Full Text:Volume 1

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Contents

Volume I: Criminal Law

Sources of Criminal Law

What is Criminal Law

Constitutionally, criminal law in its simplest form is a "prohibited" act with "penal consequences".[1] Jurisprudence mandated a further requirement that there be a criminal "public purpose"[2], which includes goals such as "public peace, order, security, health" and "morality".[3]

It is said to only apply to conduct that "is so inconsistent with the shared morality of society so as to warrant public condemnation and punishment".[4]

Acts that are considered "innocent or morally neutral" should not be included.[5]

There is no necessary requirement that criminal law be for the purpose of harm prevention.[6]

It is suggested that the purpose of criminal law is to preserve the well being and general order of society.[7] It is to protect the public.[8]

One of primary concerns of the proper functioning of the system is toe ensure that "the innocent must not be convicted".[9]

One of the essential requirements for a properly functioning justice system is that it must have "public confidence", which is necessary for the integrity of the rule of law.[10]

  1. Proprietary Articles Trade Association v Attorney General of Canada, [1931] A.C. 310 at p.324 per Lord Atkin
    Reference re Firearms Act (Can.), [2000] 1 SCR 783, 2000 SCC 31 (CanLII)
  2. Margarine Reference, [1949] SCR 1, 1948 CanLII 2 (SCC) at p. 50
  3. Margarine Reference, ibid.
    Reference re Firearms Act, supra at para 27
  4. R v Greenwood, 1991 CanLII 2730 (ON CA)
  5. Greenwood, ibid.
  6. R v Malmo-Levine, [2003] 3 SCR 571, 2003 SCC 74 (CanLII)
  7. R v Chisholm, (1985), 18 CCC (3d) 518, 1985 CanLII 3587 (NS CA), per Macdonald JA at p. 531
  8. R v B.(S.J.), 2002 ABCA 143 (CanLII) at para 65
  9. R v Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at para 71
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 at para 24
  10. R v Hall, 2002 SCC 64 ("Public confidence is essential to the proper functioning of ... the justice system as a whole... Indeed, public confidence and the integrity of the rule of law are inextricably intertwined.")

Source of Criminal Law

The Parliament of Canada has the sole power to enact criminal prohibitions and determine their punishments.[1]

  1. R v Lloyd, 2016 SCC 13 (CanLII) at para 1

Constitutional Authority to Create Law

The Constitution Act, 1867 sets out the divisions of powers between the federal and provincial governments. Section 91(27) bestows the authority upon the federal government to create legislation in relation to criminal law.[1] However, when it comes to matters relating to the investigation and prosecution of criminal offences, s. 92(14) bestows authority upon the provincial government to administer.[2] This power permits the provinces to constitute provincial and territorial courts which are created by the provincial court act or equivalent.

The federal power over criminal law includes the power to create substantive law relating to crimes.[3] It also empowers the federal government to grant jurisdiction to specific courts, including those constituted by the provinces, over certain offences.[4]

  1. More specifically, in relation to "the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters."
  2. s. 92(14) authorizes the province to makes laws in relation to "the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts."
    see also exception in wording of 91(27)
  3. Reference Re Young Offenders Act (PEI), 1990 CanLII 19 (SCC), [1991] 1 SCR 252
  4. References Re Young Offenders Act (PEI), ibid.

Common Law

Section 9 of the Criminal Code provides that there can be no common law criminal offences.[1] However, under s. 8 common law defences have a role in criminal law.[2]

8 ...
Common law principles continued
(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.


CCC

Section 11(g) of the Charter provides that no person can be found guilty of an offence other than those that constitute an offence under Canadian law or international law.[3]

Equity Has No Status in Criminal Law
The principles of the laws of equity have no relevance to criminal law.[4]

Criminal Legislation

All criminal offences are created by statute of Parliament. Most are found within the Criminal Code of Canada, with additional criminal offences in the Controlled Drugs and Substances Act and several others.

  1. see also R v Amato, [1982] 2 SCR 418, 1982 CanLII 31 (SCC)
  2. See s. 8 and Levis (City) v Tétrault, 2006 SCC 12 (CanLII)
    Frey v Fedoruk et al., [1950] SCR 517, 1950 CanLII 24 (SCC)
    Amato, supra
    Note that s. 8(2) permits the English criminal law as it was immediately before April 1, 1955 to still apply
  3. See section 11(g) of the Charter
  4. R v Steinkey, 2017 ABQB 378 (CanLII), at para 33

Law Must Comply with Charter Rights

Criminal law is only valid where it complies with the Canadian Charter of Rights and Freedoms. Offences that are in violation of the Charter or criminal procedures that violate the Charter cannot be enforced.

Rules of evidence and procedure in criminal matters are governed by federal law under s. 91(27). Accordingly, criminal courts must apply the Canada Evidence Act and enact rules of court pursuant to the Criminal Code.[1]

  1. for example see s. 482(1) and (2)
    see also Role of Trial Judge and Case Management

Laws of England

8
...
Application of criminal law of England
(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.
...
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.


CCC

Criminal offences to be under law of Canada
9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730

(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court. R.S., 1985, c. C-46, s. 9; R.S., 1985, c. 27 (1st Supp.), s. 6, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.


CCC

See Also

Actus Reus and Mens Rea

General Principles

In a criminal trial, the Crown will present evidence that will tend to establish the offence for which the accused is charged.[1] Each offence in the Criminal Code is broken down into "elements" that are to be proven.[2] Each element that is considered "essential" must be proven beyond a reasonable doubt before a judge can return a guilty verdict.[3]

The elements of a particular offence are derived from the explicit wording of the offence and are implied by the judicial interpretation of the offence.

For a list of elements of major offences, see Offences by Category.

Actus Reus and Mens Rea
Common with all criminal offences in Canada are the basic requirements that the Crown must prove there was an action or omission (known as the "actus reus") and that there was a simultaneous criminal intent (known as the "mens rea") within particular circumstance.[4]

What constitutes a actus reus and mens rea depends on the offence itself which is defined by federal legislation. [5]For example, a drug possession charge requires proving mens rea by establishing that the accused had knowledge of the presence of the substance on their person. An assault, however, requires proving mens rea by establishing an intention to apply force.

In a trial situation, it is fundamental that the Crown must prove the elements of the particularized charge as they are the charge and not simply the abstract definition of the offence as found in the Code.[6]

There are more static elements that need to be proven, such as the identity of the accused as the person subject to the offence, jurisdiction of the court over the person accused, and the timing of the offence. Identity can sometimes be a non-trivial issue where the accused was not caught in the act. Courts are very wary of wrongful convictions based on identity. [7] The jurisdiction and time elements simply establish that the court is able to adjudicate the matter. Judges cannot concern themselves of offences outside of the province or offences without any specific time period.[8]

Defences
Where defences are concerned, the Crown has no obligation to disprove them unless the evidence provides an "air of reality" to the availability of a defence.

  1. see more at Role of the Crown
  2. sometimes referred to as the corpus delicti ("body of the offence")
  3. R v Graham, [1974] SCR 206, 1972 CanLII 172 (SCC)
  4. R v Gillis, 2013 NBPC 3 (CanLII), per Lampert J at para 84
    R v Butt, 2012 CM 3006 (CanLII), per d'Auteuil at para 29
  5. Section 8 of Criminal Code prohibits common law offences
  6. R v Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020, per McLachlin J at para 5 ("It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved.")
  7. see Identity
  8. see also Time and Place

Simultaneous Principle

The "simultaneous principle" requires that there be "an intersection of the act and fault requirements of the criminal offence in question". [1]

This "simultaneous principle" is not to be applied strictly. For example, it is not necessary that the mens rea form "at the inception of the actus reus".[2] There only needs to be some overlap at some moment in time.[3] Accordingly, an act may start off innocent and then become the basis of criminal liability once the mens rea is formed during the act.

For the purpose of considering the simultaneous principle, a series of acts may be considered a continuous transaction.[4]

  1. R v McCague, 2006 ONCJ 208 (CanLII), per Trotter J
  2. Cooper, ibid. 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J
  3. Cooper, ibid. ("There is, then, the classic rule that at some point the actus reus and the mens reas or intent must coincide")
  4. Cooper, ibid.
    see also R v Paré, 1987 CanLII 1 (SCC), [1987] 2 SCR 618, per Wilson J

Actus Reus

The actus reus concerns the "external elements" of the offence.[1] It is an act or omission of the accused that is required for proof of the offence.[2]

Criminal law only punishes those acts which are conscious and voluntary.[3]

Voluntariness
Fundamental to criminal liability is that the criminal act be voluntary as it reflects respect for a person's autonomy and only punishes those who have the capacity to conform with the law.[4] All actions are presumed to be voluntary.[5]

Reflexive actions of accused can be considered involuntary.[6]

Omissions
An omission can make out an actus reus where there is a legal duty to act.[7]

  1. R v Leech, 1972 CanLII 242 (AB QB), per Macdonald J at para 18 ("actus reus means all the external ingredients of the crime") citing Williams, Criminal Law, 2nd ed
  2. see numerous references to "act or omission" within the code, referring to all "external ingredients" of the offence at issue
  3. R v Mathisen, 2008 ONCA 747 (CanLII), per Laskin JA
  4. R v Luedecke, 2008 ONCA 716 (CanLII), per Doherty JA at para 56
  5. R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J at para 171
  6. R v Pirozzi (1987), 34 CCC (3d) 376 (Ont. C.A.), 1987 CanLII 6810 (ON CA), per curiam
    R v Mullin, 1990 CanLII 2598 (PE SCAD), (1990), 56 CCC (3d) 476 (P.E.I.C.A.), per Carruthers CJ
    R v Wolfe, (1974) 20 CCC (2d) 382 (Ont. C.A.), 1974 CanLII 1643 (ON CA), per Gale CJ: accused hits victim on head with telephone by reflex
  7. see Duty of Care

Circumstances of the Act or Omission

Certain offences only criminalize acts that occur only within certain circumstances. Where the circumstances in which the conduct takes place are an essential element to the offence these are referred to as the "attendant circumstances" or "external circumstances".[1]

A typical example of external circumstances is the required proof of lack of consent in assault-based offences such as sexual assault.[2]

  1. e.g. United States of America v Dynar, [1997] 2 SCR 462, 1997 CanLII 359 (SCC), per Iaccobucci J. uses the term "attendant circumstances"
  2. see Consent in Sexual Offences

Consequences of the Act or Omission

See also: Causation

The code definition of the Offence will sometimes describe necessary consequences that must arise for the Offence to be complete. This requires crown to prove that the consequence occurred and that the consequence was caused by the Accused's conduct.

Mens Rea

An offence cannot be complete without proof of the requisite blameworthy state of mind, also known as the "mens rea" of the offence.[1]

The requirement is not one that is fixed but will depend on the specifics of the offence.

It can be either on an "objective" or "subjective" standard.

The mens rea will apply not simply to the level of intention behind the accused's conduct but will also apply to their level of knowledge, depending on the offence. The subject of the knowledge will be either the knowledge of the circumstances in which the conduct occurs or knowledge of the consequences that result from the conduct.[2]

There are several available mens rea standards including negligence, knowledge, wilfulness, recklessness, general intent or specific intent.

The standard applicable for a given offence will be set by the wording and interpretation of the legislation.[3]

The mens rea required for an offence will be applied to three types of elements. Elements of conduct, circumstances, and consequence. The elements of conduct refers to the actus reus of the offence.

The mens rea does not require that the accused be aware that what they are doing is a crime. The maxim that "ignorance of the law is no excuse" exempts any requirement of such awareness.[4]

The mens rea does not include the proof of any "motive" for commission of the offence.[5] But aspects such as motive will go towards the overall moral blameworthiness of the offence which in turn affects the penalty to be imposed.[6]

Minimum Constitutional Level of Mens Rea

The principles of fundamental justice within s. 7 of the Charter "require proof of a subjective mens rea with respect to the prohibited act".[7] This because it is not appropriate for criminal law to punish the "morally innocent".[8]

  1. R v Butt, 2012 CM 3006 (CanLII), per d'Auteuil at para 29
  2. Butt, ibid. at para 29
  3. Butt, ibid. at para 29
  4. see s. 19 of the Criminal Code
    see also Defences for "ignorance of the law" principle
  5. Butt, supra at para 29
  6. R v Bernard, [1988] 2 SCR 833, 1988 CanLII 22 (SCC), at para 78 ("those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior motives..."
  7. R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636, per Lamer J at p. 653
  8. Vaillancourt, ibid. at p. 653

Included Offences

See also: Lesser Included Offences

Causation

General Principles

Certain offences in the Criminal Code require not only that the offender do a prohibited act along with the requisite mens rea, but also that the act caused a particular result. Criminal responsibility for causation must be established in fact and in law.[1] This makes a distinction between the physical, biological, or medical cause a particular result and the legal boundary that would attribute responsibility to the accused for the result.

The standard to prove causation is the same as between all homicide offences, including murder, manslaughter, operation of a motor vehicle causing death.[2] Likewise, the standard applies equally to offences involving bodily harm.

The criminal standard of causation in criminal matters is that the "accused's conduct be at least a contributing cause of the [result], outside the de minimis range"[3]

Criminal law does not include any issues of contributory negligence nor does it apportion responsibility for harm caused outside of sentencing.[4]

The inference of foreseeability can be rebutted with evidence of intoxication.[5]


  1. R v Nette, 2001 SCC 78 (CanLII), [2001] 3 SCR 488, per Arbour J, at para 44
  2. R v KL, 2009 ONCA 141 (CanLII), per Watt JA at para 17
  3. KL, supra at para 17 citing:
    R v Smithers, 1977 CanLII 7 (SCC), [1978] 1 SCR 506, per Dickson J at p. 519
    R v Nette, 2001 SCC 78 (CanLII), [2001] 3 SCR 488, per Arbour J at paras 71 and 72
  4. Nette, supra at para 49
    KL, supra at para 18
  5. R v Seymour, 1996 CanLII 201, [1996] 2 SCR 252, per Cory J at para 23
    See R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J for details on the law of intoxication

Offences where causation is an essential element

Causation by Offence

A person who intentionally stabs another person will generally be considered to have intended to cause bodily harm.[1]

  1. R v Abbaya, 2000 ABPC 202 (CanLII), per Allen J at para 76

Homicide

Accident

A panic response to circumstances may render an act involuntary.[1]

  1. R v Leinen, 2013 ABCA 283 (CanLII), per Hunt JA at para 117

Case Digests

See Also

Duty of Care

General Principles

Certain criminal offences create a duty of care, where, if the standard of care is violated, will result in a criminal act. The offences that impose a duty of care include:

  1. breach of duty towards explosives (80)
  2. unsafe storage of a firearm (86)
  3. Criminal negligence (219)
  4. dangerous operation of a motor vehicle (249)
  5. failing to provide necessities of life (215)

Further, there are special duties of care. Persons who take care or control "inherently dangerous materials" that may cause serious injury or death have a "special duty of care".[1]

See also s. 430(5.1) concerning breach of duty causing danger to life or mischief to property.

  1. R v Gosset, 1993 CanLII 62 (SCC), [1993] 3 SCR 76, per McLachlin J

Standard of Care

Any criminal duty of care requires a standard of care that includes, at a minimum, a "modified objective test" for mens rea.[1]

For any offence where the standard of care involves objectively dangerous conduct, the conduct must be shown to be a "marked departure" from the norm. Wherein a "reasonable person in the position of the accused would have been aware of the risk" and "would not have undertaken the activity".[2] The assessment, then, is of a "reasonably prudent person in the circumstances" the accused found himself when the events occurred.[3]

Thus, if the accused's actions show a marked departure from the standard of care described in the offence provision, he still cannot be convicted if a reasonably prudent person in the position of the accused would not have been aware of the risk or would not have been able to avoid the creating the risk.[4]

  1. see R v Hundal, [1993] 1 SCR 867, 1993 CanLII 120 (SCC), per Cory J at page 887 (SCR)
  2. R v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49, per Charron J
  3. Beatty, ibid. at para 40
  4. R v Tayfel (M.), 2009 MBCA 124 (CanLII), per Hamilton JA at para 51

Possession

Introduction

There are three types of possession:[1]

  • personal / actual possession
  • constructive possession
  • joint possession

Possession can be proven through both direct or circumstantial evidence.[2]

These forms of possession are outlined in s. 4 of the Criminal Code:

Possession
4. (3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

...
R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1.


CCC

Possession under s. 2 the Controlled Drugs and Substances Act adopts the same definition as the Criminal Code:

Definitions
2. (1) In this Act,
...
“possession”
“possession” means possession within the meaning of subsection 4(3) of the Criminal Code;


CDSA

At common law, possession requires control[3] as well as knowledge.[4]

Likewise, the statutory requirements of s.4(3), require that the totality of evidence establish beyond a reasonable doubt that the accused had knowledge and control.[5]

  1. R v Anderson, 1995 CanLII 1338 (BC CA), [1995] 29 W.C.B. (2d) 357 (B.C.C.A), per Rowles JA
  2. Warner v Metropolitan Police Commissioner (1968), 52 Cr. App. R. 373 (H.L.)
  3. R v Terrance, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, 147 DLR (3d) 724, per Ritchie J
  4. R v Kocsis 2001 CanLII 3593 (ON CA), (2001) 157 CCC (3d) 564 (ONCA), per MacPherson JA
  5. Anderson, supra
    R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA

Interpretation of Possession

Actual/Personal Possession

“Personal possession” (ie. the actual handling of the thing) requires that “the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty)”[1] Thus, actual/Personal possession requires that:[2]

  1. there be an actual physical custody of the object
  2. a knowledge of the nature of the object while with custody.[3]

There should be more than mere responsibility over the place where the object is found. There must be control.[4]

In certain circumstances personal possession can be drawn from evidence of fingerprints, but this will depend on the circumstances of the case. The determination is a question of fact.[5]

Fingerprints on a container of drugs, by itself, is not sufficient to establish possession of the drug. [6]

  1. R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531, per Cartwright J at pp. 541-42
    R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J at para 16
    R v York, 2005 BCCA 74 (CanLII), per Oppal JA at para 20 ("Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner")
    R v Terrence (1983), 1983 CanLII 51 (SCC), per Ritchie J
  2. R v Franks (G.G.), 2003 SKCA 70 (CanLII), [2003] S.J. No. 455; 238 Sask.R. 1; 305 W.A.C. 1 (C.A.), per Bayda JA
    R v Kocsis, 2001 CanLII 3593 (ON CA), per MacPherson JA
    R v Hess (1948), 94 CCC 48 (BCCA), 1948 CanLII 349 (BC CA), per O'Halloran JA
    R v Bonassin, 2008 NLCA 40 (CanLII), per Welsh JA at para 26 (" Described generally, the three components of possession have been stated to be: (1) knowledge of the item, (2) intention or consent to have possession of the item, and (3) control over the item")
  3. R v Beaver (1957), 118 CCC 129 (S.C.C.), 1957 CanLII 14, per Cartwright J
  4. R v Bertucci, 2002 CanLII 41779 (ON CA), per O'Connor JA, at para 20
  5. R v Lepage, [1995] 1 SCR 654, 1995 CanLII 123 (SCC), per Sopinka J
  6. R v Breau, (1987) 33 CCC (3d) 354 (N.B.C.A.), 1987 CanLII 6811 (NB CA), per Ayles JA
    R v Kuhn (No. 1) (1973), 15 CCC (2d) 1, 1973 CanLII 922 (SKCA), per Culliton CJ

Constructive Possession

Whether a possession under s. 4(3) exists is a question of fact.[1]

Constructive possession will apply where there is no actual possession, but there is circumstantial evidence that shows "that the accused may still be attributed to having possession of a certain object or thing."[2]

Constructive possession requires the following:[3]

  1. knowledge of the item
  2. intent/consent to have possession of the item
  3. control over the item[4]

The crown must prove knowledge extending beyond "quiescent knowledge" that discloses some degree of control of the item[5]

A person cannot have constructive possession where it is established that another person has exclusive control.[6]

Possession can still be established even if it considered the property of some third party.[7]

Constructive possession of drugs found in a suite or house can be established where the accused is shown to have control over a property searched and knowledge that the items were in the place.[8] Even where the accused did not have exclusive control over the place, he can still be found in joint possession of the items.[9]

Constructive possession does not require proof of actual possession at any time.[10]

A person who is to receive a package by mail can be found to be in constructive possession of its contents even where it may have been removed prior to delivery.[11]

  1. R v Pham, 2005 CanLII 44671 (ON CA), per Kozak J at para 27
  2. R v Callan, 2014 SKQB 173 (CanLII), per Konkin J at para 10
  3. R v Kocsis, 2001 CanLII 3593 (ONCA), (2001), 157 CCC (3d) 564, per MacPherson JA
    R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA
  4. R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
  5. Pham, supra (affirmed by the Supreme Court of Canada, 2006 SCC 26 (CanLII), [2006] 1 SCR 940, per McLachlin CJ
  6. R v Marshall (1969), 3 CCC 149 (ABCA) (*no CanLII links)
  7. Pham, supra
  8. R v Basarowich (C.J.), 2010 MBQB 4 (CanLII), 249 Man.R. (2d) 64, per Greenberg J at para 10
  9. Basarowich, ibid. para 11
  10. Fisher, supra at para 24 ("neither constructive possession nor joint possession requires proof of manual handling...")
  11. R v Brenton, 2016 CanLII 24207 (NL SCTD), per Handrigan J, at para 18

Joint Possession

Joint possession amounts to a form of possession wherein multiple people can be deemed to be in possession or custody of the object. By function of s. 4(3)(b) custody and possession of a second party is deemed where "with the knowledge and consent of the rest" the primary persons "has anything in his custody or possession".

