Overview

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 1-22

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 governing

regulatory offences and corporate crime are examined in chapter 6.

Various defences to crimes are examined in subsequent chapters, in-

cluding 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 criminal liability

in the context of some selected specif‌ic offences including the 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 examines models of the criminal

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

principles and jurisprudence examined in the book.

A. CRIME IN CANADA

In any year, approximately 28 percent of all Canadians report having

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

CRIMINAL LAW2

to the police. In only 34 percent of cases do victims report the crime

to the police. The reasons for not reporting var y but often relate to a

perception that reporting would not be useful for the crime victim. The

perpetrator of most violent crime is often someone known to the vic-

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

In 2006, there were just over 2.6 million crimes reported to the

police representing a 30 percent drop in reported crime since the peak

in 1991. The majority (52 percent) of these crimes are property crimes,

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

jority 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

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.

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

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

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

preme Court of Canada, interpret the Criminal 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 (the Charter) to the activities

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

In 2006/07, adult criminal courts disposed of 372,000 cases involving

over a million charges in an average time of eight months. The accused

were found guilty in 65 percent of cases heard and acquitted in less than

4 percent. The remaining cases were generally stayed or withdrawn by

the prosecutor and 2 percent were terminated by the court. The most fre-

quently occurring offences were impaired driving (11 percent), common

assault (11 percent), and theft (10 percent), with homicide and attempted

murder only accounting for 0.2 percent and sexual offences amounting to

less than 2 percent. Although it is much lower than in the United States,

Canada has one of the highest rates ofincarcerationof the developed

democracies. Males represent the majority of prisoners. Prisoners have

signif‌icantly less education and employment history than other Can-

adians. Aboriginal people represent 24 percent of admissions to provin-

cial institutions for those serving less than two years’ imprisonment and

18 percent of admissions to federal penitentiaries for those serving two or

more years’ imprisonment, but only 4 percent of the population. Aborig-

inal people are also three times more likely than non-Aboriginal people to

experience a violent victimization. The chart that follows illustrates how

the criminal law affects only a small percentage of crime committed.