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Understanding the Basic Elements of Criminal Law in Canada

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People arrested for a criminal offence in the Greater Toronto Area are often overwhelmed by the ensuing legal process, which revolves around unfamiliar and complicated legalese that can be akin to a foreign language for the average person. Most of the action takes place in a forum with distinct rules and decorum not usually encountered by most people. All of this typically makes courtroom procedures and legal maneuvering between the Crown (prosecutor) and defence difficult to follow.

With this in mind, the criminal lawyers at Mass Tsang decided to offer GTA readers this primer on the basic elements of Canadian criminal law. This should help our readers better understand what they might be getting into if they are ever facing criminal charges. We’ll note, though, that anyone charged with criminal offences should always seek the services of a criminal lawyer to ensure the best possible outcome. Mass Tsang lawyers have successfully defended thousands of Toronto-area residents from criminal charges and stand ready to help you with your criminal defence.

Canadian Criminal Law Codified by Criminal Code

Based in large part on precedents set by Common Law, most criminal charges are codified by Canada’s Criminal Code, with distinct laws crafted and amended by the Canadian Parliament. Some Criminal offences are also codified under other legislation such as the Firearms Act and Controlled Drugs and Substances Act.

Criminal charges are tried as either an indictable or summary conviction offence, with both resulting in a likely criminal record upon conviction unless the judge allows for a mitigating discharge or other remedy. Many crimes are also treated as hybrid offences, which allows the Crown prosecutor to decide whether to pursue charges as an indicatable or summary conviction offence.

Indictable offences are typically reserved for the most serious crimes, with convictions resulting in a minimum prison sentence of two years and a maximum of life in prison. Summary conviction offences typically cover less serious crimes, such as simple assault and theft under $5,000. Maximum penalties for most summary offence convictions are six months in prison, though a few offences carry 18-month to two-year maximums.

Conduct and Intent Must be Proven for Conviction

Based also on Common Law principles, the Crown has to prove guilt and intent beyond a reasonable doubt. In court this means the Crown has to prove—"actus reus”—that the offender was responsible for the elements of criminal conduct, and then prove—"mens rea”—that the offender intentionally and/or knowingly committed the crime.

Mens rea, it should be noted, does not provide defendants with an “ignorance of the law” defence. In fact, the Criminal Code specifically prohibits such defence except in rare circumstances in which ignorance of another law that is not part of the criminal charges has relevance with regard to proving actus reus and/or mens rea—that is, responsibility and intent.

Defence Also Guided by Both Common Law and Charter of Rights

While Common Law precedents guide most defence moves, certain defences have been codified by the Criminal Code. For example, the Code has put limitations on Common Law defences involving self-defence and extreme intoxication.

Common Law precedents also dictate that any evidence presented, whether from the Crown or Defence, can serve the defence. For example, this could mean that the Crown may inadvertently introduce evidence that the defence then uses to prove reasonable doubt. Just because it was introduced by the Crown, if the defence makes use of it, the jury (or judge) must consider it on behalf of the defence as well as on how it was first presented by the Crown.

While not a defence in the true sense of the concept, Charter Rights defences rely on the Charter’s supremacy over the Criminal Code. Criminal law, and the procedures for its adjudication, are subject to any overriding provisions in the Canadian Charter of Rights and Freedoms. Because such provisions are considered part of the Supreme Law of Canada, other laws must adhere to their dictates and courts must always weigh in favor of the Charter when there are inconsistences between them.

This essentially means that if a defendant’s rights were violated in relation to the investigation, arrest, and/or legal proceedings, the violation must be rectified by specific court action. Based on precedence, this could include exclusion of evidence, stay of proceedings or other remedy favorable for the defence.

Categories of Criminal Law

Criminal law in Canada can generally be divided among four broad categories of criminal offences:

  • Personal crimes
  • Property crimes
  • Statutory crimes
  • Inchoate crimes

Personal crimes represent any criminal offences that result in the physical or psychological harm to other people. Dozens of crimes fall under this category, from assault to murder, and from harassment to kidnapping. Criminal negligence, a crime of omission, also falls under this category when it compromises a person’s life or physical safety.

Property crimes cover criminal offences that represent interference with another person’s property. Theft, extortion, vandalism, and any other crimes that deprive a person of their property or use of it fall under this category. Along with theft and breaking & entering, “white collar crimes” such as fraud, embezzlement, tax evasion, and other financial crimes of deception fall under this category.

Statutory crimes represent specific crimes proscribed by legislative statute and often enacted to promote public safety or address other societal issues. Prime examples include crimes relating to alcohol, drugs, firearms, traffic (DUI), and sometimes morality.

Inchoate crimes essentially cover attempted crimes. This could mean conspiracy to commit murder, terrorism, or robbery, as well as a failed attempt to engage in criminal activity. Thinking about committing such crime is not an offence; there must be intent marked by planning for or initiation of the criminal activity. Soliciting someone to commit murder is an inchoate crime, as is abandoning efforts to break into a locked building.

Consult with Mass Tsang for your Criminal Defence Needs

We trust that you have found our primer on basic elements of Canadian criminal law helpful. However, we also remind you that If you or a loved one is facing criminal charges in the Ontario court system, don’t gamble with your future by trying to defend yourself on your own. Mass Tsang criminal lawyers are highly effective at strategizing the most favorable response to criminal charges. Depending upon the charges and Crown’s evidence, this could entail a move to withdraw or dismiss charges, negotiate a plea deal for reduced charges or discharge, or mount a solid defense tailored for acquittal.

Given the potential penalties, criminal record, and disruption to your life that can result from a guilty conviction, contact the highly experienced lawyers at Mass Tsang to ensure that you have the most effective defense to successfully address the criminal charges.



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