Chapter 10 Canadian Criminal Law: Policing, Prosecution, & Corrections PDF

CHAPTER 10 Canadian Criminal Law: Policing, Prosecution, and Corrections Frances E. Chapman and Cla...

CHAPTER 10 Canadian Criminal Law: Policing, Prosecution, and Corrections Frances E. Chapman and Claudio Colaguori LEARNING OBJECTIVES In this chapter, you will examine the institutional elements of the criminal justice system, which includes courts of law, policing, prisons and corrections, and criminal law; explore the fundamental concepts that legally define a criminal act and learn to differentiate between types of criminal offences; observe how the ideals of legal justice such as the rights of the accused are not always upheld, such that miscarriages of justice can occur; examine the role of policing, including its challenges and some of the injustices that arise from police practices; and learn about prisons, sentencing, and issues surrounding corrections in Canada today. Copyright © 2023. Canadian Scholars. All rights reserved. INTRODUCTION Understanding the basics of criminal law is essential to criminology because criminal acts are defined as such by law. The criminal law is a complex set of principles and procedures that constitutes just one part of the overall institution of law and forms the basis of the criminal justice system. Criminal law differs from country to country, but in most of Canada a common law system is in place (which is also used in most of the United States, England, New Zealand, and Australia). Canadian law is also based on the civil law system. Most of Western Europe (as well as Scotland, Louisiana in the United States, and the Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 359 2/8/2023 2:13:32 PM  360   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections Province of Quebec) have adopted the Roman system of law, which eventually became known as the civil code system. Legal actors within the justice system are obligated to uphold the letter of the law and in doing so maintain a system of legal equity and fairness that forms the basis of a civil society. Canada is also a nation that has legal pluralism insofar as it includes Indigenous legal trad- itions, which has relevance for the criminal law system mostly at sentencing, especially with restorative justice initiatives, but also with respect to Gladue courts, also known as Indigenous Peoples Court (Department of Justice, 2018; Macklem, 2014). State law as an instrument of justice and order aims to protect individuals from harm, uphold human rights, and maintain public security, among other civil obli- gations, yet state agents of the criminal justice system have also been responsible for miscarriages of justice such as wrongful convictions. The development and enforcement of law presents a number of challenges that compel the justice system to constantly revise itself. Those who create and practise law regularly deal with some fundamental questions: Is the current state of law adequate to address con- temporary social problems involving crime and punishment? How is it that some state agents of the law become corrupt, abusing their power and violating their own rules despite the many checks and balances that are built into the modern legal system? How do legal theorists decide which persistent, unjust social realities (e.g., systemic discrimination on the basis of race, class, and gender) are addressed in the creation of new or revised laws? Among a basic overview of Canadian criminal law and the institutions of the criminal justice system, this chapter explores how the system of law (often referred to as jurisprudence) operates as one of the most powerful institutions in a society undergoing constant change. Understanding the nature and operation of the state Copyright © 2023. Canadian Scholars. All rights reserved. institutions that form the criminal justice system, which includes criminal law, policing, and corrections, is essential for students of criminology. In the words of scholars … Canadian criminal law derives from a mixture of statutory enactments and common law, a combination that has evolved over time in a slightly spasmodic and haphazard manner. Morris Manning and Peter Sankoff, Criminal Law. 2015 Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 360 2/8/2023 2:13:32 PM  Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections   361 THE LEGAL DEFINITION OF CRIME Canadian criminal law has, in fact, developed in a random and piecemeal manner because the Criminal Code came originally from a drafted (but unused) code de- veloped in England. Regardless of the patchwork code that we use, our conception of crime (as discussed in Chapter 1) is defined in a number of different ways. This chapter is concerned with the legal definition of crime as an act or behaviour that is prohibited by criminal law and enforced through punishment. Earlier chapters explored crime as a conception wherein a range of acts are classified as wrong, criminal, or illegal in a certain time or place by those in power. But defining something as illegal does not mean it is inherently wrong or unjust. Today, a crime is considered a public wrong because it is a wrong against the totality of society. Criminal law categorizes what society deems unacceptable deviance; it is arguably the most invasive form of law in the Canadian justice system because an individ- ual’s freedom is in jeopardy. Criminal law is not like civil law, where money may be exchanged as a means of resolving disputes or restitution for wrongdoing; criminal law sanctions putting a person in prison to punish them for their acts. As such, the focus of critical inquiry should be on whether the state is properly wielding this particularly important power and questioning who defines what is criminal. From a macro perspective, crime is defined broadly as a distinction between what is, in Latin, mala in se