Criminal law in Canada
Encyclopedia
The criminal law of Canada is under the exclusive legislative jurisdiction of the federal government
. The power to enact criminal law is derived from section 91(27)
of the Constitution Act, 1867
. Most criminal laws have been codified in the Criminal Code of Canada
, as well as the Controlled Drugs and Substances Act
, Youth Criminal Justice Act
, and several other peripheral Acts.
The provinces do not have the authority to enact criminal law. However, the federal Parliament has delegated the prosecutorial function to the provincial Attorneys General, ensuring that the administration of the criminal law is decentralised across Canada. As well, section 92(15) of the Constitution Act, 1867 gives the provinces the authority to enact regulatory offences, for the enforcement of provincial regulatory laws. The administration of justice and penal matters are under the jurisdiction of the provinces, so each province enforces most of the criminal and penal law through provincial and municipal police forces.
There are three types of offences. The most minor offences are summary conviction offences. They are defined as "summary" within the Act and, unless otherwise stated, are punishable by a fine of no more than $5,000 and/or 6 months in jail. Examples of offences which are always summary offences include trespassing at night (section 177), causing a disturbance (s.175) and taking a motor vehicle without the owner's consent (s.335).
The most serious are the indictable offence
s. Examples of offences which are always indictable include murder (s.235), robbery (s.344) and break and enter of a dwelling-house (s.348(1)(a)). The available penalties are greater for indictable offences than for summary offences.
Most offences defined by the Criminal Code are hybrid offences, which allow the prosecution to elect whether to prosecute the offence as a summary or an indictable offence. Until the Crown elects the offence is treated as indictable.
In most cases where the offence is an indictable offence (or a hybrid offence where the Crown chooses to prosecute the offence as an indictable offence), the accused person can elect whether to be tried by a provincial court judge, by a judge of the higher court of the province without a jury or by a judge of the higher court with a jury. In cases described by section 553 of the Criminal Code, the accused person does not have an election and must be tried by a judge of the provincial court without a jury. As per sections 471 and 472 of the Criminal Code, if the offence is listed in section 469, then the accused person does not have an election, and must be tried by a judge of the higher court with a jury (unless both the accused person and the prosecutor consent to a trial by a judge of the higher court without a jury).
or "external element") accompanied by a criminal state of mind (known as the mens rea
or "fault element") on a standard of "beyond a reasonable doubt
". Exception to the mens rea requirement for strict
and absolute liability
offences.
The specific elements of each offence can be found in the wording of the offence as well as the case law interpreting it. The external elements typically require there to be an "act", within some "circumstances", and sometimes a specific "consequence" that is caused by the action.
A true defence arises when some circumstances afford the accused a partial or complete justification or excuse for committing the criminal act. In Canada, the defences are generally similar to standard and popularly understood defences of other common law jurisdictions such as the U.K., Australia and the United States. The true defences include duress
, automatism
, intoxication
, or necessity
. There is also a partial defence of provocation, which has the effect of reducing what would otherwise be murder to manslaughter. This partial defence is provided by s.232 of the Criminal Code.
Some defences are provided for by statute and some defences are provided for solely by the common law. In some cases common law defences are superseded by statutory enactment, for example duress, self-defence and as mentioned above, extreme intoxication. Interestingly, in the case of duress the Supreme Court of Canada struck down the statutory provision as violative of s.7 of the Charter, leaving the broader common law defence instead. Statutory encroachments on the scope of common law defences can violate s.7 of the Charter if they unacceptably reduce the fault requirement of offences.
In addition to the true defences as mentioned above, there are other "defences" in a broader sense. In some cases, these "defences" are really just an assertion that the Crown has not proven one of the elements of the offence. For example, the mistake of fact defence involves an assertion that the accused misunderstood some material factual matter that prevented him from forming the requisite mens rea for the offence. In the context of sexual assault, for example, a mistake of fact defence usually involves an assertion that the accused did not realize the complainant was not consenting. Since the mens rea for sexual assault includes a subjective appreciation of the fact that the complainant is not consenting, the "defence" of mistake of fact in this context is thus properly understood as a failure on the part of the Crown to prove its case. In practical terms and common parlance, however, it is still considered to be a defence. Another example of this more general kind of defence is the "i.d. defence", which is really just an assertion by the accused that the Crown has failed to prove the identity of the perpetrator of a crime beyond a reasonable doubt. There are many other examples of this kind of defence. In reality they are just clusters of specific shortcomings that arise frequently in the prosecution of certain kinds of offences.
