The criminal law of 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.
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Legislation
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.
Prosecution
A person may be prosecuted criminally for any offences found in the Criminal Code or any other federal statute containing criminal offences.[1]
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 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 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")[2] on a standard of "beyond a reasonable doubt".[3] 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.[4]
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.
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 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[5], automatism[6], intoxication[7], or necessity[8]. 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.
Court Proceedings
Information
Generally, criminal proceedings begin when an Information is sworn by an Informant before a Justice of the Peace.[9] An Information is put before the provincial court, which is generally where a defendant is first required to appear. Generally, the provincial court only has jurisdiction to proceed if there is a valid Information before the court.
The Information states what charges the Informant reasonably believes the defendant committed. It states the name of the defendant, the date and location of the offences, and the offences themselves. The Information is then used to record what transpires in court.
Although the Informant is usually a police officer, anyone is allowed to swear an Information. If the Informant is not a police officer, a hearing will take place first to determine if there is enough evidence to support the charges.
If the offence is a summary conviction offence (or a hybrid offence where the Crown elects to proceed by summary conviction), there is a limitation period of six months on the swearing of an Information.[10] There is no limitation period for indictable offences (or hybrid offences where the Crown elects to proceed by indictment).
Indictment
If the offence is an indictable offence (or is a hybrid offence where the Crown elects to proceed by indictment), and the defendant elects to have his or her trial in the superior court (either with a jury or judge-alone), a preliminary inquiry is held by a provincial court judge to determine if there is enough evidence to support the charge.[11] The normal rules of evidence apply.
If the judge decides there is enough evidence, they are required to "commit" the defendant to trial on the charges that have been made out (including any lesser included offenses). The judge "discharges" the defendant on any charges not made out. The judge may also commit the defendant on any other indictable offence that arose out of the same transaction. There is no appeal from the judge's decision, although either party can apply to the superior court to review whether the judge exceeded their jurisdiction (see Certiorari).
Once a defendant has been committed for trial, the Crown can "prefer an indictment", which essentially means filing an indictment with the court. [12]. The indictment's role in the superior court is the same as the Information's role in the provincial court.
The Crown can skip a preliminary inquiry and prefer a "direct indictment", but that power requires the personal consent of the Attorney General, and is usually exercised rarely.
Arraignment
When the defendant decides to plead guilty, or the trial is ready to start and the defendant is ready to plead not guilty, the court reads the charges to the defendant from the Information or indictment, and the defendant is asked how they plead. If the defendant chooses not to enter a plea, the court enters a plea of not guilty on their behalf. [13].
A plea of guilt can only be accepted if: (1) the defendant is making the plea voluntarily, (2) the defendant understands that he is admitting the essential elements of the offence, (3) the defendant understands the nature and consequences of the plea, and (4) the defendant understands the court is not bound by any agreement between the defence and the Crown.
If the plea is not guilty, the trial proceedings begin. If the plea is guilty, the facts supporting the plea are read in, and a sentencing hearing begins.
Sentencing
Appeals
Appeals can only be commenced after the trial has been completed (which includes sentencing).
If the offence is a summary conviction offence (or a hybrid offence where the Crown elected to proceed summarily), the appeal is heard by the superior court. Either party may appeal that decision to the province's Court of Appeal with leave of the court.
If the offence is an indictable offence (or a hybrid offence where the Crown elected to proceed by indictment), the appeal is heard by the province's Court of Appeal. Leave of the court is required for sentence appeals.
In all cases, either party can appeal the Court of Appeal's decision to the Supreme Court of Canada - either with leave of Supreme Court, or by right if there was a dissenting opinion at the Court of Appeal.
Alternative measures
Alternative measures (sometimes referred to as "diversion" or "extra-judicial measures") is, in fact, an alternative to court proceedings. [14]
Alternative measures are usually reserved for minor offences (such as first-time minor shoplifting). If the Crown offers alternative measures and the defendant agrees, the defendant is required to accept responsibility for the offence, and will have to complete either a program, counseling, and/or community service. An administrative fee may be required. Once completed, the Crown will either withdraw or stay the charges.
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 of account of mental disorder". For more information, see 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 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.
Notes
- ^ In constitutional terms, a criminal offence was defined in the Margarine Reference
- ^ See R. v. Beaver
- ^ see R. v. Lifchus for description of the standard
- ^ each of which must be proven beyond a reasonable doubt".
- ^ see R. v. Ruzic
- ^ R. v. Stone
- ^ Which affords 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 rare 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
- ^ R. v. Perka and R. v. Latimer
- ^ Criminal Code of Canada: Information, Summons and Warrant
- ^ Criminal Code of Canada: Summary Convictions - Interpretation
- ^ Criminal Code of Canada: Procedure on Preliminary Inquiry
- ^ Criminal Code of Canada: Preferring Indictment
- ^ Criminal Code of Canada: Pleas
- ^ Criminal Code of Canada: Alternative Measures
See also
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