Criminal Law in Canada

Overview

Criminal law in Canada is exclusively a federal jurisdiction under s. 91(27) of the Constitution Act, 1867, which grants Parliament authority over “the Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.” Parliament has exercised this power primarily through the Criminal Code, RSC 1985, c C-46, a comprehensive statute that codifies offences, defences, procedures, and sentencing. The Criminal Code occupies the field: there is no common law of criminal offences in Canada (Frey v. Fedoruk [1950] SCR 517). Parliament has also enacted regulatory criminal statutes under its peace, order, and good government power and other heads of jurisdiction, including the Controlled Drugs and Substances Act, SC 1996, c 19, and the Youth Criminal Justice Act, SC 2002, c 1.

Principles of Criminal Liability

Criminal liability in Canada requires proof of two elements beyond a reasonable doubt: actus reus (the wrongful act or omission) and mens rea (the required mental state). The Supreme Court of Canada has affirmed that the actus reus must be voluntary — a person cannot be convicted for an act over which they had no control (R v. Theroux [1993] 2 SCR 5). Mens rea may be subjective (intention, knowledge, recklessness) or objective (marked departure from the standard of care a reasonable person would observe), depending on the offence.

The Supreme Court has elevated mens rea to a constitutional requirement for serious criminal offences. In R v. Vaillancourt [1987] 2 SCR 636, the Court struck down a constructive murder provision that permitted conviction for murder without proof of subjective foresight of death, holding that s. 7 of the Canadian Charter of Rights and Freedoms requires subjective mens rea for murder. In R v. Martineau [1990] 2 SCR 633, the Court confirmed that “stigma and punishment” associated with murder constitutionally require proof of subjective foresight of death. For less serious offences, objective mens rea satisfies s. 7, provided the standard is a marked departure from reasonableness rather than mere negligence (R v. Hundal [1993] 1 SCR 867; R v. Creighton [1993] 3 SCR 3).

Offences Against the Person

Homicide is the killing of a human being (s. 222). Murder is culpable homicide where the offender means to cause death (s. 229(a)(i)) or means to cause bodily harm known to be likely to cause death (s. 229(a)(ii)). Murder is classified as first degree (planned and deliberate, s. 231(2); or where the victim is a peace officer, s. 231(4); or certain other circumstances) or second degree (all other murder). Manslaughter is culpable homicide that is not murder — an unlawful act causing death or criminal negligence causing death (s. 234). Infanticide (s. 233) is a distinct offence for mothers who kill their newborn children while their mind is disturbed.

Assault is the intentional application of force without consent (s. 265). Assault is graduated as assault (summary or hybrid), assault causing bodily harm (s. 267), and aggravated assault (s. 268, wounding, maiming, disfiguring, or endangering life). Sexual assault (s. 271) is assault of a sexual nature, without requiring proof of penetration. It is graduated as sexual assault, sexual assault with a weapon or causing bodily harm (s. 272), and aggravated sexual assault (s. 273). The Criminal Code imposes specific rules for the admissibility of evidence of the complainant’s sexual activity and the use of prior consistent statements (ss. 276–277).

Offences Against Property

Theft (s. 322) is the taking of anything with intent to deprive the owner of it. Robbery (s. 343) is theft accompanied by violence or threats of violence. Break and enter (s. 348) includes entering premises with intent to commit an indictable offence, or actually committing an offence after entry. The Criminal Code also criminalizes fraud (s. 380), possession of stolen property (s. 354), and mischief (s. 430), which includes mischief to data (s. 430(1.1)), bridging criminal law and cyber law.

Defences

The Criminal Code codifies and modifies common law defences. Self-defence (s. 34) provides that a person is not guilty of an offence if they believe on reasonable grounds that force is being used against them and they act for the purpose of defending themselves. The defence is subject to factors including the nature of the threat and the proportionality of the response. Defence of property (s. 35) and defence of person — dwelling house (s. 40) are separately codified.

Necessity (s. 17, as interpreted in R v. Perka [1984] 2 SCR 232) excuses conduct that is the only reasonable way to avoid imminent peril. Duress (s. 17, as modified by R v. Ruzic [2001] 1 SCR 687) applies where a person commits an offence under threat of death or bodily harm. The Supreme Court in Ruzic held that the common law defence of duress, rather than the more restrictive statutory version, is constitutionally required under s. 7, and s. 17 was subsequently amended.

The mental disorder defence (s. 16) provides that a person is not criminally responsible for an act committed while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or of knowing that it was wrong. A verdict of not criminally responsible on account of mental disorder (NCRMD) results in a review by a provincial Review Board (s. 672.38).

Charter Protections in Criminal Proceedings

The Canadian Charter of Rights and Freedoms has profoundly transformed Canadian criminal procedure. Section 7 guarantees life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Supreme Court has interpreted s. 7 to include the right to make full answer and defence, the right to disclosure (R v. Stinchcombe [1991] 3 SCR 326), and the right to be tried within a reasonable time (R v. Jordan [2016] 1 SCR 631).

Section 8 protects against unreasonable search and seizure, requiring a warrant based on reasonable and probable grounds for most searches (Hunter v. Southam Inc [1984] 2 SCR 145). Section 9 guarantees the right not to be arbitrarily detained or imprisoned. Section 10(b) guarantees the right to retain and instruct counsel without delay upon arrest or detention (R v. Brydges [1990] 1 SCR 190; R v. Sinclair [2010] 2 SCR 310). Section 11(d) guarantees the right to be presumed innocent and to a fair and public hearing by an independent tribunal.

Section 24(2) provides for the exclusion of evidence obtained in violation of Charter rights if its admission would bring the administration of justice into disrepute (R v. Grant [2009] 2 SCR 353).

Sentencing

Sentencing is governed by Part XXIII of the Criminal Code. The purpose and principles of sentencing are set out in s. 718, which enumerates objectives: denunciation, deterrence (general and specific), separation of offenders from society, rehabilitation, reparation to victims and the community, and promotion of a sense of responsibility in offenders.

The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). The court must consider aggravating and mitigating circumstances (s. 718.2), and must impose a sentence that is the least restrictive alternative (s. 718.2(d)). Indigenous offenders are subject to the Gladue principle: courts must consider “all available sanctions other than imprisonment that are reasonable in the circumstances” with particular attention to the circumstances of Indigenous offenders (s. 718.2(e); R v. Gladue [1999] 1 SCR 688; R v. Ipeelee [2012] 1 SCR 433).

Sentencing options include discharge (absolute or conditional), suspended sentence with probation, fine, conditional sentence (house arrest — restricted for serious offences by s. 742.1), imprisonment, and, for the most serious offences, life imprisonment (mandatory for first degree murder, s. 235). Dangerous offender and long-term offender provisions (Part XXIV) permit indeterminate or extended sentences for certain repeat violent and sexual offenders.

Appeals

The Crown and the accused have rights of appeal in criminal matters. The accused may appeal conviction (s. 675; s. 812 (summary conviction)) and, with leave, sentence (s. 675(1)(b)). The Crown may appeal acquittal on a question of law (s. 676(1)(a)) and, with leave, sentence (s. 676(1)(d)). Summary conviction appeals lie to the superior court (s. 813) or, with leave, directly to the Court of Appeal (s. 839). The Supreme Court of Canada grants leave to appeal on questions of law of public importance.