All defences whether one is speaking of true defences or defences in the broader sense can arise from the evidence called by the Crown or the accused. A defence can only be left with the jury (or considered by a judge trying the case without a jury) where there is an "air of reality" to the defence on the evidence. That air of reality can arise from the Crown's case and/or from the defence case if one is called. It is not necessary for an accused to testify or call other evidence to raise a defence. If the evidence called by the Crown is sufficient to raise an air of reality to a defence, the jury must consider whether the defence applies, most on the standard of whether it raises a reasonable doubt. For example, in an assault case it may be that one of the Crown's eyewitnesses testifies that it looked to him like the victim punched the accused first and that the accused was defending himself. In such a case, even if all the other eyewitnesses saw the accused punch first, the jury must consider whether on all of the evidence it has a reasonable doubt that the accused acted in self-defence.
There is an even broader sense of the word "defence". Sometimes the defence will raise an issue capable of leading either to the termination of the proceedings or the exclusion of evidence. For example, in a drug case the accused might argue that the search warrant by which the police entered his house and seized the drugs was defective and that his constitutional rights were therefore violated. If he is successful in establishing such a violation, the evidence can be excluded, and usually the Crown cannot otherwise prove its case. When this sort of thing happens, it is not really a defence at all, since the accused must establish it in a separate pre-trial application. Nevertheless, lawyers often refer to such applications as a "Charter defence" in reference to the Charter of Rights.
Other forms of Charter defence can lead not to the exclusion of evidence but to the termination of the proceedings, known as a stay of proceedings. For example, if the accused is not brought to trial within a reasonable time, the proceedings must be stayed for delay by virtue of ss.11(b) and 24(1) of the Charter. Stays of proceedings can also take place in the absence of a Charter violation. For example, the familiar "defence" of entrapment is neither a true defence nor necessarily a Charter breach. When entrapment is successfully established, the proceedings are deemed to be an "abuse of process" for which the remedy is a stay of proceedings. Cases of abuse of process arise in certain other circumstances, and they can also can involve Charter breaches, and there is significant overlap.
Finally, ignorance of the law is not a defence. Section 19 of the Criminal Code specifically prohibits this defence. However, in rare cases ignorance of a law other than the one under which the accused is charged can be a defence if knowledge of that law is a relevant circumstance required to be proved as part of the actus reus and/or mens rea.
An order made by a Justice may be appealed to a superior court by either the Crown or the accused.
There is no appeal from an order of a judge. However, either party may seek review of the order in the superior court by way of certiorari.
If the accused is charged with an offence punishable by summary conviction or if the Crown elects to proceed by summary conviction if the accused is charged with a hybrid offence, the accused is not entitled to a preliminary inquiry and is immediately committed to trial.
At this stage the trial court has all the authority to determine matters such as bail, preliminary motions, trial matters and the verdict. If the trial is by judge and jury, the jury has the ultimate authority to render a verdict but the trial judge has the authority over bail, pretrial motions and jury instructions.
Either party is entitled to a further appeal to the Supreme Court of Canada against a conviction or acquittal if a judge of the court of appeal dissented on a question of law or if the court of appeal allowed a Crown appeal against an acquittal and substituted a conviction. Otherwise either party may appeal a verdict or sentence with leave of the Supreme Court of Canada.
Informally, mental health can also be dealt with by alternative measures, through "mental health diversion". Mental health diversion will usually require a plan of supervision with the assistance of mental health social workers and professionals.
which provides for different procedures and punishments than those applicable to adults. It also provides that in some serious cases youths may be treated like adults for sentencing and other purposes.
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
. The power to enact criminal law is derived from section 91(27)
Criminal law under the Constitution Act, 1867
In Canadian Constitutional law, the Constitution Act, 1867 provides the government with the authority to legislate on matters of criminal law and quasi-criminal law. The primary criminal law power is granted to the federal government under section 91...
of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. Most criminal laws have been codified in the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
, as well as the Controlled Drugs and Substances Act
Controlled Drugs and Substances Act
The Controlled Drugs and Substances Act is Canada's federal drug control statute. Passed in 1996 by the Chrétien government, it repeals the Narcotic Control Act and Parts III and IV of the Food and Drug Act and establishes eight Schedules of controlled substances and two Classes of precursors...