and mala prohibita. These are two categories of wrong- doing; there is an act that is evil in itself or, conversely, an evil which is prohibited because the law says it is wrong. Mala in se are crimes are considered inherently immoral, such as murder, arson, or sexual assault, while mala prohibita are crimes prohibited by law, such as unlawful assembly, recreational drug use, or regulatory offences (e.g., driving offences). As we have seen in other chapters, what society may consider wrong in itself and something that is a prohibited wrong does not Copyright © 2023. Canadian Scholars. All rights reserved. remain constant through time, and the penalties for such crimes may also change (e.g., marijuana use). Today in criminal law, the opposing sides are the state, represented by the Crown Attorney, and the individual accused, who is usually represented by a de- fence lawyer. The Crown has the burden of proving that the individual committed the crime. Our adversarial system (discussed below) places a great deal of emphasis on playing by the rules. This is something that we call due process or, according to the Canadian Bill of Rights, the court system must act “according to the legal processes recognized by Parliament and the Courts in Canada.” Our system em- phasizes and prioritizes this procedural fairness, because how guilt is established is arguably just as important as establishing the truth. Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 361 2/8/2023 2:13:32 PM  362   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections The Requisite Elements of a Crime: Actus Reus and Mens Rea A crime has two requisite elements: actus reus and mens rea. Actus reus is the Latin term for the physical action that constitutes a crime, while mens rea is the term for a guilty mind. A crime has to have both an act of doing something (actus reus) and the will or intent to commit the crime (mens rea). It is necessary to es- tablish some threshold of transgression that triggers the criminal justice system to intervene. It is not enough for a criminal to simply think about acting; an external act must have taken place in order for the justice system to engage. We need actus reus because it is impossible to prove a purely mental state. We need something that is outwardly visible because it is not a crime to contemplate do- ing something illegal. For example, the mens rea of the crime of forcible entry would be the intent to forcibly enter a property that belongs to someone else, while the actus reus of forcible entry is committed (according to s. 72 of the Criminal Code) “when that person enters real property that is in the actual and peaceable possession of an- other.” So, if security cameras show that someone came to your house and broke the window and crawled in, they have committed the actus reus of forcible entry. The Crown Attorney attempts to prove that the actus reus occurred beyond a rea- sonable doubt. Remember that there is also a requirement that a guilty mind or mens rea accompany the act that constitutes a crime. That being said, there is no single type of fault that is applicable in all circumstances, and there may also be more than one mental element in an individual crime. In addition, the guilty mind does not necessarily mean that the accused had a malicious intention. The first step in analyzing the mens rea of any particular offence is to go to the Criminal Code and read the very specific mens rea requirements for the particu- Copyright © 2023. Canadian Scholars. All rights reserved. lar crime. It is important to note that the Crown must prove all mental elements re- quired in order to obtain a conviction of a criminal offence. Persons are assumed to intend the natural consequences of actions; one cannot always say that they did not anticipate that something would happen. The court will look at the circumstances surrounding the act to see if they can conclude that there was mens rea. Some people may question why the criminal law has this mental element. The answer is that the system must make sure that only those who are morally blameworthy are convicted of true crimes. The actus reus and the mens rea must also occur at the same time. Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 362 2/8/2023 2:13:32 PM  Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections   363 Box 10.1: Actus Reus and Mens Rea in Action: Fagan v Commissioner of Metropolitan Police, 1 QB 439 In this classic British example of actus reus and mens rea occurring at the same time, Mr. Fagan parked his car on a city street. Constable Vickers, who was close by, told him to park closer to the curb and guided him into the space. When Mr. Fagan parked the car, one of the rear wheels came to rest on top of the Constable’s foot. At that moment, the car engine stopped (but the evidence does not make it clear whether this was because the engine stalled or because Mr. Fagan switched off the ignition). Constable Vickers said, very politely but with a few more expletives, “get off, you are on my foot.” Mr. Fagan made a snide remark and left the car on the Constable’s foot for a period of time until he again turned on the ignition and moved the car off his foot. Mr. Fagan was charged with assaulting a police officer in the execution of his duty. Mr. Fagan’s lawyer argued that, when the car wheel came to rest on the constable’s foot, Mr. Fagan performed the actus reus of an offence of assault but at the time he had no mens rea. When he had the mens rea—that is, when he finally decided to leave the wheel on the constable’s foot—he was not committing any actus reus as it was merely an omission and not an act. Mr. Fagan did not act; instead he failed to act. The defence contended that there was no coincidence of mens rea and actus reus as they did not occur simultaneously. The defence further argued that criminal liability would have been more feasible if Mr. Fagan’s foot had been the method of harm because that would have required a continuing willed pressure. The pressure of the car was not an act. Copyright © 2023. Canadian Scholars. All rights reserved. The Court of Appeal did not accept this defence and convicted Mr. Fagan on the basis that the actus reus was an ongoing one. When Mr. Fagan decided that he would not immediately accede to the policeman’s request, he committed mens rea as well. The court said that the act was continuing from the time the car came to rest on the foot until the time that the wheel was removed. Thus, there was concurrence between the actus reus and the mens rea. Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 363 2/8/2023 2:13:32 PM  364   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections CANADIAN CRIMINAL LAW AND THE FUNDAMENTAL PRINCIPLES OF JUSTICE Canadian criminal law has a unique history that is rooted in British common law and defined by our Canadian constitution. The constitution encompasses the fundamental laws of our system because it governs how the state can act at the most basic level. A constitution is a body of law that establishes a framework for a government and is the supreme law of the country. Constitutional law is the sys- tem of written (and unwritten) principles that defines what power we give to our government while still protecting individuals and certain groups. Constitutional law is formed from statutes and court decisions (among other sources). Canadian law was built on the British parliamentary model but is federally united by a single document called the Constitution Act, 1867. In 1982, the constitutionally enshrined Charter of Rights was added to the Canadian constitution, so that while parlia- mentary supremacy was preserved, there were limits placed on the exercise of government power. Constitutional law and the fundamental values of the Charter override all other laws in Canada. Laws are enacted and repealed, but a constitution also looks to the future and puts limits on the power of government while allowing for legitimate forms of state power. As such, a constitution can and will grow over time, sometimes in ways that were not necessarily foreseen. Each level of government is assigned duties in the constitution, and neither is able to control the activities of the others. There are certain Charter values that are particularly important in criminal law, and many times these are described in terms of hu- man rights. However, the laws of the land only tell part of the story. In Canada, a nuanced understanding of criminal law is not possible without discussing human rights in Copyright © 2023. Canadian Scholars. All rights reserved. the Charter, including section 2 which outlines fundamental freedoms, including “(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communica- tion; (c) freedom of peaceful assembly; and (d) freedom of association.” Section 7 provides that “everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,” and section 8 provides that “everyone has the right to be secure against unreasonable search or seizure,” in addition to sections 9 and 10, which provide rights upon arrest and detention and the right not to be arbitrarily detained (Charter, sections 2–10). These rights will be explored further below. Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 364 2/8/2023 2:13:32 PM  Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections   365 However, the history of Canadian criminal law is not complete without dis- cussing the fundamental and systemic racism inherent in our system. Criminal law was used by colonial settlers to “extend and consolidate power over a territory with which Indigenous peoples had a relationship far deeper than Western con- cepts of ownership, and on which Indigenous nations had administered systems of law and justice long before the arrival of European law” (Roach et al., 2020, p. 17). One must remember that the history of Canadian criminal law is filled with injus- tices for those who are most vulnerable, and we must study settler laws that affect Indigenous peoples as well as Indigenous legal systems in the context of discuss- ing the power of the Canadian state. We must also recognize the overwhelming importance of the treaties negotiated between Indigenous nations and the British Crown. While, in many instances, these have not been honoured by settlers, they are nevertheless “foundational constitutional document[s] that provide … a basis for governing with consent, respect and harmony, as opposed to coercion, force and polarization” (Roach et al., 2020, p. 17). State power and the rights of free and independent persons are central issues in criminal law. The state needs to justify the use of this power to determine whether individuals deserve punishment or what is referred to as a just desert. In 1882, Samuel Robinson Clarke and Henry Pigott Sheppard said that a “crime is the violation of a right when considered in reference to the evil tendency of such violation as regards the community at large” (p. 49). Thus, this complex system of rights (which also includes responsibilities) makes Canada unique not only in our history, our geography, and the treatment of Indigenous peoples but also in our conception of the moral blameworthiness or disregard of the offender. In the words of scholars … Copyright © 2023. Canadian Scholars. All rights reserved. Rule of law is another elusive phrase that is apt to be used in support of many different arguments. In one sense it describes an ordered society as opposed to one where the person with the gun always gets his own way. It conjures up the vision of stability and tranquillity that the framers of the Canadian ­confederation had in mind when they spoke of the “Peace, Order, and Good Government of Canada.” A similar view underlies the mottos: “Freedom under the law,” and “Equal justice