Overview

Dimensions of Criminal Law, 3rd Edition is one of the most detailed and complete resources available for core courses in Canadian criminal law, sentencing, and criminal procedure.

Dimensions remains the resource of choice for teachers of law and of interdisiplinary courses who wish to provide their students with both a solid grounding in legal doctrine and an understanding of the social context of criminal behaviour and law enforcement.

TopContent Summary

• Chapter One  Injured Parties
• Chapter Two  Sentencing: Rules and Dilemmas
• Chapter Three  Regulatory Offences and Corporate Defendants
• Chapter Four  Crimes: Core Concepts of Culpability
• Chapter Five  Reviewing Core Concepts
• Chapter Six  Exceptional Mental States
• Chapter Seven  The Fact-Finding Process
• Chapter Eight  Affirmative Defences

Top Preface

We have set out to create a book about the politics of criminal law as well as about its rules. We want these materials to help people learn three things: (1) how to make criminal law arguments from within the self-enclosed world of doctrinal logic; (2) how to recognize the ways those arguments speak both from and into a complex political context; and (3) how to articulate politically informed legal arguments that have communicative power in legal culture as well as the possibility of contributing to social justice in this country. The book tries to imagine a good criminal justice system—one that can be, despite its coercive nature, effective and humane.

In chapter 1 we encourage class members to bring their experience and ideas into the discussion from the start. We begin with a discussion of “injuries” in the context of people’s lives rather than with legal rules, partly to help students learn quickly that their experience is relevant to their study of criminal law. We hope that this realization will help demystify legal discourse and undercut exaggerated notions about legal expertise. Because the initial material is accessible in this way, students frequently reproduce in the classroom struggles over definitions of criminal justice that are taking place outside law school. While discussions may thus become politically and personally (as well as intellectually) difficult as a result, those difficulties keep the later study of criminal law doctrine in contact with the law’s reasons for being.

Chapter 2, Sentencing Rules and Dilemmas, introduces students to that part of the criminal justice process that is least present in most criminal law texts, but represents the sole experience of the process for most people who come into conflict with the law. The legal structures of sentencing and imprisonment are presented and the less formal practices, such as plea bargaining, are discussed. The chapter ends with an examination of imprisonment, the most coercive power available to the state.

Chapter 3, Regulatory Offences and Corporate Defendants, examines the ways in which the state protects the “public welfare” through a regime of regulatory offences designed to ensure that certain behaviours are carried out with appropriate care. The chapter focuses on how corporate actors are regulated by the state and examines ways of criminalizing corporate misbehaviour.

Chapter 4, Crimes: Core Concepts of Culpability, contains basic doctrinal material found in any first-year criminal law course. The chapter begins with a discussion of the role of actus reus in criminal culpability and then continues with a focus on mens rea. After introducing certain broad mens rea issues, we present an analytic structure for mens rea analysis followed by an in-depth consideration of four different categories of culpability: causing prohibited consequences; acting in inculpatory circumstances; predicate offences; and crimes of negligence. We use a small number of classic cases and, for clarity and efficiency, descriptive textual material to present and explore central concepts. This combination allows us to avoid the use of snippets of cases to illustrate straightforward points and, we hope, makes the book richer and more engaging than a conventional text. We have added questions and comments and, occasionally, problems to encourage readers to engage the material in different critical ways as they read.

Chapter 5, Reviewing Core Concepts, encourages critical thinking about the core concepts already introduced. We focus on two discrete areas, omissions and sexual assault. In addition to providing a mechanism for consolidation and review, these materials are intended, in differing ways, to cast some light on certain unarticulated assumptions and/or contradictions in the core concepts.

In Chapter 6, Exceptional Mental States, we examine the ways in which criminal doctrine responds to those whose mental processes are “exceptional”—those whose minds are “disordered,” those whose actions are not consciously willed or controlled, and those whose minds are affected as a result of the ingestion of alcohol and/or drugs.