, Youth Criminal Justice Act
Youth Criminal Justice Act
Canada's Youth Criminal Justice Act is a Canadian statute, which came into effect on April 1, 2003. It covers the prosecution of youths for criminal offences...
, and several other peripheral Acts.
The provinces do not have the authority to enact criminal law. However, the federal Parliament has delegated the prosecutorial function to the provincial Attorneys General, ensuring that the administration of the criminal law is decentralised across Canada. As well, section 92(15) of the Constitution Act, 1867 gives the provinces the authority to enact regulatory offences, for the enforcement of provincial regulatory laws. The administration of justice and penal matters are under the jurisdiction of the provinces, so each province enforces most of the criminal and penal law through provincial and municipal police forces.
Prosecution
A person may be prosecuted criminally for any offences found in the Criminal Code or any other federal statute containing criminal offences.There are three types of offences. The most minor offences are summary conviction offences. They are defined as "summary" within the Act and, unless otherwise stated, are punishable by a fine of no more than $5,000 and/or 6 months in jail. Examples of offences which are always summary offences include trespassing at night (section 177), causing a disturbance (s.175) and taking a motor vehicle without the owner's consent (s.335).
The most serious are the indictable offence
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
s. Examples of offences which are always indictable include murder (s.235), robbery (s.344) and break and enter of a dwelling-house (s.348(1)(a)). The available penalties are greater for indictable offences than for summary offences.
Most offences defined by the Criminal Code are hybrid offences, which allow the prosecution to elect whether to prosecute the offence as a summary or an indictable offence. Until the Crown elects the offence is treated as indictable.
In most cases where the offence is an indictable offence (or a hybrid offence where the Crown chooses to prosecute the offence as an indictable offence), the accused person can elect whether to be tried by a provincial court judge, by a judge of the higher court of the province without a jury or by a judge of the higher court with a jury. In cases described by section 553 of the Criminal Code, the accused person does not have an election and must be tried by a judge of the provincial court without a jury. As per sections 471 and 472 of the Criminal Code, if the offence is listed in section 469, then the accused person does not have an election, and must be tried by a judge of the higher court with a jury (unless both the accused person and the prosecutor consent to a trial by a judge of the higher court without a jury).
Elements of an offence
Criminal offences require the prosecuting crown to prove that there was criminal conduct (known as the actus reusActus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
or "external element") accompanied by a criminal state of mind (known as the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
or "fault element") on a standard of "beyond a reasonable doubt
Beyond a Reasonable Doubt
Beyond a Reasonable Doubt is a 1956 film directed by Fritz Lang and written by Douglas Morrow. The film, considered film noir, was the last American film directed by Lang.-Plot:...
". Exception to the mens rea requirement for strict
Strict liability (criminal)
In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offence...
and absolute liability
Absolute liability
Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action, but also have had a deliberate intention or guilty mind...
offences.
The specific elements of each offence can be found in the wording of the offence as well as the case law interpreting it. The external elements typically require there to be an "act", within some "circumstances", and sometimes a specific "consequence" that is caused by the action.
Mens Rea
The mental or fault elements of an offence are typically determined by the use of words within the text of the offence or else by case law. Mens Rea in Canada typically focuses on the actual or 'subjective' state of mind of the accused. Where no standard is explicitly stated conduct must typically be proven to have been done with a general intent (i.e. intent to act in a certain way irrespective of the action's outcome). Where certain circumstances are part of the offence, the accused must have had knowledge of them, which can be imputed based on conduct and other evidence.Defences
When the Crown is able to prove the elements of the offence beyond a reasonable doubt, the defence may still avoid conviction by raising a positive defence.A true defence arises when some circumstances afford the accused a partial or complete justification or excuse for committing the criminal act. In Canada, the defences are generally similar to standard and popularly understood defences of other common law jurisdictions such as the U.K., Australia and the United States. The true defences include duress
Duress
In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...
, automatism
Automatism (case law)
Automatism is a rarely used criminal defence which denies that the accused was criminally responsible for his or her actions. The term automatism was first used in the trial of Harrison-Owen in 1951, although accused persons had been exonerated on grounds of automatic behaviour before then e.g...