under the law.” Stephen M. Waddams, Introduction to the Study of Law. 1997 Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 365 2/8/2023 2:13:32 PM  366   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections The Rule of Law One of the fundamental principles that establishes the fairness and legitimacy of law is the concept of the rule of law. In order for the system of law to be re- spected, it must appear fair and equal in the eyes of the public. It has to apply to all people regardless of their identity or social status; nevertheless, as Waddams (1997) noted, the phrase rule of law is elusive. The goal of the Canadian justice system is not to deem the powerful party the victor but rather to emphasize basic principles including a measured government, freedom, and equality. Rule of law can also refer to the role of judges to make impartial decisions according to the law of the jurisdiction and not through arbitrary power. However, the common law system used in Canada is based on preventing arbitrary power. In historical terms, it refers to the monarch not interfering with the course of justice. It also refers to the concept that the government cannot make law, it can simply use the powers conferred upon it by law; moreover, the law should not be governed by the whims of human decision-making. Box 10.2: Case Study: Rule of Law and the Sexual Assault of Children—R v KRJ, SCJ No 31 In the Supreme Court of Canada case R v KRJ, the court had to make the difficult determination of allowing a sentence to accord with the rule of law. In this case, the defendant pleaded guilty to charges of incest involving his preschool-aged daughter and the creation of child pornography between the years of 2008 and 2011. The government, induced by such cases, felt that there should be more protection of the victims of such crimes and Copyright © 2023. Canadian Scholars. All rights reserved. introduced the Safe Streets and Communities Act, which came into force on August 9, 2012. The Act included a new section of the Criminal Code that would prohibit all contact with the young persons involved, no matter the means, and also introduced a new internet prohibition. This case is illustrative of the principles of Canadian law in modern times and how difficult the principles may be to uphold. Section 11(i) of the Charter states that “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, [the person charged has the right] to the benefit of the lesser punishment.” Thus, following through on the principle of the rule of law, even for a crime Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 366 2/8/2023 2:13:32 PM  Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections   367 as horrendous as child sexual abuse, the court must give a lesser sentence if that was the law at the time the offence was committed. The crimes took place from 2008 to 2011 but the law changed in 2012. We cannot have a retrospective law apply to this offender, although many would agree that he probably should have no contact with young persons and should be prohibited from using the internet. The rule of law establishes the principle that we must not do this. Laws change over time, but the rule of law ideally ensures that offenders realize the sentencing consequences they face at the time a crime is committed. In this case, the court surveyed principles of the rule of law and noted that Lord Diplock in Black-Clawson International Ltd v Papierwerke Waldhof- Aschaffenburg AG said that “acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.” Even with this important law drafted in protection of children, the court found that, subject to section 11(i) of the Charter, the law must not have retrospective operation of the no-contact provision. Thus, even when it means that an important provision such as a just punishment would not be applied to a convicted child sex offender, the rule of law is paramount. The rule of law also holds that laws should not be retroactive; this accords with the legal maxim nulla poena sine lege, which means that there should be no pun- Copyright © 2023. Canadian Scholars. All rights reserved. ishment unless it is in accordance with an unambiguous and non-retroactive law. The rule of law can mean various things to various people. Hogg and Zwibel note that views on the rule of law range from those who say that it is purely “lawyers’ rhetoric that means nothing” to those who argue that “the rule of law means al- most everything” (2005, p. 717). Thus, the phrase rule of law is both a fundamental concept and one that remains the subject of controversy and debate. In theory, it is easy to say that we should adhere to the rule of law, but in practice, the law must fulfill the difficult promise that, for example, everyone is equal under the law. Even if we believe someone is guilty, this adherence to the rule of law must be preserved to the point of allowing an offender to go free (even if we find them morally reprehensible). Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 367 2/8/2023 2:13:32 PM  368   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections Box 10.3: Crime Control and Due Process Models of Justice As discussed briefly in Chapter 1, Herbert Packer famously distinguished between a crime control model and a due process model of justice. In 1968, Packer wrote, in his seminal text The Limits of the Criminal Sanction, that the most important function of the crime control model is to repress crime and maximize social freedom through the proper screening of suspects to determine their guilt and punishment as quickly and efficiently as possible. This model hinges on the presumption of guilt and the timely disposition of the criminal in an “assembly line” model of justice (Packer, 1964, p. 14). This model validates the authority of the state through the criminal system and the maintenance of social order. Conversely, the due