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Chapter 8
Information about the Criminal Code – Areebah
What:
The Criminal Code is a statute, passed and amended by the federal Parliament, that outlines which actions are considered crimes, how offences are prosecuted, and what penalties are imposed.
It applies in every Canadian province and territory.
Concerns:
The first Canadian Criminal Code, which was enacted in 1892, was based on the English Common law of crimes.
Patchwork changes to the Code have been made almost annually. As a result, some of the offences that remain in our present-day seem irrelevant to modern society. Ex: Prohibiting casting spells
If no other section of the Criminal Code catches the conduct complained of, which remains to be seen, then it is a matter for Parliament to address through legislation.
The purpose of Criminal Law – Mahreen
Criminal law exists to label wrongful behaviour, to identify violations, and to impose punishments.
Purposes: retribution and the protection of society.
Retribution involves the public denouncing and punishing wrongful behaviour.
Criminal law should punish and denounce in a way that respects the rights and liberties of an accused person.
The protective purpose is the concern to make society safer by deterring future wrongdoing and by rehabilitating wrongdoers.
The focus is on public security and the prevention of crime.
Protects society
Prevents harmful or dangerous behaviour
Ensures safety of individuals and property
Maintains public order
Sets clear boundaries for acceptable behaviour
Helps avoid chaos and vigilante justice
Deters criminal activity
Punishments act as a warning to others
Reduces likelihood of future crimes
Punishes offenders
Holds individuals accountable for their actions
Delivers justice for victims and society
Rehabilitates criminals
Aims to reform offenders and reintegrate them into society
Reduces repeat offences (recidivism)
Protects legal rights
Ensures fair treatment under the law
Safeguards the rights of the accused and the public
Reflects societal values
Reinforces shared morals and ethics
Evolves with changing social attitudes
Who commits crimes? (know it well enough to answer a long answer question) – Ishana
Different explanations of who commits crime have focused on different aspects of human existence:
physiology, biology, psychology, sociology, politics and economics.
Late 19th century – Cesare Lombroso tried to relate certain characteristics, such as jaw size, to human behavior.
Late 19th and early 20th centuries – A theory (developed by a group of
theorists known as the Chicago School) linked criminality to underlying social and economic factors.
Another theory linked criminality to individual psychology.
Research has found that children most at risk of becoming delinquents and criminals face the following circumstances:
they receive little love, affection, or warmth, and are physically or emotionally rejected/abandoned by their parents
they are inadequately supervised by parents who fail to teach them right from wrong, and who do not monitor their whereabouts, friends, or activities, and who discipline them erratically and harshly
They grow up in homes with considerable conflict, marital discord, and perhaps even violence.
Families at greatest risk of delinquency are those suffering from limited coping resources, social isolation, and (among parents) poor parenting skills.
Almost all Canadians break the law at some point in their lives, but most of these illegal acts are not serious and committed in adolescence.
Among older youths and adults, those who commit most criminal offences are men who are at the extremes of the social spectrum.
At one end are criminals who were not necessarily from poor families, but who are now without legitimate employment and sometimes homeless.
most feared by the public and are responsible for a large share of common or street crimes.
At the other end are higher- class, white collar criminals, who are responsible for more deaths and steal much more money than the poor, but are seldom called criminals and are seldom condemned by a society in which many people believe that “greed is good.”
Who are the victims of crime? – Mahreen
The prosecution of a criminal offence is not the responsibility of the victim, who often remains uninvolved or minimally involved.
Individuals
Most common victims (e.g. theft, assault, fraud)
May suffer physical, emotional, and financial harm
Families of victims
Experience trauma, grief, or secondary victimization
May face financial burdens (e.g. medical or legal costs)
Communities
Loss of sense of safety and trust
Increased fear and decreased community cohesion
Businesses and organizations
Victims of crimes like robbery, vandalism, cybercrime
Financial loss, data breaches, and reputation damage
Government and public institutions
Targeted by corruption, fraud, terrorism, or cyberattacks
Increased public spending on security and legal systems
Vulnerable and marginalized groups
More likely to be targeted (e.g. women, children, minorities)
Often face barriers to reporting and accessing justice
Elements of an offence – Ishana
To obtain a conviction, the Crown must prove beyond a reasonable doubt that each and every element of the offence with which the accused is charged was in fact committed by the accused.
Criminal offences are made up of two basic elements:
a prohibited act, known as the actus reus
a criminal intent, known as the mens rea.
The actus reus of a Criminal Code offence is the act or omission (failure to act) that has been identified by Parliament as sufficiently harmful to warrant state intervention.
It is understood but not explicitly written into the Criminal Code, that the actus reus must be committed voluntarily - that is, it must be the conscious choice of an operating mind.
