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Criminal Law Study Notes
This set of study notes covers criminal law in the Canadian context, from the Criminal Code of Canada to how courts are structured and how trials unfold. You will find clear explanations of foundational concepts like actus reus, mens rea, types of criminal offences, and the rules of evidence. It is designed for students building a solid understanding of how criminal law works in practice.
The Criminal Code of Canada
The Criminal Code is the primary source of criminal law in Canada, defining offences and their punishments. For an act to be considered a crime, it must be considered immoral by most Canadians, cause harm to individuals and/or society, the harm must be serious, and the person must be punished by the criminal justice system.
Immoral vs. Illegal vs. Criminal
Governments adapt laws to societal changes. 'Legal' actions do not harm others and are not against the law. 'Illegal' actions are immoral but not criminal (e.g., speeding). 'Criminal' actions are immoral and potentially harmful to others (e.g., assault).
Procedural Justice Principles
The Law Reform Commission defined seven principles of procedural justice: Fairness (no bias), Efficiency (timely process), Clarity (accused understands), Restraint (professional officials), Accountability (officials responsible), Participation (open scrutiny), and Protection (accused not abused).
Nature vs. Nurture Debate
An ongoing debate in biology and psychology concerning the origin of human behavior. It questions whether innate genetics (nature) or environmental influences (nurture) are more important.
Monoamine Oxidase (MAOA) Gene
Also known as 'The Warrior Gene,' low activity of the MAOA gene has been linked to aggressive behavior.
Summary Conviction Offences
These are less serious criminal offences, also known as misdemeanors. Police must witness the crime or have reasonable grounds to assume it occurred. Trials are before judges, with a maximum sentence of a $2000 fine and/or 6 months imprisonment.
Indictable Offences
These are serious criminal offences with severe punishments. There are three types of trials: by Provincial Court Judge, by Superior Court Judge without a jury, or by Superior Court Judge with a jury. The maximum penalty is often life imprisonment, though some have minimum penalties.
Hybrid Offences
In these offences, the Crown decides how to proceed: summarily (less severe punishment) or by indictment. The Crown's decision can depend on factors like the accused's criminal record. Penalties vary widely.
Quasi-Criminal Law
This refers to offences where Provinces and Territories have legislative rights. These are generally less serious than federal offences and are often punishable by less than two years imprisonment. They are typically violations of specific regulations, not found in the Criminal Code.
Statute of Limitations
This is a time limit for laying charges. For summary conviction offences, charges must be laid within 6 months. For indictable offences, there is generally no time limit. For hybrid offences, it depends on how the Crown proceeds.
Actus Reus
Latin for 'the guilty act.' It refers to the voluntary act or omission that constitutes the crime. A crime is committed when both the actus reus and mens rea are present.
Mens Rea
Latin for 'the guilty mind.' It refers to the mental intent or state of mind at the time of the incident. The Crown must prove both the actus reus and mens rea beyond a reasonable doubt.
Intention in Criminal Law
Once the physical act (actus reus) is established, the prosecutor focuses on proving the accused's intention or state of mind (mens rea) at the time of the incident. There are several common types of mens rea.
Recklessness and Willful Blindness
Recklessness is a careless disregard for the possible results of an action. Willful blindness is purposely ignoring certain facts or information. Both can contribute to mens rea.
Criminal Negligence
This involves a reckless disregard for the safety of others. It occurs when a person is aware of a known risk and fails to address it, and a reasonable person would have taken action.
Knowledge and Motive
Knowledge of certain facts can establish mens rea. Motive, the reason for committing a crime, is often circumstantial evidence but can be helpful in understanding a case.
Attempt and Conspiracy
Attempting to commit a crime, even if unsuccessful, can lead to guilt. Conspiracy involves an agreement between two or more people to commit a crime.
Parties to a Crime
There are three kinds: principals (those who commit the crime), abettors (those who encourage the crime), and accessories after the fact (those who help someone escape after a crime).
Organized Crime
Defined as a group of three or more people with a common identity for criminal purposes, such as street gangs or the mob. Organizing a gang-related offence can lead to charges.