To establish joint possession there must be:[1]

  1. knowledge of the object,
  2. consent of the accused,
  3. and a degree of control over it

It is necessary that there be some evidence of "active concurrence" by the accused to possession by another person. Passive acquiescence is not enough.[2]

In circumstances of spouses living together in which one is engaging in criminal activity, a court may infer the elements of possession to the non-participatory co-accused spouse where they are shown to be aware of the criminal activity going on in a residence she resides in and does little if anything to stop it.[3]

Joint possession does not require proof of actual possession at any time.[4]

  1. R v Terrence 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
    R v Williams, 1998 CanLII 2557 (ON C.A.), per McMurtry CJ
    R v Pham 2005 CanLII 44671 (ON CA), (2005), O.R. (3d) 401, 203 CCC (3d) 326 (Ont.C.A.), per Kozak J at paras 15-17
    R v Bjornson, 2009 BCSC 1780 (CanLII), per Bennett J at para 18
    R v Quach, 2008 SKPC 62 (CanLII), per Hinds J
    R v Franks, [2003] S.J. No. 455, 2003 SKCA 70 (CanLII), per Bayda CJ
    Re Chambers and The Queen, 1985 CanLII 169 (ON C.A.), per Martin JA
    R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA
  2. R v Marshall (1969), 3 CCC 149 (ABCA) (*no CanLII links)
    Pham
    R v Caldwell (1972), 7 CCC (2d) 285 (ABCA), 1972 ALTASCAD 33 (CanLII), per Allen JA
  3. R v Mihalkov, 2009 ONCA 154 (CanLII), per Doherty JA (2:1) - majority upholds trial judge's inference. Dissent trial judge cannot impose duty to report police
  4. Fisher, supra at para 24 ("neither constructive possession nor joint possession requires proof of manual handling...")

Innocent Possession

See also: Innocent Possession

There is some suggestion that where the sole intent at all times of possession is to destroy or removing the accused's control over the contraband is not criminal.[1]

There are certain objects, where "human experience tells us that the nature of the property found would simply not be the subject of unknowing possession."[2]

  1. R v Glushek, 1978 ALTASCAD 175 (CanLII), (1978), 41 CCC (2d) 380 (Alta. S.C. App. Div.), per Sinclair JA
    R v Christie (1978), 41 CCC (2d) 282 (N.B. S.C. App. Div.), 1978 CanLII 2535 (NB CA), per Hughes CJ
    R v York 2005 BCCA 74 (CanLII), (2005), 193 CCC (3d) 331 (BCCA), per Oppal JA
    See also R v Loukas, 2006 ONCJ 219 (CanLII), [2006] O.J. No. 2405 (Ont. C.J.), per M Green J
  2. R v Ho, 2010 ABPC 258 (CanLII), per Semenuk J at para 7
    R v Balasuntharam, 1999 CanLII 1979 (ON CA), (1999), O.J. No. 4861, per curiam
    R v Drury and Hazard, 2000 MBCA 100 (CanLII), per Huband JA

Elements

Proof of possession cannot be established by looking at the evidence individually, but rather the court must look at the evidence as a whole.[1]

The onus remains on the crown throughout. Even where the evidence "cries out for an explanation by the accused", it will simply create an evidential onus or even create a prima facie case, however, it will not require the accused to testify or prohibit from arguing that the crown failed to prove the element.[2]

In establishing possession, it is expected that there will be gaps in the evidence that can be filled by inferences.[3]

  1. R v Brar (G.), 2008 MBQB 133 (CanLII), 234 Man.R. (2d) 1, per MacInnes JA at para 37, 38
  2. Brar, ibid. at para 38
  3. R v Anderson-Wilson, 2010 ONSC 489 (CanLII), per Hill J at para 73 (“will involve hiatuses in the evidence which can be filled only by inference”)

Manual Handling of Object

The manual handling of an object it not a necessary element of proof in constructive possession or joint possession.[1]

Brief handling of an object for the purpose of disposing of it, even while aware of its illegal character, is not enough to be in possession of it as it is conduct "inconsistent with retaining or dealing with the goods".[2]

  1. R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA
  2. R v Glushek (1978), 1978 ALTASCAD 175 (CanLII), 41 CCC (2d) 380, per Sinclair JA - brief handling of stolen goods

Knowledge

See also: Knowledge and Wilful Blindness

There cannot be possession without knowledge of the nature of the object.[1] Knowledge requires that an accused have knowledge of “the criminal character of the item in issue”[2] It must be proven beyond mere “quiescent knowledge” that disclosed some degree of control over the items in question.[3]

Knowledge can be established by circumstantial evidence.[4] It can also be established by direct or circumstantial evidence, or a combination of both.[5]

However, it will often depend on the visibility of the object as well as the accused's connection with the location.[6]

For example, where drugs are found in a vehicle or house the courts consider the control the accused had over the location as well as the likelihood of the accused being aware of where the items were found.[7]

Occupancy does not automatically infer knowledge of the items within the dwelling.[8]

Knowledge can be inferred by recklessness or willful blindness.[9] It can be proven by circumstantial evidence without any direct proof.[10]

The knowledge component of possession can be established where contraband is found in plain view in a common area of a residence.[11]

Sparling

  1. R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531, (1957), 118 CCC 129 (SCC), per Cartwright J
    R v Martin (1948), 1948 CanLII 101 (ON CA), 92 CCC 257, per Laidlaw JA at p. 266 (Ont. C.A.)
  2. R v Chalk 2007 ONCA 815 (CanLII), per Doherty JA at para 18
  3. R v Traimany 2011 MBQB 15 (CanLII), per Clearwater J at para 34
  4. R v Sparling (1988), O.J. No. 107, [1988] O.J. No. 107 (Ont. H.C.)(*no CanLII links) at p. 6 :
    "There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge"
  5. R v Pham, 2005 CanLII 44671 (ON CA), per Kozak J, at para 18
  6. R v Grey, 1996 CanLII 35 (ON C.A.), per Laskin JA
  7. R v Gordon, 2011 ONSC 5650 (CanLII), per Backhouse J - acquittal - drugs found in vent of car
  8. Grey, supra at p. 423 (“I would not prescribe a firm rule for inferring knowledge from occupancy”)
  9. see Intention
    R v Bennett, 2008 CanLII 3411 (ON SC), per Belobaba J at para 17
    R v Aiello (1978), 1978 CanLII 62 (ON CA), 38 CCC (2d) 485, 30 N.R. 558, per Martin JA
  10. Aiello, ibid.
  11. Sparling, supra

Consent and Intent

The element of consent to possess an object requires that the accused consent to the object remaining in place after he or she has knowledge of its existence. This is not limited to those who approve of the custody of the drugs. A person who discovers drugs and spends time maintaining custody of it while considering what to do with it may be found to consent to possessing it.[1]

  1. R v Christie (1978), 41 CCC (2d) 282 (NBCA), 1978 CanLII 2535 (NB CA), per Hughes CJ -- woman held onto discovered drugs in car for 1 hour

Control

The element of control over the object is established by showing that the accused had an intention to exercise control. Where the person is shown to have control over the area where the object is stored, they can be found to exercise control over the object itself.[1]

Proof of manual handling of the object does not necessarily imply control. There may be no control where the handling was for the sole purpose of turning it over to the authorities or to destroy it.[2]

It is not necessary that the accused actually examine or look at the item to be in possession of it. [3]

A finding that the accused was in control of the vessel containing the object at issue, is not sufficient to establish control of the object itself.[4]

Simply being one of several persons residing in a residence is not enough to establish control.[5] Control requires that the Crown "prove is that an accused had the ability to exercise some power (i.e., some measure of control) over the item in issue. It is not necessary for the Crown to prove that such power was in fact exercised."[6]

A trier-of-fact may conclude that "someone living in premises in which marihuana plants or other illegal drugs are openly located is in a position to exercise some measure of control over those drugs."[7]

Control can be established by the fact that the accused had the ability to grant and withhold consent to contraband.[8]

  1. R v Marshall, [1969] 3 CCC (3d) 149 (Alta. C.A.) (*no CanLII links) -- acquitted of drug possession as he had no control over drugs in vehicle he was in See also R v Pham 2005 CanLII 44671 (ON CA), per Kozak J
  2. R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
  3. R v Daniels 2004 NLCA 73 (CanLII), (2004), 191 CCC (3d) 393, per Welsh JA at para 12 (Nfld. C.A.)
  4. R v Bertucci, 2002 CanLII 41779 (ON CA), per O'Connor ACJ, at para 20 - judge misdirected by stating they may find control if accused in control of vessel
  5. R v Masters, 2014 ONCA 556 (CanLII), per curiam at para 23
  6. R v Wu, [2010 BCCA 589] (CanLII), per Frankel JA - three adults lived in a house with a grow-op on the upper floor. No evidence of active involvement in grow-op.
  7. Wu, ibid.
  8. R v Savory, 1996 CanLII 2001 (ON CA), (1996), 94 O.A.C. 318, per curiam
    R v Sahlen (2005), Carswell Alta. 2115 (ABQB) (*no CanLII links)
    R v Chambers, 1985 CanLII 169 (ON CA), per Martin JA - ostensible control of access to accused's room amounted to control over drugs found therein

Specific Scenarios

Items Found in a Vehicle

There are differing lines of cases on whether finding of an item within a motor vehicle owned and operated by an accused is prima facie proof of possession by the accused. [1]

Simply being a passenger is not prima facie evidence of possession of contraband inside.[2]

"[M]ere passive acquiescence in the transportation of the drugs" is not sufficient [3]

A sole occupant and driver in close proximity to drugs in plain view allows the inference of knowledge and control.[4]

The Crown must prove the accused knew of the presence of the drug in the vehicle and that that he had a measure of control over it.[5]

However, "where one of two persons has opium in his custody or possession, another who knows that fact, even though he has no measure of control over it, but nevertheless co‑operates with the person who has such custody in an effort to prevent detection" that person has possession. [6]

Where there are multiple occupants in a vehicle containing contraband, knowledge and consent can be inferred based on the relationship and mutual activities of the occupants as well as the vehicle's contents.[7]

A driver is not necessarily going to be in the same position as a passenger. The driver, often operating with the owner's consent, can determine who enters and stays in the vehicle. The pasture me "merely acquiesce" to the driver. [8]

  1. Gallant v The Queen (1960), 128 CCC 129 (NB SCAD), 1960 CanLII 492 (NB CA), per Ritchie JA at p 131 - presumption exists
    c.f. R v Lincoln, 2012 ONCA 542 (CanLII){[TheCourt}} - no presumption
    R v Watson, 2011 ONCA 437 (CanLII), per Laskin JA, at paras 11-13
    R v Vauteur (1970), 1 CCC 324 (*no CanLII links)
  2. R v Sigouin, [1966] 1 CCC 235, 1964 CanLII 716 (QC CA), per Taschereau JA
    R v Sutherland et al., 2005 MBQB 230 (CanLII), per Jewers J
  3. R v Williams 1998 CanLII 2557 (ON CA), (1998), 125 CCC (3d) 552 (Ont. C.A.), per McMurtry CJ at page 558
  4. R v Mulligan-Brum, 2011 BCCA 410 (CanLII), per Levine JA at para 13
  5. R v Grey, 1996 CanLII 35 (ON CA), [1996] O.J. No. 1106 (C.A.), per Laskin JA at para 15
  6. In R v Lou Hay Hung, 1946 CanLII 118 (ON CA), (1946), 85 CCC 308 (Ont. C.A.), per Robertson CJ
  7. R v McRae, 1967 CanLII 440 (SK CA), (1967), 3 CCC 122 (Sask. C.A.), per Wood J
  8. R v Anderson-Wilson 2010 ONSC 489 (CanLII), per Hill J

Items Found in a Residence

Items found in a house can be subject to constructive possession by a person residing there.[1] However, occupancy alone is not always sufficient to establish possession.[2]

Generally, personal papers are to be found in a location where a person has access and control. It is a valid inference to infer that where documents such as “income tax forms, invoices, cancelled cheques, leases, insurance papers and the like” are found in a residence that the person identified in the documents is an occupant with “a significant level of control”.[3]

Mere presence in a residence and knowledge of the presence of contraband in the room or residence is not sufficient to establish possession, evidence must show control.[4]

Frequently, drugs found in a house may be the subject of constructive possession of the resident.[5]

  1. e.g. R v Biggs, 2016 ONCA 910 (CanLII), per MacPherson JA
  2. R v Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (C.A.), per Laskin JA ("I would not prescribe a firm rule for inferring knowledge from occupancy")
  3. R v Emes 2001 CanLII 3973 (ONCA), per curiam at 8
    R v Basarowich, 2010 MBQB 4 (CanLII), per Greenberg J at para 26
    c.f. R v Biggs, supra
  4. R v Colvin and Gladue (1942), 78 CCC 282 (BCCA), 1942 CanLII 245 (BC CA), per McDonald CJ both accused persons were found visiting a premise where narcotics were present, found not in possession of the drugs
    R v Edwards, 2012 ONCJ 422 (CanLII), per Paciocco J at para 23
  5. R v Biggs, supra
    Grey, supra
    R v Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), per Kozak J aff’d 2006 SCC 26 (CanLII), [2006] 1 S.C.R. 940, per McLachlin CJ
    R v Turner, 2012 ONCA 570 (CanLII), 295 O.A.C. 274, per Armstrong JA
    R v Savoury, [2008] O.J. No. 2896 (S.C.)(*no CanLII links)
    R v Allison, 2016 ONSC 2446(*no CanLII links)

Possession of Firearms

When considering the circumstances of a discovered firearm, factors to consider when drawing an inference of possession include:[1]

  • The physical proximity of the fire run to the accused;
  • The degree of visibility of the firearm
  • The degree of communal use of A vehicle containing the firearm;
  • The nature and number of weapons in a particular space;
  • The nature of other items located proximate to the firearm capable of providing context for inferences of knowledge in control (E.g. binoculars, map, duct tape, masks etc.)

Generally, where the items hidden, more than physical proximity will be needed.[2]

Criminal responsibility for certain weapons offences such as s. 94(1) can be established by voluntary occupancy in a vehicle knowing there is a weapon inside does not require proof of control.[3]

  1. R v Anderson-Wilson 2010 ONSC 489 (CanLII)
  2. Anderson-Wilson, ibid.
  3. Anderson-Wilson, ibid. at para 68 ("Criminal liability for voluntary occupancy in a vehicle knowing there is a weapon in the conveyance does not, unlike a possession charge, require proof of control")

Possession of Drugs

Possession of controlled substances can be made on the totality of the circumstances.

A history of unexplained spending without a proportionate source of income can lead to an inference of possession of drugs found on the premises.[1]

  1. R v Ramos, 2015 SKQB 57 (CanLII), per Acton J

Other

Knowledge may be inferred from physical possession of a receptacle containing concealed contraband, however, it cannot create a presumption.[1]

A passenger may be in possession of a stolen car. It depends on the number of factors suggesting knowledge and control. Suggested factors include:[2]

  1. recency of theft
  2. driver fled once there was a collision
  3. actions, demeanour and utterances of passenger suggesting knowledge and control
  4. fleeing from the car with the driver and attempt to dispose of evidence
  5. the passenger's ability to see the damage to the ignition from starting without a key

A mould capable of manufacturing counterfeit coins found buried in the backyard, without any other evidence, cannot be used to infer possession by the resident.[3]

  1. R v Lincoln, 2012 ONCA 542 (CanLII), per curiam, at paras 2 to 3
  2. R v T.A.K., 2005 BCCA 293 (CanLII), per Low JA
  3. R v MacLeod (J.M.) et al., 2013 MBCA 48 (CanLII), per Cameron JA citing R v Haggarty, [1947] 3 DLR 335, 1946 CanLII 367 (BC CA), per Sloan CJ ("...the mere finding of an article buried in the garden of a householder does not, in itself, and in the absence of some evidence indicating his knowledge of its existence, or consent to its remaining in that place, or some other surrounding circumstances from which a reasonable inference could be drawn inculpating the householder, ...")

Case Digests

See Also

Mens Rea

Intention

General Principles

An unlawful cannot attract criminal liability without a sufficient level of awareness of the wrongfulness of the act. In legal terms the accused must have sufficient mens rea to be guilty of a crime. This manifests itself by either an intent on the part of the accused to choose to act in the unlawfulness or a knowledge of the circumstances under which they act to be held responsible for the offence.

However, it must be kept in mind that the latin maxim cogitationis poenam nemo patitur ("no one suffers punishment for mere intent") sets the principle that we not seek to punish people for their thoughts. So the awareness by itself cannot sustain a conviction without an action.

Mens rea.jpg

Intention

"Intent" refers to the mental state of the individual consisting of the desire or purpose to achieve a particular consequence, or where the consequences the person sees as certain, "substantially", or "practically" certain.[1]

There is a presumption that Parliament drafts an offence expecting to require a subjective fault element.[2]

"Purpose"
The use of phrase such as "for the purpose of" found in the Code will sometimes refer to the "desire" or "ultimate objective or goal" of the prohibited act.[3]

"Wilful"
The presence of the word "wilfully" in an provision for an Criminal Code offence "generally signals a subjective mens rea requirement, but the appropriate meaning of the term ‘wilfully’ will depend on the context in which it is found."[4] In context of a probation order, "wilful" denotes "a legislative concern for a relatively high level of mens rea" that requires a intent to breach and have a purpose in doing so.[5]

  1. R v W.(A.), 2012 ONCJ 472 (CanLII) includes a very detailed consideration of the history of intent
  2. R v Tatton, 2014 ONCA 273 (CanLII), at para 18
    R v A.D.H., 2013 SCC 28 (CanLII), 2013 SCC 28, 358 DLR (4th) 1, at para 23
  3. R v Berhe, 2011 ONSC 6815 (CanLII) at para 32
  4. R v ADH, 2011 SKCA 6 (CanLII), [2011] S.J. No. 5 (C.A.) at para 27
  5. R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 SCR 941 at para 13

Specific and General Intent

A crime is only committed where the prohibited act or omission is committed while the accused is in possession of a requisite intent.[1]

Absent words to the contrary in the Code, the presumption is that the offence is one of general intent, whereby the accused must have intended the act or omission.[2]

Criminal law recognizes a distinction between offences that require specific and general intent as an essential element of proof. The difference concerns whether the intent applies "to the acts considered in relation to their purposes" (specific intent) or applies "to acts considered apart from their purpose" (general intent). General intent requires only intent as it "relates solely to the performance of the act in question", while specific intent involves "the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act."[3]

There is some acceptance that the distinction may not always be "logically defensible" and may produce "illogical results".[4]

Most crimes where no mental element is mentioned in the definition of the offence will require proof of intent to or recklessness in bringing out the resulting offence.[5]

Offences with the wording of "wilfully" suggests that the mens rea is extended to a "specific intent". [6]

It has been pointed out that the distinction between general and specific intent is "not particularly helpful in describing the actual mental elements required for a crime”. The can however convey "the complexity of thought and reasoning" and the "social policy underlying the offence.”[7]

  1. R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63 per Cory J. ("...as early as the twelfth century, in large part through the influence of the canon law, it was established that there must also be a mental element combined with the prohibited act to constitute a crime. That is to say that the accused must have meant or intended to commit the prohibited act.")
  2. Daviault
    e.g. R v Greenshields, 2014 ONCJ 35 (CanLII) at paras 10 to 18
    R v MacDonald, 2014 SCC 3 (CanLII)
  3. R v Bernard, 1988 CanLII 22 (SCC), [1988] 2 SCR 833 at para 61
    R v George, 1960 CanLII 45 (SCC), [1960] SCR 871, at p. 877
    Daviault
  4. R v Tatton, 2014 ONCA 273 (CanLII), at para 34
    Bernard at pp. 879 to 880 [SCR]
    R v B.(S.J.), 2002 ABCA 143 (CanLII)
  5. R v Buzzanga and Durocher, 1979 CanLII 1927 (ON CA), (1979), 25 O.R. (2d) 705, 101 DLR (3d) 488 (C.A.) at p. 717
  6. The Queen v Rees, 1956 CanLII 60 (SCC), [1956] SCR 640
  7. R v Tatton, 2015 SCC 33 (CanLII) at para 35 per Moldaver J.

Inferences

See also: Inferences

Intent is often proven by way of inference, including by use of circumstantial evidence, character evidence (e.g. motive or animosity),[1] post-offence conduct, statements made by the accused, or similar fact evidence.

Inferences are factual findings based on common sense.[2]

There is the long-standing inference that a person intends the natural consequences of one’s actions applies to many situations.[3] However, this principle is merely an inference and does not go as far as being a legal presumption.[4]

The inference will be made in most any circumstances except where there may be evidence to the contrary. Doubt may be raised as to the specific intent of the person where they suffer from mental illness or where intoxicated.[5]

Generally speaking, the inference requires the assumption that the accused has the capacity to form intent.[6]

Where circumstantial evidence is used to prove intent, there are three classes of circumstantial evidence:[7]

  1. prospectant (acts or omissions prior to offence);
  2. concomitant (acts or omissions at the time of offence); and/or
  3. retrospectant (after the fact acts or omissions).
  1. see R v Barbour, 1938 CanLII 29 (SCC), [1938] SCR 465
    R v Cloutier, 1979 CanLII 25 (SCC), [1979] 2 SCR 709
    R v Lewis, 1979 CanLII 19 (SCC), [1979] 2 SCR 821
  2. see R v Daley, 2007 SCC 53 (CanLII) at paras 103 and 104
    R v EB [2006] OJ No 1864 aff'd at 2011 ONCA 194 (CanLII), at para 66 (context of murder)
  3. R v Missions, 2005 NSCA 82 (CanLII) at para 21
    R v Bergeron, 2015 BCCA 177 (CanLII) at paras 21 to 22 ("It is well established that a trier of fact is entitled to draw the common sense inference that a sane and sober person intends the natural and probable consequences of their actions.")
    R v Starratt (1971), 1971 CanLII 541 (ON CA), 5 CCC (2d) 32 (ONCA) at para 3
    See R v Giannotti (1956), 1956 CanLII 160 (ON CA), 115 CCC 203 (Ont. C.A.)
    R v Hilson (1958), 1958 CanLII 134 (ON CA), 121 CCC 139 (Ont. C.A.)
    R v Berger (1975), 27 CCC (2d) 357 (BCCA), 1975 CanLII 1250 (BC CA), leave to appeal to S.C.C. refused [1975] SCR vii
    R v Borque, [1969] 4 CCC 358, 7 C.R.N.S. 189 (BCCA), 1969 CanLII 981 (BC CA)
    R v Theroux, [1993] S.C.J. No. 42, 1993 CanLII 134 (SCC), [1993] 2 SCR 5,79 CCC (3d) 449 at 458 per McLachlin J.
    R v Gill, 2012 ONCJ 326 (Ont. C.J.)(*no CanLII links) per Ready J.
  4. R v Spence, 2017 ONCA 619 (CanLII), per Trotter JA, at paras 44 to 46
  5. R v Robinson, 2010 BCSC 368 (CanLII) at para 107 cited in R v Damin, 2011 BCSC 723 (CanLII) at para 33
    R v McConnell, 2012 ABQB 263 (CanLII)
    R v Seymour, [1996] 2 SCR 252, 1996 CanLII 201 (SCC) per Cory J
  6. See R v Bird (1973), 13 CCC (2d) 73 (Sask C.A.), 1973 CanLII 1450 (SK CA)
  7. R v Radita, 2017 ABQB 128 (CanLII), per Horner J, at para 160
    R v Bottineau, 2006 CarswellOnt 8510 (ONSC)(*no CanLII links) , per Watt J, at para 62

Intending the Consequences of an Act

It has long been established that "a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence."[1] This is an inference, not a presumption.[2] Its purpose is to determine intent in fact, and not to affix an intent based on reasonableness.[3]

Thus, the purpose of the accused's action does not have to be to achieve the consequences in order to "intend" those consequences.[4] The accused may very well not desire the consequences but still "intend" them where "he foresees that the consequence is certain or substantially certain to result from his conduct"[5]

An "ulterior motive" does not need to be directly related to the consequences.[6]

  1. R v Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 CCC (2d) 369 (ONCA) at p. 383-4 [CCC]
    R v MacKinlay, 1986 CanLII 111 (ON CA)
  2. e.g. R v Farrant, 1983 CanLII 118 (SCC), [1983] 1 SCR 124
    R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252 at para 20
  3. MacKinlay, supra
  4. R v Iyanam, 2013 ONSC 1091 (CanLII) at para 23 to 27
  5. Iyanam, ibid. at para 26, 27
  6. e.g. Iyanam, ibid. at para 22

Transferred Intent

The common law doctrine of transferred intent will impose a necessary mens rea for a conviction for an act with unintended consequences. Where "harm follows that is of the legal kind as that intended" the accused will have been deemed to have intended the act.[1]

Section 229(b) of the Criminal Code adopts transferred intent as a form of liability for murder.

