Overview

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology.University of Toronto
• Pages: 1-23

1

CHAPTER 1

OVERVIEW

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

plex constitutional framework that is examined in Chapter 2. The basic

elements of criminal 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 criminal offences are expanded

by various provisions prohibiting attempted and unfulf‌illed crimes

and participation as an accomplice in crimes. Special provisions gov-

erning regulatory offences and corporate crime are examined in Chap-

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

including intoxication (Chapter 7), mental disorder and automatism

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

ter 10 examines the application of general principles of cr iminal liability

in the context of some selected specif‌ic offences, including the various

forms of homicide, sexual, property, and terroris m offences. Punishment

depends on the exercise of sentencing discretion, which is examined

in Chapter 11. A f‌inal chapter examines models of the criminal justice

system and trends in the criminal law.

A. CRIME IN CANADA

Victimization studies suggest that about 25 percent of all Canadians

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

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

CRIMIN AL LAW2

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

2009 survey did victims report the crime to the police. The reasons for

not reporting vary but often relate to a perception th at reporting would

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

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

The perpetrator of most violent crime is often someone known to the

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

In 2013, there were just over 1.8 million crime s reported to the police.

This represented the lowest level of reported crime since 1973 and an

8 percent decrease since 2012. There were 505 homicides reported to

the police, the lowest number since 1996 and the lowest homicide rate

since 1966. The majority (79 percent) of crimes 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 bargaining, the prosecutor may withdraw some

charges or take certain 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 cases 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 small 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, interpret the Crim-

inal Code. They also develop 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

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

laws enacted by legislatures.

In 2011/12, adult criminal courts disposed of 386,500 cases involv-

ing more than 1.2 million charges. Three quarters of these cases did not

involve violence. The accused were found guilty in 64 percent of cases

and acquitted in 3 percent. The remaini ng cases were generally stayed or

withdrawn by the prosecutor. The most frequently occurring offences

were impaired driving (11 percent), common assault (10 percent), and

failure to comply with a court order (9 percent). Over 80 percent of ac-

cused are male and 30 percent are between 18 and 24 years of age. Just

about one third of guilty verdicts or pleas resulted in custody, with 86

percent of those cases resulting in sentences of six months or less.

Canada imprisons people at a rate of 118 per 100,000 population, a

rate much lower than the United States but also lower th an Australia and

the United Kingdom. In 2012/13, there were on average 41,049 adults