4.3. Case analysis
1. Canadian Court System
The basic role of courts in Canada is to help people resolve disputes fairly and with justice, whether the
matter is between individuals or between individuals and the state. In the process, courts interpret and
establish law, set standards, and raise questions that affect all aspects of Canadian society. The provinces
and territories are responsible for providing everything necessary for their courts, from building and
maintaining the courthouses, to providing staff and resources such as interpreters, court reporters to
prepare transcripts, sheriffs, and registry services, to paying provincial court judges; yet the judges for
the superior courts are appointed and paid by the federal government. Administration of the Supreme
Court of Canada and federally created courts is the responsibility of the federal government.
How the Courts are organized
There are different levels and types of courts in Canada. Each court has a different “jurisdiction”, which
means that they can decide different types of cases. There are:
1. Provincial and territorial courts
2. Superior courts
3. Courts of appeal
4. Federal courts
Tribunals play an important role in dispute resolution, but they are not part of the court system.
This chart shows how our courts in British Columbia are organized, from the “first level” Provincial Court
to the “highest court,” the Court of Appeal.
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1. The Provincial Court of British Columbia
The Provincial Court of BC is the first level of court. The Provincial Court hears most criminal cases. It also
hears cases involving children under 18 years of age (called young offenders) who have been charged with
committing a crime.
The Provincial Court also hears cases that do not involve criminal law. It hears:
Many family law cases (but not divorce or division of property used by the family). This is called Family
Court. You can find out more about Family Court here
Civil cases where the amount of money being claimed is between $5,001 and $35,000. This is called Small
Claims Court
Cases that involve traffic offences
2. The Supreme Court of British Columbia
The BC Supreme Court has jurisdiction in (the right to decide) most legal cases. It hears cases
1. About serious criminal offences
2. Civil cases involving large amounts of money
3. Family cases that are about divorce or dividing property owned by the family
4. Appeals of cases from the Provincial Court
3. The Court of Appeal for British Columbia
If a party does not agree with the decision from their trial in the BC Supreme Court, they can “appeal”
their case to the BC Court of Appeal. An appeal means that judges from another court will review their
case to see if the judge made the right decision. Usually, three judges from the Court of Appeal will hear
the appeal.
4. Federal courts
The federal court system is separate from the provincial court system. The Federal Court can only deal
with some cases that involve the rights of all Canadians, like citizenship, and cases that involve an
organization owned by the government of Canada (like Canada Post).
An appeal from the Federal Court goes to the Federal Court of Appeal, then to the Supreme Court of
Canada.
The Supreme Court of Canada
The Supreme Court of Canada in Ottawa is the highest level court in Canada. It hears appeals from all
other courts in Canada. There is no appeal from a decision made by the Supreme Court of Canada.
Tribunals
Tribunals are like courts, but they are not part of the court system. An example of a tribunal is the
Residential Tenancy Branch, which solves disputes between landlord and tenants. Tribunals are an
important system for resolving special disputes.
Tribunals hear disputes about special government rules and regulations. An adjudicator, not a judge, hears
the case. The process is less formal than a court hearing. Adjudicators have very specialized knowledge
about one area of law, like employment insurance, disability benefits, or refugee claims.
A tribunal decision can be reviewed by the court through a process called “judicial review”. It is often
difficult to get a tribunal decision set aside because judges don’t like to second-guess a decision made by
an expert tribunal.
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2. The Virtual Courtroom
The Judge
•
Determines if a case is proven. In
criminal law, a case must be proven beyond a
reasonable doubt. In civil law, a case must be
proven on the balance of probabilities
•
Ensures that the trial is fair, correct legal
rules followed and relevant evidence admitted
•
Ensures a secure environment for all
who come to court including the parties, the
witnesses, and the accused

The Lawyers
In Criminal Cases

Defence Counsel– represents the
accused
Crown Counsel – represents the public’s interests and concerns. Has a duty to present full and fair
evidence against the accused person
General
 All lawyers advocate for their clients’ side of the issue, lead evidence on their clients’ behalf,
scrutinize and cross-examine evidence, and argue their clients’ side of the case before the trier of
fact (the Judge or Jury).
The Clerk
 Ensures proceedings are recorded
 Swears in witnesses and handles trial exhibits
 Is responsible for the court file and paperwork





The Jury
Selected at random from a pool of eligible people
Eligible people are Canadian citizens over the age of 18 who reside in the province
The Jury Act sets out rules governing juries
Hears evidence and make determinations of guilt in criminal matters and findings of responsibility
in civil matters
Listens to the trial judge who explains what legal duties they have
The Witness
 Takes an Oath or makes a Solemn Affirmation
 Provides evidence in Court
 Subject to cross-examination
The Accused (in criminal matters)
 The Crown must prove that the accused is guilty beyond a reasonable doubt
 Has the right to be in court to hear all evidence in his/her case
 Is not obligated to testify in his or her own defense
 Has the right to represent him/her self in court if they have
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no
lawyer
3. Stages in a Criminal Case
These notes provide more information about criminal procedure – the procedures set out in the Criminal
Code of Canada to be followed in criminal cases.
Definitions
Arraignment: A formal court appearance where the accused enters a plea of guilty or not guilty in the
presence of a Judge
Committed: If you are committed for trial in the Supreme Court, your trial will be heard by a Supreme
Court Judge or Supreme Court Judge with a Jury
Sentence: The penalty that you will face if found guilty. Can include jail time, fines, probation, etc.
Discharge: Where there is not enough evidence at a preliminary hearing to commit the matter to trial in
the BC Supreme Court
Elect: Choose which Court to be tried in
Summary vs. Indictable Offence: There are three types of offences (crimes): Summary Offences,
Indictable Offences, and Dual or Hybrid Offences. Less serious crimes use what is known as the “summary
conviction process”. The court process is simpler and the penalties are lower. More serious crimes
proceed “by indictment”. Many crimes are “dual procedure” or "hybrid" meaning the Crown chooses
whether it will proceed summarily or by indictment.
Bail Hearing
At a Bail Hearing, the Crown Counsel (the prosecutor) will tell the Judge about your alleged involvement
in the crime and about your criminal record if you have one. The Crown will either agree to (consent) or
oppose your release.
Your lawyer will tell the Judge about yourself (your home, family, work, school, etc.) and anything else
that might help the Judge make a decision. If you do not have a lawyer, duty counsel will be available to
help you at this stage.
The Judge will decide if you should be released (on bail) and what you must agree to do if released
(conditions).
Initial Appearance
At the Initial Appearance, you will receive disclosure (the details) of the Crown's case against you. You will
want to obtain legal advice and decide whether to plead guilty, or to plead not guilty and have a trial.
More than one appearance may be necessary to allow you to seek legal advice and decide on your plea.
If you do not have a lawyer, duty counsel will be available to help you at this stage.
*Summary Conviction offences stay in the Provincial Court from start to finish. You will only elect (choose
which court to be tried in) if charged with a more serious (indictable) offence. If the Crown proceeds by
indictment, you will elect (choose) which court you want the matter heard in, and whether to have a
preliminary hearing. If you choose the BC Supreme Court, you will elect whether to be heard by a Supreme
Court Judge alone or by a Supreme Court Judge and Jury.
Preliminary Hearing
At a preliminary hearing, the Crown will present witnesses to testify about the events. You or your
lawyer, if you have one, will have a chance to cross-examine (question) each witness and present defence
evidence, if you wish, although it is rare for the defence to present witnesses at a preliminary
hearing. At the end of the hearing, the Judge will decide if there is enough evidence to commit you to trial
in the BC Supreme Court. If the Judge finds there is not enough evidence to proceed, you will be
discharged and the matter concluded.
Provincial Court Trial
At a trial, the Crown will present witnesses to testify about the events. You or your lawyer, if you have
one, will have a chance to cross-examine (question) each witness and present defence witnesses. You may
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testify but you are not required to do so. At the end of the trial both the Crown and the defence can make
closing arguments explaining why the evidence does or does not prove guilt beyond a reasonable doubt.
The judge will decide whether to find you not guilty (acquittal) or guilty (conviction).
If you are acquitted, that is the end of the matter.
Sentencing
If you are convicted, the judge will hear submissions, consider any evidence presented, and impose a
sentence. The judge must follow the requirements of the Criminal Code and decisions of appeal courts
when deciding on sentence.
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Criminal cases toolkit
a) Source reliability
 "No
doubt
regarding
authenticity,
trustworthiness, integrity, competence"
 History of complete reliability
 "Some doubt regarding authenticity or
trustworthiness or integrity or competence (one
count)"
 History of general reliability
 "Doubt
regarding
authenticity,
trustworthiness, integrity, competence (two
counts and more)"
 History of periodic reliability
 "Definite doubt regarding authenticity,
trustworthiness, integrity, competence"
 History of occasional reliability
 "Certainty about lack of authenticity,
trustworthiness, integrity, competence "
 History of unreliability
 "Cannot be judged
A. COMPLETELY RELIABLE
B. USUALLY RELIABLE
C. FAIRLY RELIABLE
D. USUALLY NOT RELIABLE
E. UNRELIABLE
F.
b) Data validity
 "Confirmed by other independent sources.
Logical in itself "
 Agrees with other information on the subject
 "Not confirmed independently. Logical in
itself"
 Agrees with other information on the subject
 "Not confirmed. Logical in itself"
 Agrees somewhat with other information on
the subject
 "Not confirmed. Not illogical"
 Not believed at time of receipt although
possible
 "Confirmation available of the contrary.
Illogical in itself"
 Contradicted by other information on the
subject
 "Cannot be judged”
1. CONFIRMED
2. PROBABLY TRUE
3. POSSIBLY TRUE
4. DOUBTFULLY TRUE
5. IMPROBABLE
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c) Prosecution and Defense – Different vectors
d) Standards of Proof
5%
Shred
20%
33%
Reasonable
Suspicion
Probable
51%
67%
Preponderance
Clear &
Cause
Convincing
90%
Beyond
Reasonable
Doubt
Mens Rea
Lowest
General
Negligence
Statutory
manslaughter
Highest
Recklessness
Involuntary
manslaughter
General
Intent
Specific
Malice
Voluntary
manslaughter
Second degree
murder
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Premeditation
First degree
murder
e) Standard Errors in Concept Development (Art Lightstone)
Icon
Broken Link
Circular Argument
Non-Linear Argument
Narrow Argument
Contradiction
Unfalsifiable Hypothesis
Poetic Argument
Direction of Causality (Post Hoc Fallacy, False Cause)
Third Variable
Vague Argument
Tautology
Composition Error
Explanation
Example
Broken Link: A sequence of
concepts that are broken by an
unexpressed or insufficiently
explained element.
