Criminal law in Canada is under the exclusive jurisdiction of the federal government. The power to enact criminal law is derived from section 91 (27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code of Canada, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act, and several other peripheral Acts.
There remains, however a parallel power of the provincial government to “administer” the justice system, which gives the provinces power to enforce and prosecute laws.
There are three types of offences: ‘summary’ conviction offences, ‘hybrid’ offences, which allow the prosecution to elect whether to prosecute the offence as a summary or an indictable offence, and the most serious are the ‘indictable’ offences. Examples of offences which are always indictable include murder (s.235), robbery (s.344) and break and enter of a dwelling-house (s.348 (1) (a)), making available greater penalties than for summary offences.
In most cases where the offence is an indictable offence (or a hybrid offence where the Crown chooses to prosecute the offence as an indictable offence), the accused person can elect whether to be tried by a provincial court judge, by a judge of the higher court of the province without a jury or by a judge of the higher court with a jury. In cases described by section 553 of the Criminal Code, the accused person does not have an election and must be tried by a judge of the provincial court without a jury.
As per sections 471 and 472 of the Criminal Code, if the offence is listed in section 469, then the accused person does not have an election, and must be tried by a judge of the higher court with a jury (unless both the accused person and the prosecutor consent to a trial by a judge of the higher court without a jury).
Criminal offences require the prosecuting crown to prove that there was criminal conduct (known as the actus reus or “external element”) accompanied by a criminal state of mind (known as the mens rea or “fault element”) on a standard of “beyond a reasonable doubt”. Exception to the mens rea requirement for strict and absolute liability offences.
Some defences are provided for by stature and some defences are provided for solely by the common law. In some cases, these “defences” are really just an assertion that the Crown has not proven one of the elements of the offence. There is an even broader sense of the word “defence”. Sometimes the defence will raise an issue capable of leading either to the termination of the proceedings or the exclusion of evidence, lawyers often refers to such applications as a “Charter defence” in reference to the Charter of Rights. Other forms of Charter defence can lead not to the exclusion of evidence but to the termination of the proceedings, known as a stay of proceedings.