Our criminal law does not hold people criminally responsible for actions that they cannot control.
The mens rea of a criminal offence is the mental element that accompanies the commission of actus reus.
Mens rea is the technical term for the blameworthy state of mind that must be proven, beyond a reasonable doubt, by the Crown.
Much of the law on mens rea is found in the decisions of the judges interpreting the language of the Criminal Code.
Analyzing a criminal offence (focus on the issue of consent and assault, know it well enough to answer a short answer question) – Areebah
Section 265(1)(a) of the Criminal Code states, “A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly.”
There are two aspects to the actus reus of assault:
The direct or indirect application of force to a person
The lack of that person’s consent. If either of these elements is absent, a conviction is impossible because the actus reus cannot be established.
Therefore, if force is directly applied to a person who has consented to the application of force, as in a hockey game, the actus reus is missing. If force is applied directly to an animal, the actus reus is missing as well. In neither case can the person who directly applied the force be convicted of assault.
Section 265(1)(a) tells you that the application of force must be intentional; however, it says nothing about the lack of consent.
You could interpret the failure to specify a mens rea with respect to non-consent as an indication that no mens rea is required. In this case, the Crown would not have to establish anything about the accused’s knowledge of the victim’s lack of consent.
However, general principles of criminal liability developed at common law suggest that such an approach is wrong.
There is an interpretation that mens rea is required with respect to each and every element of the actus reus.
Assuming that some mens rea with respect to consent is required,there are still a number of options.
You could insist that the prosecution prove that the accused actually knew that there was no consent at the time that force was applied.
This is a subjective assessment of culpability (guilt) because it focuses on the actual knowledge of the individual accused.
Could interpret the provision as requiring the Crown to establish that a reasonable person would have realized that there was no consent at the time that force was applied.
This standard of culpability is objective because it is less concerned with the actual knowledge of the accused. The objective standard reflects the belief that those who apply force should act reasonably.
Definitions:
Interpretive Presumption: Inference that must accompany the interpretation of a law
Culpability: Guilt
Absolute and Strict Liability (focus on the role of counsel, know it well enough to answer a short answer question when to use) – Mahreen
Absolute liability - culpability based on the commission of actus reus without regard to the mens rea.
Strict liability offence - culpability based on the commission of an actus reus and the inability to prove the defence of due diligence.
Absolute Liability Offences
Definition:
No intent (mens rea) is required
Simply committing the act (actus reus) results in guilt
No defence of due diligence allowed
Example:
Driving without a valid license
Speeding tickets
When Used:
Typically in regulatory or public welfare offences (e.g. traffic, environmental, health violations)
Role of Counsel:
Limited defence strategies
May argue identity, challenge evidence, or seek reduction in penalty
Cannot argue lack of intent or reasonable mistake
Strict Liability Offences
Definition:
No need to prove intent (mens rea)
But accused can present a due diligence defence (they took all reasonable steps to avoid committing the offence)
Example:
Selling expired food unknowingly
Environmental violations by businesses
When Used:
Often used in regulatory contexts where public safety is involved
Role of Counsel:
Can build a defence based on due diligence
Must gather evidence showing reasonable precautions were taken
Aim to prove client acted responsibly despite the outcome
Chapter 9
Crime scene investigation – Areebah
Fingerprints:
Fingerprints are considered by many to be the best way to identify a suspect and place at a crime scene.
Fingerprints never change and are unique to each person. All fingerprint patterns can be identified as one of three types: arches, loops, and whorls.
Latent Fingerprint
A residue of oil from the fingertip is deposited on the object’s surface. This type of print is usually invisible and requires the application of chemicals or laser light.
Visible Impressions
Fingerprints that are the result of a finger’s contact with a surface where blood, dust, or grease has been previously deposited.
Amoulded Fingerprint
Leaves a visible impression in a soft substance such as clay, wax, or putty.
After Investigation
If an individual has prints on file, the characteristics of each print are examined by experts. When a sufficient number of characteristics are thought to be identical (usually 10 to 12 points of comparison).
Trace Elements
Trace elements (dirt, dust, fluids) can link a suspect to a crime.
Chemical analysis can match materials (e.g., accelerants in arson) to those in a suspect’s possession.Hair and fibres can suggest contact between victim and suspect; hair may reveal racial background, body origin, and blood type if root is present.
Fibre evidence has been both helpful and misleading (e.g., wrongful conviction of Guy Paul Morin).
Blood Evidence
Critical impaired-driving cases and assessing intent (mens rea) from intoxication.
Blood spatter analysis reveals:
Height and source of wound.
Movement and direction of travel.
Force and direction of impact.
Gunshot Residue
GSR includes powder, gases, metal particles, and bullet residue.
Hand Wash test detects lead, barium, and antimony but has limitations:
Can’t determine firing time.
