Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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Canadian criminal law is constantly evolving. Parliament adds more offences and increasingly more mandatory sentences each year. It has recently simplified self-defence and defence of property. The courts continue to interpret offences and statutory and common law defences and the Charter. On occasion, courts recognize new common law defences such as entrapment and officially induced error. Fault requirements are designed to ensure that the morally innocent, such as those who are unaware that they possess drugs, are not punished. Although objective standards of fault are constitutionally sufficient for most criminal offences other than murder, attempted murder, and war crimes, the Supreme Court has emphasized that objective fault must be based on a marked departure from the reasonableness standard to distinguish it from mere civil negligence. The Court has also expanded some de-fences such as duress in recognition of the principle that people should not be punished for morally involuntary conduct that they could not realistically be expected to avoid. Most defences require that the accused respond reasonably to threats or circumstances, but some, such as intoxication and mental disorder, recognize that accused are not mentally responsible for their actions. Parliament can respond to the extension of defences and has done so with respect to the Court’s con-

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troversial recognition of a defence of extreme intoxication. Even when the Court applies Charter rights, Parliament retains the options of justifying reasonable limits on such rights or temporally overriding such rights. Canadian criminal law emerges from a dialogue between courts and Parliament that is conducted by means of development of the common law, interpretation of the Criminal Code and other statutes, and the interpretation of the Charter.


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