"The corporation's profits increased,
causing the price of the stock to
increase." In this case, two concepts
are broken by a missing element. The
corporation's increase in profits
would cause an increase in demand
for it's stock, and it is this increase in
demand for the stock that would
actually cause the price of the stock
to increase.
Circular Argument:An argument
supported exclusively by the very
assumptions that it provides.
"Criminal laws outline criminal acts,
and criminal acts are deemed to be
any acts which violate criminal laws."
Non-Linear Argument: Several
disjointed ideas which may, in-ofthemselves, be correct, but they
lack a linear progression towards a
logical conclusion.
"Inflation cannot continue
indefinitely. Markets must fluctuate,
as stocks rise and fall."
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Narrow Argument:The concept is
described or defined in terms that
are too narrow. Correct points may
be present, but they fail to express
the "defining" elements of the
argument.
"A teacher is someone who works
with children." This may be true, but
doctors, coaches, and even lawyers
also work with children. Thus, the
truly defining element is missing from
the above explanation.
Contradiction: Two or more points
presented within the argument
contradict each other.
"Young offenders are just as capable
of committing criminal acts as adults,
therefore they should be provided
special considerations under the law."
Unfalsifiable Hypothesis: An
argument constructed in such a
manner that it eliminates any
possible means of proving or
disproving its fundamental
assumption.
"The fact that we can find no evidence
of their plot against us just serves to
prove the lengths they will go to in
order to conceal their conspiracy."
Poetic Argument: An argument
that presents an elegant sounding
phrase or expression, but fails to
present the substance necessary to
allow one to challenge its
fundamental assumption.
"What goes up, must come down."
Direction of Causality (Post Hoc
Fallacy, False Cause): An argument
that presents a correlation
between two variables, but fails to
establish which variable is
responding to the other.
"Students achieve greater results in
subjects they enjoy." In this case, the
two variables may very well be
correlated. However, the argument
does not establish whether students
achieve greater results because they
enjoy a subject, or if students enjoy
subjects because they do well in
them.
Third Variable (Also Post Hoc
Fallacy): An argument that
presents a correlation between
two variables, but fails to explore a
third variable that may in fact be
responsible for this correlation.
"High Canadian interest rates increase
Canadian exports." In this case, the
two variables may very well be
correlated. However, the argument
does not acknowledge the third
variable - namely, a low Canadian
dollar, that is in fact responsible
for both the high interest
rates and the high exports.
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Vague Argument: An argument
presented in terms that are so
general and ambiguous that it
could equally apply to many other
concepts.
"Systemic discrimination is against
the law and causes many people to
suffer as a result." Although this
statement is correct, it is vague
enough that it would be just as true if
said about almost any form of legal
infraction.
Tautology: An unnecessary and
usually unintentional repetition of
meaning.
"unsolved mystery," "first
introduced," "new innovation," etc.
Composition Error: An error in
logic wherein one mistakenly
assumes that what is true for a
part is true for the whole.
As a mathematical example, we can
see how a composition error could
occur if one were to associate the
dimensions of a square with the area
of a square. One might assume that if
we doubled the dimensions of a
square (ex. 10 feet by 10 feet) then
we would also double the area of the
square (100 feet). However, this is
clearly untrue. If the dimensions of
the square doubled to 20 feet by 20
feet, the area of the square actually
quadruples to 400 square feet. In
economics, we would see a
composition error if we were to
assume that the demand curve for
ALL goods and services slopes down
and to the left for the same reason
that the demand curve for a given
market slopes down and to the left. In
fact, the factors (or "effects")
influencing the demand for ALL goods
are entirely different than the factors
influencing the demand for any
particular good.
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Assignment - Case analysis
Write a case analysis on ONE of the following cases
1. Leopold and Loeb on trial for their 'perfect crime'
2. Murder trial of Harry K. Thaw
3. The assassination trial of "Big Bill" Haywood
4. The Hall-Mills double murder
5. Bruno Richard Hauptmann’s trial for the murder of the Lindbergh baby
6. Nuremberg trials
7. Rosenberg’s espionage trial
8. Murder trial of Sam Sheppard
9. Manson family murders
10.Murder trial of O.J. Simpson
A case analysis is an extended commentary on a particular court case. A successful case analysis combines
descriptions and analysis. The case itself needs to be described succinctly. At the same time the judgment
must be analyzed and its socio-political impacts discussed.
Your case analysis must be composed of two parts. The first part describes the case, and, the second part,
analyses the judgment and discuses its socio-political impacts.
1) A short introduction
It sets out the context for the discussion by establishing what exactly will be focused on in the
commentary? What is the controversy? What needs to be explained? State your thesis
2) Description/Background Information:
a) Facts: Furnish a brief digest of the facts of the case (which are to be found in the body of a court ruling.)
b) A brief Legal history of the case.
c) Main legal issues: outline the main legal issues raised by the case.
The main legal issues of a case are summarized in the brief synopsis that follows the heading of a reported
case.
d) Judgments: report accurately the judgment in the case. This means explaining what was decided, by
whom (e.g. was it a majority), reasoning, was there a minority (dissenting) written opinion?
3) Main Section-Case Analysis:
a) Critically examine the reasoning of the judge.
b) Explain the social and political implications of the legal decision.
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RUBRIC: CASE ANALYSIS
Student: ____________________________________________________
Assessor:
 Self
Criteria
 Peer
Date: ________________________________________
 Teacher
Level 1
(2 points)
Level 2
(4 points)
Level 3
(7 points)
Level 4
(10 points)
• case details
 shows limited
understanding of
details related to the
case
 shows some
understanding of details
related to the case
 shows considerable
understanding of
details related to the
case
 shows a thorough
understanding of details
related to the case
• legal
considerations of case
(criteria for judgment)
 demonstrates
limited understanding
of legal
considerations
 demonstrates some
understanding of legal
considerations
 demonstrates
considerable
understanding of legal
considerations
 demonstrates a
thorough understanding of
legal considerations
• analysis
 analyzes various
perspectives of the
case with limited
effectiveness
 analyzes various
perspectives of the case
with some effectiveness
 analyzes various
perspectives of the
case with considerable
effectiveness
 analyzes various
perspectives of the case
thoroughly and effectively
• decision
 identifies the
judge’s reasoning on
the legal question
with limited accuracy
 identifies the judge’s
reasoning on the legal
question with some
accuracy
 identifies the
judge’s reasoning on
the legal question with
considerable accuracy
 identifies the judge’s
reasoning on the legal
question with a high
degree of accuracy
• legal terms and
concepts
 applies legal terms
and concepts with
limited understanding
 applies legal terms
and concepts with some
understanding
 applies legal terms
and concepts with
understanding
 applies legal terms and
concepts effectively
• legal, social, or
historical significance
 makes few
relevant connections
to other similar
situations
 makes some relevant
connections to other
similar situations
 makes several
relevant connections to
other similar situations
 makes many relevant
and insightful connections
to other similar situations
Total
/60
Suggestions for improvement: _______________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
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4.4. Arrest, Search and Detention
1. Questioning the Accused
 Police officers are required to question suspects during an investigation
 The can not force a suspect to answer any questions – The Charter grants people the right to
silence.
 Police are required to inform a person of their legal rights and the reason for their arrest.
 Once a person is informed of their rights anything that is said can be recorded and used at a
person’s trial.
 Young offenders are given special rights and protections under the Youth Criminal Justice Act.
2. Arrest and Detention Procedures.
 The police have the right to detain or arrest any suspect of a crime.
 A person placed under arrest is deprived of his or her liberty by a legal authority.
 The arresting officer must do the following:
i.
Id themselves as a police officer.
ii.
Advise the accused that they are under arrest.
iii.
Inform the accused of the charge and show the arrest warrant.
iv.
Touch the accused to indicate legal custody, and inform them of their rights.
 Detention is different then arrest.
 To be detained is to be deprived of your liberty with or without restraints- No charges laid. ( Ie.
Stopped and asked to answer a few questions).
 People detained must be informed immediately of their right to council.
 The police must have reasonable grounds – Info that would lead a reasonable person to conclude
that the suspect has committed a crime.
3. Types of Arrest
 Police have three methods of arrest: appearance notice, arrest with a warrant, arrest without a
warrant.
i. Appearance Notice- Issued for less serious offences, and compels the accused to appear
in court. If the person does not appear a bench warrant is issued (an arrest warrant issued
directly by the judge).
ii. Arrest with A warrant- The police ask a judge to issue a summons (legal document
ordering a person to appear in court, or to be arrested). The police must swear in front of the
judge the details of the offence and the judge decides weather to issue an arrest warrant.
iii. Arrest Without a Warrant- Section 495 of the Criminal Code lists three circumstances
when police can arrest a person without a warrant.
a. They have reasonable grounds to suspect an indictable offense has or will be
committed.
b. They find the person in the act of committing a criminal offence.
c. They find a person who is mentioned on an arrest warrant.
4. Searches
1. Intro
 The law tries to balance a person’s rights with the need for police to conduct through investigations.
 Section 8 of the Charter protects Canadians from unreasonable search and seizure.
 Police must have a warrant before conducting searches, in most circumstances.
2.
Searching a Person
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 The police do not have to obtain a warrant to search a person they have arrested, but they must
follow these guidelines:
o The arrest must be lawful.
o The search must be connected to the lawful arrest.
o The manner in which the search is carried out must be reasonable.
 The arrested person does have to provide the police with blood, breath or urine or DNA sample
(unless arrested for DUI), with out a warrant.
3.
Searching a Place
 Police must have a search warrant in order to enter and search a place.
 A search warrant must be correctly obtained and filled out.
 If not evidence found in the search may not be admissible in court.
