Criminal law in Canada

Criminal law in Canada

Criminal law in Canada is under the exclusive 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.

There remains, however, a parallel power of the provincial government to “administer” the justice system, which gives the provinces power to enforce and prosecute laws. In addition, this gives the provinces the power to enact quasi-criminal offences. The administration of justice and penal matters are under the jurisdiction of the provinces, so each province administers most of the criminal and penal law through provincial and municipal police forces.


The Criminal Code of Canada sets out the majority of criminal offences and statutory defences (see [ Criminal Code ( R.S., 1985, c. C-46 )] ). It also sets out the procedure to be followed in criminal trials. Drug offences are set out in the Controlled Drugs and Substances Act and the Food and Drugs Act. Offences committed by persons aged 12 through 17 (that is to say, 12 or older but less than 18) fall under the Youth Criminal Justice Act, which prescribes different procedures and penalties for young persons. Persons under the age of 12 cannot be charged with an offence.

Evidentiary matters in criminal trials are controlled by the common law and the Canada Evidence Act.


A person may be prosecuted criminally for any offences found in the "Criminal Code" or any other statute containing criminal offences. [In constitutional terms, a criminal offence was defined in the "Margarine Reference"]

There are three types of offences. The most minor offences are summary conviction offences. They are defined as "summary" within the Act and are punishable by a fine of no more than $2,000 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 offences. 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 that the prosecuting crown to prove that there was criminal conduct (known as the "actus reus" or "external element") accompanied by a criminal state of mind (known as the "mens rea" or "fault element") [See "R. v. Beaver"] on a standard of "beyond a reasonable doubt". [ see "R. v. Lifchus" for description of the standard] 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. [each of which must be proven beyond a reasonable doubt".]

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. 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.


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 affords 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 [see "R. v. Ruzic"] , automatism ["R. v. Stone"] , intoxication [which affords a full defence only to offences of "general intent" and in some instances a partial defence to offences of specific intent (eg. reducing murder to manslaughter). When the accused establishes on a balance of probabilities he was intoxicated to the point of being in a mental state akin to automatism or a mental disorder, a related defence of extreme intoxication "may" fully excuse even a general intent offence, although Parliament has attempted to foreclose that defence by enacting s.33.1 of the Criminal Code. Whether s.33.1 will survive scrutiny under the Charter of Rights is still an open question in Canada. Some lower courts have struck it down and others have upheld it - see "R. v. Daviault"] , or necessity ["R. v. Perka" and "R. v. Latimer"] . 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 defencesndash whether one is speaking of true defences or defences in the broader sensendash 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.

Young offenders

Criminal law matters relating to young persons (those aged 12 through 17) are dealt with by the "Youth Criminal Justice Act" 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.


ee also

* Law enforcement in Canada
* Law of Canada
* [ Criminal Code ( R.S., 1985, c. C-46 )]

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