, intoxication
Intoxication
Substance intoxication is a type of substance-induced disorder which is potentially maladaptive and impairing, but reversible, and associated with recent use.If the symptoms are severe, the term "substance intoxication delirium" may be used.-Classification:...
, or necessity
Necessity
In U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when...
. There is also a partial defence of provocation, which has the effect of reducing what would otherwise be murder to manslaughter. This partial defence is provided by s.232 of the Criminal Code.
Some defences are provided for by statute and some defences are provided for solely by the common law. In some cases common law defences are superseded by statutory enactment, for example duress, self-defence and as mentioned above, extreme intoxication. Interestingly, in the case of duress the Supreme Court of Canada struck down the statutory provision as violative of s.7 of the Charter, leaving the broader common law defence instead. Statutory encroachments on the scope of common law defences can violate s.7 of the Charter if they unacceptably reduce the fault requirement of offences.
In addition to the true defences as mentioned above, there are other "defences" in a broader sense. In some cases, these "defences" are really just an assertion that the Crown has not proven one of the elements of the offence. For example, the mistake of fact defence involves an assertion that the accused misunderstood some material factual matter that prevented him from forming the requisite mens rea for the offence. In the context of sexual assault, for example, a mistake of fact defence usually involves an assertion that the accused did not realize the complainant was not consenting. Since the mens rea for sexual assault includes a subjective appreciation of the fact that the complainant is not consenting, the "defence" of mistake of fact in this context is thus properly understood as a failure on the part of the Crown to prove its case. In practical terms and common parlance, however, it is still considered to be a defence. Another example of this more general kind of defence is the "i.d. defence", which is really just an assertion by the accused that the Crown has failed to prove the identity of the perpetrator of a crime beyond a reasonable doubt. There are many other examples of this kind of defence. In reality they are just clusters of specific shortcomings that arise frequently in the prosecution of certain kinds of offences.
All defences whether one is speaking of true defences or defences in the broader sense can arise from the evidence called by the Crown or the accused. A defence can only be left with the jury (or considered by a judge trying the case without a jury) where there is an "air of reality" to the defence on the evidence. That air of reality can arise from the Crown's case and/or from the defence case if one is called. It is not necessary for an accused to testify or call other evidence to raise a defence. If the evidence called by the Crown is sufficient to raise an air of reality to a defence, the jury must consider whether the defence applies, most on the standard of whether it raises a reasonable doubt. For example, in an assault case it may be that one of the Crown's eyewitnesses testifies that it looked to him like the victim punched the accused first and that the accused was defending himself. In such a case, even if all the other eyewitnesses saw the accused punch first, the jury must consider whether on all of the evidence it has a reasonable doubt that the accused acted in self-defence.
There is an even broader sense of the word "defence". Sometimes the defence will raise an issue capable of leading either to the termination of the proceedings or the exclusion of evidence. For example, in a drug case the accused might argue that the search warrant by which the police entered his house and seized the drugs was defective and that his constitutional rights were therefore violated. If he is successful in establishing such a violation, the evidence can be excluded, and usually the Crown cannot otherwise prove its case. When this sort of thing happens, it is not really a defence at all, since the accused must establish it in a separate pre-trial application. Nevertheless, lawyers often refer to such applications as a "Charter defence" in reference to the Charter of Rights.
Other forms of Charter defence can lead not to the exclusion of evidence but to the termination of the proceedings, known as a stay of proceedings. For example, if the accused is not brought to trial within a reasonable time, the proceedings must be stayed for delay by virtue of ss.11(b) and 24(1) of the Charter. Stays of proceedings can also take place in the absence of a Charter violation. For example, the familiar "defence" of entrapment is neither a true defence nor necessarily a Charter breach. When entrapment is successfully established, the proceedings are deemed to be an "abuse of process" for which the remedy is a stay of proceedings. Cases of abuse of process arise in certain other circumstances, and they can also can involve Charter breaches, and there is significant overlap.
Finally, ignorance of the law is not a defence. Section 19 of the Criminal Code specifically prohibits this defence. However, in rare cases ignorance of a law other than the one under which the accused is charged can be a defence if knowledge of that law is a relevant circumstance required to be proved as part of the actus reus and/or mens rea.