 To obtain a search a warrant a police officer must deliver sworn information in front of a judge.
 The information will include:
o Items being sought.
o The reasonable grounds they have for looking for the items.
o The date and time of the search (Usually only one day and between 6:00 am and 9 pm)
 Police must identify themselves and show the warrant.
 Police may collect other items that are not listed on the warrant, as long as these items are related
to the crime and kept in plain view.
4.
Exceptions:
 In cases where police need to act quickly to preserve evidence a telewarrant can be obtained.
 Under S. 529 (3) of the criminal code two exceptions apply:
o Necessary to prevent imminent death or injury to a person.
o Prevent the destruction of evidence relating to indictable offence.
5.
Procedures After Arrest.
After an arrest a person will be:
o Photographed
o Finger printed
o Identified.
 This can only occur if you have arrested for an indictable offence.
 If the person is not charged or is acquitted in court the arrest record is only kept for 10 years.

SEARCH SCENARIOS:
1. The police see James standing at a bus stop on a downtown street, in an area where there is extensive
drug dealing. The officers ask James if they can look in his bag and he says yes. They open the bag and
find drugs.
2. After Tyler checks out of a hotel, the police ask the manager to turn over the contents of the trash can,
where they find notes planning a murder.
3. A student tells the principal that Julia, another student, is selling drugs on school grounds. The principal
opens Julia’s locker with a master key, finds drugs, and calls the cops.
4. The police send Sarah’s ex-boyfriend into her house to search for drugs. He finds marijuana in her desk
drawer, which he gives to the police.
5. Chris is stopped for going 88 in a 80 km/h zone (with no other reason). The police see a gun on the
backseat through an open window. What if the gun was in the trunk?
6. Ray is seen shoplifting at the mall. Police arrest him outside the mall. They then drive him to his home,
search his house, and find a room full of illegal car stereos. What if Ray was on probation?
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7. Ray is seen walking back and forth in front of a liquor store. The police stop him and frisk him looking
for weapons. After finding a weapon in his pocket, they search his backpack and find another gun.
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4.5. Criminal Offences
Canada’s justice system handles various criminal offences differently, depending on the
seriousness of the crime. The type of offence has a bearing on custody issues, bail requirements,
trial procedures, and sentencing.
1. Levels of Offences
A summary conviction offence, as defined by the Criminal Code, is a minor offence that carries
a relatively light penalty. Generally speaking, a person convicted of such a crime will be fined up
to $2000 and/or imprisoned for up to six months. The Criminal Code establishes maximum and
sometimes minimum penalties for indictable offences, which are more serious crimes. A hybrid
or dual procedure offence is one that the Crown can decide to try either as a summary conviction
or indictable offence.
2. Offences Against the Person
Part VIII of the Criminal Code, Offences Against the Person and Reputation, includes violent
crimes in which the victim is threatened, injured, or killed. A person commits homicide when
directly or indirectly, by any means, he or she causes the death of a human being. A culpable
homicide is a killing for which the accused can be held legally responsible. That is, someone
intentionally or recklessly causes the death of another person. A non-culpable homicide is a
killing for which the accused cannot be held legally responsible, such as death caused by an
unforeseeable accident.
Murder, the intentional killing of another human being, is a form of culpable homicide. A killing
qualifies as first-degree murder if it is planned and deliberate, if someone is hired to commit
murder, if the victim is a police officer or other person employed for the preservation of public
peace, or if the murder is caused while committing or attempting to commit another serious
offence. Second-degree murder is any murder that does not fit into one of these situations. The
mandatory minimum sentence for both first- and second-degree murder is life imprisonment. The
only difference is the date at which the offender can apply for parole.
Infanticide occurs when a mother kills her newborn child while she is suffering from a mental
disturbance caused by the infant’s birth. Manslaughter is any culpable homicide that is not
murder or infanticide. The actus reus of manslaughter consists of killing someone through a
wrongful act, even if the killing was not intentional. A charge of murder can be reduced to
manslaughter if the accused can show that there was provocation on the victim’s part.
In Canada, the most common form of violent crime is assault. Level one assault means
intentionally applying force to another person without their consent, attempting or threatening by
an act or gesture to apply force, or accosting or impeding another person while openly wearing or
carrying a weapon. Level two is assault with a weapon or causing bodily harm. Level three
is aggravated assault, which is defined as wounding, maiming, disfiguring, or endangering the
16
life of the victim. Sexual assault, that is, touching of a sexual nature that is not invited or
consensual, also has three levels of severity, depending on the amount of violence involved.
Anyone who counsels a person to commit suicide or aids or abets a person to commit suicide is
guilty of an indictable offence. Dangerous operation of a motor vehicle, failure to stop at the scene
of an accident, and impaired driving are all motor vehicle offences serious enough to be punishable
by prison sentences.
3. Offences Against Property
Theft, robbery, and breaking and entering are common examples of offences against
property. Theft, the taking of property, permanently or temporarily, without the owner’s
permission, is the most commonly reported criminal offence in Canada. Sentencing for theft
depends on the value of the goods stolen. Theft over (goods worth $5000) is an indictable offence
and theft under ($5000) is a hybrid offence with a maximum punishment of 2 years in prison.
Robbery may be defined as theft involving violence or the threat of violence. The seriousness of
this offence is reflected in its maximum sentence, which is life imprisonment. Committing the
crime of breaking and entering involves breaking into a place such as a house or commercial
building with the intent to commit an indictable offence once inside.
4. Drug Offences
The Controlled Drugs and Substances Act is the federal statute that deals with narcotics and
other controlled substances such as heroin, cocaine, and marijuana. A person can be charged
with possession of drugs if the person knows what the item is and has some measure of control
over it. A person may be found in possession even if he or she gave the item in question to another
person or consented to its possession by someone else. Trafficking means to sell, give, administer,
transport, send, deliver, or distribute a controlled substance; to sell an authorization for a controlled
substance (e.g., a doctor’s prescription); or to offer to do any of the above. To obtain a conviction
for possession for the purpose of trafficking, the Crown must prove beyond a reasonable doubt
that the accused possessed the controlled substance with the intention of trafficking. Money
laundering is the practice of transferring cash or other property to conceal its illegal origin. To
prevent criminals from being able to transfer and conceal the source of money they earn from
criminal activity, money laundering has been made a criminal offence.
5. Other Criminal Code Offences
According to the Criminal Code, mischief is committed by wilfully destroying property or data,
rendering property or data useless, interfering with the lawful use of property or data, or interfering
with any person in the lawful use of property or data. Mischief that endangers a person’s life is
punishable by life in prison. Fraud is defined as intentionally deceiving someone in order to cause
a loss of property, money, or service. In the case of prostitution, either the prostitute or the client
can be charged with soliciting. Keeping a disorderly house such as a common bawdy house for
the purpose of prostitution or a common betting or gaming house where the keeper of the house
keeps a portion of the winnings is an indictable offence.
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4.6. Defences for the Accused
A defence is either a denial of having committed a wrongful act or a justification for what
would otherwise be regarded as criminal behaviour. For a defence to succeed, the accused must
produce evidence that supports it.
1. Mental States
The mental state of the accused at the time of the alleged offence has an impact on whether
the accused can be held criminally responsible. An accused person who suffered from a mental
disorder at the time the offence was committed cannot be held criminally responsible because that
person would have been unable to form the mens rea of the offence. The burden of proof that the
defendant suffered from a mental disorder is on the party that first raises the issue, which is usually
the defence. The defence of mental disorder can be used if the accused is incapable of appreciating
the nature and quality of the act or if the accused is incapable of knowing that the act or omission
was wrong. If the court finds that the accused is not criminally responsible, the judge or a Criminal
Code Review Board will grant an absolute discharge, a conditional discharge, or a term in a
psychiatric hospital. An accused person is presumed fit to stand trial unless the court is convinced
that he or she is suffering from a mental disorder at the time the trial is scheduled to take place.
This means that the accused is unable to understand the nature of the trial proceedings, to
understand the consequences of the proceedings, or to instruct counsel.
Automatism refers to a condition in which a person acts without being aware of what he or
she is doing. Insane automatism is caused by a mental disorder. A person suffering from insane
automatism will be found not criminally responsible due to a mental disorder. Non-insane
automatism is caused, not by a mental disorder, but by an external factor, such as a concussion or
medication. If proven, the accused will be acquitted. Intoxication is the condition of being
overpowered by alcohol or drugs to the point of losing self-control. A person who gets drunk and
commits a criminal offence is still responsible for his or her actions. If a person lacks the ability to
form the specific intent to commit the offence because of intoxication, the mental element cannot
be proven, and the accused person cannot be found guilty of the specific intent offence. In such a
case, however, the accused person may still be found guilty of a general intent offence. The second
exception to the rule is if a person’s intoxication is so extreme that it almost amounts to a mental
disorder.
2. Justifications
In some situations, an accused is exonerated from committing an apparently criminal act
because the circumstances justified or excused his or her conduct. Self-defence means that a
person may use force to defend against an unprovoked assault where there is no intent to kill or to
cause serious bodily harm to the attacker. A person, who is assaulted without provocation, may
only use the amount of force necessary to defend against the attack. The courts have tried a number
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of cases in which women in abusive relationships reacted by killing their spouses. R. v. Lavallee,
[1990] marked the first time that battered woman syndrome-the effects of prolonged spousal
abuse-was used to advance the justification of self-defence.
A person is allowed to defend his or her dwelling house from any unlawful entry and to
remove a trespasser if he or she has entered. The force used must be reasonable under the
circumstances. If the trespasser resists the owner’s attempts to protect the dwelling, the trespasser
is considered to be committing an assault. The defence of necessity means that the accused had
no reasonable alternative to committing an illegal act. For the defence of necessity to succeed, the
accused must show that the act was done to avoid a greater harm, that there was no reasonable
opportunity for a lawful alternative course of action, or that the harm inflicted was less than the
harm avoided. A person will be excused from having committed an offence if the accused did so
under compulsion or duress, that is, the person was forced by threats of death or bodily harm.
However, the threatener must be physically present when the offence is committed, and the threat
has to be “immediate,” that is, on the point of being carried out. Provocation is any act or insult
that causes a reasonable person to lose self-control. The defence of provocation applies only to the
crime of murder. Provocation may be considered a partial defence to reduce the conviction from
murder to manslaughter.