229.
...
Murder
229. Culpable homicide is murder...

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being;

...
R.S., c. C-34, s. 212.


CCC

The doctrine of tranferred intent does not apply for attempted murder.[2]

  1. R v Gordon, 2009 ONCA 170 (CanLII) at para 42
  2. Gordon, ibid. at para 78

Recklessness

Intoxication

See also: Intoxication

The inference of intending consequences of one's act must be considered after assessing "all of the evidence, including the evidence of intoxication".[1]

Intoxication is only relevant insofar as it affects "the accused's capacity to form the requisite intent" to commit the offence.[2]

Where evidence shows that the accused acted involuntary due to intoxication, negating intent on a general intent offence, proof of voluntary intoxication may in certain cases substitute for proof of voluntariness.[3] This "Leary rule" of substitution is typically available to offences of any general intent offence.[4] This was not considered applicable to assault based offence including sexual assault.[5] As a result s. 33.1 was enacted removing the intoxication defence from certain offences.

  1. R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252
  2. R v Robinson, 1996 CanLII 233 (SCC), [1996] 1 SCR 683
  3. R v Tatton, 2014 ONCA 273 (CanLII), at para 35
    R v Bernard, [1988] 2 SCR 833, 1988 CanLII 22 (SCC), at pp. 878-879 [SCR]
  4. Bernard, ibid. at para 73
  5. R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63

Knowledge

Examples of Intent

Intent to Kill

See also: Homicide (Offence)

In absence of any explanation, the only intent from firing a gun at a person is an intention to kill.[1]

  1. R v McArthur, 2013 SKCA 139 (CanLII), at para 11

See Also

Knowledge and Wilful Blindness

General Principles

Knowledge is the awareness of a fact or circumstance. It is a state of mind, which is generally proven by inference from the surrounding circumstances.[1]

With respect to objects, it is not necessary that the accused have knowledge of the exact details of the "thing". Knowledge of its character is sufficient.[2]

Proof of knowledge is a "subjective inquiry" into what the accused actually knew and not "what ought he to have known".[3]

Knowledge of the character of an object can be proven by actual knowledge or by wilful blindness.[4]

  1. R v Aiello (1978), 38 CCC (2d) 485, 1978 CanLII 2374 (ON CA), per Martin JA - there is no requirement on the Crown to prove knowledge on direct evidence
  2. R v Buzzanga and Durocher, (1979), 25 O.R. (2d) 705, 1979 CanLII 1927 (ON CA), 101 DLR (3d) 488 (C.A.), per Martin JA at p. 717
  3. R v Tyrell, 2014 ONCA 617 (CanLII), per Doherty JA at para 30
  4. R v Hanano, 2008 MBQB 121 (CanLII), per Spivak J at para 16

Wilful Blindness

Wilful blindness refers to the accused's state of mind. The doctrine attributes "knowledge to a party whose strong suspicions have been aroused but who refrains from making inquiries to have those suspicions confirmed. The doctrine serves to override attempts to self-immunize against criminal liability by deliberately refusing to acquire actual knowledge."[1]

It does not "define the mens rea for particular offences". Instead, it is a "substitute for actual knowledge" where it is a component for the mens rea.[2]In effect, wilful blindness is the state of "deliberate ignorance" of a certain fact.[3]

It is not enough that there be a suspicion in the mind of the accused. Rather, the accused must have "virtually knew the critical fact, and intentionally declined to secure that knowledge."[4]

It is also not enough that there be merely a "failure to inquire". The ignorance must be "deliberate".[5]

The determination inquires into whether "the accused shut his ... eyes because he .. knew or strongly suspected that looking would fix him ... with knowledge?”[6]

The doctrine is not premised on "what a reasonable person would have done, but requires a finding that the accused, with actual suspicion, deliberately refrained from making inquiries because he or she did not want his or her suspicions confirmed."[7] To put it another way, it is not a form of "constructive knowledge" by way of a standard of reasonableness..[8]

Where wilful blindness is established, "the knowledge imputed is the equivalent of actual, subjective knowledge." [9] This is true even for an offence of murder.[10]

Before the doctrine applies, "there must be realisation that the fact in question is probable, or, at least, "possible above the average""[11] The accused must have "suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge."[12]

In certain circumstances, "where an accused made some or basic inquiries, but still harboured suspicions, it remains open to the trier of fact to find wilful blindness".[13]

Wilful blindness has been imputed where the accused simply stated "Whatever you guys want to do just do it. Don’t do it around me. I don’t want to see anything."[14]

A court may want to make inquiries as follows:[15]

  1. Has the accused’s suspicion been aroused about a fact that would reveal a prohibited consequence or circumstance?
  2. Is the accused’s suspicion about the prohibited consequence or circumstance probable or at least “possible above the average”?
  3. Did the accused inquire about the suspicion?
  4. If the accused inquired about the suspicion did the accused harbour any real remaining suspicion after the inquiry?

If the accused harboured any real remaining suspicions after the inquiry, did the accused inquire further about the suspicion?

The finding of wilful blindness is tantamount to finding that he intended to "deny knowledge" of the fact and "intended to cheat the administration of justice".[16]

There must be a finding of subjective suspicion on the part of the accused.[17] The test is not objective. It does not matter whether the accused "should have", or "normally" would have, known the fact at issue.[18]

The determination of wilful blindness is contextual and must be made in "light of all the circumstances".[19]

Suspicion
The level of awareness must be a "real suspicion" in the mind of the accused "that causes the accused to see the need for inquiry".[20] Others have described the standard as requiring that the accused be shown to have "strongly suspected" that inquiry would have created actual knowledge.[21]

There is no need for the judge to describe that "level of suspicion beyond the finding that it was sufficient in the [accused's] mind" to require inquiry.[22]

"Some Inquiry" and reasonable steps
Where the Crown relies on wilful blindness and the evidence shows that "some inquiry" was made on the part of the accused, the question is then whether "the Crown has proved beyond a reasonable doubt that despite that inquiry the accused remained suspicious and refrained from making any further inquiry because she preferred to remain ignorant of the truth."[23]

Where the judge can find that the accused took "all reasonable steps to determine the truth", there can be no finding of wilful blindness.[24]


Inquiries
A person is not absolved of being willfully blind merely because an inquiry was made from which a negative answer was received.[25] The effort required in making inquiries seems to be af unction of the level of suspicion.[26]

Compared to Recklessness
Recklessness differs from wilful blindness as recklessness concerns the accused's "attitude" once they are aware of the risk of a particular result that their conduct could produce.[27]

The culpability of recklessness arises from "consciousness of risk" while in wilful blindness it arises from the accused responsiblity for "deliberaly fialing to inquire when he knows there is reasons to".[28]

  1. R v Briscoe, 2008 ABCA 327 (CanLII), per Martin JA at para 19
    R v Briscoe, [2010] 1 SCR 411, 2010 SCC 13 (CanLII), per Charron J
    R v Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 SCR 55, per Sopinka J at pp. 157 - 158
    R v Sault Ste. Marie, [1978] 2 SCR 1299, 1978 CanLII 11 (SCC), per Dickson J at p. 1309 per Dickson J ("Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them.") -- early instance of doctrine of wilful blindness
  2. Briscoe, supra at para 21
  3. Briscoe, supra at para 24
    R v Souter, [1997] A.J. No 330(*no CanLII links) at para 9 to 10
  4. Briscoe at para 20
    c.f. R v Lagace 2003 CanLII 30886 (ON CA), (2003), 181 CCC (3d) 12 (Ont. C.A.), per Doherty JA, at paras 25-6 There must be “a real suspicion” causing the need for further inquiry
  5. R v Farmer, 2014 ONCA 823 (CanLII), per Sharpe JA at para 24
  6. Jorgensen, supra at para 103
  7. Briscoe at para 21
  8. R v Callejas, 2011 ONCA 393 (CanLII), per curiam, at para 8
    R v Laronde, 2010 BCCA 430 (CanLII), per Bennett JA, at paras 28-35
    R v Smith, 2008 ONCA 101 (CanLII), per curiam, at paras 5-6
    R v Malfara, 2006 CanLII 17318 (ON CA), [2006] O.J. No. 2069 (C.A.), per curiam at para 2 (“Where willful blindness is in issue, the question is not whether the accused should have been suspicious, but whether the accused was in fact suspicious”)
  9. Briscoe, supra at para 21
    R v Wolsey, 2008 BCCA 159 (CanLII), per Huddart JA, at para 28
  10. Briscoe, supra
  11. Jorgenson, supra at pp. 158 to 159
  12. Jorgenson, supra at pp. 159
  13. R v Rashidi-Alvije, 2007 ONCA 712 (CanLII), per Gillese JA, at para 24
    R v Lagace, 2003 CanLII 30886 (ON CA), per Doherty JA at paras 27-29
    R v Niemi, 2006 CanLII 13949 (ON CA), per Juriansz JA at para 77
  14. Briscoe, supra
  15. R v Bailey, 2014 ABPC 103 (CanLII), per Fradsham J, at para 396
  16. R v Sansregret (1985), 1985 CanLII 79 (SCC), 18 CCC (3d) 223, per McIntyre J
    R v Tejani, 1995 CanLII 786 (ON CA), per curiam
  17. R v Calder, 2011 NSSC 96 (CanLII), per Coady J at para 57 citing Stuart (Canadian Criminal Law, 1982, The Carswell Company Ltd., p. 130 ("Our courts have generally insisted that the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused's mind. It involves deliberate ignorance or an actual process of suppressing a suspicion. ")
  18. R v Barbeau, 1996 CanLII 6391 (QC CA), per Rothman JA ("The test was not whether appellant "should" have known or should "normally" have known from the suspicious circumstances that her husband was probably involved in a conspiracy to import cocaine. The question was whether the circumstances were such that she, herself, was, in fact, suspicious that this was the case but deliberately refrained from making inquiries so that she could remain in ignorance as to the truth.")
  19. Jorgensen, supra at para 101
  20. R v Lagace, 2003 CanLII 30886 (ON CA), per Doherty JA at para 26
  21. Briscoe, supra at para 103
  22. Lagace, ibid. at para 24 and 25
  23. Lagace, ibid.
  24. Lagace, ibid.
  25. Souter, supra at paras 17 to 18
  26. e.g. Souter, supra at paras 17 to 18
  27. Wolsey, supra at para 28
    R v Sansregret, [1985] 1 SCR 570, 1985 CanLII 79 (SCC), per McIntyre J, at para 22 ("Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.")
  28. Sansregret, ibid. at para 22 ("The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry")

See Also

Recklessness

General Principles

In criminal law, all prohibited acts, at minimum, must be done "intentionally or recklessly, with full knowledge of the facts constituting the offence or with willful blindness towards them".[1]

Reckless requires a subjective standard such that the accused is "aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk."[2] That is, it is where the accused "sees the risk and ... takes the chance."[3]

It has been said to mean "careless" as to the consequences, heedless, or lacking in "prudence" or "caution".[4]

It is also greater than forgetfulness or absentmindedness.[5]

Thus, there are two elements, there must be (1) a consciousness of a risk or danger and (2) a choice to persist in the conduct that causes the risk. [6]

Recklessness assumes a knowledge of a likelihood of a prohibited consequences.[7]

Compared to Wilful Blindness
Recklessness is "something less than" wilful blindness.[8] Thus, reckless cannot satisfy an offence which requires knowledge as an essential element.[9]

In contrast to recklessness, wilful blindness requires that the accused become aware of a need for inquiry and deliberately declines to do so.[10]

Compared to Negligence
Recklessness should not be confused with negligence which is a purely objective standard.[11] Recklessness "must have an element of the subjective".[12]

  1. R v Sault Ste. Marie, [1978] 2 SCR 1299, 1978 CanLII 11 (SCC), per Dickson J
    UK: DPP v Morgan, [1976] AC 182, 61 Cr. App. R. 136, [1975] 2 All E.R. 347
  2. R v Sansregret 1985 CanLII 79 (SCC), (1985), 18 CCC (3d) 223 (S.C.C.), per McIntyre J at pp. 233 and 235
  3. Sansregret at p. 235, 502
    R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J, at p. 155
  4. R v Dickson, 2006 BCCA 490 (CanLII), per Rowles JA, at para. 41
  5. Tatton, ibid. at para 20
  6. R v Vinokurov, 2001 ABCA 113 (CanLII), per Berger JA (2:1) at para 17
  7. Vinokurov, ibid. at para 18
  8. R v Sandhu, (1989), 50 CCC (3d) 492 (Ont. C.A.), 1989 CanLII 7102 (ON CA), per Finlayson JA at p. 497
  9. Sandhu, ibid. ("In my opinion, it is now clear on the authority of Sansregret ... and R v Zundel ... that where an offence requires knowledge on the part of the accused, it is improper to instruct the jury that a finding of recklessness satisfies that requirement.")
    see comparison described in Knowledge and Wilful Blindness
  10. Vinokurov, supra
  11. Sansregret, supra at pp. 233 and 235
    R v Tatton, 2014 ONCA 273 (CanLII), per Pardu JA, at para 20
  12. Sansregret, supra

In Reference to Requirements of Offences Being "Wilful"

In many instances in the Code, the language may require that the prohibited act be "wilful". In some circumstances that will connote a standard of recklessness.[1]

The Code addresses the meaning of "willful" in s. 429 as it applies Part XI [Wilful and Forbidden Acts in Respect of Certain Property] of the Code:

Wilfully causing event to occur
429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.

...
R.S., c. C-34, s. 386.


CCC

  1. R v Berhe, 2011 ONSC 6815 (CanLII), per Code J at para 31

Offences with Identified Reckless Standards

Offences with a explicit reckless component of proof include:

Offences interpreted as including a standard of proof include:

See Also

Identity

General Principles

Identity of the accused person as the culprit is always a required element to be proven for a given offence. As with all essential elements, it must be proven on standard of beyond a reasonable doubt.[1]

It can be proven by way of several methods, none of which are necessarily determinative. Those include:

  • first-hand eye-witness who observes the accused as person committing the offence
  • exclusive opportunity
  • security system photographs/video
  • voice identification
  • finger prints
  • foot prints
  • DNA

All of these methods amount to direct or circumstantial evidence that allow the trier-of-fact to be satisfied that the person who committed the offence was actually the accused person on trial.

Section 6.1 permits any witness to "give evidence as to the identity of an accused whom the witness is able to identify visually or in any other sensory manner."[2]

Charter Issues
There is some support for the possibility that identity evidence can be the subject of an order for exclusion of evidence under s. 24(2) of the Charter when a Charter violation is found.[3]

Appellate Review

See also: Standard of Appellate Review

The essential element of identity is a question of fact.[4]The judge must have had evidence that "could logically and reasonably draw the inference" of identity.[5]

  1. R v Evaglok, 2010 NWTCA 12 (CanLII), per Vertes JA, at para 21 ("...the issue of identification of the person before the court as the person who committed the offence. Unless admissions are made by the defence, this is an element requiring proof in every criminal trial.")
  2. see s. 6.1 of the Canada Evidence Act, RSC 1985, c C-5
  3. R v Lewis, 2011 ONCJ 105 (CanLII), per Reinhardt J
  4. R v Thompson, 2015 NSCA 51 (CanLII), per Farrar JA at para 75
  5. Thompson at para 75
    R v Hoben, 2009 NSCA 27 (CanLII), per Roscoe JA at para 18 to 20

Eyewitness Identification

Other Methods of Proving Identity

Proving Identity of Online Communications

It rare that a person will identify themselves by their own name.[1] Accordingly, the identity of a person communicating online must be done by inference in most cases.

A sender of an email can be identified using evidence of accessibility to the sender's computer and accessibility to sender's account, including whether the accused's login information was used to send it.[2] This holds true for communication by social media as well.[3]

In certain cases, it is possible to identify the person behind a particular user account by considering the information provided in the account as well as the content of the communications.[4]

The presence of a wireless, by itself, cannot lead to the inference that another person may be responsible for the internet communication.[5]

Identity of Sender of Cell Phone Text Messages
Proving the identity of the sender and receiver of text messages is part of the authentication process to admit them.[6]

  1. e.g. R v Kwok [2008] O.J. No 2414 (*no CanLII links) at para 7 -- "[the officer's] evidence indicated that 99% of users do not use their real names."
  2. e.g. R v Mirsayah, 2007 BCSC 1596 (CanLII), per Groberman J at para 79, 80
  3. e.g. R v Weavers, 2009 ONCJ 437 (CanLII), per West J at para 86
  4. R v Harris, 2010 PESC 32 (CanLII), per Mitchell J -- determined ID for a facebook account based on content of conversations
  5. R v Brzezinski, 2009 CanLII 78360 (ON SC), per Bryant J at para 46 - warrant upheld on basis that inference of a third party downloading child pornography not reasonable
  6. See more at Electronic Documents#Authentication

Finger Prints

Fingerprint evidence should be accompanied by some form of evidence supporting a "temporal connection" it make out a circumstantial case.[1]

  1. R v Yonkman, 2005 BCCA 561 (CanLII), 202 CCC (3d) 289, per Lowry JA at para 9 to 11

DNA

Voice Identification

See also: Eyewitness Identification and Lay Opinion Evidence

When determining if the voice on a wiretap matches that of the accused, the judge may consider the accused's voice during testimony and compare it with the voice recorded.[1]

While a non-expert may give testimony on identifying a voice, there are several factors that determine the weight that should be given:[2]

  1. Is there direct or circumstantial evidence that the speaker is, in fact, the appellant?
  2. Are the events following the conversations in which the appellant was identified consistent with the speaker being the appellant? For instance, in the case on appeal, a meeting was arranged but the appellant never carried through with it.
  3. Is there some peculiarity or distinctiveness to the appellant's voice that would make it more readily identifiable? Are there "internal patterns" or patterns of speech, distinctly associated with the appellant?
  4. Did the speaker disclose facts known by the appellant or, more compellingly, known only to the appellant?
  5. Are the "context and timing" of the conversation consistent with the theory that the speaker is the appellant? Or, on the other side of the coin, was the identity of the speaker tainted by the witness's expectation that he would be the appellant?
  6. Are there distinctive or distinguishing features of the voice?
  7. Did the party to the communication identify him or herself?
  8. Did the party to the communication provide information that would allow the listener to identify him or her?
  9. Was there evidence of physical surveillance at the same time as the private communication to allow the speaker to be identified?
  10. Did the witness hear the voices under the same conditions, or was the emotional state different in each situation?
  11. What is the length of time during which the witness was able to hear the voice?
  12. Was there any reason for the witness to focus on the voices?
  13. What was the condition of the witness when he or she heard the voices, alert or groggy?
  14. What was the length of time between the times the witness heard the voices?
  15. Were there any contradictions in the description given by the witness - did the witness testify that the accused spoke with an accent when he or she did not?
  16. Did anything compromise the identification process - was the witness assisted in identifying the voice, or was the witness' opinion tainted by the expectation that the voice was that of the accused?
  17. Is the witness' opinion contradicted?

The judge is entitled to use his own senses to evaluate the recorded voices to determine identity.[3]

It is not necessary to prove that the voice is that of the accused beyond a reasonable doubt as an essential element.[4]

Frailties
Similar to eye-witness identification, voice identification suffers from the frailty that the witness may misidentify the accused and should be treated with extreme caution. [5]

A jury should be cautioned about the frailties of voice identification particularly in matching voices.[6] Concerns include:

  • risk of relying on their own untrained ears, or those of a witness, none of whom had the benefit of equipment or training that would be available to an acoustic phonetician;
  • the fact that witness confidence in voice identification does not make the identification reliable;
  • the importance of considering the length and quality of the voice samples;
  • the availability of high quality non-distorting playback systems; and,
  • if applicable, the difficulties inherent in cross-racial voice identification
  1. R v Gyles, 2005 CanLII 47588 (ON CA), per curiam
  2. R v Williams, 1995 CanLII 695 (ON CA), per Finlayson JA
    R v Chan, 2001 BCSC 1180 (CanLII), per Dorgan J at para 31
    R v Parsons, [1999] Y.J. No. 3 (Terr. Ct.)(*no CanLII links)
    R v Saddleback, 2013 ABCA 250 (CanLII), per curiam at para 25
    R v Pinch, 2011 ONSC 5484 (CanLII), per Hill J
  3. R v Wu, 2010 ABCA 337 (CanLII), per curiam
  4. Chan, supra at para 26 (the Crown "need not prove voice identification beyond a reasonable doubt. The evidence of voice identification is simply an individual item of evidence going to the identity of the accused and, accordingly, the standard of proof is by a preponderance of evidence")
  5. Chan, ibid. at para 22
    R v Clouthier, 2012 ONCA 636 (CanLII), per Sharpe JA, at para 19
  6. R v Pinch, 2011 ONSC 5484 (CanLII), per Hill J R v Masters, 2014 ONCA 556 (CanLII), per curiam - suggested not necessary, but preferred

Proof of Age

Any testimony by a person as to their own date of birth is sufficient evidence to prove their age.[1]Likewise, any testimony of a parent as to the age of their child will be admissible to establish that child.[2]

Otherwise, age can be proven by any number of means such as birth certificate, baptismal certificate, or material hospital record.[3]

Any other reliable evidence can also be considered.[4] Including the observations of the judge of the person's appearance.[5]

  1. see s. 658(1)
  2. see s. 658(2)
  3. see s. 658(3)
  4. s. 658(4)
  5. s. 658(5)

See Also

Time and Place

Introduction

The elements of place and time are traditionally considered essential elements of proof for all offences and must be proven by the Crown beyond a reasonable doubt. These elements establish that the Court has both geographic and temporal authority over the matter and that the evidence is specific enough to meet the described offence found in the charging document--the information or indictment.

