The Criminal Code of Canada Exemplifies many examples of the Positive School, such as, the dangerous offender clause, found in sections 752 – 761. This clause is a law derived from the Positive School because of a number of rules and principles, which have been used by the Positive School theorists, are eminent. Some views which could only be explained in the Positive sense are things such as “part of a pattern or dangerous behavior or an pattern of aggressive behavior or that the current crime is so brutal as to indicate future dangerous behavior or the offence indicates a future inability to control sexual impulses”. (Criminal Code, sec. 752 – 761). If the court finds the offender to be a “dangerous offender” he or she will be held in a penitentiary for an indeterminate period of time. The offender will only be released when the National parole board has certified that he or she is no longer a threat to society, and no longer a dangerous offender. These rules also revolve around the notion that there is a cause for crime other than hedonism’ like Beccaria had explained. Lomborso believed that there were multiple factors in the causation of crime (Vold, Bernard, 1986) therefore the Positive School view on crime was to find the causes for criminal behavior and intervene before offences could occur. Also to treat offenders, until they were deemed not harmful to society, rather than punish them for making a wrong decision.
The use of indeterminate sentencing is crucial, in the distinction between the Positive and Classical School’s. There can be no use of an indeterminate sentence to fulfill the theory on deterrence, where as “the prevention in which the threat of punishment or retribution is expected to forestall some act from occurring.” (Sacco, Kennedy, 2002). Indeterminate sentencing shows a direct opposition to that of the Classical school theory’s by giving an indeterminate sentence and not acknowledging the theory of “hedonism”. Therefore the “dangerous offender” clause can only be classified in the Positive School and not the Classical School.
The Positive School’s views are showcased again in several ways, in section 810, of the criminal code “Peace Bond”. Which states: “ a person who fears that another person will cause personal injury to him (or his spouse or children) may ask the justice of the peace or summary conviction court to issue an order requiring the feared person to enter a recognizance which will ensure the peace” (Sacco, Kennedy, 2002). The Peace Bond is an excellent example of the law intervention between two parties that may otherwise lead to an offense being committed. Lombroso’s quest to find the cause of crime is perfectly illustrated with the intervention between the plaintiff and the feared person, which otherwise would have most likely would have resulted in a crime without the use of the “Peace Bond”. The Positive School is also shown in the punishment for the breach of a peace bond. Which state in the criminal code that if the peace bond or any of the conditions set out by the court are broken, it can result in the feared person being jailed for up to a year (Criminal Code, sec. 810). This is another example of an indeterminate sentence, which could not be associated with the Classical Schools’ theories on punishment.
The use of indeterminate sentencing, and quest for intervention by the use of examples, other than deterrence, have shown that the “dangerous offender” clause, and the “ peace bond” are classified as examples of the Positive School theory’s being put use. The certainty of punishment is not prevalent in these examples of the criminal code; therefore neither of these laws can be classified as laws derived mainly from the Classical School theorists. However the two schools’ are not as contradictory and they may seem, and today’s laws are derived from a meshing of both Classical and Positive Schools’ to try and find they best ways to intervene, deter, combat against crime as we know it.
