Criminal Code/General
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Criminal Code - General
Where does the criminal law in Canada come from?
The criminal law in Canada is the responsibility of the federal government. Canada is a confederation of provinces in a federal system. The Constitution of Canada is the British North America Act, passed in 1867, which gives exclusive authority to the Government of Canada to make criminal laws. Prior to this, English criminal law, inherited from the English settlers in North America, was the standard.
In 1892, the Canadian Parliament passed a law called the Criminal Code. It was called a Code because it consolidated crimes and criminal law procedure into a single statute. It has been amended and added to many times over the last century.
Does this mean that all Canadian criminal law is contained in the Criminal Code?
No. The Criminal Code contains most of the criminal law in Canada, but not all of it. There are other federal statutes that contain criminal law, such as the Controlled Drugs and Substances Act and the Youth Criminal Justice Act. These Acts are passed by the Parliament of Canada pursuant to its exclusive jurisdiction in the area of criminal law.
Do the provinces in Canada play any role in criminal law?
Yes, the provinces in Canada have an important role in criminal law. While the federal government has exclusive jurisdiction to enact criminal law, the provinces have the authority to administer the criminal law. Each province has a provincial court system, with judges appointed by the provincial government and with courts administered and paid for by the provinces. These courts handle the bulk of criminal law matters.
Also, the provinces have the power to pass laws that deal with quasi-criminal offences. These Acts cover less serious offences, but they can also set out punishments such as fines and even jail sentences.
Under Canadian criminal law, who brings criminal charges against another person?
In Canada, a criminal act is seen as a crime against all of Canadian society, since all people have an interest in seeing that the rule of law is upheld. Therefore, an individual who has been the victim of a crime does not have to handle the charge against the wrongdoer.
In Canada, the state brings the charge. The state is represented by a lawyer called a Crown prosecutor, usually employed by the province. Although we usually see the Crown as presenting the evidence against the accused, the Crown's role in the courts is actually to bring all the facts of the case into evidence. That is, the Crown's role as an agent of the state is to get to the truth about the crime on behalf of society, not simply to prove one particular person guilty.
What must the accused person do when charged?
In Canada, an accused person is presumed to be innocent until proven guilty. This means that the accused person does not have to prove their own innocence; it is up to the state, through the efforts of the Crown prosecutor, to prove who is guilty.
In Canadian courts, the judge must be convinced beyond a reasonable doubt that the accused is guilty. This is a very high standard of proof that affords a great deal of protection to the accused. If there is a reasonable doubt about the guilt of the accused, then he or she must not be convicted.
Is the procedure the same for all criminal charges?
No. In Canada, there are three different ways in which criminal charges may be handled. There are
- indictable offences,
- summary conviction offences, and
- hybrid offences.
Indictable offences are usually the most serious criminal offences, such as murder, and the manner of dealing with them is usually more lengthy and formal. It may involve a trial by a judge alone or a judge and a jury. There may be a hearing before the trial called a preliminary inquiry, held before a judge, in which the Crown prosecutor presents the evidence against the accused and the judge decides if there is enough evidence to send the matter to trial.
Summary conviction offences are less serious matters with smaller penalties, for example, mischief.
Hybrid offences are matters that may be handled either as indictable or summary conviction offences, depending on the individual circumstances of each case. The Crown prosecutor has the power to make the decision about which procedure to use.
How can I find the Criminal Code?
The Criminal Code of Canada is a federal statute. You can find the Statutes of Canada at any public library, courthouse library, or law school library.
In Canada, a number of book companies also publish annotated Criminal Codes. These are extremely useful and informative books. Usually, they will contain a very comprehensive index and list of definitions to help you find the area of criminal law you are interested in. In addition, they are called annotated because each section of the Code will have a list of cases that have been decided under that particular section. This gives the reader a chance to see how judges have interpreted the meaning of the sections, the sorts of evidence that will be necessary to obtain a conviction under that section, and exceptions or limitations to the section. This leads to a much greater understanding of the law than just reading the section of the Code. These annotated codes are written by eminent criminal law lawyers and updated every year with the latest cases. They can also be found in public, courthouse, and law school libraries.
The Criminal Code is also available online from several sources, including the Department of Justice Canada.