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, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act, and several other peripheral Acts. The Canada wordmark, used by most agencies of the Canadian federal government. ... 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 Constitution Act, 1867 (formerly called the British North America Act, 1867, and still known informally as the BNA Act), constitutes a major part of Canadas Constitution. ... The Canadian Criminal Code (formal title An Act respecting the Criminal Law) is the codification of most of the criminal offences and procedure in Canada. ... The Controlled Drugs and Substances Act is Canadas federal drug control statute. ... This article does not cite its references or sources. ...

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.

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. This article does not cite its references or sources. ...

Evidentiary matters in criminal trials are controlled by the common law and the Canada Evidence Act. The Canada Evidence Act is an Act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence. ...

Prosecution

A person may be prosecuted criminally for any offences found in the Criminal Code or any other statute containing criminal offences.^[1] There are three types available offences. The most minor offences are summary conviction offences. They are typically defined as "summary" within the Act and are punishable by a fine of no more than $2,000 and/or 6 months in prison. Typically, these include property offences, such theft or vandalism, certain driving offences, disturbing the peace, and harassment. In the law of many common law jurisdictions, a summary offence (or summary offense) is an offence which can be tried without an indictment. ...

The most serious are the indictable offences. Many of these offences entitle the defendant to a trial by jury. Conviction can impose a variety of penalties including life in prison. In many common law jurisdictions (e. ...

Hybrid offences, are a special third class of offences that allow the prosecuting to select whether to prosecute the offence as either indictable or summary. Until the Crown elects the offence is treated as indictable. If the judge decides to proceed as an indictable offence, the accused has the legal right to a trial by jury. A hybrid offence, dual offence, or wobbler are the special class offences in the English and Welsh, Australian, Irish and Canadian criminal law where the prosecution may choose whether to proceed with the case as either a summary offence or an indictable offence. ...

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")^[2] on a standard of "beyond a reasonable doubt".^[3] Exception to the mens rea requirement for strict and absolute liability offences. Actus reus is the action (or inaction, in the case of criminal negligence and similar crimes which are sometimes called acts of omission) which, in combination with the mens rea (guilty mind), produces criminal liability in common law based criminal law jurisdictions such as the United States, United Kingdom. ... The mens rea is the Latin term for guilty mind used in the criminal law. ... Beyond a reasonable doubt is the highest level of burden of persuasion typically employed in the criminal procedure. ... Strict liability is a legal doctrine in tort law that makes a person responsible for the damages caused by their actions regardless of culpability (fault) or mens rea. ... Strict liability is a legal doctrine that makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of culpability (or fault in criminal law terms, which would normally be expressed through a mens rea requirement; see Strict liability (criminal). ...

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. For English law on the criminal defence, see duress in English law. ... This article is about the law definition of necessity. ...

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 cnnot 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 cases youths may be 'transferred' to adult court. This article does not cite its references or sources. ...

Notes

Reference re Validity of Section 5(a) of the Dairy Industry Act (1949), also known as the Margarine Reference or as Can. ... Beaver v. ... Court membership Chief Justice: Antonio Lamer Puisne Justices: Gérard La Forest, Claire LHeureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major Reasons given Majority by: Cory J. Joined by: Lamer C.J. and Sopinka, McLachlin, Iacobucci and Major JJ. Concurrence by: L... R. v. ... Court membership Chief Justice: Antonio Lamer Puisne Justices: Claire L’Heureux‑Dubé, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major, Michel Bastarache and Ian Binnie JJ. Reasons given Majority by: Bastarache J. Dissent by: Binnie J. R. v. ... R. v. ... Court membership Chief Justice: Brian Dickson Puisne Justices: Roland Ritchie, Jean Beetz, Willard Estey, William McIntyre, Julien Chouinard, Antonio Lamer, Bertha Wilson, Gerald Le Dain Reasons given Majority by: Dickson J. (pp. ... Holding The ten-year minimum sentence in this case did not amount to cruel and unusual punishment under the Canadian Charter of Rights and Freedoms; the fairness of the trial was not compromised by the lateness of the decision on whether the jury could consider the defence of necessity. ...

See also

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

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