AuthorKent Roach
ProfessionFaculty of Law and Centre of Criminology. University of Toronto

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The criminal law is the result of a complex process that starts with the decision of a legislature to define something as a prohibited act. The next steps are usually the investigation by the police and the prosecution by the Crown. These phases of the criminal process must be procedurally fair, or the accused will be able to seek a remedy for the violation of his or her rights under the Charter. The offence and the available defences must ensure that the morally innocent are not punished and that people are also not punished if they act in a morally involuntary manner. The Crown must also prove beyond a reasonable doubt to the judge or jury that the accused committed the prohibited act with the required fault element. The accused has available various

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defences, most of which will apply if there is a reasonable doubt as to their existence. Some defences such as self-defence lead to a complete acquittal, whereas others such as intoxication and provocation may result in the accused being acquitted of a serious offence such as murder but still convicted of a less serious offence such as manslaughter. The mental disorder defence leads to a special disposition in which the accused, although not convicted, may be subject to further detention or treatment if he or she presents a significant threat to public safety. The judge can, subject to statutory restrictions, exercise sentencing discretion to tailor punishment to the offender’s degree of responsibility, but also to consider...

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