There are times when Aboriginal peoples may argue that they have an Aboriginal or treaty
right to act in a way that would be illegal for anyone else. Most cases that invoke this justification
deal with hunting and fishing rights. The Supreme Court has stated that s. 35 of the Constitution
Act, which guarantees Aboriginal rights should be interpreted in a liberal manner.
3. Other Defences
There are several other defences available that do not qualify either as mental states or
justifications. An accused person may not claim mistake of law, or ignorance of the law, as a
defence for committing a criminal act. However, an important exception is in the case of an
accused relying on the erroneous legal advice of an official such as a police officer. This is known
as an officially induced error. A person whose behaviour would otherwise be criminal may have
a defence if that person made a mistake of fact-an honest mistake that led to the criminal offence.
For example, if a person mistakenly took a bike she honestly believed was hers. Generally, a person
who has been tried for an offence cannot be tried again or “placed in jeopardy” for the same
offence. This defence is called double jeopardy. A defendant who advances the defence of alibi
must present evidence by witnesses supporting the claim that he or she was not present when the
offence was committed. Entrapment refers to police conduct that illegally induces criminal
behaviour. If the judge agrees that there has been an abuse by the police, the judge will “stay” the
proceedings, or stop the trial.
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4.7. Sentencing, the Correctional System and the Restorative Justice
1. Purposes of sentencing:
A court ‘must have regard to the following purposes of sentencing’:
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
Once a person has been found guilty of committing a crime, the judge imposes a sentence, or punishment.
Generally, the goals of sentencing are to punish the offender and to reassure society that public safety is
restored. Retribution means punishing an offender to avenge a crime. Many people believe that
punishing offenders will deter other members of society from committing crimes and keep criminals from
re-offending. Rehabilitation involves treating problems such as drug and alcohol dependency that
interfere with an offender’s ability to function in society. Another reason for punishment is restitution,
which requires offenders to pay society back for the injury, loss, and suffering they
caused. Denunciation or condemnation sends the message to the offender that his or her conduct has
violated society’s basic code of values and that such conduct will be punished. In passing sentence, the
judge usually tries to achieve more than one of these goals.
Sentencing Procedures
Three perspectives must be considered in the sentencing process: the offender, the victim, and society.
The judge may order a pre-sentence report and a psychiatric assessmentto provide in-depth information
about the offender to help determine an appropriate sentence. The Criminal Code also requires the court
to consider a victim impact statement, in which the harm or loss experienced as a result of the crime is
described by the victim or the victim’s family. In addition, the Crown, acting in the best interest of society,
has the right to recommend an appropriate sentence.
At the sentencing hearing, the judge may examine a number of factors about the offender and the crime.
Sentencing decisions are restricted to some extent by the maximum and minimum limits specified in
statute laws. A judge must also consider precedents for similar crimes as well as aggravating and
mitigating factors. Aggravating factors increase the severity of the sentence by suggesting that
rehabilitation is unlikely or that a strong deterrence is necessary. Mitigating factors decrease the
sentence by suggesting that an offender can be rehabilitated or does not pose a treat to society.
2. Types of Traditional Sentences
For more than two thousand years, scholars dealing with the subject of justice have divided issues of
justice into four categories. These categories are the following:
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1. DISTRIBUTIVE JUSTICE. Issues of distributive justice concern the fairness of the distribution of
something among several people or groups. Whatever is distributed or divided can be a benefit—such as
pay for work or the right to speak or vote—or it can be a burden, such as taxes, household chores, or
homework.
2. CORRECTIVE JUSTICE. Issues of corrective justice concern the fairness of the response to a wrong or
injury to a person or group. Common responses include making a person who has wronged or injured
another suffer some form of punishment, give back something that was stolen, or pay for damages.
3. PROCEDURAL JUSTICE. Issues of procedural justice concern the fairness of how information is gathered
or how a decision is made. For example, a person suspected of a crime might give information through
careful, unbiased investigation or by torture. People making a decision might hear from all people
interested in an issue, or make their decision without such a procedure. It is important to emphasize that
procedural justice deals with the fairness of how we gather information or make decisions, not with what
information we gathered or the decision we make.
4. RESTORATIVE JUSTICE While retributive justice focuses on punishing the transgressor of the norm,
restorative justice focuses on ensuring the welfare of the victim. In this sense, many people are more
supportive of restorative justice over retribution, as it focuses on restoring well-being and tranquility to a
punctual individual rather than to a nation. Restorative justice is concerned with healing the"wounds"of
the victims, as well as for making lawbreakers have to adhere to compliance. Essentially seeks to repair
the damage done to interpersonal relationships and community. In this type of justice, the victims play a
fundamental role in the direction of justice, indicating what should be the responsibilities and obligations
of those who transgressed the law. On the other hand, transgressors are encouraged to understand the
harm they have done to their victims and the reasons why they should be held responsible for such harm.
Restorative justice seeks to balance relationships within a community and prevent certain harmful
situations from happening in the future. At the national level, these kinds of processes are handled
through mediation programs between victims and offenders. On the other hand, at the international level
restorative justice is usually a matter of institutionalizing truth through reconciliation commissions.
The most lenient sentence is a discharge, or release, which can only be applied for minor offences.
An absolute discharge means that even though the accused is found guilty, the judge sets that person
free. A conditional discharge is a release with terms attached, such as observing a curfew. Probation is a
sentence that allows a convicted offender to prove that he or she is able to live in the community without
committing another offence. A suspended sentence is a judgment that is passed but not carried out as
long as the offender meets certain requirements set out by the judge. An intermittent sentence is a prison
sentence of less than 90 days that can be served on weekends and at night. A conditional sentence is a
prison term of less than two years that can be served in the community rather than in a prison. Electronic
monitoring, such as an electronic bracelet that emits a signal to a computer, is now used to supervise
some offenders in the community as long as they stay in their homes. An offender may be required to
make restitution in the form of financial compensation to the victim or carry out a community service
order to perform services such as working in a food bank. Deportation from the country, fines,
and suspension of privilege such as taking away the offender’s driving licence are also carried out in some
cases.
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Some offenders are subject to incarceration, or imprisonment, for a specified length of time. If the court
decides that someone is a dangerous offender, an indeterminate sentence of no specified length will be
imposed. If someone is sentenced for more than one crime, the sentences can be served concurrently (at
the same time) or consecutively (one after another).
Restorative Justice Programs
Restorative justice, also known as alternative justice, uses joint problem solving to deal with the harmful
effects of crime. In the case of victim-offender mediation, the offender and the victim meet with a trained
mediator. Both parties present their version of the events and express their feelings regarding the offence.
During the process, the participants agree to appropriate restitution for the offence. Family group
conferencing brings together victims and offenders who have admitted guilt, as well as family members,
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community support groups, police officers, social welfare officials, and lawyers to work out restitution. An
Aboriginal sentencing circle comprises the offender and the victim and their families, the elders and other
members of the offender’s Aboriginal community, police officers, and a trial judge. All the participants do
their best to convey to the offender that they care for his or her well-being.
The Correctional System
People in the provincial correctional system are either awaiting trial or serving sentences of less than two
years. Sentences of more than two years’ imprisonment are served in federal institutions. Maximum-,
medium-, and minimum-security institutions have differing levels of barriers, guards and programs to
secure and educate the prisoners. The Correctional Service of Canada offers programs such as living skills,
literacy, work experience, cognitive skills training, and family violence intervention.
Paroles and Pardons
Parole is the inmate’s conditional release into the community before the full sentence is served. Except
for persons convicted of first-degree murder, prisoners must be reviewed for parole after serving onethird of the full sentence, or after serving seven years, whichever is less. Inmates must meet certain
conditions to quality for parole, providing an incentive for prisoners to demonstrate good behaviour while
in prison. Members of the National Parole Board review information about the offender in order to make
an assessment of the risks involved in granting parole and the fitness of the prisoners to be released.
Parole doesn’t shorten the sentence; it simply allows part of the sentence to be served in the community
under supervision. Work release allows the prisoner to work in the community under supervision. Day
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parole requires the prisoner to return to an institution or halfway house each night. Most prisoners are
eligible for full parole after serving one-third to one-half of their sentence. Those not serving life or
indeterminate sentences are entitled to statutory release after serving two-thirds of their sentence.
When a pardon is granted, a person’s record of conviction is set aside. This is important to people who
want the opportunities and privileges that other Canadians enjoy. To obtain a pardon, the offender must
demonstrate that he or she is now a law-abiding citizen.
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Activities
As you read the following situations, you may have a common reaction: “That’s not fair!” or “That’s not
just!” Each example illustrates a type of justice. The intensity of our feelings about justice and our desire
to achieve it have helped to shape history and have led to numerous controversies in both private and
public life in our communities, our nation, and the world.
Work with a study partner or in small groups to complete this exercise. As you read each of the following
examples, identify whether it raises an issue of distributive, corrective, or procedural justice. Then answer
the “What do you think?” questions.
1. In a recent court case, a man sued the driver who ran into his car for $5,000 in damages to his
automobile; $4,300 in medical bills; and $1,000 for inconveniences caused by the accident.
2. Police departments usually hire only those people who are physically able and who have had adequate
education and experience for the police force.
3. Five boys were accused of vandalizing a school on a weekend. On the following Monday, they were
brought to the principal’s office and asked if they were guilty. Two boys said they were not and had been
at the homes of friends at the time of the incident. The principal questioned their friends to check on the
boys’ stories. He then called the parents of the boys to his office to further verify their stories.
4. Before hiring a person to fill a vacancy in a governmental agency, the agency must advertise the
availability of the position and provide all applicants the opportunity to take a written examination and to
have an interview.
5. Each year the federal government gives fellowships to outstanding students under the Fulbright Act.
These fellowships pay for American students to study, conduct research, or teach in foreign countries.
6. In the 1880s, thousands of Irish immigrants came to the United States. Often they were denied
employment opportunities because of their Irish ancestry.
