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Chapter 2

Criminal Law and


Criminal Justice in
Canada
Copyright © 2004 Nelson, a division of Thomson Canada
Types of Laws
Substantive law Procedural law
 Spells out the  Describes how law
specific behaviour enforcement agents
which is required or must act in dealing
prohibited. with an offence.
 Must be in force at  Must be in force at
the time of the the time of the trial.
offence.  Charter of Rights
 Criminal Code of and Freedoms.
Canada.
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Example: Sexual
Assault
 1983 changes in
substantive law
– Rape was replaced with 3
degrees of sexual assault.
 Procedural issues
– Victim’s past sexual
conduct.
– Intoxication of accused.
– Victim’s counseling
records.
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– Accused’s honest belief.
Sources of Criminal
Law in Canada
British Common-Law
 Originated under Henry II (1154-
89).
– Appointed circuit court judges who
shared decisions.
– Replaced local traditions.
– Private wrongs became crimes
against the state.
– Resulted in uniformity, strong central
government.

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Precedent
 Stare decisis
– Deciding cases on the
basis of situations of
similar facts.
 Lower courts follow
decisions of higher
courts.
 Equal rank courts
follow each other’s
decisions if possible. 6
The Constitution

 Fundamental principles to guide


– The enactment of law.
– The application of law.
 Only federal government can enact criminal
law.

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Statute Law
 Laws debated and  May create, amend,
enacted by or eliminate laws.
government.  Currently, the most
– Criminal code of Canada important source of
. law.
 Only federal
government can
enact criminal law.
 Subject to the
Charter of Rights
and Freedoms.
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Case Law
 Specific interpretation of the
statutes in a particular case.
 Becomes the subject of appeal to
higher courts.
 Ruling of the highest court
prevails and must be followed by
lower courts.

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Administrative Law
 Written by regulatory agencies.
 Enforce rules in specific areas.
– E.g. environment, hazardous
products.
 May be enacted by federal, provincial,
and municipal governments.
 Includes criminal penalties.

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The Rule of Law
 Scope of law
– Law applies to all.
– No one is above the
law.
 Character of law
– Laws should be clear
and made public.
 Institution of law
– Independent judiciary.
– Written laws, fair
hearing.
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Canadian Charter of Right
 Enacted April 17, 1982.
 Protects civic, privacy and
legal rights.
 Also deals with equality rights
but allows for affirmative
action.

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Legal Rights
 Life, liberty, and  Presumed innocent.
security of the  Legal counsel.
person.  Bail.
 No unreasonable  Speedy trial.
search or seizure.
 Fair and public
 No arbitrary hearing.
detention or
imprisonment.
 No cruel or unusual
punishment.
 Remain silent.
 Informed of
charges. 13
Principles of
Fundamental Justice
 Right to silence
– Use of undercover agents, jailhouse
informants.
 Right of disclosure
– Crown must make evidence available to
defence.
 Right to full answer and defence
– Right to question the complainant.
 Not guilty by reason of insanity
– Detention must be reviewed every 12 14

months.
The Nature of Crime
 A crime is any
behaviour that
– is harmful.
– is prohibited by
criminal law.
– can be
prosecuted.
– in formal court.
– results in
punishment.
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Seven Elements
I. Legality I. Concurrence of
– Substantive law. intent and action.
II. Mens rea II. Harm must be
– Guilty mind, done.
criminal intent. – To individual or
– General or specific public, physical or
intent. mental.
III. Actus reus III. Act must cause
– Actual behaviour, the outcome.
not just fantasy. – Time delay.
– Includes criminal IV. Punishment
negligence.
– Must be specifically
stated 16
Summary Offences
 Minor offences.
– E.g. communication for purposes of
prostitution.
 Maximum penalty $2000/ 6 months.
– Up to 18 months in a few cases.
 Speedy procedure.
 Always heard by provincial court
judge.
– Must be heard within 6 months.
 Sentence served in provincial facility. 17
Indictable Offences
More serious offenses
– Maximum penalty of two or
more years.
 Absolute jurisdiction
– Minor offenses tried in
provincial court.
 Election offenses
– Accused may opt for jury.
 Supreme court exclusive
– Serious offences heard only
in superior court (e.g.
murder). 18
Hybrid Offenses
 May be treated as either
indictable or summary.
 Prosecutor decides which option
to take.
– Decision is based on context of the
offence, offender characteristics,
etc.
– Decision may be influenced by
police.
 E.g. sexual assault level 1. 19
Seriousness of
Offences
Sexual Assault
 Level 1 (hybrid)
– Common sexual assault.
– Summary- maximum 18 months.
– Indictable- maximum 10 years.
 Level 2
– Weapon, threats, harm.
– Maximum 14 years.
 Level 3
– Aggravated sexual assault.
– Maximum life imprisonment.

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Homicide
 First degree murder
– Planned, peace officer, during another
crime.
– Mandatory life imprisonment. No parole for
25 years.
 Second degree murder
– Other intentional killing.
– Mandatory life imprisonment.
– Parole eligibility may be set between 10
and 25 years.
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Homicide
 Manslaughter
– Assault, criminal negligence, in the
heat of passion.
– Maximum of life in prison.
 Infanticide
– Death inflicted on newborn by
biological mother.
– Maximum sentence is 5 years.
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Mala in se and Mala
Prohibita
Mala in Se Mala Prohibita
 Bad in and of  Bad because
themselves. they are
 Consensus prohibited.
crimes.  Conflict or
 Reflects victimless
widespread crimes.
agreement.  Reflects
– E.g. murder, community
sexual assault. standards.
– E.g. prostitution, 24
drugs.
Criminal Law Reform
Anti-Gang Legislation
 Bill C-95 (1997)  Laws deal with
amended by Bill C- – Enhanced
24 (2001). sentences.
 Gang- 3 or more – Use of explosives.
persons
– Electronic
participating in
surveillance.
crimes in the past 5
years. – Restricted bail.
– Peace bonds.
– Proceeds of crime.
– Parole
restrictions.
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Safe Streets Act
 Ontario, 1999.
 Response to increased
panhandling, “squeegee kids”.
 Limits soliciting.
 Maximum fines range from $500
to $5,000.
 Up to six months in jail.
 Issues of discrimination.
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