Place

See also: Jurisdiction of the Courts

The charging document, be it an information or indictment, will state a geographic region in which the alleged offence is to said to have been committed. For the court to be convinced beyond a reasonable doubt that it has authority over the matter, there must be evidence establishing that the offence alleged "occurred" in a specific county/region and province.

In a simple case, this can be accomplished by having the eye-witness to the offence or the investigating officer testify to their presence in the county, region, and province at the time of their investigations or observations.

Burden
The Crown will normally have the burden of proving the place in which the offence occurred.[1]

Places Defined

s. 2
...
"environment" means the components of the Earth and includes

(a) air, land and water,
(b) all layers of the atmosphere,
(c) all organic and inorganic matter and living organisms, and
(d) the interacting natural systems that include components referred to in paragraphs (a) to (c); (environnement)

...


CCC

  1. Re The Queen and Smith (1974), 12 CCC (2d) 11 (N.B.C.A.)(*no CanLII links) at p. 7 (Q.L.), per Hughes CJ ("At common law the place of an alleged offence was regarded as a matter of substance and hence an essential ingredient of all indictments. The burden of proving the place of the offence always lay upon the prosecutor and it was not upon an accused to disprove the place")

Time

The charging document will state a specific date or range of dates in which the offence is said to have occurred. For the court to be convinced beyond a reasonable doubt that the offence occurred within the specific date(s), there must be evidence establishing the date. Since the charging documents never get so specific as mentioning the actual time, in terms of hours and minutes, of the alleged offence, it is not required to be that specific. In a simple case, this can be accomplished by having the eye-witness to the offence or the investigating officer testify to the date and time of their investigations or observations.

The precision of time must only be to a point to ensure that the accused has the ability to make full answer and defence.[1]


Failure to Prove Time
A failure to establish the exact time when an offence occurred is not critical to proving a case unless it is an essential part of the offence charged and prejudice may arise from variation in the time.[2]

The date on which an offence occurred, such as assault, mischief or uttering threats, is not normally an essential element as it does not mislead the defence on what the case is to meet.[3]

The time is not essential in the proof of the offence of sexual interference.[4]

Variation of Time Between the Charging Document and the Evidence
Section 601(4.1) states:

601.
...
Variance not material
(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to

(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or

...
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6.


CCC

  1. R v Dritsas, 2012 MBQB 339 (CanLII), per McKelvey J citing Douglas
  2. R v Douglas, 1991 CanLII 81 (SCC), [1991] 1 SCR 301, per Cory J
    R v Jacques, 2013 SKCA 99 (CanLII), per Richards CJ at para 62 Justice Richards CJS cites Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed. (Aurora: Canada Law Book, 1987) ("From time immemorial, a date specified in an indictment has never been held to be a material matter. Thus the Crown need not prove the alleged date unless time is an essential element of the offence or unless there is a specified prescription period...")
    See also Amendments to Charges#Amendment of Time, Date, or Location of Offence
  3. R v McGee, 2014 ONCA 358 (CanLII), per curiam
  4. R v KWG, 2014 ABCA 124 (CanLII), per curiam

Computation of Time

Section 2 of the Code defines "day" and "night" as:

“day” means the period between six o’clock in the forenoon and nine o’clock in the afternoon of the same day;
...
“night” means the period between nine o’clock in the afternoon and six o’clock in the forenoon of the following day;
...


CCC

Section 29 of the Interpretation Act sets any reference to "time of day" as meaning "standard time".

Sections 26 to 28 address the computation of time:

Time limits and holidays
26. Where the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday.
R.S., 1985, c. I-21, s. 26; 1999, c. 31, s. 147(F).


IA

Clear days
27. (1) Where there is a reference to a number of clear days or “at least” a number of days between two events, in calculating that number of days the days on which the events happen are excluded.
Not clear days
(2) Where there is a reference to a number of days, not expressed to be clear days, between two events, in calculating that number of days the day on which the first event happens is excluded and the day on which the second event happens is included.
Beginning and ending of prescribed periods
(3) Where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that day.
After specified day
(4) Where a time is expressed to begin after or to be from a specified day, the time does not include that day.
Within a time
(5) Where anything is to be done within a time after, from, of or before a specified day, the time does not include that day.
R.S., c. I-23, s. 25.


IA

Calculation of a period of months after or before a specified day
28. Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by

(a) counting forward or backward from the specified day the number of months, without including the month in which that day falls;
(b) excluding the specified day; and
(c) including in the last month counted under paragraph (a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month.


IA

Calculating Notice Periods

NB: this time limited is subject to the "Holiday Rule" that moves the date to the next non-holiday day (see s. 26 of Interpretation Act)

Continuity

General Principles

The Crown must be shown that the items in evidence before the court in trial were the same items seized during the investigation.[1]

However, it has been said that generally speaking, "continuity of an exhibit goes to weight, not to admissibility."[2] A party who cannot "prove absolute continuous possession...would not preclude admissibility".[3]

There is no specific requirement for the crown lead continuity evidence. Nor does every person in the chain of possession need to testify.[4] The evidence of continuity should be lead where there is potential evidence before the court, by direct or circumstantial evidence or by inference, that may raise doubt as to the continuity. Even where gaps may raise a reasonable doubt about the item in court is the same seized initially by police, it may still be admissible and the doubt will simply go do weight. [5] For example, problems with continuity and integrity of recordings generally goes to their weight not the admissibility of the contents of the recordings.[6]

Where there is conflicting evidence of the source of an exhibit, it is up to the trier of fact to determine. It will therefore still be admitted into evidence.[7]

Cataloged Exhibits
The evidence seized by police will be cataloged and given identifying numbers. These numbers should remain consistent throughout the case. So whether the items are sent to a lab for analysis, they will always be identifiable as the same once they are presented in court. Any changes of the numbering system should be recorded and explained in court. Failure to properly track the exhibits by their identifying numbers may raise doubt as to their continuity.[8]

  1. R.v. Donald (1958), 121 CCC 304 (NBCA), 1958 CanLII 470 (NB CA), per Bridges JA
    R.v. Oracheski (1979), 1979 ALTASCAD 140 (CanLII), 48 CCC (2d) 217 (Alta SCAD), per McDermid JA
    R.v. De Graaf (1981), 1981 CanLII 343 (BC CA), 60 CCC (2d) 315, per Bull JA
    R.v. Andrade (1985), 18 CCC (3d) 41 (Ont CA), 1985 CanLII 3502 (ON CA), per Martin JA
  2. R v West, 2010 NSCA 16 (CanLII), per curiam at para 130
    see also R v Krole, 1975 CarswellMan 119(*no CanLII links) at para 27
  3. Krole, ibid. at para 27
  4. R v Adam, 2006 BCSC 1430 (CanLII), (2007) BCWLD 1987, per Romilly J at page 7
  5. Adam, ibid. at page 7
    Andrade, supra
  6. R v Meer, [2010] A.J. No. 1123 (Q.B.), 2010 ABQB 617 (CanLII), per Burrows J at para 16
  7. R v Penney, 2000 CanLII 28396 (NL SCTD), per Schwartz J at para 45
    Ewaschuk, Criminal Pleadings and Practice in Canada the author states at p. 16-61
    Andrade, supra at pp. 60-63
  8. e.g. R v Martin, 2008 ONCJ 601 (CanLII), per Bishop J at para 16

Drug Cases

The Crown must prove that the drugs presented in court are the same that were seized at the scene of the investigation. Where the proof of the item is part of an essential element of the case, such as in a drug possession case, then it should be proven beyond a reasonable doubt. Gaps in continuity are not fatal unless they raise a reasonable doubt about the exhibit’s integrity.[1]

In drug cases, where evidence does not establish continuity before being sent to the lab, a doubt arises and must be resolved in favour of the accused.[2]

Under s. 53 of the CDSA, the continuity of exhibits can be proven by affidavit:

Continuity of possession
53. (1) In any proceeding under this Act or the regulations, continuity of possession of any exhibit tendered as evidence in that proceeding may be proved by the testimony of, or the affidavit or solemn declaration of, the person claiming to have had it in their possession.
Alternative method of proof
(2) Where an affidavit or solemn declaration is offered in proof of continuity of possession under subsection (1), the court may require the affiant or declarant to appear before it for examination or cross-examination in respect of the issue of continuity of possession.


CDSA

  1. R v Oracheski, 1979 ALTASCAD 140 (CanLII), (1979) 48 CCC (2d) 217 (ABCA), per McDermid JA
    R v DeGraaf 1981 CanLII 343 (BCCA), (1981), 60 CCC (2d) 315 (BCCA), per Bull JA
    R v Laborgne c.f. R v Murphy 2011 NSCA 54 (CanLII), per Farrar JA at para 41 citing R v Jeffrey [1993] AJ. 639(*no CanLII links)
  2. R v Larsen, 2001 BCSC 597 (CanLII), per Romilly J at para 64

Exclusive Opportunity

See also: Circumstantial Evidence#Exclusive Opportunity

Establishing a fact by way of exclusive opportunity requires proof that can take the form of continuity. [1]

  1. e.g. R v Panrucker, 2013 BCCA 137 (CanLII), per D Smith JA - acquitted because no continuity evidence of access to the accused's cell where drugs were found.

Proof of Ownership

General Principles

Under s. 380, "property" does not relate to ownership. It concerns the lawful possession of some thing which is transferred by some deceitful act.[1]

  1. R v Vallillee (1974), 1974 CanLII 687 (ON CA), 15 CCC (2d) 409 (CA) - accused rented a car using stolen ID and Credit Card

Certificate of Ownership Under Section 491.2

Photographic evidence
491.2 (1) Before any property that would otherwise be required to be produced for the purposes of a preliminary inquiry, trial or other proceeding in respect of an offence under section 334 [ theft ], 344 [ robbery ], 348 [ break and enter ], 354 [ possession of stolen property ], 355.2 [ trafficking in stolen property ], 355.4 [ possession of stolen property for the purpose of trafficking ], 362 [ obtain property by false pretences ] or 380 [ fraud ] is returned or ordered to be returned, forfeited or otherwise dealt with under section 489.1 or 490 or is otherwise returned [ return of property ], a peace officer or any person under the direction of a peace officer may take and retain a photograph of the property.
Certified photograph admissible in evidence
(2) Every photograph of property taken under subsection (1), accompanied by a certificate of a person containing the statements referred to in subsection (3), shall be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the property would have had if it had been proved in the ordinary way.
Statements made in certificate
(3) For the purposes of subsection (2), a certificate of a person stating that

(a) the person took the photograph under the authority of subsection (1),
(b) the person is a peace officer or took the photograph under the direction of a peace officer, and
(c) the photograph is a true photograph

shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the certificate without proof of the signature of the person appearing to have signed the certificate.
Secondary evidence of peace officer
(4) An affidavit or solemn declaration of a peace officer or other person stating that the person has seized property and detained it or caused it to be detained from the time that person took possession of the property until a photograph of the property was taken under subsection (1) and that the property was not altered in any manner before the photograph was taken shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature or official character of the person appearing to have signed the affidavit or solemn declaration.
Notice of intention to produce certified photograph
(5) Unless the court orders otherwise, no photograph, certificate, affidavit or solemn declaration shall be received in evidence at a trial or other proceeding pursuant to subsection (2), (3) or (4) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy thereof and reasonable notice of intention to produce it in evidence.
Attendance for examination
(6) Notwithstanding subsection (3) or (4), the court may require the person who appears to have signed a certificate, an affidavit or a solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the facts contained in the certificate, affidavit or solemn declaration.
Production of property in court
(7) A court may order any property seized and returned pursuant to section 489.1 or 490 to be produced in court or made available for examination by all parties to a proceeding at a reasonable time and place, notwithstanding that a photograph of the property has been received in evidence pursuant to subsection (2), where the court is satisfied that the interests of justice so require and that it is possible and practicable to do so in the circumstances.
Definition of photograph
(8) In this section, photograph includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, an X-ray film, a motion picture and a videotape.
R.S., 1985, c. 23 (4th Supp.), s. 2; 1992, c. 1, s. 58; 2010, c. 14, s. 10.
[annotation(s) added]


CCC

Eligible Offences

Any property that is required for a preliminary inquiry or trial for an offence under section 334, 344, 348, 354, 355.2, 355.4, 362 or 380 that has been returned, may by photographed by police.[1]

Those offences consist of:

Photographs

Photograph "includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, and X-ray film, a motion picture and a videotape." (491.2 (8))

Photographs taken under s. 491.2 that are accompanied by a certificate containing the statements are admissible with the same "probative force" as the property was proved the ordinary way absence evidence to the contrary. (491.2(2))

Elements of Certificate

Under s. 491.2(3), the certificate should contain a statement outlining that:

  1. the person took the photograph under the authority of 491.2(1)
  2. the person is a peace officer or took the photograph under the direction of a peace officer, and
  3. the photograph is a true photograph

There must also be an affidavit or solemn declaration that "the property was not altered in any manner before the photograph". (491.2(4))

Supporting Affidavit

Under s. 657.1, evidence regarding the property, such as value and ownership, can be given by way of affidavit or solemn affirmation from the lawful owner absent evidence to the contrary.

Proof of ownership and value of property
657.1 (1) In any proceedings, an affidavit or a solemn declaration of a person who claims to be the lawful owner of, or the person lawfully entitled to possession of, property that was the subject-matter of the offence, or any other person who has specialized knowledge of the property or of that type of property, containing the statements referred to in subsection (2), shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature of the person appearing to have signed the affidavit or solemn declaration.
Statements to be made
(2) For the purposes of subsection (1), a person shall state in an affidavit or a solemn declaration

(a) that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;
(b) the value of the property;
(c) in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;
(c.1) in the case of proceedings in respect of an offence under section 342 [ theft or forgery of credit card ], that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 or that no credit card that meets the exact description of that credit card was ever issued; and
(d) any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1).

Notice of intention to produce affidavit or solemn declaration
(3) Unless the court orders otherwise, no affidavit or solemn declaration shall be received in evidence pursuant to subsection (1) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy of the affidavit or solemn declaration and reasonable notice of intention to produce it in evidence.
Attendance for examination
(4) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration.
R.S., 1985, c. 23 (4th Supp.), s. 3; 1994, c. 44, s. 63; 1997, c. 18, s. 79.
[annotation(s) added]


CCC

The affidavit must state:

  1. that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;
  2. the value of the property;
  3. in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;
  4. in the case of proceedings in respect of an offence under section 342, that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 or that no credit card that meets the exact description of that credit card was ever issued; and
  5. any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1).

Notice
The Crown must give "reasonable notice of intention to produce it in evidence" before any photos can be admitted into evidence "unless the court orders otherwise". (491.2 (5))

Parties must be given "reasonable notice of intention to produce" this evidence by affidavit.(657.1(3)) The court may still order that the affiant attend court to be examined.

Misc
The Court may require the attendance of the officers who gave the statements for examination. (491.2(6)) The court may also require the returned property be re-acquired to be brought to court for examination. (491.2(7))

See also rules of civil procedure in proving exhibits.

Ownership
588. The real and personal property of which a person has, by law, the management, control or custody shall, for the purposes of an indictment or proceeding against any other person for an offence committed on or in respect of the property, be deemed to be the property of the person who has the management, control or custody of it.
R.S., c. C-34, s. 517.


CCC

Proof of ownership in a charge of possession of stolen property only requires the Crown to prove that ownership exists in some person "other than the accused".[1]

  1. R v McDowell, 1970 CanLII 501 (ON CA), [1970] 5 CCC 374 (Ont. CA) at p. 376
    a charge will be sufficient if it identifies "property of person or persons unknown at the present time" (see R v Halliday (1975), 25 CCC (2d) 131 (NSCA), 1975 CanLII 1427 (NS CA))

See Also

Criminal Organizations

General Principles

A criminal organization is defined in s. 467.1 of the Criminal Code:

467.1 (1)
...
“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.


...
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.


CCC

Purpose of Legislation
The purpose of the criminal organization provisions is to "identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members".[1]

Sections 467.1 and 467.12 do not violate s. 7 of the Charter for being vague or overbroad.[2]

s. 2
...
“criminal organization” has the same meaning as in subsection 467.1(1);
...


CCC

Dangers of Criminal Organizations
Criminal organizations are dangerous as collective action "carries with it advantages to criminals". It allows them to "develo[p] specializations and dividing labour... fostering trust and loyalty ...sharing customers, financial resources, and insider knowledge... and, in some circumstances, develo[p] a reputation for violence".[3]

The organization benefits to offenders as they can "acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community".[4]

Criminal Organization Offence

s. 2
...
“criminal organization offence” means

(a) an offence under section 467.11 [ Enhancing a criminal organization ], 467.111 [Recruitment of members by a criminal organization], 467.12 [Committing for the benefit of a criminal organization] or 467.13 [Instruct the commission of an offence for a criminal organization], or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, or
(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);


...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 25, s. 2.
[annotations added]


CCC

  1. R v Venneri, 2012 SCC 33 (CanLII) at para 40 ("It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of “criminal organization” adopted by Parliament. ")
  2. R v Lindsay, 2009 ONCA 532 (CanLII)
  3. Venneri, supra at para 36
  4. Venneri, supra at para 36

"serious offence"

s. 2
...
"serious offence" has the same meaning as in subsection 467.1(1);
...


CCC

Definitions
467.1 (1) The following definitions apply in this Act.
...
"serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
...
Regulations
(4) The Governor in Council may make regulations prescribing offences that are included in the definition “serious offence” in subsection (1).
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.


CCC


History

The provisions relating to criminal organizations was first brought in 1997. The definition proved too narrow and so were expanded in 2001.[1]

  1. R v Beauchamp, 2015 ONCA 260 (CanLII), at para 145

Proof of Criminal Organization (Evidence)

Evidence must establish that the group is a criminal organization. It must be established on a case-by-case basis.[1]

Courts must take a flexible approach, considering that criminal organizations "have no incentive to conform to any formal structure".[2]


Indicia of Organization
Stereotypical features including territoriality, hierarchy, exclusive membership and violence are indicia but are not necessary.[3]

When considering structure of the organization, Courts should not be limited "to the stereotypical model of organized crime".[4]

Factors to consider whether the group is a criminal organization include: [5]

  1. rules between the men,
  2. defined roles and structure,
  3. communication between the participants,
  4. actual or pending material benefit to the parties,
  5. an organizational structure that promotes the commission of offences.