Provincial Court - Criminal
This court arraigns the accused, holds preliminary hearings for serious indictable offences, and tries summary convictions and less serious indictable offences. Judges are appointed by provincial governments.
Provincial Superior Court
This court tries the most serious crimes, hears criminal appeals in summary offences, and sets provincial precedent. Trials can be with or without a jury. Judges are appointed by the federal government.
Provincial Court of Appeal
This is the final court of appeal in the province, setting precedent. It typically hears appeals with 3 to 5 judges appointed by the federal government.
Federal Court
This court system includes the Federal Court and the Federal Court of Appeal. It hears legal disputes involving the federal government, and its decisions can be appealed to the Supreme Court of Canada.
Supreme Court of Canada
The highest court of appeal in Canada. It hears cases of national importance or where law interpretation is required. It has unlimited jurisdiction and sets national precedent. It has 9 judges appointed by the federal government.
Courtroom Roles
Key roles include the Crown Lawyer (proves guilt), Defence Lawyer (creates doubt), Judge (rules on law), Jury (decides facts), Clerk (manages proceedings), Court Staff (maintains order), and Press (reports).
Courtroom Etiquette
Includes standing when the judge enters, asking permission to proceed, addressing the judge respectfully, calling co-counsel 'colleague,' and speaking clearly without filler words.
Trial Flow
The typical flow involves the clerk opening court, Crown opening statement and witnesses, Defence opening statement and witnesses, closing arguments, judge's instructions to the jury, jury deliberation, and verdict.
Types of Evidence
Evidence can be Direct (first-hand observation), Circumstantial (indirect clues), Physical (tangible items), Testimonial (witness statements), Hearsay (second-hand info, usually not allowed), Opinion (expert testimony), Character (accused's personality), Photographs/Video, Polygraphs (not allowed), and Confessions (must be voluntary).
Questioning Witnesses
Direct examination is by the lawyer's own witness. Leading questions suggest answers and are not allowed in direct. Cross-examination is by the opposing lawyer to test reliability.
Rules of Evidence
Governed by the Canada Evidence Act, the judge decides if evidence is admissible. A 'voir dire' is a hearing within a hearing to determine admissibility.
Self-Incrimination
Witnesses can refuse to answer if it might incriminate them, protected by the Charter. Lying under oath is perjury.
Summation (Closing Arguments)
Each side summarizes evidence and key points. Defence goes first, followed by the Crown. The judge then instructs the jury.
Police Responsibilities & Powers
Police have legal powers to search, detain, and arrest suspects, using reasonable force. These powers are limited by law and must balance public safety with individual rights.
Core Duties of Police Officers
Include preventing crime, enforcing laws, assisting victims, maintaining public order, responding to emergencies, and investigating crimes. Police conduct is monitored by legislative, judicial, administrative, and constitutional means.
Arrest Powers
Police may arrest when they have reasonable and probable grounds. Options include issuing an appearance notice, arresting the person, or obtaining an arrest warrant. An appearance notice is for less serious offences.
Arrest Procedure
For serious indictable offences, police must identify themselves, state the charge, inform the person of their rights, and use only necessary force. Warrants and summonses are used when suspects cannot be located or are dangerous.
Citizen's Arrest
Regular citizens may arrest someone to protect themselves or their property, witness an indictable offence in progress, or assist police officers.
Search Laws
Section 8 of the Charter protects against unreasonable search. Police may search when a person is under arrest, they believe the person has drugs, alcohol, or weapons, or they have a valid search warrant.
Executing a Search Warrant
When using a warrant, police may force entry if necessary, provide a copy of the warrant, and use telewarrants in urgent situations. Evidence may be excluded if the warrant is invalid.
Requirement for a Valid Warrant
A proper warrant must include the location, offence, description of items sought, and judge's signature, complying with case law like R. v. Shankar.
Detention Rights
Section 9 of the Charter protects against arbitrary detention. Police must have a valid reason to detain, and it must lead quickly to arrest or release. Upon arrest, individuals have the right to contact a lawyer immediately and remain silent.
Legal Aid
If a person cannot afford a lawyer, they may be eligible for legal aid, which provides a lawyer at no cost. This is distinct from duty counsel.
