Fundamentals of Criminal Law in Canada
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The criminal law in Canada has several sources and types of offences. The main source is the Criminal Code of Canada, which describes offenses and punishments. There are also other federal and provincial/municipal laws. Offenses are either summary conviction (minor crimes with less severe penalties) or indictable (more serious crimes with more severe penalties, including life imprisonment). To obtain a conviction, the Crown must prove beyond a reasonable doubt that the accused committed the prohibited act (actus reus) with the required mental state (mens rea), such as intent, knowledge, or recklessness. Some offenses use a subjective standard requiring proof of what was in the accused's mind, while others use an objective standard based on what
Fundamentals of Criminal Law in Canada
- 1. Criminal Law in CanadaFundamental Concepts
- 2. Sources of Criminal LawThe Criminal Code of CanadaMain source of criminal law in CanadaDescribes offense and punishments.Federal LawThe Controlled Drugs and Substances ActQuasi-Criminal LawProvincial & municipal laws which results in finesEg: Highway Traffic Act
- 3. Types of Criminal OffencesSummary Conviction OffencesMinor criminal offencesCan be arrested and summoned to court without delayMax $2000 fine and/or six months in jail, except for drug offenses
- 4. Types of Criminal OffencesIndictable OffencesMore serious crimes, severe penaltiesMaximum penalty is life imprisonmentTrial judges decide penaltiesMaximum penalty set in law, some have minimum penaltyHybrid OffencesCrown attorney makes decision
- 5. Elements of a Crime
- 6. To obtain a conviction, the Crown must prove beyond a reasonable doubt that each and every element of the offence with which the accused is charged was in fact committed by the accused.
- 7. ActusReusThe actusreus of the offence is the act or omission (failure to act) that has been identified by Parliament has harmful.It is simply to identify the actusreus – read the offence itselfAll elements of the actusreus must be proven for a conviction.
- 8. Most criminal offences require that the accused take some action.Some provisions make it a criminal offence to fail to act in circumstances where a duty to act exists – eg: necessities of lifeIt is understood that the actusreus must be committed voluntarily – the conscious choice of an operating mind
- 9. s. 222(1) “a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being”
- 10. s. 90(1) “every person commits an offence who carries a weapon … concealed, unless the person is authorized under the Firearms Act to carry it concealed”
- 11. Mens ReaThe mental element that accompanies the commission of the actusreusThe act must be done with a ‘guilty mind’Sometimes the law specifies mensreaSome don’t and you must use case law
- 12. s. 319(2) it is an offence to “willfully promote hatred by communicating statements, other than in private conversation”
- 14. s. 265(1)(a) “A person commits an assault when … without the consent of another person, he applies force intentionally to that other person, directly or indirectly.”
- 15. Subjective assessment of culpabilityInsist that the prosecution prove that the accused actually knew that there was no consentObjective assessment of culpabilityThe Crown must only establish that a reasonable person would have realized that there was no consentLess concerned with the actual knowledge of the accused
- 16. Objective StandardIn the 19th century, people were presumed to intend the natural consequences of their acts.A natural consequence was one that a reasonable person would foresee.If a reasonable person would foresee an actusreus, the actusreus was intended and mensrea was presentNo concern for the accused’s mind at the time
- 17. Subjective StandardComing into favour in Canada.Requires that the Crown prove that the accused had the requisite intention at the time the offence was committed.Links fault to the accused’s own choices, therefore fairer.Criminal law is reserved for those those consciously choose to behave criminally
- 18. The choice of subjective or objective is made by the offence, not the case. Once an offence is determined to be subjective or objective, it stays that way for all cases.
- 19. R. vs. LambLarry Lamb was a young man who owned a revolver that had a five-chambered cylinder that rotated clockwise each time the trigger was pulled. As a joke and with no intention of doing harm, Lamb pointed the revolver at his best friend. There were two bullets in the chambers, but neither bullet was in the chamber opposite the barrel. Lamb did not intend to fire the gun, but when he pulled the trigger, the cylinder rotated and placed a bullet opposite the barrel so that it was struck. Lamb killed his best friend.
- 20. A female person who, being pregnant and about to be delivered, with intent that the child shall not live or with intent to conceal the birth of the child, fails to make provision for reasonable assistance in respect of her delivery is, if the child is permanently injured as a result thereof or dies immediately before, during or in a short time after birth, as a result thereof, guilt of an indictable offence and is liable to imprisonment not exceeding five years.
- 21. Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
- 22. Absolute and Strict LiablityRegulatory offences are offences that regulate otherwise desirable behaviour where harm could be caused if carried out improperly.Until 1978 all were absolute liability offencesThe Crown had only to prove the actusreus, no mensrea was necessary.
- 23. 1978 R. v. Sault St. Marie, the Supreme Court changed this.Strict Liability Offences introducedCrown must provieactusreausAccused may prove that it was ‘duly diligent’ (took all reasonable care to avoid committing the offence) to avoid a conviction.This is a compromise between strict liability and full criminal liability based on mensrea
- 24. Assume that it is an offence under environmental protection legislation to discharge pollutants into a waterway. Assume also that the crown can prove that Company X dischaged pollutants into a river.
Editor's Notes
- #9: Eg – be sting and allergic reaction results in crash and injuryHow about mental illness, alcohol and drugs?
- #10: Find the actusreus – causing the death of a human being
- #11: Actus Reus – carrying a weapon, that is concealed, without authorizationFour elements of the actusreus that get confusingCarrying - what is carrying? In the truck of a car being used by the accused?Weapon – is an ice pick a weapon? Nail file? Tire Iron?Concealment – what constitutes concealment?Authorization – what is authorization? Must it be carried?
- #14: Intent – the true purpose of the actRecklessness– the careless disregard for the possible results of an action. They may not intend to hurt someone, but they understand the risks of their actions and proceed anyway.Motive – reason for committing the offence – does not establish guilt
- #15: Two aspects to the actusreus – direct or indirect application of force, and lack of consentIf force is applied to a consenting person (hockey player) actusreus is misisngApplied to an animal, actusreus is missingWhat mensrea is required?Force must be intentional, but how about the mensrea for the consent?You can interpret this is there not being mensrea for the consent, but there is an interpretive presumption that mensrea is required for every element of acts reus.
- #20: Assume a charge of homicideActusreus is killing a human – presentMensrea depends on subjective/objective p. 249
- #23: Driving, manufacturing, selling goods and services
- #25: p. 251 and includes a full case