Continuity
Continuity will not exist where the criminal enterprise appears only to exist for the purpose of accomplishing a single scheme.[6]

Flexible Approach
The courts should not be rigid in applying the definition and must use a purposive approach. Criminal organizations have no incentive to have a formal structure and tend to be flexible. However, "some form of structure and degree of continuity are required".[7]

There must be at least some "structure", "degree of continuity" and "coordination".[8]

Disclosure
When a charge is alleging "criminal organizations" the accused is entitled to the particulars of the identity of the criminal organization and its members. The judge may order the Crown to set out the theory of its case detailing this.[9]

The definition can also apply to small drug operations where there is "division of labour, temporal continuity, and an intention to advance illegal goals through the organization.[10]

The meaning of "criminal organization" can also apply to conventional "street gangs".[11] The issue will depend on the degree of organizaiton.[12]

Types of Evidence
Crown is permitted to adduce evidence of a co-accused's guilty pleas to various criminal offences, except for "criminal organization" offences.[13]

Propensity Evidence
General propensity evidence that would otherwise be inadmissible would be admissible for the purpose of establishing a criminal organization.[14]

Dual Purpose Organizations
The purpose of the group does not have to have a primarily or exclusively criminal. There is little purpose is "measuring" the proportion of legitimate vs criminal activity since there is usually not good book-keeping for criminal activity.[15]

  1. R v Ciarniello, 2006 BCSC 1671 (CanLII)
    R v Kirton, 2007 MBCA 38 (CanLII)
    See also Riley, 2009 CanLII 15450 (ON S.C.)
  2. R v Venneri, 2012 SCC 33 (CanLII) at para 28
  3. Venneri, ibid. at paras 37 to 38
    R v Saikaley, 2017 ONCA 374 (CanLII), at para 120
  4. Venneri, supra at para 41
  5. R v Lindsay, 2005 CanLII 24240 (ON SC) app'd in 2009 ONCA 532 (CanLII)
  6. e.g. see R v Kwok, 2015 BCCA 34 (CanLII), 320 CCC (3d) 212 - group of 5 accuse conspired to import ketamine. Offence was an isolated scheme.
  7. Venneri, supra at para 27 to 29
  8. Venneri, supra at paras 29 and 30
  9. R v Beauchamp, 2008 CanLII 51934 (ON SC)
  10. Saikaley, supra at para 121
  11. R v Aurélius, 2007 QCCQ 227 (CanLII)
  12. Aurelius, ibid.
  13. R v Riley, 2009 CanLII 15450 (ON SC)
    R v Poitras, [2002] J.Q. No. 1164 (S.C.) (*no CanLII links)
  14. R v Terezakis, 2007 BCCA 384 (CanLII) at para 46 ("Criminal organization offences make evidence of general propensity and bad character probative that would otherwise be excluded as prejudicial. No doubt such evidence will present challenges for jury instruction in trials of criminal organization offences.")
  15. R v Beauchamp, 2015 ONCA 260 (CanLII)

Effect

Several offences require there is a criminal organization:[1]

  1. Enhancing a criminal organization (s. 467.11)
  2. Committing for the benefit of a criminal organization (s.467.12)[2]
  3. Instruct the commission of an offence for a criminal organization (s.467.13)

Others are modified by the existence of a criminal organization:

  1. Conspiracy (s.465)
  2. Counselling (s.22)
  3. Accessory after the fact (s.23)
  4. Possessing explosives for a criminal organization (s.82(2))
  5. Intimidating the justice system and journalists (s.423.1)

Where an offence is found to be a criminal organization offence (s.2):

  • the penalties will be consecutive (s.467.14)
  • the wiretap powers are expanded[3]
  • there is a reverse onus on bail (s. 515(6)(a)(ii)
  • presumption of 1st degree murder in a murder charge (s.231(6.1))
  1. see s. 2 "criminal organization offences"
  2. Drecic, 2011 ONCA 118 (CanLII)
  3. longer authorization (s.186.1 and 196), no need for "investigative necessity" (s. 185(1.1) and 186(1.1))

Participating in Organized Crime

Crown Prosecution

Section 467.2(1) provides jurisdiction to the Attorney General of Canada to conduct certain prosecutions relating to criminal organizations. This does not affect however the authority of the provincial Crown from conducting such prosecutions as well.[1]

  1. See s. 467.2(2)

See Also

Eyewitness Identification

General Principles

Courts are very cautious and "weary" of eyewitness identification evidence as it is considered "inherently" and "notoriously" unreliable.[1] It is essential that courts recognize the risk of honest but mistaken beliefs of an eyewitness.[2] It is “well-established” that the frailties of eyewitness identification has “lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused”[3] Even honest and convincing witnesses may misidentify individuals.[4] Consequently, identification evidence is treated differently than other evidence. Special care and caution should be taken. [5] Judges are required to given special cautions when considering identification evidence.[6] This includes instructing himself and bearing in mind the guidelines when considering evidence of identification.[7]

There is a particular need for caution in cases "that involve fleeting glimpses of unfamiliar persons in stressful circumstances".[8]

Weight put upon eyewitness testimony must vary based on the "circumstances of the individual case".[9]

The accuracy of the eyewitness should not be determined by or be "coextensive" with the confidence or honesty of the witness.[10]

The apparent reliability of eyewitness identification can be deceptive, and it is often honest and sincere.[11]

Establishing the credibility of an eyewitness is not sufficient to rely on their evidence as fact. It has been acknowledged that there is a "weak link between the confidence level of a witness and the accuracy of that witness".[12]

Eyewitness evidence is, in essence, a form of opinion evidence that "the basis of which can be very difficult to assess."[13]

A court of appeal "will be subject findings [on identity] to closer scrutiny than is generally the case with findings of fact”. [14]

In certain cases, evidence from a single eye-witness can be sufficient to establish proof beyond a reasonable doubt.[15]

There is no requirement that an identifying witness be 100% certain. Some equivocation is permitted.[16]

Refusal to Identify the Accused
The judge cannot make a finding that the witnesses withheld identifying the accused due to fear on the basis of demeanour evidence alone.[17]

  1. R v Goran, 2008 ONCA 195 (CanLII), [2008] OJ No. 1069 (ONCA) at para 19
    R v Miaponoose 1996 CanLII 1268 (ONCA), (1996), 30 O.R. (3d) 419 at p.421
    R v Provo, 2001 NSSC 94 (CanLII), [2001] NSJ No. 247 at para 21
    R v Bullock (1999), O.J. 3106(*no CanLII links) at paras 49 to 54 per Hill J.
  2. R v Alphonso, 2008 ONCA 238 (CanLII), [2008] O.J. No. 1248, at para 5
    Goran, at paras 26-27
    R v Burke, 1996 CanLII 229, [1996] S.C.J. No. 27, at para 52
  3. R v FA 2004 CanLII 10491 (ONCA) at para 39
  4. R v Quercia 1990 CanLII 2595 (ONCA) at 389 R v Shermetta, [1995] NSJ No. 195 (C.A.), at para 46
  5. e.g., R v Trochym, 2007 SCC 6 (CanLII), [2007] S.C.J. No. 6, at para 46;
    R v Burke, at para 52
    R v Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), at 82,
    R v Miaponoose 1996 CanLII 1268 (ON CA), (1996), 110 CCC (3d) 445 (Ont. C.A), at 450-1;
    R v Tat and Long 1997 CanLII 2234 (ON CA), (1997), 117 CCC (3d) 481 (Ont. C.A.), at 516;
    R v F.A., 2004 CanLII 10491 [2004] O.J. No. 1119, at para 39 (C.A.) R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, at pp. 1209-10
    R v Bardales, 1996 CanLII 213 (SCC), [1996] 2 SCR 461, pp. at 461-62
    R v Shermetta at para 46 - judges must use caution, appreciate possibility of mistake and examine circumstances closely
  6. R v Hersi, 2000 CanLII 16911, [2000] O.J. No. 3995 (C.A.) at para 14
    R v Tat 1997 CanLII 2234 (ON CA), (1997), 117 CCC (3d) 481 (Ont. C.A.), at pp. 515-16
  7. R v Turnbull et al (1976), 63 Cr. App. R. 132
    see also:
    R v Sophonov (No.2), 1996 CanLII 104, (1986), 25 CCC (3d) 415 (Man. C.A.)
    R v Shermetta, 1995 CanLII 4193 [1995] NSJ No. 195 (C.A.),
    R v Atwell (1983), 25 Alta. L.R. (2d) 97 (Alta. C.A.)(*no CanLII links)
    R v Nikolovski 1996 CanLII 158, (1996), 111 CCC (3d) 403 (S.C.C.)
  8. R v Pelletier, 2012 ONCA 566 (CanLII) at para 90 per Watt JA
    Miaponoose at p. 450 to 251
  9. Pelletier at para 91
    Miaponoose at p. 452
  10. Pelletier at para 92
    R v Izzard (1990), 54 CCC (3d) 252 (ONCA), 1990 CanLII 11055 (ON CA) at p. 255
  11. R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, at para 50 ("[T]he danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it.”)
  12. R v Hibbert
  13. R v Miaponoose at para 11
  14. R v Goran 2008 ONCA 195 (CanLII) at para 20
    R v Harvey 2001 CanLII 24137 (ON CA), (2001), 160 CCC (3d) 52 (Ont. C.A.), at para 19
  15. see Pelletier v The Queen, 1996 CanLII 143 (SCC), [1996] 3 SCR 601 at 601 per Lamer C.J.C.
    R v Nikolovski at page 413 per Cory J. ("It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness")
  16. R v Kish, 2014 ONCA 181 (CanLII) at para 53 to 54
  17. R v Legault, 2009 ONCA 86 (CanLII)

Juries

Juries must be instructed to account for the "frailties of eyewitness identification" when considering issues such as:[1]

  • whether the suspect known to the witness?
  • whether the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting?[2]
  • whether the sighting by the witness in circumstances of stress?[3]

Juries must also be "instructed to carefully scrutinize the witnesses’ description of the assailant", considering whether it was "vague" and "generic" or "detailed" with "distinctive features".[4]

The judge should also caution on the limited value of in-court identification.[5]

Eye-witness evidence is dangerous as it has a "power effect on jurors".[6]

  1. R v Jack, 2013 ONCA 80 (CanLII) at para 15, 16
    See also Juries
  2. R v Carpenter, [1998] O.J. No. 1819 (C.A.)(*no CanLII links) at para 1
  3. Nikolovski, at p. 1210
    R v Francis 2002 CanLII 41495 (ON CA), (2002), 165 O.A.C. 131, at 132
  4. Jack, supra at para 16
    R v Ellis, 2008 ONCA 77 (CanLII), [2008] O.J. No. 361, at paras 5, 8
    R v F.A. 2004 CanLII 10491 (ON CA), (2004), 184 O.A.C. 324, at para 64
    R v Richards, 2004 CanLII 39047 (ON CA), (2004) 70 O.R. (3d) 737, at para 9
    R v Boucher, 2007 ONCA 131 (CanLII), [2007] O.J. No. 722, at para 21
  5. Jack at para 17
    R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, at pp. 468-69
    R v Tebo 2003 CanLII 43106 (ON CA), (2003), 172 O.A.C. 148, at para 19
  6. R v Hanemaayer, 2008 ONCA 580 (CanLII) at para 21

Weighing Identity Evidence

Bald assertions of identity by witnesses should be given little weight. The Court should consider the facts and foundation of the statement including the opportunity and ability to observe. [1]

One or more courts have recommended that cases resting entirely on eyewitness testimony should require the judge to do the following: [2]

  1. recognize the danger of convicting based on eyewitness identification only;
  2. note the significant factors which may have affected the identification; and
  3. address those factors.

It is "incumbent upon Crown counsel to ensure that all relevant circumstances surrounding pretrial eyewitness identification procedures be fully disclosed to the defence and be made available for scrutiny by the trier of fact."[3]

The fundamental factors affecting the weight of eyewitness evidence are: [4]

  1. opportunity to observe:
    1. light conditions
    2. the distance from the witness to the suspect
    3. the eyesight of the witness
    4. colour perception
  2. previous acquaintance with the accused[5]
  3. focus of attention or distraction
  4. presence or absence of distinctive features or appearance of the suspect/accused[6]
  5. the time since making the observations[7]

Extra caution should be taken where the witnesses had a limited opportunity to observe, and the confirmative opportunity occurred while the accused was under arrest.[8]

Absent supporting evidence, a judge cannot say that stress upon the witness is a neutral factor in the accuracy of observations.[9]

General or generic descriptors alone will be accorded only limited weight as there is "no detail that could distinguish the [culprit] from thousands of other people".[10]

A "fleeting glance" will generally be considered unsatisfactory opportunity to observe.[11]

  1. R v Tatham 2002 MBQB 241 (CanLII), [2002] M. J. No. 370, 167 Man. R. (2d) 152 at 9
    R v Browne and Angus (1951), 99 CCC 141 (BCCA), 1951 CanLII 393 (BC CA)
    R v Harrison (1951), 100 CCC 143 (BCCA), 1951 CanLII 403 (BC CA)
  2. R v Bigsky, 2006 SKCA 145 (CanLII), 217 CCC (3d) 441, at para 70
  3. R v Miaponoose 1996 CanLII 1268 (ON CA)
  4. R v Wilband, 2011 ABPC 298 (CanLII) at para 16
    Miaponoose, supra
    Mezzo v The Queen, 1986 CanLII 16 (SCC), [1986] 1 SCR 802 at para 24
    Browne and Angus
    Harrison
    R v Anderson, 2014 BCPC 71 (CanLII) at para 32 - citing McWilliams Canadian Criminal Evidence, 5th edition, at paragraph 32:40:10
    e.g. R v "X" 2013 NSPC 127 (CanLII) at para 76 - in reference to recognition evidence
  5. R v Cachia (1953), 107 CCC 272 (Ont. C.A.), 1953 CanLII 455 (ON CA)
    R v Todish, (1985), 18 CCC (3d) 159 (ONCA), 1985 CanLII 3586 (ON CA)
    R v Leaney, 1987 ABCA 206 (CanLII), (1987), 38 CCC (3d) 263
  6. R v Cosgrove (No. 2) (1977), 34 CCC (2d) 100 (Ont. C.A.), 1977 CanLII 2085 (ON CA)
    R v Corbett (1973), 111 CCC (2d) 137 (BCCA) (*no CanLII links)
    R v Dunlop, Douglas and Sylvester (1976), 33 CCC (2d) 342 (Man. C.A.), 1976 CanLII 1415 (MB CA)
  7. R v Louie (1960), 129 CCC 336 (BCCA), 1960 CanLII 463 (BC CA)
  8. R v Hume, 2011 ONCJ 535 (CanLII) at para 14
    R v Smierciak (1946), 87 CCC 175 (Ont. C.A.), 1946 CanLII 331 (ON CA)
  9. R v Francis, 2002 CanLII 41495 (ON CA)
  10. R v Foster, 2008 CanLII 8419 (ON SC), at para 40 - generic factors of approximate age and race
    R v Ellis, 2008 ONCA 77 (CanLII), [2008] O.J. No 361 (C.A.), at para 5, 8
  11. R v Carpenter, [1998] O.J. No. 1819 (C.A.) (*no CanLII links) at para 1 per Abella J.A

Line-ups

The key rule in giving a photo line-up is that the procedure is fair.[1]

It was recommended in the Sophonow Inquiry that to avoid false identification through line-ups the procedure should include the following:[2]

  • The photo pack should contain at least 10 subjects.
  • The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
  • Everything should be recorded on videotape, or failing that, audiotape. In addition, or as a minimum alternative, all comments of the witness should be recorded verbatim on the form accompanying the line-up and signed by both the officer and the witness.
  • The line-up should be presented by an officer who is not involved in the investigation and does not know who the suspect is.
  • The officer showing the line-up should advise the witness that he does not know who the suspect is or whether there is a suspect in the line-up. The officer should also tell the witness that it is just as important to clear the innocent as it is to identify the subject.
  • The photopack should be presented sequentially, not all together.[3]
  • Police officers should not speak to the witness after the line-up regarding his ability or inability to identify anyone.

Several cases have adopted these requirements or something similar.[4]

Generally, improper procedure taints identification evidence, it does not render the evidence inadmissible, it only goes to weight.[5]

Identification based on a single photograph rather than a proper lineup goes to weight and not admissibility. [6]

Other factors considered include:

  • evidence of distinguishing features linking the accused and the perpetrator identified by the line-up photograph. [7]
  • opportunity for the witnesses to see the perpetrator;
  • Familiarity with the accused prior to court;

The Sophonow guidelines for line-ups are not legally binding and so failure to follow them will not necessarily be fatal to the identification evidence.[8]

The prior familiarity of the witness to the accused is a factor that goes to weight.[9]

A live line-up after completing a photo line-up will add little weight to the witnesses evidence, but is still admissible.[10] When in reverse order the photo line-up is given little weight.[11]

A witness should never be shown a single photo of the accused.[12]

During a live line-up the police should never tell the witness that the suspect is among the line-up.[13]

The accused should not be put in a line-up among those who do not hold a resemblance to him.[14]

Evidence of a live line-up can be excluded where the accused's right to counsel under 10(b) was violated.[15]

The accused's refusal to take part in a lineup is not admissible to establish guilt.[16]

There is a weak link between a witnesses confidence and a witnesses accuracy in identifying a culprit.[17]

Line-ups of One
It is not appropriate for police to engage in the practice of presenting a newly arrested accused before the witness and then seeking confirmation from the person.[18]

  1. R v Shermetta (1995), 1995 CanLII 4193 (NS CA), 141 N.S.R. (2nd) 186 - leading case on procedure in NS
    R v Smierciak (1946), 87 CCC 175 (Ont. C.A.), 1946 CanLII 331 (ON CA)
  2. Justice Peter de Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Entitlement to Compensation at pp. 31-34 (2001))
    see also New Jersey v Larry R Henderson New Jersy Supreme Court -- list of other considerations on a lineup
  3. R v Hanemaayer, 2008 ONCA 580 (CanLII), at para 21
  4. R v MacKenzie, 2003 NSPC 51 (CanLII)
  5. Gonsalves, supra at para 46
  6. United States v Khuc, 2008 BCCA 425 (CanLII) at paras 31, 32
  7. e.g. R v Smith (1952), 103 CCC 58 (Ont. C.A.), 1952 CanLII 116 (ON CA)
  8. R v Doyle, 2007 BCCA 587 (CanLII) at paras 10 to 15
    R v Gonsalves 2008 CanLII 17559 (ON SC), (2008), 56 C.R. (6th) 379, [2008] O.J. No. 2711 (Ont. Sup. Ct.), at paras 44, 45 and 53
    R v Le, 2011 MBCA 83 (CanLII), 270 Man. R. (2d) 82, at paras 132 to 135
  9. See R v Cachia (1953), 107 CCC 272 (Ont. C.A.), 1953 CanLII 455 (ON CA)
    R v Todish, (1985), 18 CCC (3d) 159 (Ont. C.A.), 1985 CanLII 3586 (ON CA)
    R v Leaney, 1987 ABCA 206 (CanLII), (1987), 38 CCC (3d) 263
    Hanemaayer, supra at para 25
  10. R v Sutton, 1969 CanLII 497 (ON CA), [1970] 3 CCC 152 (ONCA)
  11. R v Jarrett (1975), 12 NSR (2d) 270, 1975 CanLII 1401 (NS CA)
  12. Smierciak
    R v Watson, [1944] O.W.N. 258, 81 CCC 212, [1944] 2 DLR 801, 1944 CanLII 340 (ON CA)
  13. R v Armstrong (1959), 125 CCC 56 (BCCA), 1959 CanLII 456 (BC CA)
  14. Armstrong
    R v Atfield, 1983 ABCA 44 (CanLII)
    R v Engel (1981), 9 Man. R. (2d) 279 (C.A.) (*no CanLII links)
  15. R v Ross, [1989] 1 SCR 3, 1989 CanLII 134 (SCC)
  16. R v Henry, 2010 BCCA 462 (CanLII)
  17. R v Hebbert, 2002 SCC 39 (CanLII) at para 52
  18. R. v. Canning, 1986 CanLII 4295 (SCC), [1986] S.C.J. No. 37, rev’g (1984), 65 N.S.R. (2d) 326 (C.A.)
    R. v. Sutton, 1969 CanLII 497 (ON CA), [1970] 3 CCC 152 (Ont. C.A.)
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII)
    R v Zurowski, 2004 SCC 72 (CanLII)
    R. v. Dhillon, ]http://canlii.ca/t/1cqpr 2002 CanLII 41540] (ON CA), (2002), 166 CCC (3d) 262 (Ont. C.A.)
    R. v. Quercia, 1990 CanLII 2595 (ON CA), (1990), 60 CCC (3d) 380 (Ont. C.A.)
    R. v. Mezzo, [1986] 1 SCR 802, 1986 CanLII 16 (SCC)
    R. v. Biddle, 1993 CanLII 8506 (ON CA), (1993), 84 CCC (3d) 430 (Ont. C.A.)

Video Identification

Where the video evidence is clear and convincing, the trier-of-fact may use it as the sole basis for the identification of the accused as the perpetrator.[1]

Quality of the video should be sufficient "to be able to recognize facial features such as nose, jaw line, and profile".[2]

A witness can testify to the contents of a video establishing identity of the accused without showing the video. It is generally considered akin to actual observations. [3]

Threshold for Video Recognition Evidence
A person who is not familiar with the appearance of the accused cannot testify on identification of the accused in a video.[4]

A witness who is familiar with the appearance and idiosyncrasies of the accused that is not apparent to the trier of fact, may testify to identity where the witness can 1) state the particularities of the idiosyncrasies; and 2) can show where the idiosyncrasies are revealed on the video.[5] A voir dire must be held to determine whether the person, such as a police officer, can testify to the likeness of the video image to the suspect.[6]

  1. R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197 at para 23
  2. R v Nilsson, 2011 BCSC 1654 (CanLII) at para 48
  3. Taylor v Chief Constable of Cheshire (1987) 84 Cr. App. R. 191
  4. R v Leaney, 1989 CanLII 28, [1989] 2 SCR 393
  5. R v Leaney 1987 ABCA 206 (CanLII), (1987) 38 CCC 263 Alta. C.A.
  6. R v Briand, 2008 ONCJ 777 (CanLII)

Dock Identification

Identification of an accused in the dock is generally undesirable and unsatisfactory, and so adds very little weight to the proof of identity.[1]

For purposes of comparison with the eyewitness' evidence, the judge is permitted to observe the accused in court and draw conclusions from similarities and dissimilarities.[2] A judge is also permitted to refuse to observe dissimilarities in appearance of the accused in court.[3]

  1. R v FA, 2004 CanLII 10491 at para 47
    R v Izzard, (1990), 54 CCC (3d) 252 (Ont. C.A.), 1990 CanLII 11055 (ON CA) at pp. 255-6
    R v Zurowski, 2004 SCC 72 (CanLII)
    R v Hibbert, 2002 SCC 39 (CanLII) at para 50
    R v Sykes, 2014 NSSC 320 (CanLII) at paras 43-60
    R v Martin, 2007 NSCA 121 (CanLII) at para 18
  2. R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197
    R v Campbell, 2017 ONCA 65 (CanLII), per van Rensburg JA, at paras 14 and 15
  3. Campbell, ibid. at para 15
    R v Rae, 2013 ONCA 556 (CanLII) at paras 5 to 6

Recognition

Recognition evidence is "merely a form of identification evidence". Accordingly, all of the 'same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence".[1] This includes all the relevant cautions regarding the frailties of identification.[2]

The "level of familiarity between the accused nad the witness may serve to enhance reliability of the evidence."[3]

Difference from Identity Evidence
Courts have still generally made a distinction between identity evidence and recognition evidence. The difference being that identity involves a witness matching a previously observed stranger with that of the accused. Recognition is where the observer knew the person being observed and the issue is not simply identifying a person by description, but rather recognizing the person through their acquaintanceship.[4]

Recognition evidence is "generally considered to be more reliable and to carry more weight than identification evidence."[5]

Recognition is not a distinct category from identification.[6] Rather they are at different points on a spectrum of reliability.[7] The "extent and quality" of the prior encounters is "but one factor to be considered in weighing the witness's evidence" for the purpose of identification.[8]

Threshold to Admit Recognition Evidence ("Leaney Hearing")
In admitting recognition evidence, there must be sufficient indicia for a threshold degree of familiarity which depends on:[9]

  1. the length of the prior relationship between the witness and the accused;
  2. the circumstances of the prior relationship between the witness and the accused; and,
  3. the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.