Information
A person who alleges an offence, generally the police, swear under oath the facts supporting the charge. A Justice of the Peace at that point shall issue an Information. This is a document which contains the specific allegations. Under a private prosecution a hearing may be held and the Attorney General of the province in which the proceedings are taking place may intervene. Private prosecutions in Canada are usually restricted to regulatory offences such as practicing law without a licence and cruelty to animals.Bail
Most accused persons are released at the time of arrest on a promise to appear. Where the police decide to hold the accused, the police must produce the accused before a Justice of the Peace within 24 hours. At that point a bail hearing will be held. An accused person generally does not bear the onus justifying release, subject to a few exceptions, such as if the accused is charged with murder, trafficking in narcotics, terrorism offences (see Bail in Canada). An accused may be released or detained pending the trial and, if found guilty, the passing of sentence.An order made by a Justice may be appealed to a superior court by either the Crown or the accused.
Preliminary Inquiry
Where the accused is charged with an indictable offence, the Crown must prove a prima facie case before a judge of a provincial court. This process must be requested by the accused. The presiding judge must determine whether there is sufficient evidence for a jury, acting reasonably and judicially, to convict the accused. The judge may neither weigh the evidence nor determine whether the evidence is admissible. If the judge determines there is sufficient evidence for a jury acting reasonable and judicially to convict the accused, the judge must commit the accused to stand trial. If not, the judge must discharge the accused and the proceedings end. However, if at a later date the Crown tenders further evidence, the Crown may recommence the proceedings. A discharge at a premininary inquiry does not constitute double jeopardy.There is no appeal from an order of a judge. However, either party may seek review of the order in the superior court by way of certiorari.
If the accused is charged with an offence punishable by summary conviction or if the Crown elects to proceed by summary conviction if the accused is charged with a hybrid offence, the accused is not entitled to a preliminary inquiry and is immediately committed to trial.
Trial
The accused is tried at this stage. Where the accused is charged with an offence and has elected to be tried in provincial court, the judge may decide that the matter ought to be dealt with in the superior court and treat the trial as a preliminary inquiry and remand the accused to stand trial in the superior court.At this stage the trial court has all the authority to determine matters such as bail, preliminary motions, trial matters and the verdict. If the trial is by judge and jury, the jury has the ultimate authority to render a verdict but the trial judge has the authority over bail, pretrial motions and jury instructions.
Sentencing
If the accused is found guilty the trial judge must determine a fit sentence. Where the trial is by judge alone, the judge will determine all facts which were proven and allow the parties to adduce additional evidence concerning disputed facts which may form the basis for finding aggraviting or mitigating circumstance (i.e. the extent of injuries sustained by a victim). The Crown must prove an aggravating fact beyond a reasonable doubt while the accused bears a burden on a balance of probabilities to prove a mitigating fact.Appeal
The Crown may appeal against a verdict of acquittal on a question of law alone. The accused may appeal on a question of law, fact or mixed law and fact. Either party may appeal a sentence unless the sentence is one fixed by law.Either party is entitled to a further appeal to the Supreme Court of Canada against a conviction or acquittal if a judge of the court of appeal dissented on a question of law or if the court of appeal allowed a Crown appeal against an acquittal and substituted a conviction. Otherwise either party may appeal a verdict or sentence with leave of the Supreme Court of Canada.
Mental health issues
Mental health issues with a defendant in criminal proceedings are formally dealt with in two ways: whether the defendant is "fit to stand for trial", and the verdict of "not criminally responsible on account of mental disorder". For more information, see Fitness Law in Canada, Insanity Defence. Fitness to stand for trial and Mental disorder defence#Canada.Informally, mental health can also be dealt with by alternative measures, through "mental health diversion". Mental health diversion will usually require a plan of supervision with the assistance of mental health social workers and professionals.
Young offenders
Criminal law matters relating to young persons (those aged 12 through 17) are dealt with by the Youth Criminal Justice ActYouth Criminal Justice Act
Canada's Youth Criminal Justice Act is a Canadian statute, which came into effect on April 1, 2003. It covers the prosecution of youths for criminal offences...
which provides for different procedures and punishments than those applicable to adults. It also provides that in some serious cases youths may be treated like adults for sentencing and other purposes.
See also
- Law enforcement in Canada
- Law of CanadaLaw of CanadaThe Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
- Bail (Canada)Bail (Canada)Bail in Canada refers to the release of a person charged with a criminal offence prior to being sentenced. A person may be released by a peace officer or by the courts. A release on bail by the courts is officially known as a judicial interim release. There are also a number of ways to compel a...