendments and debates on artistic merit and public good.
Quick Practice Focus (concept check)
Define criminology and distinguish it from criminal justice.
Identify the major perspectives on crime (consensus, conflict, interactionist) and provide an example of how each would view a contemporary issue.
Explain the difference between actus reus and mens rea with examples; describe a case where transfer of intent applies.
List the five primary functions of the criminal law and give a short example of each.
Describe the difference between mala in se and mala prohibitum with two examples each.
Outline the flow of a case through the Canadian criminal justice system and identify where rights under the Charter apply.
Name and explain three defences to criminal liability and give a famous case example for at least one.
Explain the significance of Stinchcombe disclosure in protecting fair trials.
Discuss how social movements (e.g., Indigenous rights, cannabis legalization) reflect changes in criminal law and social values.