It has been observed that in "most cases" recognition evidence will pass the threshold of admissibility.[10]

These indicia go to the weight of the evidence along with "the cumulative effect of recognition evidence provided by more than one witness and the circumstances under which the witness recognized the accused."[11]

Before a person can claim to recognize a person they must establish that they had a prior opportunity to observe personally the accused and become acquaintanced with him.[12]

Recognition simply means that "the witness's evidence is based in part on his or her dealings with the accused before the crimes were committed"[13]

Recognition evidence is considered more reliable and has more weight than identification evidence.[14]

Resemblance without anything more is not sufficient to establish identification. Other inculpatory evidence is needed.[15]

It is significant whether the acquainted eye-witness had seen the accused shortly before observing the incident.[16]

  1. R v Olliffe, 2015 ONCA 242 (CanLII) at para 39
    R v Campbell, 2017 ONCA 65 (CanLII) at para 10
  2. R v Curran, 2004 CanLII 10434 (Ont. C.A.), at para. 26
    R v Miller, 1998 CanLII 5115 (ON CA), (1998), 131 CCC (3d) 141 (Ont. C.A.), at pp. 150-151
    R v Brown, 2006 CanLII 42683 (ON CA), (2006), 215 CCC (3d) 330 (Ont. C.A.), at para. 42
  3. Olliffe, supra at para 39
    Campbell, supra at para 10
  4. e.g. R v “X”, 2013 NSPC 127 (CanLII) at para 73
  5. R v Bob, 2008 BCCA 485 (CanLII), [2008] BCJ No. 2551 (C.A.), at para 13
  6. R v Smith 2011 BCCA 362 (CanLII)
  7. R v Mclsaac, [1991] BCJ No. 3617 (C.A.) (*no CanLII links)
  8. R v Smith, 2011 BCCA 362 (CanLII), [2011] BCJ no. 1655
  9. R v Anderson et al., 2005 BCSC 1346 (CanLII) at paras 20 and 25-26 (S.C.) R v Brown 2006 CanLII 42683 (ON CA), (2006) 215 CCC (3d) 330 (Ont. C.A.)
  10. Anderson, supra at para 39 per Smith J.
  11. Anderson, supra at para 25
  12. R v PTC, 2000 BCSC 342 (CanLII) at para 22, 67
  13. R v Smith 2011 BCCA 362 (CanLII)
  14. R v Bob (C.C.), 2008 BCCA 485 (CanLII), 263 BCAC 42 at para 13 ("While caution must still be taken to ensure that the evidence is sufficient to prove identity, recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence.")
    R v Aburto (M.E.), 2008 BCCA 78 (CanLII) at para 22
    R v Affleck (A.), 2007 MBQB 107 (CanLII)
    R v R.R.I., 2012 MBQB 59 (CanLII)
  15. R v Rybak 2008 ONCA 354 (CanLII) at para 121
  16. R v O.R.B., [2005] S.J. No. 794 (C.A.) (*no CanLII links) at para 14
    see also R v "X", , supra at para 98

Doctrines of Constructive Liability

Parties

General Principles

A person can be criminally responsible as the principal actor in committing an offence or as a member of a party acting together in the commission of an offence. In terms of guilt, there is no difference between being an aider, abettor, or principal to an offence.[1] They are all equally culpable.[2]

By contrast, liability as an "accessory after the fact" or conspirator is separate from a party. These forms of offences concern "involvement falling short of personal commission".[3]

The operating section on parties states:

Parties to offence
21. (1) Every one is a party to an offence who

(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
R.S., c. C-34, s. 21.


CCC

Section 21 outlines four ways in which a person can be criminally liable for an act. A person can be a principal, an aider, an abettor, or have common intention to commit an offence.

The section is "designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant."[4] As such it is unnecessary for the indictment to specify whether the accused is charged as a principal or as a party.[5]

At common law, there were four types of parties:[6]

  1. principles of the first degree;
  2. principles of the second degree;
  3. accessories before the fact; and
  4. accessories after the fact

Section 21 effectively codifies the common law distinction between principle liability and secondary liability.[7]

The trier-of-fact may find an accused liable as both a principal and secondary party at the same time. A jury does not need to be unanimous on the accused's role to find conviction.[8]

In any of the circumstances, a party to an offence must have both knowledge and intent.[9]

Where a person provides directions or instructions to a potential buyer to make a purchase of drugs from a seller, that can amount to aiding and abetting in trafficking arising from the eventual sale. [10]

It is possible to be a party to a conspiracy "where the accused aids or abets the actus reus of conspiracy, namely the act of agreeing."[11]

Even where the other participants in the offence are not known and not charged, a jury should still be instructed on the types of party liability under s. 21.[12]

Constitutionality
Where s. 21 permits a person to be convicted as a party to first degree murder while the principal is only convicted of second degree murder does not violate s. 7 of the Charter.[13]

  1. R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652 per Dickson CJC ("This provision [s. 21] is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant.")
    R v Briscoe, 2010 SCC 13 (CanLII), [2010] 1 SCR 411, at para 13
    R v Tomlinson, 2014 ONCA 158 (CanLII) at para 143
  2. Sandham, 2009 CanLII 58605 (ON SC) at para 121
  3. Thatcher, supra
  4. Thatcher, supra
    see also R v Maciel, 2007 ONCA 196 (CanLII) at para 85
  5. Thatcher, supra at p. 689 (SCR) citing R v Harder, 1956 CanLII 58 (SCC), [1956] SCR 489
  6. R v Berryman, 1990 CanLII 286 (BC CA), (1990) 57 CCC (3d) 275 (BCCA) at p. 382
    R v Mena, 1987 CanLII 2868 (ON CA), (1987) 34 CCC (3d) 304 (ONCA)
    R v Pickton, 2010 SCC 32 (CanLII) at para 51 per LeBel refers to principal liability and secondary liability
  7. R v Pickton, ibid. at para 51 per LeBel J.
  8. Thatcher, supra at p. 694 (SCR)
  9. R v Briscoe, 2010 SCC 13 (CanLII), [2010] 1 SCR 411 at paras 14 to 16
  10. R v Frayne, 2011 ONCJ 557 (CanLII)
  11. R v J.F., 2013 SCC 12 (CanLII) at para 72
    see also Conspiracy
  12. R v Isaac, [1984] 1 SCR 74, 1984 CanLII 130 (SCC), at 81 (SCR)
  13. R v Huard, 2013 ONCA 650 (CanLII) leave refused

Section 21(1)(a): "Commits"

Section 21(1)(a) states that "Every one is a party to an offence who ... (a) actually commits it;"

A person "actually commits" an offence when he does some act "towards the commission of the offence" with requisite mens rea or uses an agent to commit it.

Co-Principal or Joint Perpetrator

Where there is multiple people all doing some act together towards the shared achievement of the offence, each is actually committing the offence as a "joint principle offender".[1]

It is not necessary for each joint perpetrator to perform every act that makes up the offence. Where acts are divided between the parties they are both liable as principals.[2]

There is not requirement for joint perpetrators under s. 21(1)(a) for there to be any "agreement to carry out a common purpose". There only needs to be a "common participation".[3]

Whether an accused person is considered a principal or a party will have an impact on whether a defence of duress under s. 17 can apply.

A person can be found guilty as a co-principal even if the other participants were acquitted.[4]

In an assault that causes death, there is no need for the Crown to prove who "struck the fatal blow or blows".[5]

  1. E. G. Ewaschuk in Criminal Pleadings & Practice in Canada, looseleaf, 2nd ed., Vol. 1 (Aurora: Canada Law Book, 2007) at 15:1010
  2. R v Ball, 2011 BCCA 11 (CanLII) at paras 23, 24
  3. Ball at paras 24-25
  4. R v Hick, [1991] 3 SCR 383, 1991 CanLII 47 (SCC)
  5. Ball, supra at para 28

Separate Acts Create Joint Liability

Where "two people have acted in concert to commit" an criminal offence "as a joint enterprise" they can both be found liable as principals.[1]

A person can be a co-principal even where he has not personally performed every act that makes out the essential acts of the offence.[2] As long as the acts of all parties in sum make out the essential acts of the offence as part of a "common participation" will make out the offence. They do not need a "common purpose" or "common intention".[3] A contribution to "the actus reus with the requisit mens rea" will be suffficent.[4]

Two cars racing each other can be co-principals if one of the cars negligently causes death or bodily harm.[5]

  1. R v Iyanam, 2013 ONSC 1091 (CanLII) at para 24
  2. R v Ball 2011 BCCA 11 (CanLII) at para 24
  3. Ball, ibid. at para 25
  4. R v Hughes, 2011 BCCA 220 (CanLII) at para 77 per Rowles JA
  5. Hughes, ibid.

Connecting the Act to the Actor

Where it is proven that where it is proven that multiple people acted with an intention to commit murder, it is "legally irrelevant" to determine who pulled the trigger.[1]

Where several people participate and assist each other in the commission of an assault that would likely cause death and does so, then they are all parties to murder under s. 21(1)(a).[2] It is said that a "blow of one is, in law, the blow of all of them".[3]

In an assault context, it is not necessary to prove the degree of involvement of each perpetrator as it would be "impractical and at times impossible" to sort out the individual involvement.[4]

  1. R v Devon Trent Gerald Paskimin, 2012 SKCA 35 (CanLII) at para 23
    R v H.(L.I.), 2003 MBCA 97 (CanLII) at para 20
  2. R v H.(L.I.), 2003 MBCA 97 (CanLII), at para 20
  3. R v Chow Bew, [1956] SCR 124, 1955 CanLII 47 (SCC)
    R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652
    R v Ball at para 30
  4. R v JFD, 2005 BCCA 202 (CanLII), at para 7, 14
    R v Ball

Innocent Agency

The doctrine of innocent agency permits an offender to commit an offence as a principal through the direction of an innocent third-party.[1]

This requires the principal to commit an offence "by means of an instrument 'whose movements are regulated" by [the accused]".[2]

Typical scenarios include a courier who is transporting drugs on behalf of the principal.[3]

  1. R v Berryman (1990), 1990 CanLII 286 (BC CA), 57 CCC (3d) 375 (BCCA)(*no CanLII links)
  2. R v Berryman citing Williams, "Criminal Law"
  3. R v McFadden (1971), 5 CCC (2d) 204 (NBCA), 1971 CanLII 1260 (NB CA)

Intention

The accused intents to be a party where they intend the consequences of the principal's actions. An accused "intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct".[1]

The accused does not need to have a ulterior motive to assist the principal in completing the offence. So warning a principal of the risk of police arriving during the commission will provide assistance as a party even where the act was motivated by a fear of being caught personally. [2]

  1. Iyanam at para 26 citing R v Buzzanga and Durocher, (1979), 49 CCC (2d) 369, 1979 CanLII 1927 (ON CA)
  2. Iyanam at para 26

Section 21(1)(b), (c): Aiding and Abetting

Section 21(1)(b) and (c) states that "Everyone is a party to an offence who ... (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it."

A person can be convicted as an aider or abettor even where the principal is not charged or even acquitted.[1]

  1. R v Johnson, 2017 NSCA 64 (CanLII) at para 78

"Aiding" and "Abetting"

"Aid" is often defined as conduct that assists or helps the principal in the offence.[1]

"Abet" refers to "encouraging", "instigating", "promoting" or "procuring" the commission of the offence.[2] It also includes "encouraging" or "supporting" the principal party.[3]

  1. R v Greyeyes 1997 CanLII 313 (SCC), [1997] 2 SCR 825 at para 26
    R v Briscoe, 2010 SCC 13 (CanLII), [2010] 1 SCR 411
  2. Greyeyes at para 26
    R v Briscoe
  3. R v Rochon, 2003 CanLII 9600 (ON CA) at paras 54 to 61

Actus Reus

The actus reus of aiding or abetting is "doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence.[1] While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed"[2]

The actus reus and mens rea of aiding is distinct from those of the actual offence.[3]

To be liable as an aider or abettor, the Crown must prove:

  1. the specific offence in the indictment was committed
  2. the accused does some act that actually aids or abets in the commission of the offence; and
  3. the accused had the mens rea for the offence.

The accused's act must have some connection to the principal's acts.[4] It should have an effect of providing "actual assistance or encouragement". An act that does not contribute or effect the commission of the offence is not aiding or abetting.[5]

It is not necessary that the principal have any awareness that the aider or abettor is contributing to the offence.[6]

  1. See also R v Briscoe, 2010 SCC 13 (CanLII) at par. 14
  2. R v Briscoe at para 14 - ("aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence")
    R v Tomlinson, 2014 ONCA 158 (CanLII) at para 144
  3. Briscoe at para 13
  4. R v Dooley 2009 ONCA 910 (CanLII) at para 123
  5. Dooley at para 123
  6. R v Greyeyes at para 26
    R v Almarales, 2008 ONCA 692 (CanLII) at paras 66,67

Mens Rea

Aiding
The mens rea for aiding requires that the act be "for the purpose of aiding" the principal in the commission of the offence.[1] The accused then must (1) know that the principal is intending to commit the offence; and (2) intend to provide assistance to the principal in carrying out the act.[2] In total, the accused "must have knowledge of the facts that constitute [the unlawful objective]".[3]

There is no need for the accused to desire the offence to be "successfully committed".[4]

The knowledge element requires that the "aider knew the perpetrator intended to commit the crime although ... need not know precisely how the crime was to be committed."[5]

The knowledge component of the mens rea can be established by wilful blindness to the principals intent to commit the offence.[6]

Abetting
The mens rea for abetting is substantially the same as aiding, despite the difference in language.[7] The section should be treated as if it stated "for the purpose".[8]

Even where the index offence does not require specific intent and can be satisfied by recklessness, the Crown must still prove that the aider and abettor had specific intent to contribute to the index offence.[9]

  1. See s. 21(1)(b)
  2. R v Almarales, 2008 ONCA 692 (CanLII) at para 67
    Briscoe, supra at para 16, 17
    R v Taylor, 2013 ONCA 656 (CanLII) United States v Fester, 2009 BCSC 1331 at para 44, ("evidence that the accused intended the consequences that ensued from his act in furtherance of the crime because he had actual knowledge of the offence intended by the principal actor or he was wilfully blind as to the proposed intentions of this person”)
  3. R v Helsdon, 2007 ONCA 54 (CanLII) at para 28 (ONCA)
  4. R v Briscoe, 2010 SCC 13 (CanLII) at para 16
    R v Tomlinson, 2014 ONCA 158 (CanLII) at para 144
  5. Tomlinson, ibid. at para 144
    Briscoe, supra at para 17
  6. Briscoe, supra at para 21 to 25
    Taylor, supra
  7. Helsdon, supra at para 43, 44
  8. Helsdon, supra
  9. R v Roach, 2004 CanLII 59974 (ON CA), (2004) 192 CCC (3d) 557 (ONCA) at para 44

Specific Examples

Assault
A father, under a duty to protect his son, knew of ongoing assaults upon his child by the mother was found liable as an aider in the murder of his son for failing to intervene.[1]

Conspiracy
A person may aid or abet a conspiracy. However, will generally only apply to aiding or abetting the formation of the agreement and not just any element of the conspiracy.[2]

Theft
A voluntary passenger in a stolen vehicle may be found to be an abettor as their presence may have the effect of encouraging the theft.[3]

Murder
An aider or abettor does not need to intend for the victim to be murdered to be liable, he need only have the knowledge of the principal's intent to murder.[4]

For an aider to be liable for first degree murder it is necessary to prove that the accused:[5]

  • did or omitted to do something that aided another person to unlawfully cause the victim’s death
  • did the impugned act for the purpose of aiding that other person to unlawfully cause the victim’s death
  • when he did the impugned act he either had the requisite intent for murder or knew that the principal offender had the requisite intent for murder
  • when he did the impugned act, he did so for the purpose of aiding the principal offender to commit a planned and deliberate murder
  • when he did the impugned act, he planned and deliberated the murder, or knew that the murder was planned and deliberate.

It is not necessary for the Crown to prove that the aid "caused" the death.[6] The conduct needs only to be connected through the provision of "actual assistance or encouragement".[7]

  1. R v Dooley, 2009 ONCA 910 (CanLII)
  2. R v JF, 2013 SCC 12 (CanLII) at para 25
  3. see Motor Vehicle Theft (Offence)
  4. R v Johnson, 2017 NSCA 64 (CanLII) at para 79
  5. Johnson, ibid. at para 80
  6. Johnson, ibid. at para 92
    R v Dooley, 2009 ONCA 910 (CanLII) at paras 116 to 123
  7. Dooley, ibid. at para 123

Section 21(2): Common Intention

The doctrine of common intention, codified in s. 21(2), attributes criminal liability for acts done by a member of a group to the other members of the group. Section 21(2) states:

21.
...
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
R.S., c. C-34, s. 21.


CCC

The effect of this provision is that a member of a group committing a criminal act can be liable for any incidental offences committed by its other members so long as the incidental offence was a "probable consequence" of carrying out the initial offence.

The purpose of s. 21(2) is to "deter joint criminal enterprises and to encourage persons who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful purpose."[1]

To form intentions in common, there must be:

  1. two or more parties must form an intention in common to carry out an unlawful purpose
  2. the parties agree to carry out this unlawful purpose.

Actual assistance is not necessary.[2]

A common intention is whether two or more persons "have in mind the same unlawful purpose." The common intention may form "in the instant of the offence being committed, the mutual intention to pursue unlawful purpose and to assist each other therein being formed at the very moment of carrying it out." [3]

So for example, where a second party joins in on an assault by a primary party, there will be a common intention formed.

  1. R v Logan, [1990] 2 SCR 731, 1990 CanLII 84 (SCC)
  2. R v Moore (1984) 15 CCC (3d) 541 (ONCA), 1984 CanLII 3542 (ON CA), per Martin JA
  3. R v Vang, 1999 CanLII 2310 (ON CA), (1999), 132 CCC (3d) 32 at para 24
    See Rose, Parties to an Offence (1982) at pages 67 - 68

Exceptional Mens Rea Offences

Section 21(2) is constitutional.[1] This is because of the subjective standard require to prove that the accused intended to have a common intention to carry out the unlawful purpose. In addition, an objective standard is required as the incidental offence must be objectively foreseeable. The court however may take into account the personal characteristics and particular circumstances of the accused.[2]

Section 21(2) will operate differently on certain offences that have a greater "stigma" and potential punishments will constitutionally require a greater mens rea. For those offences, such as murder and attempted murder,[3], the objective component does not apply and the Crown must prove subjective component only. In those cases the phrase "ought to have known" is of no force.[4]

  1. R v Logan
  2. R v Vasil, [1981] 1 SCR 469, 1981 CanLII 46 (SCC)
  3. R v Vaillancourt, [1987] 2 SCR 636, 1987 CanLII 2 (SCC)
    R v Martineau, [1990] 2 SCR 633, 1990 CanLII 80 (SCC)
  4. R v Logan

Intention in Common

Intention in common requires two or more persons with the "same unlawful purpose" or "goal" in mind. However, they do not need to share the same motive or desire to bring about the offence.[1]

The common unlawful purpose can be formed at the time the offence is committed rather than in advance.[2]

  1. R v Hibbert, [1995] 2 SCR 973, 1995 CanLII 110 (SCC), at paras 40 to 44
    R v Cadeddu, 2013 ONCA 729 (CanLII)
  2. Cadeddu, ibid.

Incidental Offence

The incidental offence must be a separate offence from the offence committed as part of the unlawful purpose. It must be some incidental offence not part of the initial unlawful purpose.[1]

  1. R v Babineau [1987] NBJ No 1118 (CA)(*no CanLII links)
    R v Cormier [1998] NBJ No 316(*no CanLII links)

Abandonment

See also: Abandonment (Defence)

An accused may argue that they have abandoned the common intention where it is shown that:[1]

  1. that there was an intention to abandon or withdraw from the unlawful purpose;
  2. that there was timely communication of this abandonment or withdrawal from the person in question to those who wished to continue;
  3. that the communication served unequivocal notice upon those who wished to continue; and
  4. that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.
  1. R v Gauthier, [2013] 2 SCR 403, 2013 SCC 32 (CanLII)

Specific Examples

Murder
A girlfriend of the principal was an abettor of first degree murder under s. 21(1)(c) by standing by during the murder and yelled "kill him Georgie".[1]

The girlfriend of a principal was an abettor of manslaughter where she gave the principal a weapon for the purpose of attacking the victim. However, without the formed intent in giving the weapon, there will be no conviction.[2] Unless there is some duty to act, a bystander who is present and watches a murder cannot be found guilty of any offence connected to the murder.[3]

Robbery
Where one person steals and a companion makes a threat, they are both joint perpetrators of the offence of robbery.[4]


  1. R v Rochon, 2003 CanLII 9600 (ON CA)
  2. R v Quinn, 2009 BCCA 267 (CanLII)
  3. R v Davy, 2000 CanLII 16859 (ONCA)
  4. R v Iyanam, 2013 ONSC 1091 (CanLII) at para 24

Mere Bystanders

A person who is merely present at the scene or a crime cannot be evidence to prove culpability in participating in an offence.[1]

However, presence, coupled with other evidence such as a false explanation, the nature of the offence, and other circumstantial evidence may be sufficient.[2]

While the burden never shifts to the accused to explain their presence, in absence of testimony explaining the reason may permit the judge to make an inference on the surrounding evidence to find guilt.[3]

  1. R v Jackson, 2007 SCC 52 (CanLII), [2007] 3 SCR 514 at para 3
  2. Jackson at para 3
  3. R v Pitcher, 2013 NLCA 22 (CanLII) at para 13

Organizations as Parties

History

Under the 1892 Criminal Code s. 61 stated:

61.
...
Every one is a party to and guilty of an offence who

(a) actually commits it; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any persons in commission of the offence; or
(d) counsels or procures any person to commit the offence.


Case Digests

See Also

Accessory After the Fact

General Principles

See also: Attempts and Accessories After the Fact (Offence)

Section 23 defines "accessory after the fact":

Accessory after the fact
23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
(2) [Repealed, 2000, c. 12, s. 92]
R.S., 1985, c. C-46, s. 23; 2000, c. 12, s. 92.
Where one party cannot be convicted
23.1 For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.
R.S., 1985, c. 24 (2nd Supp.), s. 45.


CCC

An accessory to an offence is not the same as a party to an offence. It is a separate offence that is committed subsequent to the initial offence.[1] An offender under s. 23(1) is an independent substantive offence.[2]

Mens Rea
The accused must know that that the person they are assisting was a principle or party to an offence, and the assistance must be for the purpose of enabling the person to escape. It is not sufficient that the accused merely do an act that enables the escape.[3]

The accused must have "an ulterior intention or desire to assist for the purpose of an escape".[4]

Evidence
All evidence that has been found admissible for the principle will be admissible against the accessory.[5]

The conviction of the principle is admissible to prove that the principal committed the offence.[6]

Examples
The following actions have been found to amount to the offence of accessory:

  1. assisting the principle by giving him information or aid.[7]
  2. hiding the principal offender[8]
  3. concealing evidence [9]
  4. giving false information to authorities including participating in a fake alibi [10]

Lesser Included Offences
Accessory after the fact to manslaughter is a lesser included offence to accessory after the fact to murder.[11]

  1. R v Vinette, 1974 CanLII 165 (SCC), [1975] 2 SCR 222, per Pigeon J
  2. R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973, per Lamer CJ at para 26
  3. R v McVay (1982) 66 CCC (2d) 512 (ONCA), 1982 CanLII 3684 (ON CA), per Martin JA
  4. R v Camponi, 1993 CanLII 1163 (BCCA), per Wood JA at para 10
  5. Vinette, supra
  6. R v Duong, 1998 CanLII 7124 (ON CA), (1998) 124 CCC (3d) 392 (ONCA), per Dohterty JA see also s.657.1 relating to criminal records
  7. R v Young (1950) 10 CR 142 (QCCA), 1950 CanLII 380 (QC CA), per St Jacques JA
    R v Campbell 2002 NSCA 35 (CanLII), per Bateman JA
  8. R v White
  9. R v Knuff (1980) 52 CCC (2d) 523, 1980 ABCA 23 (CanLII), per Moir JA
  10. R v French (1977), 1977 CanLII 53 (ON CA), 37 CCC (2d) 201, per MacKinnon JA aff'd [1980] 1 SCR 148
  11. R v Webber, 1995 CanLII 333 (BC CA), per Legg JA at para 27

Effect of the Principal or Party Verdict

Accessories after the fact
592. Any one who is charged with being an accessory after the fact to any offence may be indicted, whether or not the principal or any other party to the offence has been indicted or convicted or is or is not amenable to justice.
R.S., c. C-34, s. 521.


