I. SOURCES OF CRIMINAL LAW
INTRODUCTION:
Criminal law begins when a provincial legislature (regulatory offences only) or federal parliament (regulatory offences and criminal offences) deems certain conduct illegal. Criminal laws are designed to denounce, punish and, to a lesser extent, deter inherently wrong behavior. Regulatory offences (most offences are regulatory) seek to deter risky behavior and prevent harm before it happens. These laws are not absolute and may fail Charter scrutiny (substantive fairness). In addition, the specific Charter rights of the accused must be honored (procedural fairness), i.e. presumption of innocence (s.11d) and freedom from unreasonable search or seizure (s.8). The basic elements of a criminal offence are the act or omission that is prohibited by the legislation, or actus reus, and the fault element, or mens rea. If the Crown, beyond a reasonable doubt, proves these elements and there are no applicable defenses (self-defense, the defense of duress, defense of necessity, provocation), then the accused will be convicted. The mens rea test can be applied in two ways – the objective standard (reasonable person in same circumstances) and the subjective standard (applies directly to the accused) for more serious crimes, such as murder. Attempts and other unfulfilled crimes, along with participation in a crime, can also bring about conviction.
DIVISION OF POWERS:
s.91(27):
The federal government has jurisdiction over Criminal Law, except for the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters. This includes both a substantive and procedural element.
s.92(13):
Property and Civil Rights in the Province
s.92(14):
The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
s.92(15):
The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section. Allows penal sanctions for provincial (regulatory) offences.
A. Creation of Offences
Most offences are found in the CC; however, they also appear in other federal statutes, including the Young Offenders Act and the Food and Drug Act. The CC also outline rules for criminal procedure. Summary Offences are lesser offences that carry no right to a jury trial (because s.11f of the Charter only provides this option for charges that carry a minimum sentence of five years). In these proceedings, the accused is called the defendant. Under CC787, provincial summary offences carry a six-month sentence and a fine of $2,000. Indictable Offences are very serious and carry the option of being tried by judge and jury (CC574-672) or judge alone (CC552-572). Some indictable offences, including murder, can only be pursued in a s.96 court. Hybrid/Dual Procedure Offences allows the prosecutor to elect whether it will be tried as a summary or indictable offence. Of course, if summary route is chosen, no jury is allowed and the maximum punishment will be less.
B. Prosecutors, Police and Prisons
The AG of the Province prosecutes offences under the CC. The AG of Canada prosecutes drug offences (R. v. Hauser). Policing is a provincial right found in s.92(14). As such, provincial please are given full authority to enforce the CC. Prisons are divided because federal prisons exist under s.91(28) and provincial prisons under s.92(6). The provinces have jurisdiction over those sentenced to less than two years and subsequently deals with the majority of criminal cases, while the federal government administers penitentiaries for those sentenced to longer periods.
C. Trials and Trial Courts
Provincial Court Judges can hear most serious offences as long as the accused chooses no preliminary inquiry and elects to be tried in provincial court (CC554 trial in provincial court by consent). CC469 says that every court of criminal jurisdiction can try any indictable offence other than murder (C235), treason (CC47), alarming her majesty (CC49), intimidating Parliament (CC51) or inciting mutiny, piracy or sedition (CC53). Both summary conviction and provincial offences can generally only be punished by six-months and $2,000. Only s.96 Judges can sit with a jury.
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