Release and Bail
After arrest, a person may be released until trial. Bail may require money or property, and conditions like curfews can be imposed. For serious cases, reverse onus may apply, requiring the accused to prove why bail should be granted.
Steps Before Trial
These include collecting evidence, disclosure of evidence to the defence, court appearances, preliminary hearings (to determine if there's enough evidence for trial), and resolution discussions (plea bargaining).
Evidence Disclosure
The Crown must reveal all evidence to the defence. The defence must disclose an alibi if they plan to use one. This process prevents surprises and allows for proper trial preparation.
Preliminary Hearing
A judge determines if there is sufficient evidence (a prima facie case) to proceed to trial. It does not determine guilt or innocence but aims to avoid unnecessary trials.
Resolution Discussions
Also known as plea bargaining, this involves negotiation between the Crown and defence to avoid trial. It often results in the accused pleading guilty to a lesser charge in exchange for a lighter sentence.
Criminal Code Sections
Specific sections of the Criminal Code define offences such as carrying a concealed weapon (s. 90), mischief (s. 430), forgery (s. 366), breaking and entering (s. 348), extortion, second-degree murder (s. 231(7)), and robbery (s. 343).
Types of Offences by Severity
Offences are categorized as summary conviction (less serious), indictable (serious), or hybrid (Crown's choice). The Criminal Code is divided into 12 parts covering various categories of offences.
Violent Crimes
These crimes receive the harshest penalties and generally involve harm to the human body. Examples include homicide, assault, sexual assault, abduction, and robbery.
Homicide
The killing of another person. It can be culpable (blame assigned due to intent or recklessness) or non-culpable (no blame assigned, e.g., accident or self-defence).
Murder (1st and 2nd Degree)
Murder is the intentional killing of another person. First-degree murder is planned and deliberate or involves a law enforcement agent or occurs during another crime. Second-degree murder is any intentional killing that is not first-degree. Both carry mandatory life sentences.
Manslaughter
Causing the death of another person without intent to kill, but through culpable negligence or recklessness. It involves an actus reus and mens rea where a reasonable person would have recognized the risks.
Assault Levels
There are three levels: Level One (intentional force without consent, threats), Level Two (assault causing bodily harm, often with a weapon), and Level Three (aggravated assault, causing life-threatening or permanently damaging injuries).
Property Crimes
These crimes involve damage to or theft of property, or fraud. Examples include arson, theft, breaking and entering, and fraud. They harm economic interests or safety rather than targeting a person directly.
Arson
Intentionally damaging property by explosion or fire. Mens rea can also be formed through reckless actions. Penalties vary based on whether life was endangered or bodily harm occurred.
Theft
Taking someone's property without consent and without legal right. Penalties vary based on the value of the stolen property (under or over $5000).
Breaking and Entering
Entering someone's property with the intention of committing an indictable offence, such as theft. The act of breaking or entering without stealing can still constitute the offence if the intent exists.
Fraud
Intentionally deceiving another party for criminal purposes, usually for financial gain. This involves dishonesty, such as misrepresentation or false claims. Penalties vary based on the amount involved.
Criminal Defences
An accused has the right to present a defence. Common defences include alibi, automatism, intoxication, self-defence, necessity, duress, mistake of fact, entrapment, double jeopardy, and provocation.
Alibi Defence
Argues that the accused was not at the scene of the crime. A strong alibi includes a statement of absence, explanation of location, and names of corroborating witnesses.
Automatism
An involuntary action due to impaired consciousness, such as sleepwalking or drug influence. It can be insane (linked to mental disorder, leading to NCR defence) or non-insane (temporary state, leading to acquittal).
Not Criminally Responsible (NCR)
A defence raised when an accused, due to a mental disorder, was incapable of knowing their actions were wrong. Focuses on treatment and public safety rather than punishment.
Intoxication Defence
Can be a partial defence, arguing that intoxication prevented the formation of specific intent. May lead to a conviction for a lesser general intent offence, but rarely excuses behaviour entirely.
Self-Defence
The legal use of reasonable force to defend oneself or property. The force used must not be excessive and must match the level of the threat.
Battered Woman Syndrome (BWS)
A psychological condition resulting from prolonged domestic violence. It can help explain preemptive actions by victims, as recognized in R. v. Lavallee.