7. During the Middle Ages, people were sometimes forced to confess to crimes by the use of torture.
8. Tom borrowed his friend’s car and dented a fender. He agreed to pay for the repair.
9. If you are accused of a crime, the government has the obligation to provide a lawyer to assist you at
public expense if you cannot afford one.
10. Before making a decision on which textbooks to adopt, a state curriculum commission must hold public
hearings to enable interested persons or groups to present their views on the textbooks being considered.
11. In some cities, unauthorized parking in a handicap zone is punishable by a fine of $330.
12. To qualify for a driver’s license you must have an adequate knowledge of traffic laws, adequate driving
skills, and be at least a certain age.
13. Watch For Angela – A film on racism and harassment, with a focus on Aboriginal peoples (22 minutes).
1995, National Film Board of Canada.
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1. Which examples raise issues of the following types of justice?
• distributive justice
• corrective justice
• procedural justice
 restorative justice
2. What do you think is fair or unfair about each of the above situations? Explain your reasoning.
3. Think about your reasoning in the twelve examples involving issues of justice. How did you evaluate
whether the situation was fair or just?
4. What situations have you experienced or observed that raised issues of justice similar to those in the
examples?
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Biblical Justice and Restorative Justice
The Bible was a source of inspiration for many who constructed the institutions of contemporary criminal
justice. It was also a resource for some of the early practitioners of restorative justice. Its influence on
both groups continues. The following articles examine the relationship between biblical justice and
restorative justice.
The image of God in each of us could change how Christians view prison reform
from the entry by Elise Amyx on Institute for Faith, Work & Economics:
On Monday, January 26th, faith leaders gathered in Washington D.C. to discuss restorative justice
as a Christian approach to the criminal justice system. The United States is home to more
incarcerated citizens than any other nation in the entire world. With 25 percent of the world’s
prison population behind bars in the U.S., prison reform is an issue of rising bipartisan support in
Washington. It’s also a huge concern among Christian social justice advocates, especially since there
is a strong link between incarceration rates and poverty rates and reform may greatly improve
overall human well-being.
N.T. Wright on judgment
from the entry by Nils von Kalm on Soul Thoughts:
Whether we are Christians or not, whenever we think of judgment, especially with regards to
Christianity, we have this idea of judgment as being that of a wrathful, vengeful God (and as a friend
of mine pointed out to me this week, this is where the idea of penal substitution fits in to much
evangelical thinking as well). But to people who are suffering and consistently persecuted, the idea
of God coming back to bring judgment and justice is good news indeed. They see it as what it is –
the setting right of all things.
Restorative justice: A biblical view of justice
from the entry by TM Moore at ColsonCenter.org :
We are obligated to live justly toward our neighbors, and, in part, that requires that we take
appropriate preventive steps to guard his wellbeing and property. The statute cited in our text
above reflects the third facet of the Biblical teaching on justice, which we may refer to as restorative
justice. According to the Law of God, when injustice has occurred, whoever is responsible for it must
take steps to set things right again.
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Transformative Justice and “Cities of Refuge:” Miklat, Miklat Zine (REVISED)
....Another strategy for addressing transgression, mentioned in the Torah, are the Cities of Refuge
or Miklat Arei. In theory, a person accused of a serious crime, even a capital offense, could flee to
a City of Refuge and live out their life, safe from violent retribution. The Talmud states that these
cities should be evenly spaced throughout the land and accessible by wide and well-maintained
roads. At every crossroad there should be a signpost marked Miklat (Refuge). The Cities of Refuge
were not only a location for individual sanctuary but a vehicle for spiritual expiation and cleansing
of society and the land.
A chance to heal unholy wounds
from Bronwyn Pike's article in the National Times:
For many years, religious organisations have grappled with the need to improve the ways they deal
with abusive behaviour by their own clergy. In my previous role as director of social justice in the
Uniting Church during the 1990s, I worked with my colleagues to develop sexual abuse complaints
procedures. In that task I gained an appreciation of just how challenging and complex this issue can
be.
The measure with which we measure
from the article by Andrew Skotnicki in Baylor's Christian Reflections issue on Prison:
The decisive factor in overturning not only the ordeal, but the fear of Christians to will the
punishment of others, was the inauguration of systems of law—first canon law which began its
development in the late eleventh century and, in its wake, secular legal systems. With this epic
turning of the moral tide, a third factor was brought into the equation of viewing human weakness:
an offense was not only an affront to God and to the victim, it was also an affront to the law. In light
of this legal revolution, perhaps the most influential revolution in Western history, the meaning of
human acts against their fellows took on a new appellation and gravity. They were not only sins
that required forgiveness by a priest in confession, they were also crimes, and the offender had to
be punished because he or she had broken the law.
Christian critiques of the penal system
from the article by L. Lynette Parker in Baylor's Christian Reflections issue on Prison:
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....While approaching the issues from different theological and philosophical traditions, the above
authors nevertheless agree on the problems with contemporary criminal justice and together begin
to trace the outlines of a solution. The problems: institutional forces benefit from a destructive
status quo; the public view of prisoners makes citizens indifferent to their plight; and an emphasis
on individual responsibility fails to take seriously the systemic injustice that prisoners face. The
solutions: remember that prisoners, too, are made in the image of God; address the systemic causes
of crime; and learn to love the people touched by crime.
Doing justice honourably
From Janet Sim Elder's post on Per Crucem ad Lucem:
A crucial question in this election year is how do we do justice honourably with both victims and
offenders? How can recidivism continue downwards and how do public attitudes change to being
solidly evidence-based? How do we face the challenge of changing the justice landscape? Can we
provide the moral courage to help our society take steps towards a more just and merciful society?
Forgiveness scholar opens up on role of faith
from Francis X. Rocca's article in The Christian Century:
Today, at least 1,000 academic researchers and "countless therapists" specialize in forgiveness
studies, Enright said, but at the time, a library search turned up not a single piece of scholarship on
the subject in any of the social sciences. Enright found himself drawn to the area and began leading
a seminar on forgiveness at the University of Wisconsin at Madison, where he was a tenured
professor. Among the assigned readings for the seminar were selections from the scriptures of
various religious traditions. Those texts raised questions that led Enright back to back to
Christianity: first to what he describes as a liberal Methodist church, then to an evangelical
Protestant congregation, and finally back to Catholicism.
Peace Studies programmes
from the entry on PCPJ Blog:
Michael Westmoreland-White compiled this.... As a service, I thought I would list all the U.S.
colleges and universities that have programs with names like “peace studies,” “peace and global
studies,” “peacebuilding and conflict resolution studies,” etc. I found there were enough that I
decided just to list the church-related ones and do the others in a separate post. Typically, such
programs are multi-disciplinary involving faculty from several departments including international
studies, history, philosophy, religious studies, international law, economic development, and/or
political science or sociology. The earliest such programs in the U.S. were in institutions related to
the “historic peace churches” (Mennonites, Church of the Brethren, and Friends/Quakers), but it
has spread beyond them.
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A justice that reconciles -- new study guide from Caritas Aotearoa New Zealand - Harris,Scott. Learning to
Live with Evil.
N.T Wright’s latest book, Evil and the Justice of God, is an invitation to the Christian community at
large to revisit the problem of evil. As a response to his own theological journey as well as the
relatively recent barrage of international examples of evil, Wright enters into an open-ended
academic dialogue wherein he tables his own well-reasoned reflections on the topic. More
importantly, though, the pastoral quality of his writing solicits various potentially broader audiences
to consider, for themselves, whether evil is real and how scripture informs our understanding and
response to the issue. He proposes both a renewed Christian rubric for understanding and talking
about evil and teases out the implications for Christian action in three areas.
Green, Lara Michelle. An exploration of the role of spirituality in selected restorative justice programs for
youth in Ontario
While in Canada, restorative justice is rooted in Aboriginal and Judeo-Christian spiritual traditions,
little research has focussed on this area. This study sought to explore the spiritual dimension of
restorative justice. In-depth interviews were conducted with 20 respondents representing 12
different restorative justice programs in Ontario. These included: victim offender reconciliation
programs, youth justice committees, various Aboriginal justice programs and community justice
conferences. Respondents were asked a series of questions related to the role of spirituality in
restorative justice programs. The findings indicate that the question of spirituality is a very complex
one. A number of definitions of spirituality were offered. Three quarters of the respondents
indicated that there was a role for spirituality in restorative justice processes noting that for
processes to be successful, participants had to reach a meaningful level of engagement. This was
related by many of the respondents to a spiritual dimension, whether explicit or implicit in the
programs. The implications of these findings are discussed.
Sarre, Rick. Restorative Justice: Exploring its Theological Roots
As Rick Sarre notes in this article, restorative justice has been emerging within the justice systems
of a number of countries in the last decade. The key element of restorative justice, he asserts, is
the pursuit of justice practices that, as far as possible, rebuild relationships broken by crime rather
than damage them further. On this basis, Sarre explores religious roots or connections of restorative
justice in historical terms. Additionally he develops some of the possibilities for churches in seeking
to enhance restorative justice principles.
Wichert, Tim. A Mennonite Human Rights Paradigm?
Mennonites are uneasy about human rights. We have not ignored them entirely, and sometimes
use the language of rights when convenient. But human rights language tends to be a “second
language”, after the preferred language of compassion, care and community. Yet human rights have
become an integral part of the international legal system, and have been one of the most
significant, non-violent, “political” contributions to public peace, justice and order in the past 50
years. They play an important role in moderating conflicts. Human rights institutions have ensured
that there is a systematic international response to torture, unlawful detention, violence against
women, and refugees. And at a national level, legal instruments like the Canadian Charter of Rights
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and Freedoms, or the American Bill of Rights, provide the basis for a rule of law which has largely
ensured public peace, justice and order. But human rights present a significant challenge to peace
theology, which has been the primary tool for developing Mennonite responses to conflict and
victimization, especially through the preferred options of forgiveness, mercy and reconciliation. In
my view, Mennonites need to move beyond ambivalence and develop a human rights discourse to
enhance the viability of peace theology - and restorative justice - as a more universally helpful
response to conflict. A Mennonite human rights paradigm could have a significant impact on behalf
of those in need. My perspectives on human rights arise from my training in law, some time engaged
in the practice of criminal law and refugee law, and the past 13 years working with the Mennonite
Central Committee (MCC), which included a three year secondment to the Quaker United Nations
Office in Geneva, Switzerland.(excerpt)
Cavanagh, Tom. Thirsting for a Restorative Justice Rather than Execution.