May be contaminated by handling a fired gun.
Newer SEM (Scanning Electron Microscopy) test is more accurate and less invasive.
DNA Evidence
DNA is unique to individuals; can identify with near-perfect accuracy.
Samples can be from blood, semen, saliva, skin, or hair follicles.
Small, mixed samples still yield reliable results.
DNA helps both confirm guilt and exonerate the innocent.
Impact of the Charter on Police powers – Mahreen
Under the Charter, courts have the power to enforce compliance with constitutionally guaranteed rights and freedoms.
The Charter not only proclaims and guarantees rights: it also provides a remedy when these rights are violated.
Section 24(2) provides courts with a new power: the discretion to exclude evidence from the trial of an accused person. Illegally or unconstitutional evidence is not excluded automatically. Rather, a court must determine if the administration of justice would be brought “into disrepute” by its admission.
Impact of the Charter on Police Powers
Limits on Police Authority
Police powers must align with Charter rights
Prevents abuse of authority and protects individual freedoms
Section 7: Life, Liberty, and Security of the Person
Police procedures must respect legal rights
Arrests and interrogations must be fair and lawful
Section 8: Protection Against Unreasonable Search and Seizure
Police need reasonable grounds or a warrant
Illegally obtained evidence may be excluded in court (under s.24(2))
Section 9: Protection Against Arbitrary Detention or Imprisonment
Police can’t stop or detain people without lawful justification
Ensures accountability for street checks and traffic stops
Section 10: Rights Upon Arrest or Detention
Must inform individuals of:
The reason for arrest
Right to counsel (lawyer)
Must give chance to contact a lawyer without delay
Section 24: Enforcement of Charter Rights
Courts can exclude evidence if police violated Charter rights
Ensures police follow proper legal procedures
The Arrest Power – Ishana
Common sense suggests that an “arrest” involves the physical taking of a suspect into custody.
it includes touching with a view to detention and/or using words of arrest to which a suspect submits.
Arrests may take place either with or without the authority of a judicial warrant.
The primary purpose of an arrest is to compel an accused person’s appearance at trial.
Classification of criminal offences (know it well enough to answer a short answer question) – Ishana
1. Summary Conviction Offences
Less serious crimes (e.g., causing a disturbance, public nudity).
Tried only in provincial court by a judge (no jury).
Lighter penalties: max sentence is usually up to 2 years less a day, fines up to $5,000, or both.
Must be charged within 1 year of the offence.
2. Indictable Offences
More serious crimes (e.g., murder, robbery, sexual assault).
Tried in higher courts, and the accused may choose:
trial by judge alone, or
trial by judge and jury (except for some offences like murder, which must go to a higher court).
More severe penalties: may include life imprisonment.
No time limit to lay charges.
3. Hybrid Offences (Dual Procedure Offences)
Can be treated as either summary or indictable, depending on how the Crown decides to proceed.
Examples: assault, theft under $5,000, fraud.
The Crown considers factors like severity and criminal history.
Important because it affects court procedure and sentencing.
Arrest and the Charter (know it well enough to answer a long answer question) – Areebah
Sections 9 & 10 of the Canadian Charter of Rights and Freedoms apply to arrest and detention.
R v. Therens: Detainment triggers the right to counsel even without formal arrest.
Court ruled the breath sample was inadmissible since the accused wasn’t advised of rights.
Detention is judged from the perspective of the individual—would they believe they were free to leave?
Arrest Without a Warrant (Criminal Code)
A peace officer may arrest without warrant if:
It’s an indictable or summary offence.
Arrest is necessary to:
Establish identity.
Secure/preserve evidence.
Prevent further offences.
Believes a person might fail to attend court if not arrested.
A peace officer should not arrest if:
Public interest can be satisfied without arrest.
No risk of the person fleeing or failing to attend court.
Charter Distinctions
Arrests by police, private security, or private citizens all trigger Charter protections.
Charter does not apply to one citizen merely detaining another.
Racial Profiling
Definition: Action based on stereotypes (race, ethnicity, etc.) rather than reasonable suspicion.
Charter s. 9 prohibits arbitrary detention—racial profiling may violate this.
Case: R v. Brown (2003)
Facts: Black man, Decovan Brown, stopped while driving an expensive car; claimed racial profiling.
Trial judge showed bias, rejected the claim, and suggested Brown apologize to the officer.
Appeal allowed: Trial judge’s behavior created reasonable apprehension of bias.
Evidence presented could support racial profiling.
Racial bias is usually proven circumstantially, not directly.
Judges must remain impartial and sensitive when such claims arise.
The Search Power (know it well enough to answer a long answer question) – Mahreen
Searches must be explicitly authorized, either by statute or at common law.
