The Canadian Legal System - Coursework Example

Running head: Canadian law Canadian law - legal defenses and the law Even though Canada is one of the prominent countries in the American continent, its legal system has more differences than similarities with respect to the United States’ legal systems. In fact, most of the Canadian laws were originated from the British legal system since Canada has undergone British colonial rule for a substantial period of time. Both civil and criminal laws in Canada have more similarities with the British legal systems than the American legal systems. Canada has specific laws with respect to the age, mental disorder, automatism, duress, necessity, self-defence, provocation, entrapment etc and this paper briefly explains it. Introduction “The Canadian legal system was established under the British North America Act, 1867, with the creation of a federal government and various provincial governments and various court systems” (Tjaden, 2005). Like Great Britain, Canada is a constitutional monarchy with Her Majesty Elizabeth II, Queen of Canada, as the head of the state. But the queen has no real power and the prime minister is responsible for all the administrational matters with the help of his ministers and the parliament members. Canada is one of the biggest countries in the world. Like many other countries Canada also undergone British colonial rule and the influence of British colonial rule can be still witnessed in Canadian legal systems, administrative procedures, social life etc. Even though Canadian culture and social life has more similarities with that of the American culture and social life, the legal systems in Canada is more closely linked with the British legal systems. Canada has specific laws with respect to age, mental disorder, automatism, duress, necessity, self defence etc. Canadian Law and Age The voting age in Canada is 18 now even though many attempts are going on to lower it to 16 in order to attract more youths to the politics. “Vote16 was started in December 2004 as an initiative involving members of each of Canadas four political parties with two principal aims: Lowering the federal voting age to 16 and Encouraging young people to become more engaged in politics” (Engaging Canadas Youth in Politics, n. d). Many people in Canada believe that the voting age in Canada will become 16 in near future itself even though an attempted bill to lower the voting age failed recently in Canada. Legal drinking age in Canada varies from territories to territories and provinces as per the local legal systems. In some territories it is 18 whereas in some other territories it is 19. There are lot of controversies with respect to this age also. At the same time Canada the age of consent for sexual activities is 14 now even though debates are going on to raise it to 16. CBC News, (May 1, 2008) reported that it is now illegal for adults in Canada to have sex with a partner under the age of 16, as per one of the new provisions of the Tories violent crime law (CBC News, 2008). Canadian Law and Mental Disorder Having a mental illness is not a crime as per the Canadian law and criminal activities performed under mentally disordered stage will not be considered as normal crimes by the Canadian law. Pilon (2002) has mentioned that Canadian criminal law treated mentally disordered persons and their criminal activities with a different a different perspective. According to section 16 of the Criminal Code of Canada, no person will be charged criminally if he commits a crime while suffering from a mental disorder which prevented him from realizing the consequences of his criminal act. The mentally disordered criminals were sent to hospitals rather than prisons according to the earlier laws. But the dangers in releasing mentally disordered criminals forced the government to bring some amendments in the law. The parliament faced the test of bringing a balance between the individual rights and public safety. As per the current laws in this regard, if the culprit is unfit to stand trial (mentally disordered persons), the court has the power to provide involuntary treatment to the culprit and to assess his progress time to time. The court wanted to ensure the public safety and for that purpose it will watch the progress of the mentally disordered criminal periodically (Pilon 2002, p.1-5). Canadian Law and Automatism Automatism is defined as any reaction that occurs automatically without conscious thought or reflection. People under chronic mental status like epilepsy may perform things unknowingly and unintentionally. Automatism is used to mean complex purposeful and, almost exclusively, serious criminal behaviours accompanied by a claimed loss of memory in the absence of complete mental or emotional pathology. With respect to automatism, the law historically has been influenced by the Cartesian mind-body dichotomy. ... The distinction between sane and insane automatism has come only to be meaningful in a legal sense.  Behaviours classified in law as sane and insane automatism are both the result of identifiable mental disorders. This concept of automatism has no place in law.  Its the wish of the Canadian Psychiatric Association that it be abolished (Selected Bibliography on Automatism, 2002).  