The Criminal Law System

AuthorMark Bourrie
chapter five
he Criminal Law
Criminal law is the exclusive preserve of the federal government. Any
provincial law that is, at its heart — in “pith and substance” — a statute
that generates a criminal oence can be struck down as unconstitu-
tional. Provinces may pass laws that can result in people being sent to
jail, such as sh and game laws that make hunting without a licence an
oence, but the provincial law’s purpose must relate to an area of prov-
incial jurisdiction (in this case, the protection of natural resources).
All criminal law in Canada has a statutory foundation. It is the
result of Parliament passing a law, such as amendments to the Criminal
Code, the Income Tax Act,1 statutes related to the control of narcotics, or
sanctions enumerated in other laws in its area of jurisdiction. People
may not plead ignorance of the law, but they also deserve fair notice of
acts that are criminal. e wording of the law is not always clear, so true
ambiguities in the wording of laws should be resolved in favour of the
accused.2 Ambiguous provisions in law are not fair notice.3 Courts are
supposed to interpret poorly worded statutes and regulations in ways
1 RSC 1985, c 1 (5th Supp).
2 R v Mac (2001), 140 OAC 270, 152 CCC (3d) 1 (CA).
3 All law in Canada is proclaimed and is published in the Canada Gazette, a publi-
cation that has no mainstream readership. It is available online, through a Google
search, and is often useful for story ideas.
that are most favourable to defendants. Lawyers arguing the meaning
of the law can look at the purpose that the Act is supposed to fulll and
even dig into Hansard and parliamentary commiee reports to see
what Parliament was trying to accomplish. e French and English
versions of a statute can be compared.4is was discussed in more
detail in Chapter 2, Section D, which looks at statutory interpretation.)
ere is one oence in Canada that is part of the common law,
rather than being dened in statute as a crime. is is the oence of
contempt of court, which can include a wide range of behaviours, such
as publishing certain information about a defendant during a trial
(before it is heard by a jury), failing to obey an order of the court, and
launching an unfair media aack on a judge. is last charge is almost
never used, but “scandalizing the court” was, in previous generations,
an oence that journalists worked hard to avoid. It’s not a good idea
to test a judge to see if that law would still be invoked. e Supreme
Court of Canada case of Frey v Fedoruk sets the precedent that there will
be no new criminal oences at common law created by the courts.5
Section 11(d) of the Canadian Charter of Rights and Freedoms
entrenched the age-old presumption that people are, at least in the eyes
of the law, innocent until proven guilty. But the presumption of inno-
cence is worthless if the standard of proof required for a conviction is
too low. e standard of proof in a criminal case is “beyond a reason-
able doubt,” which is a fairly high bar for prosecutors to get over. Note
that it doesn’t say beyond all doubt or any doubt. In R v Lifchus,6 Justice
Cory says these words have a specic meaning. Reasonable doubts are
not based on sympathy or prejudice, but on reason and common sense
and on the absence or presence of evidence. e standard lies between
absolute certainty and probability. Prosecutors do not have to rebut
every defence put forward by an accused person, just those that have
an air of reality. On the other hand, defendants can’t oer judges and
juries ridiculous evidence to try to cast doubt. It is up to the trier of fact
4 R vClark, 2005 SCC2.
5 Frey v Fedoruk, [1950] SCR 517, [1950] 3 DLR 513.
The Criminal Law System 65
to determine whether the doubts raised do have an air of reality and if
those doubts fall within Justice Cory’s denition of “reasonable.”7
A reverse onus oence exists when the accused person must prove
they did not commit the oence and the presumption of innocence
does not exist. ere are some reverse onuses that are justiable, such
as those under highway trac laws, but courts have struck down laws
that require individuals who live with sex workers to prove they were
not living o the avails of prostitution, and that require people caught
with a large quantity of drugs to prove they didn’t have those drugs for
tracking. A person who is insane must prove that defence, and the
Crown does not need to prove the defendant is sane (though, in most
cases, the Crown will try to rebut an insanity defence, usually by calling
experts of its own.)
In Canada, people are liable only for their own conduct and cannot
be held liable for the actions of another. Legislators have found a
way around this legal construct by passing laws making it a criminal
oence to belong to criminal and terrorist organizations. (Deciding to
join the organizations and then agreeing to belong to them satises the
intent and action required for a crime.) Still, it is a principle of funda-
mental justice that people should not be punished unless they commit
blameworthy acts, so vicarious liability violates section 7 of the Can-
adian Charter of Rights and Freedoms and cannot be saved using section 1.8
A person can be liable for actions taken by employees or people under
their control (for example, a gang leader who has people guarding a
large stash of drugs that they own). Consent and a measure of control
is required for joint possession of drugs,9 but the Crown need not have
ironclad proof, such as a wrien contract, that criminals are working
together. Knowledge and control can all be inferred from circumstan-
tial evidence.10
7 R vCinous, 2002 SCC 29.
8 R v Burt, [1985] 5 WWR 545, 40 Sask R 214 (QB): Provincial Act says that an owner
of a vehicle is vicariously liable for any act in which the vehicle is involved.
9 R vMarshall, [1999] 3 SCR 456, 177 DLR (4th) 513.
10 See, for example, R vPham, 2013 SCC 15.

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