We as American Catholics were called upon on Good Friday to not only oppose the death penalty
but to rebuff a justice system based on expediency and efficiency in favor of a justice system
founded on the common good, focused on the healing of the victim, offender, the families and
supporters, and all members of our communities. To do this will take great courage. Let us pray
together for courage to create peace in our communities through a restorative justice. (excerpt)
Consedine, Jim. Restorative Justice - A Gospel Response to Crime.
In dealing with issues of crime and law and order, the Church has to proclaim the age old message
that Jesus came to bring the world: “Good news to the poor, liberty to the captives, new sight to
the blind, healing fort he sick, freedom for the oppressed.” That is our mandate. The teaching of
Jesus can bring new light to bear on the difficult issues of conflict and crime in the community. They
offer grounding principles to deal with them. These will involve promoting processes based on
justice, equity, fairness and accountability. But such an approach must always be guided by wisdom,
tempered by mercy, and allow for the possibility of healing, forgiveness and reconciliation for both
victims and offenders. (excerpt).
Lapsley, Michael. The Role of Punitive Justice in Reconciling: Is this a Christian Concept?
The other thing I wanted to say, that I've been very struck in this conference by the amount of pain
and anger that is here in this community. As the Christian community, we do not often allow
ourselves sufficient space to acknowledge the feelings that we have. We're too quick to say 'That's
not appropriate as a Christian.' Too, too, too quick. And when I hear pastors saying, "How can I
preach reconciliation when I have this kind of anger?" my response is to say, "Stop preaching. Stop
preaching. Do some more listening, to others and to yourself. Work through some of that pain,
anger and frustration and desire for revenge. Wrestle with it long enough that it can begin to be
transformed and redeemed. And maybe visit it again and again, maybe visit it in a while, maybe in
six months, in a year, in another year." But particularly we who are ministers of the gospel are not
going to be of any use to others unless we wrestle with the depths of our own messed-upness, and
our own wounds. Because then we cannot be the truth if we preach a gospel that sounds sweet,
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and people see we are burning with anger. (And I just want to say also that I don't think anger is a
sin. What we do with it might be sinful, but anger is anger. It is what we feel). (excerpt)
Thorburn, Stan. Punishment and Sentencing: Courts and Community. A Question of Attitude.
In our responses and attitudes as Christians to the problem of crime and the depravity of criminal
behaviour and its perpetrators, we surely have to begin by acknowledging that every person,
criminal or not, is of such value to God that there is rejoicing amongst the angels, Jesus tells us,
when one sinner repents (Luke 15:10). (excerpt)
Siebels, Erika Bai. Restorative Justice, Real Justice
When a crime is committed, people are hurt-- not only physically and emotionally, but spiritually
too, if they harbor unforgiveness and begin doubting humanity and the system that is supposed to
bring justice. (excerpt)
Payot, Jean-Pierre. Fécondité de la violence ou quand la parole de Dieu s’en mêle
Voici la méditation proposée par Jean-Pierre Payot aux aumôniers lors de leur rencontre à Rennes
les 2 et 3 octobre 2003. Elle se présente sous la forme de ces notes très riches qui constituent une
base solide sur laquelle nous pouvons fonder notre méditation et poursuivre une réflexion
théologique. (extrait) (excerpt)
Heft, James L. Beyond violence: religious sources of social transformation in Judaism, Christianity, and
Islam
Throughout history, religion and violence have often been linked. Numerous examples may come
to mind: the entrance of the people of Israel into Canaan; Islamic conquests in the Mediterranean
region; the Crusades; the religious wars of the Reformation; recent conflicts between Catholics and
Protestants, between Jews and Muslims, and between various groups within Islam; and more. For
many people, especially in the Enlightenment in Western culture and its heirs, the link has led to
the argument that religion should be excluded from the public sphere as a force. So writes James
Heft near the beginning of the introduction to this volume of essays he has edited. However, it is
clear, he continues, that religion cannot be relegated to the sphere of the private; religion still
affects public life and global events. Against this background, a dialogue was convened at the
University of Southern California in May 2003. Representatives from Judaism, Christianity, and
Islam met to discuss this theme: “Beyond Violence: Religious Sources of Social Transformation. The
aim was to explore ways in which religion can and does foster peaceful social transformation
through reconciliation, peace, and justice. This book consists of chapters based on major
presentations by various authors at the conference. Topics include sources of violence; hope and
fear in Judaism, Christianity, and Islam; peace and mercy with respect to God; Judaism on violence
and reconciliation; religion as a force for reconciliation and peace; and Christian resources for
nonviolent peace-building.
Christiansen, Drew. Catholic Peacemaking: From Pacem in terris to Centesimus annus.
32
It is hard to identify the precise starting point of modern Catholic peacemaking. Official reckoning
assigns credit to Pope Benedict XV for his efforts to end the First World War. To Benedict, we owe
the famous phrase, 'Never again war, war never again', made famous by Pope Paul VIxe2x80x99s
1965 address before the United Nations, and repeated by Pope John Paul II on several occasions.
But, Benedictxe2x80x99s overtures were dismissed by the great powers, partly because his
proposals did not fit their interests, partly because they suspected his sympathies with Catholic
Austria, and partly because the pope himself was still a prisoner of the Vatican with reduced political
influence. Others would place the starting-point with Pope Pius XII. As a former diplomat, Pius took
exceptional interest in international affairs, promoted Catholic internationalism, and played a
significant role in Cold War politics. (extract)
Smith, Patrick J.. A Method for the Maddness: Restorative Justice as a Valid Mode of Punishment and an
Advancement of Catholic Social Thought.
Part I of this article will discuss the traditional justifications of punishment and their comparative
strengths and weaknesses. Part II will then explore a relatively new approach to punishment known
as restorative justice, analyze to what extent it is justified by traditional concepts of punishment,
and examine its compatibility with principles of Catholic Social Thought. (excerpt)
Winter, Bruce. Punishment as Remedy
Bruce Winter is a scholar of early Christianity in the Greek and Roman worlds. In this article he
reflects on a what a Christian vision of punishment looked like at the time of the early church, in
contrast to the practice of imprisonment in the Roman world. Winter begins with a sketch of the
nature and use of imprisonment in the Roman world before and at the time of the early church.
This leads to a discussion of principles from the apostle Paul’s letters that provide a basis to reflect
on the purpose of punishment. Winter concludes from Paul’s letters that punishment is not to be
an end in itself; it is meant to achieve a purpose. Specifically, punishment within the Christian
community is meant to be remedial for the offender and for the community. In this perspective,
the ultimate intention or aim is to restore fractured relationships
Marshall, Christopher D.. Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment
In Beyond Retribution, Christopher Marshall explores the New Testament for teaching on crime and
justice. He first explores the problems involved in applying ethical teachings from the New
Testament to mainstream society. He then surveys the extent to which the New Testament
addresses criminal justice issues, looking in particular at the concept of the justice of God in the
teachings of Paul and Jesus. He also examines the topic of punishment, reviewing the debate in
social thinking over the ethics and purpose of punishment-including capital punishment-and he
advocates a new concept of "restorative punishment." The result of this engaging work is a biblically
based challenge to imitate the way of Christ in dealing with both victims and offenders
Hough, Katherine Lorelle. Restorative Justice and Restorative Theology: A Dialogue.
This paper explores restorative justice in criminal law and proposes a restorative theology for
Christianity. It focuses on the process and practice of restorative in each discipline, noting the
similarities, disparities, and where one discipline might borrow, with integrity, from the other.
(author's abstract)
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James Samuel Logan. Good Punishment? Christian Moral Practice and U.S. Imprisonment
"...this book will suggest that a Christian social ethics of "good punishment" focused on the
contemporary United States practice of imprisonment can be developed through a re/constructive
critique of the "Anabaptist Methodist" Stanley Hauerwas's theological ethics of punishment. To
focus Christian social ethics on the contemporary United States practice of imprisonment, which is
now employed on an unprecedented scale, is to foreground a major obstacle to the transformation
and restoration of offenders in community as well as society at large. An assumption underlying the
effort that follows is that incapacitating and controlling socially destructive persons is a legitimate
social aim for any society wishing to preserve itself. Indeed, it would be naive to deny that in a
highly complex society at least some minimum system of justice is necessary. This includes police,
courts, and other institutions set up to adjudicate justice claims whenever some fair distribution of
goods and/or rights has been "criminally" disrupted. In addition, society must continually secure
effective ways of addressing criminal breaches of responsibility that threaten the cohesion of the
nation. Central to Christian perspectives on criminal justice is the requirement of discerning the
difference Jesus makes for Christian participation in society's understanding and carrying out of
punishment. Christian must continually struggle with how best to embrace the praxis of criminal
justice while demonstrating a politics of better hope for society. This better hope should connect
the Christian worship of God to a radically reconfigured reality of justice ushered into human history
by God's self-unveiled love and justice in the person of Jesus Christ." (excerpt)
Philpott, Daniel. The Politics of Past Evil: Religion, Reconciliation, and the Dilemmas of Transitional Justice
What unfolds in the following pages, then, is a conversation about how theology and politics are
related in the theory and practice of reconciliation, situated in the context of transitional states.
What place does reconciliation have in the politics of transition? What are the warrants for it? Four
theorists, two theologians and two philosophers draw explicitly from theological perspectives in
answering these questions. The answers are fresh angles in today’s debate. Our conversation,
though, also recognizes that reconciliation’s credibility as an approach to politics depends not only
on a theoretical foundation but also on an account of its place in the tug and haul of actual political
transition. Two political scientists and a historian, all sympathetic to the theological perspectives,
then chart the path of reconciliation, sometimes torturous, sometimes propitious, in South Africa,
Northern Ireland, Argentina, and Germany. The divide between the two sorts of inquiry is not neat.
The theorists are cognizant of contemporary political transitions; the empirically oriented scholars
are theoretically conscious. Explicating theological warrants, mapping the texture of actual political
transitions, echoing debates within these transitions, our conversation addresses a wide variety of
interlocutors, both scholarly and generalist, both with and without theological commitments.