process model can be described as an “obstacle course” where there are various stages of investigation and prosecution that recognize the possibilities of human error (Packer, 1964, p. 14). Packer makes it clear that the due process model also recognizes the social benefits in repressing crime but differentiates between a formal process and non- adjudicative fact-finding that recognizes the real possibility of human error. This model stresses the competitive process within the adversarial system and is based on a legal contest whereby two parties compete for victory granted by an impartial tribunal with the full ability of the accused to answer the case against them. This adversarial tradition has evolved over time to include antagonistic parties who are arguing over the guilt or lack of guilt of the accused. In medieval Europe, the parties would physically fight one another to determine the winner through trial by battle. Today, the due process model recognizes that criminal justice procedures are very Copyright © 2023. Canadian Scholars. All rights reserved. important because (for example) witnesses are notoriously inaccurate with their observations, confessions may be induced by the police, and witnesses may have personal biases towards the parties. The due process model is a rejection of the crime control model’s reliance on police fact-finding as determinative of guilt and relies on the evidence that is formally adjudicated. Packer’s work is the subject of criticism, and he himself acknowledges that the two models are not opposites. Legal theorist Kent Roach has been critical of Packer’s two models and has suggested instead four models. Although Roach admits that Packer’s typology was “remarkably durable” (1999, p. 674) over the years, the models do not necessarily add clarity to debates on issues like hate speech, discrimination against minority groups, or the influence of theories like feminism or critical race theory. Roach notes Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 368 2/8/2023 2:13:32 PM  Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections   369 that the role of victim is absent from Packer’s model and so adds a punitive model of victim’s rights (the “roller coaster”) and a non-punitive model of victim’s rights (the “circle”) to Packer’s original formulation (p. 699). Ironically, Roach has the same criticisms for his own models as those he levies upon Packer but notes that recognizing victims is essential in today’s world of criminal law. Factual Guilt and Legal Guilt In the criminal law sphere, there is a difference between factual guilt and legal guilt. A person can fully commit a crime and yet be found not guilty in a court of law if that person’s due process rights were violated. For example, if an arresting officer does not follow proper procedure in collecting evidence (e.g., drugs), that evidence may be eliminated from the trial because of the breach of an individual’s fundamental rights. If there is no longer evidence of drugs at the crime scene, the accused must be found not guilty or the charges must be dropped by the Crown. So, although the person is factually guilty, they are not legally guilty. Box 10.4: The Virtues of Lady Justice Copyright © 2023. Canadian Scholars. All rights reserved. The image of Justitia, the Roman goddess of justice (also known as Lady Justice), is noteworthy for how she symbolizes the main principles of legal Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 369 2/8/2023 2:13:32 PM  370   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections justice. The scale she holds signifies that the formal process of pursuing legal justice should be balanced and fair insofar as the perspectives of both sides of a dispute need to be considered in weighing the judgment. The blindfold indicates that justice should not be biased in favour of one type of person over another. Justice is to be dispensed equally, regardless of the individual characteristics of the parties involved. The sword symbolizes the power of force. For legal judgments to have authority, they must be backed up by a sanction or punitive action, such as a fine or imprisonment, and also by a reward, such as monetary damages to the party that has been unjustly wronged. The snake at her feet represents how Lady Justice presides over the evil of wrongdoing. Does the justice system in Canada reflect the virtues embodied in the figure of Lady Justice? For an accused to be found criminally responsible and for legal guilt to be es- tablished, the Crown must prove all the elements of the offence beyond a reason- able doubt. This means that the Crown discharged the burden of proof (which is the duty to prove the charge against the accused). The standard of proof in a crim- inal matter is almost always beyond a reasonable doubt using all the permitted (ad- missible) evidence. Beyond a reasonable doubt was defined in the criminal case R v Lachance as the burden on the Crown to prove the elements of a crime “‘outside the limit or sphere of ’ or ‘past’ a reasonable doubt” (Lachance, 1963, para 6). Thus, the Crown does not have to prove that the evidence is certain and there is no chance of error; rather, the evidence is so complete and convincing that reasonable doubts are erased from the minds of the judge or jury. This means that the Crown must prove all elements of the crime to this standard of actus reus and mens rea coincid- Copyright © 2023. Canadian Scholars. All rights reserved. ing with one another. In contrast, factual guilt is whether the individual actually committed the crime with which they are charged. Factual guilt, or factual inno- cence, are not terms that are usually used in the criminal justice system. Although the accused may be factually guilty, if they are not also legally guilty, it would be improper to take away their freedom. If legal guilt cannot be determined, the evi- dence is excluded and the accused person will walk free. Until an accused is proven legally guilty according to the applicable law, the courts have an obligation under section 11(d) of the Charter to presume that person innocent. Of course, we all know of individuals, or perhaps we know that we our- selves, have committed illegal acts but have not been caught by the state. Are we any less guilty because we were not apprehended? We may be factually guilty, but because we did not engage with the criminal justice system, we cannot be held legally guilty. Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 370 2/8/2023 2:13:32 PM  Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections   371 THE CRIMINAL CODE OF CANADA In Canada, criminal law is the purview of the federal government through the en- actment of the Criminal Code. The Criminal Code is a statute that applies whether the offender is in Quebec, Nunavut, or any province or territory in between. An act is only criminal if the Canadian government has deemed it criminal. Some crimes have been prohibited for hundreds of years, like murder and treason, while newer crimes like cyberbullying are captured under the criminal harassment sec- tions of the Criminal Code. Many observers argue, however, that updated defin- itions and understandings of new types of crime are needed. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS AS A SOURCE OF THE LAW As mentioned above, a discussion of the sources of criminal law begins with the division of powers between the federal and provincial government through the Constitution Act, 1982, and the Charter, which is the first 34 sections of the constitution. Many constitutional issues arise outside of the Charter, but the Charter is of utmost importance in criminal law because of the latter’s potential to take away an offender’s liberty. The introduction of the Charter in 1982 had a huge impact on Canadian law as the development empowered judges to declare a piece of legislation invalid if it infringed on an individual’s rights. Contrary to public assumptions, it should be noted that Charter challenges are primar- ily about challenging the government’s purported power in any given area of legislation, rather than a citizen’s right to challenge issues like their neighbour’s racist behaviour. A constitution can be thought of as a list of rules for lawmakers. It defines Copyright © 2023. Canadian Scholars. All rights reserved. the roles of different laws and how they work together and provides mechanisms for how they can be changed. The purpose of a constitution is to provide limits on state power. Canada’s system was adapted from the British system through the Constitution Act, 1867 (and before that, the British North America Act). Before the Charter, parliamentary supremacy dictated that parliament and statute law was above all law made by judges (called common law or case law). In Canada, parlia- mentary supremacy has always been limited by the Constitution Act, 1867, but since the inception of the Charter, the court has taken on a more important role by put- ting certain entrenched individual and group rights beyond the power of federal or provincial governments. The courts are powerful in that they can declare that the federal or provincial government acted outside of its power, with the result that a law can be declared to have no force or effect. Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 371 2/8/2023 2:13:32 PM  372   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections A variety of criminal law rights are provided for in the Charter, such as the rights under section 10 to be informed on arrest or detention of the reason why one is stopped, and also to retain and instruct counsel without delay. All of these principles have been interpreted by subsequent case law (many times); thus, the Charter is about structuring a relationship between the state and individuals. The courts must be careful not to alter anything that would contravene the intention of the Parliament of Canada or of the province or territory. Some say that adding words or meaning that were not intended by the legislators is not the proper purview of courts. Others note that it is not the role of courts to interpret a statute so narrowly that it does something that the government did not intend. This constant push and pull of the courts and legislature is what makes constitutional law interesting because no rights are absolute under section 33 (the notwithstanding clause) of the Charter. SOURCES OF CRIMINAL LAW: STATUTE AND CASE LAW The criminal justice system derives its power to prosecute criminal matters through the division of powers in the Constitution Act. Section 91 provides that lawmaking is the responsibility of the federal government, while the provinces’ powers are delegated under section 92. The Criminal Code is a federal document, and only the federal government has the power to enact criminal legislation. The provincial and territorial governments also have the authority to make legislation when it comes to certain matters. For example, provincial governments can legislate driv- ing offences, such as driving while your licence is suspended, and other provincial offences which are sometimes called quasi-criminal matters. All Canadian citizens are presumed to be versed in the provisions of the Crim- inal Code as ignorance of the law is not an excuse. However, as discussed above, only crimes that exist at the time of the act can be prosecuted; retroactive crimes Copyright © 2023. Canadian Scholars. All rights reserved. are not permitted. It is important to remember that through the rule of law, all people are equal, and no one is above the law. The law must be certain and not vague. If it is too vague, a court can say that it is void because people could not tell if their actions were criminal, and the accused person is accorded the