CCC

657.2 ...
Accessory after the fact
(2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the conviction or discharge of another person of the offence is admissible against the accused, and in the absence of evidence to the contrary is proof that the offence was committed.
1997, c. 18, s. 80.


CCC

Under the operation of s. 593, it is not necessary that the principal be convicted to sustain a conviction of accessory after the fact.[1]

It is not necessary for the principle or party to the main offence be charged or convicted for it for an accused to be convicted as an accessory.[2] But if the principle or party is acquitted, then the accused cannot be convicted.[3] However, R v S(FJ), 1998 CanLII 842 (SCC), [1998] 1 SCR 88, per Lamer CJ seems to go so far to say that the words "Whether or not the principal is convicted" can include an acquittal.[4]

  1. R v S(FJ), 1997 CanLII 14989 (NS CA), per Jones JA, at para 29
  2. Camponi, supra
    R v Anderson (1980), 1980 ABCA 276 (CanLII), 26 AR 172 (ABCA), per Moir JA
  3. R v Vinette
  4. See FJS, supra

See Also

Recent Possession

General Principles

The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of the offence, and in certain circumstances was also a party to the initial offence.[1]

Test for Recent Possession
To permit the inference, the Crown must establish 1) that the accused was found in possession of the item and 2) that the item was recently stolen. Where it can be said that the accused was found in recent possession without explanation to trier of fact may, but not necessarily, draw the inference regarding the accused's role in the theft or related offences.[2] When these elements exist, a prima facie case has been made out, which, absent any explanation, may permit the trier-of-fact to make a finding of guilt.[3]

It is not necessary to go beyond the test for recent possession and determine the accused's degree of participation. That is, whether the accused was a principle or accomplice.[4]

A jury must be instructed on the ability to make a finding of guilt on a prima facie case.[5]

Circumstantial Factors
When considering whether to make the inference of recent possession, the trier-of-fact must take into account all the circumstances.[6] This includes common sense factors such as the amount of time that passed between possession and the offence.[7]

Factors to consider whether the possession was "recent" includes:[8]

  1. the nature of the object;
  2. the rareness of the object;
  3. the readiness with which the object can, and is likely to, pass to another; and
  4. the ease of identification.

Timeliness of Possession
Recency is a matter of circumstances such as type and size of the items.[9] In certain cases recency can include periods longer than a month.[10]

  1. see R v Terrence, [1983] 1 SCR 357, 1983 CanLII 51 (SCC)
    R v Kowlyk, [1988] 2 SCR 59, 1988 CanLII 50 (SCC)
  2. R v Gagnon, 2006 MBCA 125 (CanLII)
  3. R v Newton, 1976 CanLII 157 (SCC), [1977] 1 SCR 399, at page 405 ("...where it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has been advanced,... raises a prima facie case upon which [the trier is] entitled to bring in a verdict of guilty.")
  4. R v Thatcher 1987 CanLII 53 (SCC), (1987), 57 C.R. (3d), 97
  5. see Newton, supra at p. 405
  6. R v Abernathy, 2002 BCCA 8 (CanLII)
  7. Gagnon, supra at para 13
  8. Gagnon, supra
  9. R v Killam, [1973] 5 W.W.R. 3, 1973 CanLII 1347 (BC CA) at para 45
  10. e.g. R v Rimmer, 2011 BCCA 411 (CanLII)

Rebutting the Presumption

See also: Burden of Proof#"Might Reasonably Be True" Test

Where the doctrine has been invoked, the Defence can counter the presumption by way of a reasonable explanation.[1]

The presumption may be rebutted by an explanation (either in testimony or prior statement) that "might reasonably be true".[2]

The explanation can be an unsworn statement prior to trial where it is either successfully tendered by the Crown or admitted under res gestae.[3]

  1. R v Graham, [1974] SCR 206, 1972 CanLII 72, per Ritchie J
    R v Nickerson (1977) 37 CCC (2d) 337 (NSCA), 1977 CanLII 1914 (NS CA)
    R v Newton, [1977] 1 SCR 312 1976 CanLII 57, per Ritchie J
    R v L'Heureux, [1985] 2 SCR 159, 1985 CanLII 49, per Lamer J
    R v Kowlyk, [1988] 2 SCR 59, 1988 CanLII 50 (SCC), per McIntyre J
  2. R v McKenzie, 1972 CanLII 173 (SCC), [1974] SCR 233, per Ritchie J at p. 234 (SCR)
    Kowlyk, supra at para 12
  3. R v Graham, 1972 CanLII 172 (SCC), [1974] SCR 206, per Ritchie J

Case Digests

Related

Lesser Included Offences

General Principles

A judge must consider, where the evidence does not make out a particular charged offence, whether the accepted evidence makes out an "included" offence. That is, a secondary offence which underlies the actual charge.

A lesser included offence must be "embraced" by the primary offence.[1]

This authority comes from s. 662(1):

Offence charged, part only proved
662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted

(a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
(b) of an attempt to commit an offence so included.

...
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38.


CCC

There are three instances where an offence will be "included" within another offence:[2] </ref>

  1. offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;
  2. the offence’s elements are embraced in the offence charged as described in the enactment creating it, e.g., common assault in a charge of sexual assault; or
  3. the offence’s elements are embraced in the offence charged as described in the information or indictment. That is to say, the offences which become included by the addition of apt words of description in the principle charge.


Fair Notice required
For an offence to be included, the accused must have "fair notice" that the included offence exists by the definition of the primary offence.[3]

Test From Implied Inclusion
The primary test for whether an offence is “included” in another offence is "if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must “necessarily” be included..."[4]

The two considerations are that 1) the "main offence contains the essential elements of the offence to be included", and 2) "the description of the offence is sufficient to alert the accused to all of the included offences that may apply."[5] This section element requires that "the offence charged, either as described in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet."[6]

All essential elements to the included offence must be found within the primary offence.[7]

Jury Instructions
The trial judge must instruct on the availability of a lesser included offence where there is an air of reality to it.[8] Conversely, offences that are not included offences cannot be left with a jury.[9]

  1. R v GR, 2005 SCC 45 (CanLII) at para 25
  2. R v MN, 2017 ONCA 434 (CanLII), at para 31
    R v R(G), 2005 SCC 45 (CanLII), [2005] 2 S.C.R. 371, at paras. 25-34
    Pelletier, ibid. at para 105
  3. MN, supra at para 31
    R.(G.), at para. 27
  4. R v GR, 2005 SCC 45 (CanLII) at para 25
  5. R v DeSousa, 2016 ONSC 2745 (CanLII), at para 85
  6. DeSousa, ibid. at para 86
    R v Simpson (1981), 20 C.R. (3d) 36, 58 CCC (2d) 122 (ON CA), 1981 CanLII 3284 (ON CA), per Martin JA, at para 27
    R v Beyo, 2000 CanLII 5683 (ON CA), 47 O.R. (3d) 712, at para 29
  7. R v Pelletier, 2012 ONCA 566 (CanLII) at para 106 per Watt JA
  8. R v Luciano, 2011 ONCA 89 (CanLII) at para 75
    See also Air of Reality Test
  9. R. v. Romano, 2017 ONCA 837 (CanLII), at para 16

Lesser Offence Examples

Aggravated Assault is a lesser included offence of attempted murder.[1]

Mischief and Break and Enter
Mischief is not included in break and enter[2]

  1. R v DeSousa, 2016 ONSC 2745 (CanLII), at para 87
    R v Norton, 1993 CanLII 8789 (SK QB), 110 Sask. R. 151, overturned on other grounds, 1994 CanLII 4651 (SK CA)
  2. R v Robitaille, 2012 ONCJ 155 (CanLII)

Attempts

General Principles

Attempts refer to the category of offences that amount to an unfulfilled (or "inchoate") substantive offence. Section 24 defines the meaning of "attempt" within the Criminal Code:

Attempts
24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
Question of law
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

R.S., c. C-34, s. 24.


CCC

Certain offences have their own circumscribed meaning of attempt, such as bribery, obstructing justice, and attempt murder.[1]

Unavailable Defences
Both legal and factual impossibility is not a defence to an allegation of attempt.[2]

The defence of abandonment is generally not to be considered and instead is treated as failure to form the full intent for attempt.[3]

  1. e.g. see attempted murder, Obstructing justice
  2. United States of America v Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462, per Cory and Iacobucci JJ
    R v Bear, 2013 MBCA 96 (CanLII), per Steel JA
  3. See R v Sorrell and Bondett (1978), 41 CCC (2d) 9 (Ont. C.A.), 1978 CanLII 2388 (ON CA), per curiam
    R v Frankland (1985), 23 CCC (3d) 385 (Ont. C.A.), 1985 CanLII 3561 (ON CA), per Dubin JA

Reconciling Offence Charged

An attempt is an included offence to most substantive offences.[1]

Full offence charged, attempt proved
660 Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
R.S., c. C-34, s. 587.


CCC

Attempt charged, full offence proved
661 (1) Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.
Conviction a bar
(2) An accused who is convicted under this section is not liable to be tried again for the offence that he was charged with attempting to commit.
R.S., c. C-34, s. 588.


CCC

Attempting vs Preparing

A person attempting to commit an offence can be criminally liable for the attempt. For any attempt to be made out, the person's actions must be more than "mere preparation".[2]

It is understood that a crime begins with an idea, then a decision to do the act, a plan to commit the act, then steps of preparation begin to carry out the plan. The criminal attempt begins only once the preparation is complete. The accused will then perform a series of acts with the intention of committing the offence.[3]

There is no general criterion to distinguish between mere preparation and actual attempt.[4] It largely going to be left to the "common sense" of the judge.[5]

There is, however, a "qualitative" distinction that can be made:[6]

"...the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question."

The trial judge should consider the "relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished.”[7]

The issue is one of factual proximity to the offence.[8] An act that would otherwise be mere preparation can become an attempt where it is sufficiently proximate to the completion of the full actus reus.[9] However, a lack of temporal proximity will not prevent it from being an attempt.[10] Nor would the fact that there are several intermediate acts prevent the act from being an attempt.[11]

The act will be sufficient where the accused actions have "progressed a sufficient distance (beyond mere preparation) down the intended path".[12]

The act does not have to be a crime, a civil wrong or even a moral wrong.[13]

Standard of Appellate Review
The issue of whether an act is an attempt as opposed to preparation is a question of law and reviewable on a standard of correctness.[14]

  1. See s. 660, 662
    R v Webber [1995] BCJ No 2178 (BCCA), 1995 CanLII 333 (BC CA), per Legg J
  2. R v Sarrazin, 2010 ONCA 577 (CanLII), [2010] O.J. No. 3748 (C.A.), per Doherty JA, at para 54
  3. R v Cline (1956) 4 DLR (2d) 480, OJ No. 454 (ONCA), 1956 CanLII 150 (ON CA), per Laidlaw JA, at para 34
  4. R v Root 2008 ONCA 869 (CanLII), (2008), 241 CCC (3d) 125, per Watt JA at para 96 (“authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between mere preparation, on the one hand, and an attempt on the other.”)
    R v Deutsch, 1986 CanLII 21 (SCC), per Le Dain J ("the application of this distinction to the facts of a particular case must be left to common sense judgment.")
  5. Root, supra at para 96
  6. Deutsch, supra at para 27
  7. Root, supra at para 98
  8. Cline, supra at para 34
  9. Root, supra at para 99
  10. Root, supra at para 99
  11. Root, supra at paras 99, 100
  12. Root at para 100
  13. Root, supra at para 95
  14. s. 24(2) states "(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law." (R.S., c. C-34, s. 24.)

Mens Rea

There must be a specific intent to commit the act making up the offence.[1]

The mens rea for an attempt is the same as the mens rea as the offence itself. The only difference is that there is an incomplete actus reus.[2]

  1. R v Ancio, 1984 CanLII 69 (SCC), [1984] 1 SCR 225, per McIntyre J - attempt murder requires an "intention to commit the complete offence"
  2. R v Root, 2008 ONCA 869 (CanLII), per Watt JA, at para 94

Specific Examples

An accused who has gone through security at an airport with a ticket has attempted to breach his conditions to stay in the province.[1]

An accused who goes through the glove box of a car looking for keys to the car that he wishes to steal has attempted to commit theft.[2]

The act of making a plasticine impression of car keys with a view to stealing the car is mere preparation.[3]

An accused who ships fish, shows a sample and then solicits interest without any discussion of terms is attempting to sell.[4]

Pointing a loaded firearm at a person while making threats without touching the trigger can be an attempt murder.[5]


  1. R v Heafey, 2013 ABPC 133 (CanLII), per Fradsham J
  2. R v James (1971) 2 CCC (2d) 141 (ONCA)(*no CanLII links)
  3. R v Lobreau (1988) 67 CR (3d) 74 (ABCA), 1988 ABCA 304 (CanLII), per Irving JA
  4. R v Gladstone, 1996 CanLII 160 (SCC), [1996] 2 SCR 723, per Lamer CJ
  5. R v Boudreau 2005 NSCA 40 (CanLII), per MacDonald CJ

See Also

Counselling

General Principles

Counselling is an inchoate offence concerning the preparation of a future offence. It can be made out regardless of if the index offence actually occurs or not.

An accused can be found guilty of counselling regardless of whether the principal is acquitted.[1]

  1. R v Hick, 1991 CanLII 47 (SCC), [1991] 3 SCR 383, per Stevenson J

Where the Offence is Committed

Person counselling offence
22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
Idem
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
Definition of “counsel”
(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.
R.S., 1985, c. C-46, s. 22; R.S., 1985, c. 27 (1st Supp.), s. 7.


CCC

Elements of the Offence
Counselling under s. 22 requires:[1]

  1. the act of persuading or inducing the commission of the offence
  2. the commission of the offence itself
  3. the commission must be the consequences of the counselling;
  4. the accused intended to counsel or knowingly counselled, aware of the risk that it would bring about the commission of the offence.
  1. R v Keepness 2009 SKQB 466 (CanLII), per Dawson J at para 131

Where Offence is Not Committed

Counselling is an "independent substantive offence"[1] defined in s. 464.

Counselling offence that is not committed
464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,

(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 464; R.S., 1985, c. 27 (1st Supp.), s. 60.

CCC

Elements of the Offence
Counselling under s. 464 requires:

  1. the act of persuading or inducing the commission of the offence
  2. the intention that the offence be committed or
  3. an awareness that the unjustified risk that the offence would be committed as a result of the counselling.
  1. R v Fitur, 2012 MBQB 5 (CanLII), per Greenberg J at para 29

Actus Reus

"Counsel" under this section is more that simply advising, it has the "meaning of actively inducing" [1]

The actus reus of counselling involves the "deliberate encouragement or active inducement of the commission of a criminal offence."[2]

  1. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ
  2. R v Hamilton, 2005 SCC 47 (CanLII), per Fish J at para 29
    R v Root, 2008 ONCA 869 (CanLII), per Watt JA at para 83

Mens Rea

The mens rea of counselling involves "nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling."[1] The accused must either intend the offence or "knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed" as a result of the counselling.[2]

The mens rea of counselling requires evidence that “an accused either intended that the offence counseled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accused’s conduct" [3]

Where a threat allegedly counsels murder the test to be applied is whether 1) an ordinary person would view the statement objectively would take it as an invitation to kill and 2) the accused either intended or knowingly counselling the victim's murder while aware of the unjustified risk that murder would likely be committed.[4]

It is not necessary that the accused be the originator of the plan to procure or incite.[5]

The offence is complete when "the solicitation or incitement occurs" even where the incitee "rejects the solicitation or merely feigns his or her assent."[6]

  1. R v Hamilton, 2005 SCC 47 (CanLII), per Fish J at para 29
    R v Root, 2008 ONCA 869 (CanLII), [2008] O.J. No. 5214 (ONCA), per Watt JA at 84
  2. Hamilton, supra at para 29
  3. R v Abou Al-Rashta and Pirouzi, 2012 ONSC 1957 (CanLII), per O'Marra J citing Hamilton, supra at para 29
    Root, supra, at para 84
  4. see R v Jeffers, 2012 ONCA 1 (CanLII), per Laskin JA
  5. Root, supra at para 85
  6. Root, supra at para 86

See Also

Conspiracy (Offence)


Conspiracy
s. 465 of the Crim. Code
Election / Plea
Crown Election Indictment (465(1)(b) and (c))
Summary (465(1)(d))
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction s. 465(1)(b), (c):
Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)
* Must be indictable. Preliminary inquiry also available.
s. 465(1)(a):
Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Preliminary inquiry also available.
s.465(1)(d):
Prov. Court only
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5, 10 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to conspiracy are found in Part XIII of the Criminal Code relating to "Attempts — Conspiracies — Accessories".

Pleadings
Offences under s. 465(1)(a) [conspiracy to commit murder] are exclusive jurisdiction offences under s. 469 and so cannot be tried by a provincial court judge. It is presumptively tried by judge and jury.

Offences under s. 465(1)(b) and (c) are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 465(1)(d) are straight summary conviction offence. The trial must be held in provincial court.

Release
When charged under s. 465(1)(a), (b), the accused cannot be released by police under s. 497 or 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an attendance notice or a summons without a s. 496 arrest, and if arrested, can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The young person can also be released by order of a judge or justice under s. 515.

When charged under s. 465(1)(d), the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

Publication Ban
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Conspiracy
465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that he did not commit that offence, is guilty of an indictable offence and liable
(i) to imprisonment for a term not exceeding ten years, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term not exceeding fourteen years, or
(ii) to imprisonment for a term not exceeding five years, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than fourteen years;
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and
(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.

(2) [Repealed, 1985, c. 27 (1st Supp.), s. 61]
...
R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121.


CCC

Conspiracy in restraint of trade
466 (1) A conspiracy in restraint of trade is an agreement between two or more persons to do or to procure to be done any unlawful act in restraint of trade.
Trade union, exception
(2) The purposes of a trade union are not, by reason only that they are in restraint of trade, unlawful within the meaning of subsection (1).
R.S., 1985, c. C-46, s. 466; 1992, c. 1, s. 60(F).


CCC

Proof of the Offence

Proving conspiracy under s. 465 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the words communicated in the conspiracy
  5. there was an agreement made between the parties
  6. the parties had an intention to agree to put a "common design into effect" and did in fact agree
  7. the parties did not change their minds or intention to put common design into effect
  1. R v Root, 2008 ONCA 869 (CanLII), per Watt JA, at para 66

Interpretation

The purpose of criminalizing conspiracies is to "prevent an unlawful object" from being fulfilled and then "prevent[ing] serious harm from occurring". Parliament intended to intervene "earlier along the continuum of the increased danger represented by a cohort or wrongdoers acting in concert".[1]

A conspiracy is an agreement between two or more persons to do an unlawful act.[2]

There must be an "intention to agree, the completion of an agreement and a common design."[3] The Crown needs only prove that there was "a meeting of the minds with regard to a common design to do something unlawful".[4]

To prove conspiracy the facts must satisfy a three-part Carter test:[5]

  1. has the Crown proven beyond a reasonable doubt the existence of the conspiracy?
  2. has the Crown proven that the accused was probably a member of the conspiracy?
  3. considering all of the evidence, is the accused guilty beyond a reasonable doubt of being a member of the conspiracy?

A conspiracy must include (1) an agreement and (2) the unlawful objective or "common design".[6]

As well, unlawful objective does not need to come about. It is the planning that is the criminal act.[7]

A conspiracy made over the telephone will occur within the jurisdiction of both calling parties.[8]

Both legal and factual impossibility are not defences to an allegation of conspiracy.[9]

It is not necessary to prove that the predicate offence was actually committed.[10]

The fact that the co-conspirators are unidentified does not result in a failure to prove the offence of conspiracy.[11]

  1. R v Dery,[2006] 2 SCR 669, 2006 SCC 53 (CanLII), per Fish J at para 44
    R v Meyer, 2012 ONCJ 791 (CanLII), [2012] O.J. No. 6235, per Pacciocco J at para 21 ("The law of conspiracy achieves this policy [of preventing serious harm from occurring] by allowing a pre-emptive strike where there is a true agreement to achieve a mutual criminal objective.")
  2. R v O'Brien 1954 CanLII 42, [1954] SCR 666, per Taschereau J at pp.668-9
    See: R v Paradis 1933 CanLII 75 (SCC), [1934] SCR 165, 61 CCC 184 (S.C.C.), per Rinfret J at p. 186 - defines as two or more persons agreeing to act in concert in pursuit of a common goal
  3. United States of America v Dynar, 1997 CanLII 359, [1997] 2 SCR 462, per Cory and Iacobucci JJ at para 86
    R v Root, 2008 ONCA 869 (CanLII), [2008] O.J. No. 5214 (OCA), per Watt JA at para 66
  4. Dynar, supra at para 87
  5. R v Carter, 1982 CanLII 35, [1982] 1 SCR 938, per McIntyre J
  6. O'Brien, supra at para 2-3, ("It is of course, essential that the conspirators have the intention to agree, and this agreement must be complete ... there must exist an intention to put the common design into effect.")
    R v Root, 2008 ONCA 869 (CanLII)
  7. O'Brien, supra, at para 4 ("The law punishes conspiracy so that the unlawful object is not attained. It considers that several persons who agree together to commit an unlawful act, are a menace to society, and even if they do nothing in furtherance of their common design, the state intervenes to exercise a repressive action, so that the intention is not materialized, and does not become harmful to any one.")
  8. R v Doucette, 2003 PESCAD 7 (CanLII), per Mitchell CJ
  9. Dynar, supra at para 105 (It is not relevant whether "from an objective point of view, commission of the offence may be impossible.")
  10. See R v Koufis, 1941 CanLII 55 (SCC), [1941] SCR 481, 76 CCC 161 (SCC), per Taschereau J
    R v Beaven, 2013 SKQB 7 (CanLII), per Rothery J at para 73
  11. Root, supra at para 69

Agreement

The agreement is the essence of the offence of conspiracy.[1]

An agreement can be implied or tacit. It requires a meeting of the minds to create a common intention to commit an offence. The parties must have knowledge of a common goal and agreement to achieve it.[2]

There must be a "consensus to effect an unlawful purpose".[3]

It is not enough that there be a common intention.[4] Nor is passive acquiescence to a criminal plan sufficient[5], knowledge of the plan[6], or nor wilful blindness.