(excerpt)
Jegen, Mary Evelyn. Just Peacemakers: An Introduction to Peace and Justice
This book offers a look at justice and peacemakers from a Christian perspective. The first two
chapters look at characteristics of Jesus and at our call to discipleship. This the foundation of our
action on behalf of justice and peace. Chapters 3 and 4 consider a Christian theology of active
nonviolence and ways in which nonviolence is practiced. Chapters 5 and deal with effective
methods of learning and with ways of personal growth in work for justice and peace. Chapters 7
and 8 deal with the multiple contexts in which we are called to ork and with some of theprofound
34
changes in our culture that impact our efforts. The final two chapters, 9 and 10, examine personal
and group ways of working for social change and look at a number of organizes peace and justice
movements. These organizations and movements enable us to work effectively with otheres, doing
together what we could never do alone. The questions at the end of each chapter may be useful
for personal study and reflection and also for conversation and discussion. (Excerpt)
Van Ness, Daniel W. Normalisation, Reintegration and Restorative Justice
Normalisation has much in common with the criminological theories of reintegration and
restorative justice. Each is concerned with easing the entry or re-entry of previously-stigmatised
individuals into the community as productive members. These movements are surfacing as a
reaction to more formalised, offender-oriented (or patient-oriented) interventions, but they also
challenge attitudes within the community. The emphasis on community reflected in each of these
movements is not new; in fact, it is expressed in Jewish and Christian traditions and in the Old and
New Testaments.
Segal, Eliezer. "Jewish perspectives on restorative justice."
In discussing Jewish perspectives with respect to restorative justice, Segal points to the central
importance of Torah in Jewish life. Torah, meaning "instruction", refers to a complex set of
commandments from God to the people of Israel. In a strict sense, Torah consists of the first five
books of the Jewish Scriptures. In a broad sense, Torah consists of those books and the subsequent
tradition of commentaries on them. Adherence or obedience to divine law or Torah is in many ways
more important than adherence to doctrine. At the same time, certain key doctrinal ideas in the
Scriptures form the foundation for the Torah way of life: humanity created in the divine image; the
common origin of all humanity; peace; liberty; love for others; the dialectical interplay of mercy and
justice; and the freedom of the will (allowing us to turn from evil). With all of this as background,
Segal discusses certain key ideas and practices in the Torah and in Jewish life that bear upon the
nature of wrongdoing and response to it: restoration; punishment; and atonement. For example,
property crimes required restoration of the stolen or damaged property, or compensation for the
property. In addition to financial penalties, possible punishments included exile, corporal
punishment, and capital punishment. It is noteworthy that rabbinic law re-interpreted many
possible forms of corporal punishment (the "eye for an eye" of Exodus 21:22-24) into a system of
compensation, and it made capital punishment very difficult to administer. Nevertheless, the Torah
did not see a fundamental inconsistency between the imposition of punishment and what we might
consider the more restorative aspects of adjudicating wrongdoing in the Torah.
Wray, Harmon. Restorative or Retributive Justice? Transforming the US Criminal Justice System
Building on what he sees as Jesus' linking of spirituality and political action, Wray presents a
restorative justice critique of a retributive criminal justice system in the U.S. Wray calls for many
changes, including a halt to increased incarceration, intermediate sanctions in juvenile justice,
victim-offender engagement, changes in sentencing, community policing, and an end to capital
punishment.
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4.8. Fallacies in legal argumentation
1. Criteria for Logical Assessment of Arguments
A. Arguments are more or less cogent. Johnson and Blair Model of Argument Cogency:
Johnson and Blair’s Model applied to the Structure of Argument

The Standard of Acceptability
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Evidence must be acceptable to the judge or audience before the argument can proceed. (common
knowledge, accepted by published sources or a recognized expert, construction of a cogent sub-argument).

The Standard of Relevance
The standard of relevance asks whether the link successfully connects the evidence to the claim.

The Standard of Sufficiency
The standard of sufficiency asks if that link is good enough to convince an audience of the claim. In other
words, does the link fully transfer the acceptability of the evidence to that of the claim?
II. Fallacies and Argument Adequacy
A. Three Basic Fallacies: One fallacy is linked to each of the three criteria mentioned above.
1. Problematic Premises. Unacceptable evidence usually results in a claim that is unsuccessful at gaining
support of the audience or judge.
1. Complete lack of evidence is a fallacy wherein the debater provides no evidence at all for his or her claim.
2. Begging the question is a fallacy that occurs in an argument when the evidence is essentially the same as
the claim. Because the evidence and the claim are the same, the argument essentially contains no evidence
at all.
Example: Murder is wrong because killing another human is wrong.
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The fallacy: The fallacy here is that the premise is used to support itself. Murder is wrong, but the
conclusion is invalid based on the premise.
3. The fallacy of incompatibility occurs when one piece of evidence is incompatible with another.
2. Irrelevant Reason: In combination with all evidence offered, this fallacy fails to minimally satisfy the
criteria of relevance.
Example: A Member of Parliament in Canada once charged, in the House of Commons, that the
Federal Department of Health and Welfare had been cooperating with the Kellogg Company in
permitting the sale of a cereal (Kellogg’s Corn Flakes) that had “little or no nutritional value.” Marc
Lalonde, then the Minister of Health seeking to rebut that charge stated: “As for the nutritional value
of Corn Flakes, the milk you have with your Corn Flakes has great nutritional value”.
1. Argument ad hominem: an attack on the arguer’s character or background that is not relevant to the
argument.
Example: Ms. Robinson argues that mandatory sentences for criminals should be lowered. Mr. Anderson
challenges Ms. Robinson because she’s a convicted felon. Therefore, Robinson can’t be trusted.
The fallacy: Mr. Anderson’s argument is fallacious. He attacks Ms. Robinson’s character. Anderson doesn’t
challenge Robinson’s idea on its merits.
2. An argument of straw: a debater construes the argument of another to be other than what it is, then,
attacks the misconstrued argument rather than the actual argument. Following the metaphor of “argument
of straw,” the debater reconstructs the original argument into a weaker argument of straw, then attacks that
argument rather than the original one.
Example: Ms. Jones argues that the United States shouldn’t fund a space program. Mr. Smith counters that
science classes are an important part of a student’s education.
The fallacy: Mr. Smith is mischaracterizing Ms. Jones’s argument to include cutting funding for science classes
in schools. Smith can’t imply that Jones also wants to stop funding science in school.
3. A red herring fallacy is another argument that shifts the focus away from the current discussion to an
argument that is similar to but different from the current argument in the hopes that the topic of the
discussion will be changed in ways that are irrelevant to the original topic. It diverts attention by sending
the audience chasing down the wrong trail after a non-issue.
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Example: The prosecution argued at trial that the defendant acted immorally. The defense attorney
asserted that morality is subjective and that there’s no single definition of morality.
The fallacy: The defense attorney diverted the conversation from the defendant’s actions to a
discussion of morality.
4. Poisoning the well is a fallacious argument that attempts to discredit a person or a source in advance of
their argument.
Example: The lawyer asked the witness, “When did you stop beating your wife?”
The fallacy: The question assumes that the witness used to beat his wife, that he stopped beating his
wife, that he’s married, and that he’s married to a woman.
5. Guilt by association is a fallacious attempt to attack a person’s argument not on the issues pertinent to
the argument, but on the basis of groups and people with whom the person is associated.
Example: Ms. Smith was convicted of armed robbery. Ms. James was friends with Smith. James was charged
with conspiracy because of her friendship with Smith.
The fallacy: Ms. James is guilty because of her association with Ms. Smith. Their relationship is not evidence
of guilt.
6. An appeal to fear involves an attempt to invoke fear to take the focus off the argument. An appeal to fear
is only fallacious when fear is used solely to shift the focus from the issue. For example,
“If we elect my opponent, we should all build bomb shelters for our families immediately and prepare to be
attacked because my opponent has very little foreign policy experience.”
7. An appeal to popularity uses the popularity of a person, product, or belief to justify a favorable conclusion
about that person, product or belief.
Example: The current trend is that defendants are representing themselves at trial. Therefore, all defendants
should represent themselves.
The fallacy: Representing yourself at trial is the right thing to do. But a decision to represent yourself is
unwarranted based on the premise.
8. An appeal to tradition attempts to argue in favor of a particular action on the grounds of tradition rather
than on the basis of the merits of that action.
Example: P1: Using the term "personne" (person) to refer to both genders is against French judicial traditions
and philosophy.
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P2: The term "homme" (man) is normally used to represent "people" in the singular term (even though the
term can mean, "man").
P3: Canadians, Quebecers and the United Nations in the name of political correctness cannot bend the French
language.
P4: The French language should not change because of pressure exerted by Quebec feminists.
So,
C: Quebecers are wrong to use the gender-neutral term for "person" instead of the word "man".
The fallacy: the first two premises may simply be explaining French judicial and language traditions without
implicitly claiming their plausibility as pieces of support in an argument.
9. Appeal to Authority
The “appeal to authority” fallacy assumes that a person who excels in one area is credible and authoritative
in unrelated areas.
Example: Ms. Peterson told Mr. Stevens, a partner at her law firm, that she had a headache. Mr. Stevens told
Ms. Peterson to take antibiotics. Peterson took the antibiotics because Stevens, a partner, must be smart.
The fallacy: Mr. Stevens is an excellent attorney. Therefore, he must know
how to treat a headache. The conclusion to take the antibiotics is unwarranted. His credibility doesn’t extend
to medicine.
10. Accent
An accent fallacy creates an ambiguity in the way a word or words are accented.
Example: A reporter asks a member of Congress whether she favors the President’s new missile-defense
system. She responds, “I’m in favor of a missile defense system that effectively defends America.”
The fallacy: Her answer could mean that she favors the President’s missile defense system or that she opposes
it because the system is not effectively defending America. She creates an ambiguity in which word is accented.
If the word “favor” is accented, her answer is likely in favor of the missile defense system. If the words
“effectively defends” are accented, she likely opposes the defense system.
11. Complex Question
The complex-question fallacy “occurs when the question itself is phrased in such a way as to presuppose
the truth of a conclusion buried in that question.”