Chapter 7, The Fact-Finding Process, begins with a discussion of the politics of the fact-finding process. Juries or judges act as the institutional fact finders in criminal trials. The chapter examines the ways in which triers of fact approach the task of fact-finding and raises questions about the nature and possibility of impartiality. The chapter concludes with a discussion of fact-finding gone wrong, by examining the systemic explanations for wrongful convictions.

Chapter 8, Affirmative Defences, draws on the previous seven chapters in the examination of the four classic “affirmative defences.” The affirmative defences provide fertile ground for integrating the dimensions of criminal law we are seeking to elaborate. On the one hand, affirmative defence doctrine represents explicit recognition in the law that context and passion limit law’s efficacy in controlling conduct; on the other, the statutory forms of the defences are so selective in their recognition of relevant contexts and passions, so imbued with unconscious assumptions, that to study them is to explore the politics of legal definitions of “reality.”

By the time readers arrive at chapter 8 they should be practised in criminal law discourse, and they will understand something about the politics from which and into which doctrinal logic speaks. They will, we hope, see how narrowly doctrine conceives of social life. But those who would expand law’s vision of social reality must be able to argue in and to the legal culture in language to which it can respond. The last chapter provides models of how to do that: the defences are analyzed for the race, gender, class, and other political interests implicated in their definitions. Finally, the last chapter is designed to encourage participants to bring contextual and doctrinal argument together in class discussion by collecting cases that bring into focus the particular “doctrinal moments” that best allow arguments about historical/social/political context to enter the courtroom.

In the end, it is enough if students are better able to think reflectively about the legal arguments they are learning to fashion. The content of that reflection will vary—as will its form—from person to person. And it will no doubt change over time for most readers of this book. The reasons for change derive in part from the inevitable confrontation of ideas with experience. And increasingly significant for students of law is the growing open-textured character of law and jurisprudence. It is because of the inevitability of change that a reflective orientation toward the fundamental principles of criminal law is what we aim for. It is our view that professional training requires the ability to handle the future with intelligence rooted in a full grasp of essential doctrine and sensitivity toward those features of our legal and political culture that are driving forces for change in that doctrine. While that is not a simple matter to achieve, it is nevertheless a goal worthy of all our best efforts.

TopTable of Contents

Acknowledgments

Preface

Table of Cases

Part I  Human Dimensions

Chapter One  Injured Parties

Defining Crime

Victims’ Experiences

Understanding Offenders

Chapter Two  Sentencing: Rules and Dilemmas

Plea Bargaining

Sentencing: The Legislative Framework

Putting Principles in Practice: Sentencing Case Studies

Imprisonment: Understanding the Human Dimensions of Sentencing

Part II  Doctrinal Dimensions

Chapter Three  Regulatory Offences and Corporate Defendants

Protecting the Public Welfare

Prosecuting Corporate Defendants

Chapter Four  Crimes: Core Concepts of Culpability

The Role of Actus Reus in Criminal Culpability

Subjectivity, Objectivity, and Mens Rea

Core Mens Rea Concepts

Chapter Five  Reviewing Core Concepts

Omissions: Thinking More About Doctrine

Sexual Assault: Thinking More about Context

Subjectivity/Objectivity Revisited: What’s at Stake

Chapter Six  Exceptional Mental States

Mental Disorder

Automatism

Intoxication

Part III  Bringing the Dimensions Together

Chapter Seven  The Fact-Finding Process

The Politics of the Fact-Finding Process

Institutional Fact Finders

Wrongful Convictions: When Fact Finding Goes Wrong

Chapter Eight  Affirmative Defences

Introduction

Provocation Doctrine: The Power of the Dominant Culture in the Construct of the Ordinary Person

Self-Defence: Exploring the Criminal/Victim Boundary

Compulsion and Duress Doctrine: Individual, Social, and State Coercion

Necessity Doctrine: Legal Images in the Service of Class Power