Canadian Law and Duress Under the Canadian law, a person is not guilty of a crime if he performed a crime only because he believed, and had good reason to believe, that he would be seriously harmed if he did not perform it and had no other way of escaping serious harm. Duress is a legal defence, by which defendants argue that they should not be held liable because the actions that broke the law were performed only out of an immediate fear of injury. For example, in some rape cases, the victim may kill the culprit in order to escape from the hands of the culprit. In such cases, if the person who faced the rape threat may escape from punishments as per the Canadian law. “Provision requiring that threat must be of immediate death or bodily harm from a person who is present when offence is committed” (Judgements of the Supreme Court of Canada, 2001) Canadian Law and Necessity It is impossible for the people to think of laws when necessity or emergency situations occur. In other words, when self defense or preservation is in jeopardy, people will commit crimes, and it is illogical to punish people severely for such crimes. For example, if a person steals some food items from a shop, because of poverty and to sustain his life, the law should consider such crimes in a different angle. In other words, if the accused must have had no reasonable legal alternative to the course of action he or she undertook or the harm inflicted by the accused must be proportional to the harm avoided by the accused, such crimes should be treated differently as per the Canadian law (Selected Bibliography on Automatism, 2002).  Canadian Law and Self-defence If a person commits a crime for his self defence, the Canadian law justifies it. For example, suppose a person kills another for his self defence and if he can prove it in the court, he can escape from punishment. Canadian criminal code, Sections 34-37 mentions the law with respect to self defence. According to Criminal code 37 (1), every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it (Self defence laws of Canada, 2007) Canadian Law and Provocation According to section 232 of the Criminal Code of Canadian law, offenders who have admitted to killing someone and have been charged with murder for the offence may attempt to invoke the statutory provocation defence, which, if successfully applied, reduces the accuser’s offence from murder to manslaughter (THE PROVOCATION DEFENCE, n. d). For example, suppose a male youth kills his female lover since she tries to leave the relationship or refuses to submit to the male partner’s authority, the law of provocation can be applied. Canadian Law and Entrapment Entrapment is the fabrication of evidences by the police force or the investigating agencies in order to establish a crime. For example, in some murder cases, the police may have collected all the evidences to establish the crime, but they might have failed to collect the weapon used to execute the murder. In such cases, the police will fabricate one weapon and will submit it to the court as the actual weapon used in the murder case in order to establish the crime. According to Canadian law, entrapment is not a substantive defence and the rationale for this defence is not a lack of responsibility in the accused. Entrapment is based on the common law doctrine of abuse of process (Entrapment and illegal activity, n. d) Conclusions Canadian legal system has its fundamentals cemented in the British legal system. It has clear laws with respect to the most entities of social life. Some of the Canadian laws, especially the law with respect to the age for giving consent to sexual activities seems to be controversial as age 14 is considered as a matured age for sexual activities whereas the voting age and the drinking are still 18 or 19. References 1. CBC News, (2008), Canadas age of consent raised by 2 years, Retrieved on 06 April 2010 from http://www.cbc.ca/canada/story/2008/05/01/crime-bill.html#ixzz0kIfHY5ih 2. Engaging Canadas Youth in Politics (n. d), Retrieved on 06 April 2010 from http://canadaonline.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=canadaonline&cdn=newsissues&tm=63&gps=377_221_1069_482&f=20&su=p649.3.336.ip_&tt=2&bt=1&bts=1&st=24&zu=http%3A//www.vote16.ca/en/index.htm 3. Entrapment and illegal activity, (n. d), Retrieved on 06 April 2010 from http://www.druglibrary.org/schaffer/library/studies/canadasenate/vol2/chapter14_entrapment_and_illegal_activity.htm 4. Judgments of the Supreme Court of Canada, (2001), Retrieved on 06 April 2010 from http://csc.lexum.umontreal.ca/en/2001/2001scc24/2001scc24.html 5. Pilon Marilyn (2002) Canadian Law and Mental Disorder, Retrieved on 06 April 2010 from http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/PRB-e/PRB9922-e.pdf 6. Selected Bibliography on Automatism (2002), Retrieved on 06 April 2010 from http://www.lareau-law.ca/automatism_.html 7. Self defense laws of Canada, (2007), Retrieved on 06 April 2010 from http://www.self-defender.net/law5.htm 8. THE PROVOCATION DEFENCE (n.d), Retrieved on 06 April 2010 from http://www.zerotolerance.ca/2_provocation_def.htm 9. Tjaden,Ted (2005), Researching Canadian Law, Retrieved on 06 April 2010 from http://www.nyulawglobal.org/globalex/canada.htm#_The_Canadian_Legal_System Read More