Necessity and Duress
Necessity applies when breaking the law prevents greater harm (e.g., speeding to hospital). Duress involves being threatened or coerced by another person to commit a criminal act.
Mistake of Fact
An honest mistake about a fact (not the law) that negates mens rea. For example, unknowingly passing counterfeit money.
Entrapment
Occurs when police induce a person to commit a crime they would not otherwise have committed. If proven, charges can be dismissed.
Double Jeopardy
The principle that a person cannot be tried twice for the same offence, protected by Section 11 of the Charter.
Provocation
A partial defence where a person loses self-control due to provocation and commits a crime. It may reduce the severity of the charge.
Criminal Sentencing Objectives
The Criminal Code outlines four main objectives: denouncing unlawful conduct, deterrence (specific and general), segregation/separation, and rehabilitation. Other objectives include reparations and remorse.
Denouncing Unlawful Conduct
Sentencing should clearly condemn the offender's behaviour as wrong from society's viewpoint, reflecting the severity of the crime and the offender's history.
Deterrence
Aims to prevent future crimes. Specific deterrence discourages the individual offender, while general deterrence discourages the public.
Segregation
Protects the public by separating offenders from society, usually through incarceration. This is typically for dangerous offenders.
Rehabilitation
Focuses on helping offenders change their behaviour to avoid reoffending (recidivism). Programs may include job training, counselling, and education.
Imposing a Sentence
Judges consider aggravating and mitigating circumstances, victim impact statements, and pre-sentence reports. Some offences have mandatory minimum sentences.
Sentencing Options
Options range from absolute or conditional discharges, suspended sentences with probation, conditional sentences (house arrest), suspension of privileges, peace bonds, restitution, community service, deportation, fines, to imprisonment.
Discharges (Absolute and Conditional)
Absolute discharge results in no criminal record. Conditional discharge requires meeting conditions; successful completion leads to no record. Usually for first-time, minor offences.
Suspended Sentences and Probation
A suspended sentence means conviction but no jail time if conditions are met, usually involving probation (supervised release in the community with rules).
Conditional Sentence
Allows offenders with sentences under two years to serve time in the community (often house arrest) if they are not a public threat and meet strict conditions.
Restitution
Requires offenders to repay victims financially for losses or damage. Judges consider the offender's ability to pay.
Community Service
Orders offenders to perform unpaid work in the community, promoting rehabilitation and responsibility.
Fines
A monetary penalty, common for summary conviction offences and sometimes for indictable offences. Offenders unable to pay may enter a fine option program.
Prison Sentences
Types include concurrent (served at the same time), consecutive (served one after another), and intermittent (weekends/nights). Prison type depends on sentence length: local, provincial, or federal.
Dangerous Offenders
Individuals posing an extreme risk to the public may receive an indeterminate sentence, meaning indefinite imprisonment. They often display extreme brutality and a pattern of aggression.
Capital Punishment
The death penalty was abolished in Canada in 1976. Before 1962, it was a possible sentence for first-degree murder.
Restorative Justice
A recent approach focusing on forgiveness and community involvement. Sentencing circles, healing circles, and releasing circles bring offenders, victims, and community members together.
Appeals
Both the Crown and the convicted offender can appeal a conviction or sentence to a higher court for review.
Compensation Funds
Provincial funds exist to compensate victims for losses (lost pay, medical bills, etc.) when offenders cannot pay.
Parole
Supervised early release from prison. Inmates are usually eligible after serving one-third of their sentence or 8 years. Violating parole conditions can lead to return to prison.
Mercy and Pardons
The federal government can grant a Royal Prerogative of Mercy, revoking a sentence or issuing a pardon, often in cases of wrongful conviction.
Criminal Records
A criminal record can hinder job opportunities, travel, and bonding. Offenders may apply for a pardon 3-5 years after completing their sentence.
Youth Criminal Justice Act (YCJA)
Applies to youth aged 12-17. It aims to prevent crime, rehabilitate and reintegrate youth, ensure meaningful consequences, and promote public protection. It balances accountability, rehabilitation, and public safety.