The most important source of the statutory power to search is s. 487 of the Criminal Code.
This provision authorizes a justice of the peace to issue a search warrant in specified circumstances.
The warrant is the grant of authority to conduct the search.
Section 487 of the Criminal Code provides prior authorization for specified searches where reasonable grounds exist.
The requirements of just cause for the search, judicial authorization of the search, and specificity of objects to be searched for are the key elements of s. 487.
a) With a Warrant
Search warrants are legal documents issued by a judge or justice of the peace
Police must provide reasonable and probable grounds (not just suspicion)
Must describe what is being searched and what they are looking for
Common in searches of homes, businesses, or personal records
b) Without a Warrant – Only in Limited Situations
Police can search without a warrant in the following exceptions:
Consent Search
Person voluntarily agrees to the search
Consent must be informed and not coerced
Search Incident to Lawful Arrest
Police can search a person and their immediate surroundings after an arrest
Purpose: protect officer safety, prevent evidence destruction, or find more evidence related to the arrest
Plain View Doctrine
If police lawfully enter a space and see illegal items in plain view, they can seize them
Emergency/Exigent Circumstances
Immediate action needed (e.g. to prevent loss of life, protect evidence, or stop a crime)
Must later justify why it was necessary
Vehicle Searches
Police may search vehicles if they have reasonable grounds (e.g. impaired driving, contraband)
3. Unreasonable Searches
If the search is not based on law or is overly intrusive, it is considered unreasonable
Violates Section 8 of the Charter
Courts may exclude the evidence under Section 24(2) if it would bring the administration of justice into disrepute
4. Role of Counsel
If someone is searched, arrested, or detained, they have the right to speak to a lawyer immediately (Section 10(b))
A lawyer can help determine if a search was lawful and guide further legal steps
5. Key Case Law
R v. Collins (1987) – set out the test for determining if a search was reasonable
Ensuring the accused’s appearance in Court – Areebah
Appearance Notice:A document designed to ensure an accused’s attendance in court; issued by a police officer where no arrest is made.
Summons: A document designed to ensure an accused’s attendance in court; issued by a justice
or judge after an arrest is made
Promise to Appear: A document designed to ensure an accused’s atten- dance in court; issued by the officer in charge of a police station after an arrest
Recognizance: A document designed to ensure an accused’s attendance in court; issued by the officer in charge of a police station after an arrest in which the accused promises to pay a sum of money if he or she fails to appear.
These three procedural options apply to those charged with summary conviction offences, hybrid offences, and indictable offences of a less serious nature
People charged with more serious indictable offences are detained in custody to await a judicial interim release or bail hearing. This hearing must be held within 24 hours of an accused’s detention or as soon as possible.
Method of Trial – Ishana
Two Courts That Conduct Criminal Trials in Ontario
Ontario Court of Justice
Formerly called Provincial Court
A court of inferior jurisdiction (handles less serious matters)
Judges are appointed by the provincial government
No jury trials – only judge-alone trials
Handles:
All summary conviction offences
Some indictable offences (if they are less serious)
Hybrid offences (when the Crown chooses to proceed summarily)
Ontario Superior Court of Justice
A court of superior jurisdiction (handles more serious matters)
Judges are appointed by the federal government
Can conduct jury trials or judge-alone trials
Handles:
The most serious indictable offences (e.g., murder, sedition)
Indictable offences where the accused chooses to be tried here
2. Type of Offence Determines the Trial Process
Summary Conviction Offences
Less serious crimes (e.g., causing a disturbance, trespassing)
Tried in the Ontario Court of Justice
Judge alone, no jury
Hybrid Offences
Can be treated as either summary or indictable
The Crown chooses how to proceed:
If summary, trial stays in Ontario Court of Justice
If indictable, the accused gets to choose how they want to be tried
Indictable Offences
More serious crimes
Three categories:
Least serious: Tried in Ontario Court of Justice only (e.g., theft under $5000)
Most serious: Must be tried in Superior Court (e.g., murder)
Others: Accused can choose:
Judge-alone trial in Ontario Court of Justice
Judge-alone or judge + jury trial in Superior Court
3. Preliminary Inquiries (for Some Indictable Offences)
Held in Ontario Court of Justice
Purpose: To determine if there is enough evidence to proceed to trial in the Superior Court
Helps filter out weak cases before going to a full trial
Only available for some indictable offences, not for summary or hybrid treated as summary
4. Pre-Trial Conference (Section 625.1 of the Criminal Code)
A meeting before the trial involving
A judge
The Crown attorney
The accused or their lawyer
Goal: To discuss issues and decisions that should be settled before the trial starts to ensure a fair and efficient process
Mandatory for all jury trials
Optional for judge-alone trials (can be requested by the judge, Crown, or accused)