Overview

• Author: Kent Roach
• Pages: 1-23

1

CHA PTER 1

OVERV IEW

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

plex constitutional framework that is e xamined in chapter 2. The basic

elements of crimina l and regulatory offences are the prohibited act and

the required fault element, which are examined in chapters 3 and 5,

respectively. Chapter 4 examines how cr iminal offences are expanded

by various provisions prohibiting attempted and un fulf‌illed crime s

and participation as an accomplice in cr imes. Special provisions gov-

erning regulatory offences and corporate crime are examined in chap-

ter 6. Various defences to crimes are exam ined in subsequent chapters,

including intoxication (chapter 7), mental disorder and automatism

(chapter 8), and self-defence, necessity, and duress (chapter 9). Chapter

10 examines the application of general principles of cr iminal liability

in the context of some selected specif‌ic offences including t he various

forms of homicide, sexual, property, and terrorism offences. Punish-

ment depends on the exercise of sentencing discretion, which is exam-

ined in chapter 11. A f‌inal chapter examine s models of the crimina l

justice system and trends in the criminal l aw.

A. CRIME IN CA NADA

Victimization studie s suggest that about 25 percent of all Canadians

are victims of cr ime in a year. Most of these crimes are theft of person-

al or household property. Most who suffer both property and violent

CR IMIN AL LAW2

crimes do not report them to the police. In only 31 percent of cases in a

2009 survey did v ictims report the crime to t he police. The reasons for

not reporting vary but often relate to a perception that reporting would

not be useful for the crime victim or that the incident was not serious

enough or that the victim would deal wit h the crime in another way.

The perpetrator of most violent crime is often someone known to t he

victim, and the site of most violence is the home.

In 2010, there were just over 2.1 million crimes reported to the

police. This represented the lowest level of reported crime since 1973.

There were 554 homicides reported to the police, the lowest number

since 1996. The majority (79 percent) of crime s reported to the police

are non-violent. 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 com-

monly known as plea bargain ing, the prosecutor may withdraw some

charges or take cert ain positions on sentence if the accused agrees to

plead guilty. The accused may receive a more lenient sentence because

he or she has pled guilty. Less than 10 percent of case s go to trial and

about 40 percent of these trials result in acquittals, but acquittals ac-

count for only 3 percent of all criminal cases. Only a very sma ll minor-

ity of either convictions or acquittals are ever appealed. Nevertheless,

appeal cases a re crucial to the development of the criminal law. Appeal

courts, most notably the Supreme Court of Canada, inter pret the Cr imi-

nal Cod e. They also develop judge-made common law, so long as thi s

law is not inconsistent with t he Code and does not create new offences.

Appeal courts als o apply the Canadian Charter of Rights and Freedoms

(th e Char ter) to the activities of police and prosecutors, as well as to

laws enacted by legisl atures.

In 2008/09, adult crimina l courts disposed of 392,907 cases involv-

ing more than 1.1 million charges. The accused were found guilty in 66

percent of cases and acquitted in 3 percent. The remaining cases were

generally stayed or withdraw n by the prosecutor. The most frequently

occurring offences were impaired driving (11 percent), theft (10 percent),

and common assault (9 percent).

Although its rate of incarceration is much lower than in the United

States, Canada h as one of the highest rates in the developed democracies.

On any given day in 2008/09, there were 37,200 adults imprisoned in

Canada. Men represent the majority of prisoners, but women account for

about 1 in 10 offenders admitted to custody, with Aboriginal women be-

ing 37 percent of women admitted to sentenced custody. Prisoners have

signif‌icantly les s education and employment history than other Cana-

dians. Aboriginal people represent 27 percent of admissions to provin-