Historical Youth Justice Legislation
Prior to the YCJA, youth were treated under the Young Offenders Act (YOA) and the Juvenile Delinquents Act (JDA). The JDA focused on rehabilitation but lacked legal rights for juveniles. The YOA recognized Charter rights but was criticized for being too lenient.
Diverting Youth From Court
The YCJA encourages keeping youth out of custody. Extrajudicial measures (for minor offences) and extrajudicial sanctions (more serious but still avoid court) are used, such as counselling, community service, and apologies.
Youth Arrest and Detention Rights
Youth have the same Charter rights as adults, plus additional protections under the YCJA. Rights must be explained simply. Parents/guardians must be notified and are encouraged to be present.
Searches of Youth
Police may search youth if they suspect drugs, alcohol, or weapons. School searches by officials are permissible with reasonable grounds (R. v. M.).
Youth Bail and Detention
Youth have similar bail rights to adults, often requiring a surety (an adult supervisor). Dangerous youth may be placed in foster homes instead of jail.
Youth Trial Procedures
Trials follow the same rules of evidence and are usually in youth or family court. Names are generally not published, except for serious offences. The maximum youth sentence for first-degree murder is 10 years of custody.
Youth Sentencing Principles
Judges consider accountability, victims' needs, and rehabilitation balanced with public protection. A youth pre-sentence report informs the decision.
Sentencing Options for Youth
Options include absolute/conditional discharges, fines (max $1000), restitution, community service, probation, police/community programs, and custody (open or secure).
Probation Orders for Youth
Common conditions include school attendance, reporting to a probation officer, curfews, parental supervision, and avoiding drugs/alcohol.
Custody for Youth
The most serious sentence, used as a last resort for violent or repeat offenders. Types include open custody (group homes, foster homes) and secure custody (locked facilities).
Youth Appeals and Reviews
Youth have the same appeal rights as adults. Sentences are reviewed annually, with judges able to reduce but not increase them, ensuring ongoing assessment for rehabilitation.
Frequently Asked Questions About Criminal Law Study Notes
What is criminal law?
Criminal law is the body of law that defines offences and sets out punishments for acts considered harmful to individuals or society. In Canada, the primary source is the Criminal Code, which establishes what counts as a crime. For an act to be criminal, it must be seen as immoral by most Canadians, cause serious harm, and result in punishment through the criminal justice system.
What is the criminal law definition of actus reus and mens rea?
Actus reus is Latin for 'the guilty act' and refers to the voluntary act or omission that makes up the physical element of a crime. Mens rea is Latin for 'the guilty mind' and refers to the mental intent the accused had at the time of the offence. The Crown must prove both elements beyond a reasonable doubt for a conviction to succeed.
What is the difference between criminal law and civil law in Canada?
Criminal law deals with acts that the state considers harmful to society, and cases are prosecuted by the Crown. Punishments can include fines or imprisonment. Civil law, by contrast, handles disputes between private individuals or organizations, typically resulting in compensation rather than criminal penalties. The standard of proof also differs: criminal cases require proof beyond a reasonable doubt, while civil cases use a balance of probabilities.
What are the different types of criminal offences in Canada?
Canadian criminal law recognizes three main categories of offences. Summary conviction offences are the least serious and carry a maximum penalty of a $2,000 fine or six months imprisonment. Indictable offences are the most serious and can carry a maximum of life imprisonment. Hybrid offences fall in between, with the Crown choosing whether to proceed summarily or by indictment based on factors like the accused's criminal record.
What is the difference between immoral, illegal, and criminal actions?
An action is legal if it does not harm others and is not against the law. An illegal action may be immoral but is not necessarily criminal, such as speeding. A criminal action is both immoral and potentially harmful to others, such as assault, and is addressed under the Criminal Code with formal punishments.
What types of evidence are used in a Canadian criminal trial?
Canadian criminal trials can involve several types of evidence, including direct evidence based on first-hand observation, circumstantial evidence that points indirectly to a fact, physical evidence such as tangible items, and testimonial evidence from witnesses. Hearsay and polygraph results are generally not allowed. All evidence is governed by the Canada Evidence Act, and a judge can hold a voir dire hearing to decide whether specific evidence is admissible.
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