Example: “Why is the free market so much more efficient than government regulation?”
The fallacy: The question assumes that a free market is more efficient than government regulation. A free
market might or might not be more efficient, but one may not assume a fact not yet in evidence.
12. One-Sided Argument
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When crafting arguments, it is fallacious to ignore countervailing evidence or arguments in attempting to
persuade.
Example: The reputation evidence shows that the defendant is the kind of person who’d never killed a bug.
The evidence also shows that he’s easygoing and has lots of friends. Therefore, the defendant didn’t kill his
wife.
The fallacy: The reputation evidence might be true and relevant, but countervailing evidence might refute the
conclusion.
13. Amphiboly
It’s fallacious to argue based on an ambiguity in the grammatical structure in a sentence.
Example: Ms. Smith hit and injured a person while riding his motorcycle. She should be held
accountable.
The fallacy: It’s impossible to conclude from the premise that Ms. Smith should be held accountable
for the injury. Based on the grammatical structure of the premise, we don’t know whether she was
driving the motorcycle. The ambiguity in the structure of the sentence makes the conclusion invalid.
14. Genetic Fallacy
A genetic fallacy occurs when one attempts to prove a conclusion false by condemning its source — its
genesis.
Example: Ms. White is a member of Congress. She drafted a bill that will help fund law schools.
People opposing White’s bill argue that because White lacks a law degree, the bill shouldn’t be
passed.
The fallacy: The fallacy is that people opposing the bill unfairly challenge it because White wrote it.
The opposition isn’t challenging the bill’s language or content.
15. Tu Quoque
“Tu quoque” means “you do it yourself.” Writers use tu quoque arguments when they contend that because
an individual or group is allowed to do something, everyone should be allowed to do it.
Example: Mr. Mozzarella is a member of the Departmental Disciplinary Committee for New York’s First
Judicial Department. But he violated the New York Rules of Professional Conduct last year. Therefore, it’s
acceptable to act unethically in Manhattan and the Bronx.
The fallacy: A tu quoque argument makes it impermissible to justify one wrong by another. That Mr.
Mozzarella acted unethically doesn’t entitle other lawyers to act unethically.
16. Nirvana Fallacy
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The nirvana fallacy occurs when the writer rejects a solution to a problem. The solution is rejected because
it isn’t perfect.
Example: Mr. Brown doesn’t support a new bill to reduce greenhouse gas emissions. He argues that this bill
won’t completely eliminate greenhouse gases and thus it shouldn’t be passed.
The fallacy: Mr. Brown rejects the bill because it isn’t a perfect solution. It’s fallacious to argue against a bill
on the sole ground that the bill isn’t perfect. Brown is entitled to hold out for a better bill, but he can’t logically
argue that the bill should be rejected because it doesn’t advance all his goals.
17. Etymological Fallacy
The etymological fallacy dictates that the present-day meaning of a word or phrase should be similar to
historical meaning.
Example: In Muscarello v. United States, 524 U.S. 125 (1998), the issue was how to interpret the phrase “carries
a firearm” and whether Congress intended by that term to include the notion of conveyance in a vehicle. To
define “carries,” Justice Breyer cited several dictionaries showing that the origin of the word “carries” includes
“conveyance in a vehicle.”
The fallacy: Sometimes courts look to a term’s language of origin, but these historical antecedents are not
necessarily related to contemporary usage. Historical meaning doesn’t always coincide with present-day
meaning.
18. Appeal to Consequences
This fallacy suggests that if the consequences are desirable, the proposition is true; if undesirable, the
proposition is false.
Example: If there’s objective morality, then good moral behavior will be rewarded after death. I want to be
rewarded; therefore, morality must be objective.
The fallacy: The argument doesn’t address the merits of the conclusion. The conclusion is reached by appealing
to the consequences of the result.
19. Appeal to Emotion
Appeals to emotion are frequently used tactics in arguments and fall into “the general category of many
fallacies that use emotion in place of reason in order to attempt to win the argument. It is a type of
manipulation used in place of
Example: Judges may react to the pain and anguish a given law or doctrine causes, and they may point to the
painful or existential consequences of that law as reason to change it
The fallacy: Emotions shouldn’t be the basis on which to make decisions. Appealing to emotion is a powerful
tool. But it’s logically fallacious.
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20. Appeal to Ignorance
The logical fallacy of appealing to ignorance occurs by forgetting that absence of evidence is not evidence
of absence. One can’t assume that a proposition is true or false just because some information is absent.
Example: Scientists can’t prove that aliens haven’t visited earth. Therefore, aliens must have visited earth.
The fallacy: The lack of evidence in this case is not evidence of the conclusion. The conclusion is based on a
lack of evidence.
21. Faulty Analogy The fallacy of faulty analogy occurs when items in an analogy are dissimilar. When
analogies are dissimilar, the conclusion becomes inaccurate.
Example: To illustrate an idea about security interests, Ms. Daniel relates them to the principles under which
bankruptcy contracts operate.
The fallacy: Bankruptcy contracts don’t function the same way security interests do. The items in the analogy
are dissimilar. The method of reasoning is inaccurate.
3. Hasty Conclusions
The general fallacy category of hasty conclusions is sometimes called “jumping to a conclusion.” This
general category of fallacies is one wherein all of the evidence and arguments that the debater offers, taken
in combination with one another, do not meet the test of sufficiency.
1. Hasty generalization, the first example, is a fallacy of reasoning by example. Arguments commit that
fallacy when the examples selected to support the claim are insufficient either in number or in their
representativeness.
Example: Chief Court Attorney Samson never edits draft opinions from his law department. All chief court
attorneys are lazy.
The fallacy: Because one chief court attorney doesn’t edit draft opinions, all chief court attorneys must be lazy.
Just because Mr. Samson doesn’t edit drafts doesn’t mean that he or any other chief court attorney is lazy.
Countless reasons can explain why only Samson doesn’t edit drafts.
2. Slippery slope arguments sometimes are fallacious. Using such arguments, debaters try to connect a
series of events in a causal chain that ultimately “culminate[s] in calamity”.
Contrary to popular opinion, slippery slope arguments are not necessarily fallacies. They only are fallacies
when all of the connections in the causal chain are not properly made.
Example: Tuition for school is too expensive. If the tuition increases, students won’t be able to afford it. If
students can’t afford to go to school, they’ll inevitably turn to a life of crime to make money.
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The fallacy: The conclusion relies on the slippery-slope fallacy. The premises don’t support the conclusion that
students will become criminals if they can’t afford tuition.
3. Two wrongs is a label used for a fallacy commonly called “Two wrongs don’t make a right.” As “a
misplaced appeal to consistency. A person is urged to accept or condone one thing that is wrong because
another similar thing, also wrong, has occurred or has been accepted and condoned”.
Example: a murderer criticizes a one-time burglar to no end, and the burglar finally points out the murderer’s
heinous crime.
Fallacy: The burglar obviously cannot absolve his guilt by pointing out someone else’s wrong.
4. Improper appeal to practice is a fallacy that assumes that a person is justified in doing things that are
common practice, even if that practice is clearly wrong.
Example: “Why should I pay the women in my business wages equal to men? Other businesses pay men more
so I should be able to do the same.”
5. Fallacy of composition is a fallacy in which the evidence is drawn from some part of a whole, but the
conclusion is about the whole.
Example: The plaintiff’s case relies solely on circumstantial evidence. No witness for the prosecution showed
that the defendant committed the crime. Therefore, the prosecution didn’t prove its case beyond a reasonable
doubt.
The fallacy: Although no single witness offered sufficient evidence to convict the defendant, the totality of the
circumstantial evidence might be enough for a conviction
6. Fallacy of division involves a fallacious argument in which the evidence is drawn from the whole, but
the conclusion is about a part of the whole. The argument assumes that what is true of the whole must be
true of its constituent parts.
Example: The defendant was part of a cult. The cult is known for committing violent acts. Therefore, the
defendant is a violent person.
The fallacy: The defendant must be a violent person because he’s part of the cult. The fallacy of division suggests
that the defendant is violent because the cult he’s a part of is violent.
7. False Cause - Post hoc fallacy, also called by its Latin name post hoc, ergo propter hoc, which means
“after this, therefore before this.” This fallacious argument assumes that, because one thing predates
another, the first must have caused the second.
Example: Every time I brag about how well I write, I submit a document with lots of typos.
The fallacy: If you don’t brag about your writing, you’ll submit typo-free documents. No causal link connects
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bragging and submitting typo-free documents.
8. Non Causa Pro Causa
This fallacy occurs when the writer incorrectly assumes an effect from a cause.
Example: I forgot my umbrella today. Therefore, it’ll rain today.
The fallacy: The speaker invalidly concludes it’ll rain. It’s impossible to conclude from the initial premise that
it’ll rain.
9. Circular Reasoning
Circular reasoning is used when the writer assumes the truth of what one seeks to prove in the very effort
to prove it.
Example: The defense attorney argues this in summation: “My client couldn’t have committed this crime. He
isn’t a criminal.”
The fallacy: The fallacy in the argument — even though reputation evidence is admissible — is that the
defendant is innocent just because he’s not a criminal. The logic is circular. Circularity is an invalid method of
reasoning.
10. Scapegoating
Scapegoating passes to another target the blame for an unfortunate event.
Example: The Widget Company manufactures cars. Widget didn’t properly inspect its brakes in the cars. As a
result, the brakes in Widget’s cars were faulty. The faulty brakes caused many injuries. Widget blamed the
Application Company for the faulty brakes. Application manufactured the brakes for Widget’s cars.
The fallacy: The Widget Company’s argument relies on the scapegoating fallacy. Widget should have inspected
the cars it sold. Widget passed the blame on to the Application Company because Application manufactured
the faulty brakes.
References:


Johnson, R. H. & Blair, J. A., Logical Self-Defense, McGraw-Hill Ryerson, Toronto. (1st U.S.
edition of 1994 reissued in 2006 by the International Debate Education Association, New York.)
Gerald Lebovits, Say It Ain’t So: Leading Logical Fallacies in Legal Argument–Part 2, Fordham
University
School
of
Law,
September
2016,
available
at
https://works.bepress.com/gerald_lebovits/298
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