Overview

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology University of Toronto
• Pages: 1-20

Criminal law is enacted and applied in Canada in an increasingly com-

plex constitutional framework that is examined in chapter 1. The basic

elements of criminal and regulatory offences are the prohibited act and

the required fault element, which are examined in chapters 2 and 4,

respectively. Chapter 3 examines how criminal offences are expanded

by various provisions prohibiting attempted and unfulfilled crimes and

participation as an accomplice in crimes. Special provisions governing

regulatory offences and corporate crime are examined in chapter 5.

Various defences to crimes are examined in subsequent chapters,

including intoxication (chapter 6), mental disorder and automatism

(chapter 7), and provocation, self-defence, necessity, and duress (chap-

ter 8). Punishment depends on the exercise of sentencing discretion,

which is examined in chapter 9. A final chapter examines models of the

criminal justice system, trends in the criminal law, and perspectives on

the basic principles and jurisprudence examined in the book.

1) CRIME IN CANADA

In any year, approximately one-quarter of all Canadians report having

been victimized by crime. Most who suffer crimes do not report them

to the police. About 90 percent of sexual assaults, 68 percent of assaults,

53 percent of robberies, 54 percent of vandalism, 48 percent of motor

vehicle thefts, and 32 percent of break and enters are not reported to the

1

Overview

police. The reasons vary but often relate to a perception that reporting

would not be useful for the crime victim. The perpetrator of most vio-

lent crime is often someone known to the victim and the site of most

violence is the home.

In 2002, there were just over 2.4 million crimes reported to the

police. The majority (52 percent) of these crimes are property crimes

and only 13 percent of reported crimes are crimes of violence. The

majority of crimes reported to the police do not result in charges. The

majority of cases in which charges are laid are resolved without a trial,

and end in a finding of guilt. In a process commonly known as plea bar-

gaining, the prosecutor may withdraw some charges or take certain

positions on sentence if the accused agrees to plea guilty. The accused

may receive a more lenient sentence because he or she has pled guilty.

Only a minority of cases go to trial and of these only a very small

minority are ever appealed. Nevertheless, appeal cases are crucial to the

development of the criminal law. Appeal courts, most notably the

Supreme Court of Canada, interpret the Criminal Code. They also devel-

op judge-made common law, so long as this law is not inconsistent with

the Code and does not create new offences. Appeal courts also apply the

Canadian Charter of Rights and Freedoms (the Charter) to the activities

of police and prosecutors, as well as to laws enacted by legislatures.

In 2002–03, adult criminal courts processed 467,500 cases involv-

ing over a million charges. The accused were found guilty in 60 percent

of cases heard and acquitted in 3 percent. The remaining cases were gen-

erally stayed or withdrawn by the prosecutor. The most frequently

occurring offences were impaired driving (12 percent), common assault

(11 percent), and theft (9 percent), with homicide and attempted mur-

der only accounting for 0.2 percent and sexual offences amounting to 2

percent. Although it is much lower than in the United States, Canada

has one of the highest rates of incarceration of the developed democra-

cies. Males represent the majority of prisoners. Prisoners have signifi-

cantly less education and employment than other Canadians. Aboriginal

people represent from 15 to 17 percent of prison admissions, but only 2

percent of the population. The following chart illustrates how the crim-

inal law only affects a small percentage of crime committed.

2) THE CRIMINAL PROCESS

The criminal law assumes concrete meaning when it is administered

through the criminal justice system or the criminal process. The

process starts with a decision of a legislature to make certain conduct

illegal. The criminal law is then enforced by the police who respond to

2Criminal Law