benefit of the doubt if this is in question. In Canadian criminal law, the Criminal Code is the most important document, but there are other provisions like the Controlled Drugs and Substances Act that function in conjunction with the criminal law. There are two primary sources of criminal law in Canada: legislation (like the Criminal Code) and judge-made case law that interprets legislation. Our system is based on law interpreted by appointed judges, which may lead to the accusation of judicial activism. An activist court is one that has engaged in making the law (perhaps for policy reasons) rather than Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 372 2/8/2023 2:13:32 PM  Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections   373 simply interpreting the law and applying it to the case. Some observers are wary of judicial activism, believing that policy development is reserved for the politicians and not unelected judges (as we have in Canada). Some say that judicial activism is needed in cases we agree with and is something to be reviled when we do not agree with the decision. The bottom line is that the legal system is a human system defined by human actors, whether at the political or judicial level. Substantive and Procedural Law There is also a difference between substantive and procedural criminal law that aids in the administration of justice. A crime may be classified as such by the state, but the state also devised a series of rules to govern the prosecution and adjudication of any breach of the criminal law. Section 91(27) of the Constitution Act, 1867 dictates that the federal government has authority over “Procedure on Criminal Matters.” It is important to note that a person can only be found liable by a properly comprised and charged judge and/or panel of one’s peers (jury) by a court exercis- ing the given power provided under the Criminal Code. Often, these rules are very technical and narrowly applied, but other stipulations may be extremely broad, such as the doctrine of due process, which dictates that one receives a fair hearing, or double jeopardy, which dictates that an accused must not be tried twice for the same crime. The rules and principles of criminal justice have only been bolstered since the inception of the Canadian Charter. Through the Criminal Code and these procedural rules, the Crown Attorney must prove all elements of an offence. TYPES OF CRIMINAL CONVICTIONS IN CANADA: SUMMARY OFFENCES/INDICTABLE OFFENCES/HYBRID OFFENCES Copyright © 2023. Canadian Scholars. All rights reserved. Historically, crimes were divided into treason, felonies, and misdemeanors, and these terms are still used in the United States. Felonies were originally punishable by death and forfeiture of property, while misdemeanors were less serious. Today, Canadian criminal offences are divided into summary, indictable, and hybrid offences. Summary offences are those crimes that are considered less serious than indictable offences and are tried before a provincial or territorial judge. Under the Criminal Code, summary offences are punished by a fine of no more than $5,000 or a term of imprisonment of not more than two years less a day. In some instances, both types of punishment may apply. Indictable offences have more serious consequences, up to and including life in prison. Life in prison refers to the time required for the offender to be eligible for parole. For a crime like first-degree murder, the individual must serve 25 years of Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 373 2/8/2023 2:13:32 PM  374   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections the sentence before being eligible for parole. The location where an offender serves this sentence is also important, as those given a sentence of two years or more must serve their time in a federal penitentiary while those with a sentence of less than two years do so in a provincial institution. Under section 718 of the Criminal Code, the court must consider the funda- mental purposes of sentencing, which includes the protection of society and crime prevention (as noted by Herbert Packer; see above), respect for the law, and the “maintenance of a just peaceful and safe society” while considering denunciation, deterrence, separation, rehabilitation, reparations, and the responsibility of the offender. Those charged with an indictable offence may have a choice of court, includ- ing a trial in the Provincial Court of Justice or the Superior Court of Justice, and a choice of whether one wishes to be tried by judge alone or judge and jury. The most serious offences are in the exclusive jurisdiction of the Superior Court of Justice in the province. Some individuals who are charged with an indictable offence elect to proceed with a preliminary hearing, but these rights have been curtailed in recent years. The matter begins with an indictment, a legal document that sets out the charges that the accused is facing. The Criminal Code also has hybrid offences, which may be tried either as an indictable or summary offence at the choice of the Crown. The classification of an offence may depend on factors such as future plea negotiations and whether the Crown has a reasonable prospect of conviction. Until the Crown elects that a hybrid offence will be tried as an indictable or summary offence, it proceeds as an indictable offence in accordance with the Interpretation Act s. 34(1). Hybrid of- fences are sometimes also referred to as dual procedure offences or Crown option offences, as the prosecutor is solely in control of how the offence proceeds. In re- Copyright © 2023. Canadian Scholars. All rights reserved. cent years, Parliament has allowed the maximum penalty for some hybrid offences that are tried summarily to be increased to 18 months incarceration. ADMINISTRATIVE LAW AND REGULATORY OFFENCES Outside of the traditional criminal law system are those wrongs that we call regu- latory offences. The term regulatory offence describes a wide variety of wrongs es- tablished by statute to regulate in the areas of health, convenience, safety, and the general welfare of the public. These charges are non-criminal and are dealt with at administrative tribunals and not in a traditional courtroom setting. In a regula- tory offence, the Crown is not required to fully prove the element of mens rea as they would an offence in the Criminal Code. Many statutes make room for external bodies to administer these areas of law. Administrative tribunals may look as if Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 374 2/8/2023 2:13:32 PM  Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections   375 they are courts, but they are really part of the executive branch and not the judicial branch of the government. Even though these tribunals are not in a formal court system, their decisions are binding on the parties. These tribunals are not permit- ted to go beyond their jurisdiction, and the rules of due process must be followed. Each of these tribunals have specific legislation that governs their jurisdic- tion and the powers delegated to them by government. These bodies often have significant authority and can levy fines, send people back to prison, de-certify professionals, revoke licences, terminate people from jobs, deport individuals, and impose a wide variety of punishments. Ideally, administrative tribunals provide an impartial body that ensures the government’s authority is exercised in a fair and non-discriminatory way. Typically, members of these tribunals have specialized knowledge, training, education, and/or experience. The goal is that tribunals should have autonomy and not be unduly influenced by authorities. The job of administrative tribunals is to hear complaints and grievances by citizens against government departments and resolve these conflicts according to certain principles, remaining consistent with the law. In the words of scholars … For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer. Sir William Blackstone, Commentaries on the Laws of England. 1836 THE MAIN ELEMENTS OF THE CRIMINAL JUSTICE SYSTEM Copyright © 2023. Canadian Scholars. All rights reserved. The criminal justice system has a unique structure. A criminal law case is heard by a provincially or federally appointed judge with or without a jury, and the case is brought in the name of the state, which is why the style of cause reads Regina v Smith (which often gets shortened to R v Smith). “Regina” refers to the Queen of England; in a constitutional monarchy like Canada, this individual is the symbolic head of state. If a man is the sitting monarch in Britain, the style of cause in Canada would read “Rex v Smith.” The style of cause indicates that the wrong was commit- ted against the state (not just the victim). The Crown Attorney is employed by the state to prepare a case and the accused will plead “guilty” or “not guilty.” The victim has little control and, in most cases, gets no personal benefit other than a period of separation from the offender, restitution, and perhaps formal recognition that they were criminally wronged if the offender is found guilty beyond a reasonable doubt. Colaguori, C. (Ed.). (2023). Crime, deviance, and social control in the 21st century : A justice and rights perspective. Canadian Scholars. Created from york on 2025-01-14 01:33:21. CrimeDeviance_and_SocialControl_21Century.indd 375 2/8/2023 2:13:32 PM  376   Chapter 10   Canadian Criminal Law: Policing, Prosecution, and Corrections If the accused in a criminal trial is found guilty, they will be convicted and, to varying extents, punished. The maxim that it is better to let ten guilty persons go free than convict one innocent person is a cornerstone of the criminal system. If the wrong judgment is given in a civil trial, only a few individuals will be im- pacted, but in a criminal trial, the fundamental basis of our system is brought into question for all if an innocent person is found guilty. The Structure of the Courts There is a distinct hierarchy to the courts involved in the criminal justice ­system. Canadian courts have four general levels that hear all types of crim- inal hearings. At the first level are the provincial courts, or what are called inferior courts, followed by the superior courts for each province (which deal with more serious matters), courts of appeal, and finally the Supreme Court of Canada. Inferior Courts The provincial and territorial courts that are commonly referred to as the lower courts are established by each territorial or provincial government. These courts handle the majority of cases before the courts. Examples include the Ontario Court of Justice, the Provincial Court of Manitoba, and the Territorial Court of the Northwest Territories. The one exception to this structure is the Nunavut Court of Justice, which is Canada’s only single-level trial court with both the pow- ers of the territorial court and the superior trial court so that all judges can hear all cases that arise in the territory. These lower courts are usually presided over by a Justice of the Peace who fol- lows the authority the Justices of the Peace Act. They make decisions at almost all bail Copyright © 2023. Canadian Scholars. All rights reserved. hearings in the province and also set dates for criminal matters. A Justice of the Peace receives the Crown’s first documents in a hearing (called an information), which starts a criminal matter, and can issue summons or warrants, including search warrants. A Justice of the Peace may also preside at some trials. Youth courts are also at this level and govern young offenders from 12 to 17 years old who are charged with an offence under federal youth justice laws. Youth courts attempt to protect the privacy of the young person, and any court at either