It is not a "formal agreement" and may be implicit.[7]

Where there is a pre-existing conspiracy, the accused must have adopted it or consented to participate in achieving the goal.[8]

A conditional agreement can still be an agreement.[9]

The charge must identify the crime(s) planned.[10] And it should generally identify the co-conspirators.[11]

It is a valid defence to establish that the accused pretended to agree to the conspiracy.[12]

The trier of fact must find "that the accused intended to enter into the agreement".[13]

Conspiracy cannot be committed by way of an accused being reckless as to the object of the agreement.[14] However, the accused can be liable where he is reckless as to the method of execution of the agreement.[15]

Willful blindness can satisfy the mens rea requirement of conspiracy.[16]

A party to an offence, including conspiracy "must have some knowledge of the essential nature of the offence to be committed, but not necessarily knowledge of all the details".[17]

Evidence of "how" the agreement is to be carried out, specifically to over acts to be taken are elements to the agreement element of the offence.[18]

  1. R v Papalia, 1979 CanLII 38 (SCC), [1979] 2 SCR 256, per Dickson J ("The essence of criminal conspiracy is proof of agreement...")
  2. Atlantic Sugar Refineries Co. v Canada (Attorney General), 54 CCC (2d) 373, 1980 CanLII 226 (SCC), [1980] 2 SCR 644, per Pigeon J
  3. Papalia, supra (“two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a consensus to effect an unlawful purpose. ”)
  4. R v O'Brien, 1954 CanLII 42, [1954] SCR 666, per Taschereau J
  5. R v McNamara (1981), 56 CCC (2d) 193 at 452 (Ont. C.A.), 1981 CanLII 3120 (ON CA), per curiam ("Mere knowledge of, discussion of or passive acquiescence in a plan of criminal conduct is not, of itself, sufficient")
  6. Goode, Criminal Conspiracy in Canada (1975), p. 16
  7. Goode, Criminal Conspiracy in Canada (1975), p. 16
  8. R v Lamontagne, 1999 CanLII 13463 (QC CA), (1999), 142 CCC (3d) 561 (Que. C.A.), 1999 CanLII 13463 (QC CA), per curiam
  9. R v Root, 2008 ONCA 869 (CanLII), per Watt JA at para 70
  10. R v Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020, per McLachlin J
  11. R v TLB (1989), 52 CCC (3d) 72 (NSCA), 1989 CanLII 7210 (NS CA), per Hart JA
    Root, supra at para 69
  12. R v Delay (1976), 25 CCC (2d) 575 (Ont. C.A.), 1976 CanLII 1409 (ON CA), per Jessup JA
  13. Barbeau, supra at p. 568
  14. R v Lessard (1982), 10 CCC (3d) 61 (QCCA), 1982 CanLII 3814 (QC CA), per Bisson JA at p. 86
    Lamontagne at p. 576 "one notes that the crime of conspiracy cannot be committed by mere recklessness as to the object of the agreement")
  15. Barbeau, supra
    Park, supra ("recklessness may only be applied with respect to the method of execution of the agreement")
    Lessard, supra
    Lamontagne, supra
  16. R v Barbeau, supra
    R v Park, supra ("The mens rea requirement for conspiracy may be satisfied where willful blindness is established")
  17. Park, supra at p. 569 to 571
  18. R v Douglas, [1991] 1 SCR 301, 1991 CanLII 81 (SCC), per Cory J, at para 28 ("How that agreement is to be carried out, that is to say, the steps taken in furtherance of the agreement (the overt acts) are simply elements going to the proof of the essential ingredient of the offence, namely the agreement.")

Common Design

There must be a "a common plan with a common objective".[1]

The Crown must establish that the accused had an intention to become a party to the common design with the knowledge of its implications.[2]

  1. R v Cotroni, (sub nom. Papalia), 1979 CanLII 38 (SCC), [1979] 2 SCR 256, per Dickson J
  2. Papalia, supra (“In addition to proof of common design, it was incumbent on the Crown to establish that each accused had the intention to become a party to that common design with knowledge of its implications.”)

Participation

It is not required that it be proven that every member of the conspiracy be involved in its execution or that they were involved throughout the entire time. It is enough if the evidence "demonstrates that the conspiracy proven included some of the accused; establishes that it occurred at some time within the time frame alleged in the indictment; and had as its object the type of crime alleged."[1]

A member of a conspiracy who refuses to execute the plan is still guilty.[2]

Involvement in only part of a whole plan will still be found guilty.[3]

An accused cannot be convicted for attempted conspiracy.[4]

  1. R v Douglas, [1991] 1 SCR 301, 1991 CanLII 81 (SCC), per Cory J, at para 41
    Papalia ("The essence of criminal conspiracy is proof of agreement...")
  2. R v O'Brien, 1954 CanLII 42, [1954] SCR 666, per Taschereau J at para 4
  3. R v Shirose, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J
  4. R v Dery, 2006 SCC 53 (CanLII), [2006] 2 SCR 669, per Fish J

Evidence

Words of the co-conspirator are admissible against the accused. They are not hearsay and are rather the actus reus.[1]

Further, the co-conspirators exception to hearsay makes statements admissible against the accused.[2]

Statements by the co-conspirator that are not related to the conspiracy are not admissible against the accused.[3]

  1. R v Cook (1984), 39 C.R. (3d) 300 (ONCA) aff'd in 1986 CanLII 47 (SCC), [1986] 1 SCR 144, per Dickson CJ
  2. R v Gassyt (1998), 127 CCC (3d) 546 (ONCA), 1998 CanLII 5976 (ON CA), per Charron JA
    R v Perciballi (2001), 154 CCC (3d) 481 (Ont. C.A.), 2001 CanLII 13394 (ON CA), per Charron JA aff'd in 2002 SCC 51 (CanLII), per McLachlin CJ
    R v Gagnon (2000), 147 CCC (3d) 193 (ONCA), 2000 CanLII 16863 (ON CA), per Weiler JA
  3. R v Henke, 1989 ABCA 263 (CanLII), (1989), 72 C.R. (3d) 395 (Alta C.A.), per curiam
    R v Maugey, 2000 CanLII 8488 (ON CA), (2000), 146 CCC (3d) 99 (Ont. C.A.), per Feldman JA

Aiding and Abetting

See also: Parties to an Offence

There has been a divided line of case law on whether a conviction can be made for being a party to a conspiracy.[1]

  1. R v Park, 2009 ABQB 470 (CanLII), per Ouellette J at paras 540 to 575
    R v Taylor (1984), 40 C.R. (3d) 222 (BCSC)(*no CanLII links)

Jurisdiction

465.
...
Conspiracy to commit offences
(3) Every one who, while in Canada, conspires with any one to do anything referred to in subsection (1) in a place outside Canada that is an offence under the laws of that place shall be deemed to have conspired to do that thing in Canada.
Idem
(4) Every one who, while in a place outside Canada, conspires with any one to do anything referred to in subsection (1) in Canada shall be deemed to have conspired in Canada to do that thing.
Jurisdiction
(5) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) or (4), proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada, and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.
Appearance of accused at trial
(6) For greater certainty, the provisions of this Act relating to

(a) requirements that an accused appear at and be present during proceedings, and
(b) the exceptions to those requirements,

apply to proceedings commenced in any territorial division pursuant to subsection (5).
Where previously tried outside Canada
(7) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) or (4) and that person has been tried and dealt with outside Canada in respect of the offence in such a manner that, if the person had been tried and dealt with in Canada, he would be able to plead autrefois acquit, autrefois convict or pardon, the person shall be deemed to have been so tried and dealt with in Canada.
R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121.


CCC

Defences

Saving
467 (1) No person shall be convicted of the offence of conspiracy by reason only that he

(a) refuses to work with a workman or for an employer; or
(b) does any act or causes any act to be done for the purpose of a trade combination, unless that act is an offence expressly punishable by law.

Definition of trade combination
(2) In this section, trade combination means any combination between masters or workmen or other persons for the purpose of regulating or altering the relations between masters or workmen, or the conduct of a master or workman in or in respect of his business, employment or contract of employment or service.
R.S., c. C-34, s. 425.


CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties
Offences under s. 465(1)(a), (b), and (c) are straight indictable. The maximum penalty is life under s. 465(1)(a), 10 years incarceration under s. 465(1)(b)(i), and 5 years incarceration under s. 465(1)(b)(ii). Where prosecuted under s. 465(1)(c) the maximum penalty will match that of the index offence.

Offences under s. 465(1)(d) are straight summary conviction offences. The maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 465(1)(a) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 465(1)(d) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

If convicted under s. 465(1)(a) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 465(1)(a) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

  • Varies based on index offence
Order Conviction Description
DNA Orders s. 465(1)(b)(i), (ii)
Delayed Parole Order s. 465(1)(a)
  • Periods of imprisonment of 2 years or more for convictions under s. 465(1)(a) [conspiracy to commit murder] are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay, and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

Lesser Included Offences

General Principles

A judge must consider, where the evidence does not make out a particular charged offence, whether the accepted evidence makes out an "included" offence. That is, a secondary offence which underlies the actual charge.

A lesser included offence must be "embraced" by the primary offence.[1]

This authority comes from s. 662(1):

Offence charged, part only proved
662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted

(a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
(b) of an attempt to commit an offence so included.

...
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38.


CCC

There are three instances where an offence will be "included" within another offence:[2] </ref>

  1. offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;
  2. the offence’s elements are embraced in the offence charged as described in the enactment creating it, e.g., common assault in a charge of sexual assault; or
  3. the offence’s elements are embraced in the offence charged as described in the information or indictment. That is to say, the offences which become included by the addition of apt words of description in the principle charge.


Fair Notice required
For an offence to be included, the accused must have "fair notice" that the included offence exists by the definition of the primary offence.[3]

Test From Implied Inclusion
The primary test for whether an offence is “included” in another offence is "if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must “necessarily” be included..."[4]

The two considerations are that 1) the "main offence contains the essential elements of the offence to be included", and 2) "the description of the offence is sufficient to alert the accused to all of the included offences that may apply."[5] This section element requires that "the offence charged, either as described in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet."[6]

All essential elements to the included offence must be found within the primary offence.[7]

Jury Instructions
The trial judge must instruct on the availability of a lesser included offence where there is an air of reality to it.[8] Conversely, offences that are not included offences cannot be left with a jury.[9]

  1. R v GR, 2005 SCC 45 (CanLII) at para 25
  2. R v MN, 2017 ONCA 434 (CanLII), at para 31
    R v R(G), 2005 SCC 45 (CanLII), [2005] 2 S.C.R. 371, at paras. 25-34
    Pelletier, ibid. at para 105
  3. MN, supra at para 31
    R.(G.), at para. 27
  4. R v GR, 2005 SCC 45 (CanLII) at para 25
  5. R v DeSousa, 2016 ONSC 2745 (CanLII), at para 85
  6. DeSousa, ibid. at para 86
    R v Simpson (1981), 20 C.R. (3d) 36, 58 CCC (2d) 122 (ON CA), 1981 CanLII 3284 (ON CA), per Martin JA, at para 27
    R v Beyo, 2000 CanLII 5683 (ON CA), 47 O.R. (3d) 712, at para 29
  7. R v Pelletier, 2012 ONCA 566 (CanLII) at para 106 per Watt JA
  8. R v Luciano, 2011 ONCA 89 (CanLII) at para 75
    See also Air of Reality Test
  9. R. v. Romano, 2017 ONCA 837 (CanLII), at para 16

Lesser Offence Examples

Aggravated Assault is a lesser included offence of attempted murder.[1]

Mischief and Break and Enter
Mischief is not included in break and enter[2]

  1. R v DeSousa, 2016 ONSC 2745 (CanLII), at para 87
    R v Norton, 1993 CanLII 8789 (SK QB), 110 Sask. R. 151, overturned on other grounds, 1994 CanLII 4651 (SK CA)
  2. R v Robitaille, 2012 ONCJ 155 (CanLII)

Liability of Organizations

General Principles

Section 217.1 imposes an obligation on employers:

Duty of persons directing work
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
2003, c. 21, s. 3.


CCC

Appearance by attorney
620 Every organization against which an indictment is filed shall appear and plead by counsel or agent.
R.S., 1985, c. C-46, s. 620; 1997, c. 18, s. 70; 2003, c. 21, s. 11.


CCC

Notice to organization:

Notice to organization
621 (1) The clerk of the court or the prosecutor may, where an indictment is filed against an organization, cause a notice of the indictment to be served on the organization.
Contents of notice
(2) A notice of an indictment referred to in subsection (1) shall set out the nature and purport of the indictment and advise that, unless the organization appears on the date set out in the notice or the date fixed under subsection 548(2.1) [ setting preliminary inquiry date ], and enters a plea, a plea of not guilty will be entered for the accused by the court, and that the trial of the indictment will be proceeded with as though the organization had appeared and pleaded.
R.S., 1985, c. C-46, s. 621; 1997, c. 18, s. 71; 2003, c. 21, s. 11.
[annotation(s) added]


CCC

Procedure on default of appearance
622 Where an organization does not appear in accordance with the notice referred to in section 621, the presiding judge may, on proof of service of the notice, order the clerk of the court to enter a plea of not guilty on behalf of the organization, and the plea has the same force and effect as if the organization had appeared by its counsel or agent and pleaded that plea.
R.S., 1985, c. C-46, s. 622; 1997, c. 18, s. 72; 2003, c. 21, s. 11.


CCC

Trial of organization
623 Where an organization appears and pleads to an indictment or a plea of not guilty is entered by order of the court under section 622, the court shall proceed with the trial of the indictment and, where the organization is convicted, section 735 [ fines for organizations ] applies.
R.S., 1985, c. C-46, s. 623; 1995, c. 22, s. 10; 2003, c. 21, s. 11.
[annotation(s) added]


CCC

Dissolved Corporations

A company that has been dissolved for more than a fixed number years cannot be prosecuted unless it is revived in the interrim.[1]

  1. R v George, 2018 ABPC 20 (CanLII), per Malin J - 5 years after dissolution in Alberta

Liability as Parties

Offences of negligence — organizations
22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority
(i) one of its representatives is a party to the offence, or
(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and
(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.


2003, c. 21, s. 2.


CCC

Other offences — organizations
22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.


2003, c. 21, s. 2.


CCC

Procedure

An accused organization shall appear by way of counsel or agent.[1] Where counsel or agent for an organzation has failed to appear upon being given proper notice the court may enter a plea of not guilty.[2]

  1. s. 620 "Every organization against which an indictment is filed shall appear and plead by counsel or agent."
  2. s. 622

Appearances

Organization
556 (1) An accused organization shall appear by counsel or agent.
Non-appearance
(2) Where an accused organization does not appear pursuant to a summons and service of the summons on the organization is proved, the provincial court judge or, in Nunavut, the judge of the Nunavut Court of Justice

(a) may, if the charge is one over which the judge has absolute jurisdiction, proceed with the trial of the charge in the absence of the accused organization; and
(b) shall, if the charge is not one over which the judge has absolute jurisdiction, fix the date for the trial or the date on which the accused organization must appear in the trial court to have that date fixed.


Preliminary inquiry not requested
(3) If an accused organization appears and a preliminary inquiry is not requested under subsection 536(4), the provincial court judge shall fix the date for the trial or the date on which the organization must appear in the trial court to have that date fixed.
Preliminary inquiry not requested — Nunavut
(4) If an accused organization appears and a preliminary inquiry is not requested under subsection 536.1(3), the justice of the peace or the judge of the Nunavut Court of Justice shall fix the date for the trial or the date on which the organization must appear in the trial court to have that date fixed.
R.S., 1985, c. C-46, s. 556; R.S., 1985, c. 27 (1st Supp.), s. 107; 1999, c. 3, s. 40; 2002, c. 13, s. 34; 2003, c. 21, ss. 9, 22.


CCC

See Also

Principles of Interpretation

General Principles

Fundamental Principle

The fundamental principle of statutory interpretation is that "the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature"[1]

This fundamental rule has been treated as effectively an amalgam of three "classic rules of interpretation":[2]fra

  1. the "Mischief Rule" that considers legislative intent;
  2. the "Literal Rule" that considers the "textual meaning"; and
  3. the "Golden Rule" that considers the "entire context" including established legal norms.

It is understood that legislators choose to adopt “language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation”.[3]

Whenever possible, every part of a provision should be assigned meaning.[4]

The "modern" approach to statutory interpretation can be divided into a separate inquiry of "(a) the statute's textual meaning; (b) the legislative intent; and (c) the entire context including the consideration of established heal norms"[5]

"Ordinary meaning" refers "to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context".[6] It is the "natural meaning which appears when the provision is simply read through".[7]

Legisaltive intent is not to be considered "frozen in time". Its meaning will "respon[d] to the inevitability of changing circumstances".[8]

  1. Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, per Iacobucci J, at para 21
    Bell Expressive Limited Partnership v Rex, 2002 SCC 42 (CanLII), [2002] 2 SCR 559, per Iacobucci J, at para.26
    R v Brode, 2012 ONCA 140 (CanLII), per Epstien JA, (“direct that the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.”)
    Regina v Rioux, 1969 CanLII 83 (CSC), [1969] SCR 599, 8 C.R.N.S. 21, [1970] 3 CCC 149, 10 DLR (3d) 196, per Hall J at p. 26 ("First, in criminal matters, the phraseology used by Parliament must be given its ordinary meaning; this is a fundamental rule of interpretation.")
  2. Cape Breton (Regional Municipality) v Nova Scotia (Attorney General), 2009 NSCA 44 (CanLII), per macdonald CJ at paras 36 to 41
  3. Howard’s Criminal Law (5th ed. 1990), at p. 11
  4. R v A.A. 2015 ONCA 558 (CanLII), per Watt JA at para 67
    R v Hutchinson, 2014 SCC 19 (CanLII), per McLachlin CJ and Cromwell J at para 16
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 210
  5. Capre Breton (Regional Municipality) v Nova Scotia (Attorney General), supra paras 36 to 38
  6. Pharmascience Inc. v Binet, 2006 SCC 48 (CanLII), [2006] 2 SCR 513, per LeBel J, at para. 30
    R v Wookey, 2016 ONCA 611 (CanLII), per Tulloch JA at para 25
  7. Canadian Pacific Air Lines Ltd. v Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 SCR 724, per Gonthier J, at p. 735
    Pharmascience Inc v Binet, supra at para 30
    Wookey, supra at para 25
  8. R. v. 974649 Ontario Inc., [2001] 3 SCR 575, 2001 SCC 81 (CanLII), per McLachlin CJ at para 38 (" The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute’s enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances. Instead, we recognize that the law speaks continually once adopted")

Ambiguity

Where there is no ambiguity the fundamental principle of interpretation is the only principle that applies. The other principles only apply where there is "ambiguity".[1]

Ambiguity exists where the provision is "reasonably capable of more than one meaning".[2] The ambiguity must be "real".[3] Two or more interpretations must be "each equally in accordance with the intentions of the statute".[4]

Ambiguity does not exist merely where courts or other writers disagree on interpretation.[5]

Ambiguity in the wording of one language may be resolved by considering whether the other language wording provides clarity before considering other principles of interpretation.[6]

Where the meaning of the English and French versions diverge, the proper interpretation should be the lowest common denominator.[7]

  1. Bell ExpressVu Limited Partnership v Rex, [2002] 2 SCR 559, 2002 SCC 42 (CanLII), per Iacobucci J at paras 26 to 28
  2. Bell ExpressVu, ibid. at para 29
  3. Bell ExpressVu, supra at para 29
  4. Bell ExpressVu, supra at para 29
  5. Bell ExpressVu, supra at para 30
  6. R v Mac, [2002] 1 SCR 856, 2002 SCC 24 (CanLII), per Bastarache J at paras 26 to 31
  7. Daoust, supra at para 2

Other Principles

Error or Omissions
The court has no authority to correct any errors or omissions in legislation where it is a "clearly drafted enactment".[1]

Principle of legality
The principle of legality requires that legislation provide a degree of certainty, and should reflect “the overall need to use the criminal law with restraint”[2]

No surplusage
No provision in an act "should be interpreted so as to render it mere surplusage.”[3]

It is a principle that "Parliament does not speak in vain".[4]

Parliament is presumed to have a purpose for each provision and avoids superfluous and meaningless language.[5]

There is a presumption against legislative drafters being redundant.[6]

Remedial Purpose
Under s. 12 of the Interpretation Act, "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."[7] This requires that the court examine what the problem the act is attempting to solve and interpret the meaning in that light.[8]

Constitutional Interpretation and Charter values
Where multiple interpretations exist the court should only consider those interpretations that are constitutional.[9]

A provision should be interpreted to conform with "Charter values".[10]

This principle only applies where there is ambiguity.[11]

International Law
It is presumed that all laws of Canada are to accord with international law.[12] Parliament is free to make laws that conflict, but it should do so "clearly and expressly".[13]

Presumption of Consistent or Uniform Expression
Unless it appears otherwise, the same words used by the legislature have the same meaning within a statute, and different words have different meanings.[14]

"[A]bsent express language to the contrary, the same words in two subsections of the same provision should be treated alike... Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation".[15]

The principle of "uniformity of expression" states that a word or phrase should have one and only one meaning across the statute and enabled regulation. The opposite is also true, the use of different wording implies a different meaning.[16] The principles of uniformity of expression are not infallible.[17]

Amending the common law
There is a presumption against interpreting statutes as changing the common law, except where they "clearly and unambiguously" intend to do so.[18]

Avoiding absurdities
Where the language of a statue has multiple meanings, it must be interpreted to exclude absurd results. [19]

General wording
General wording of a statute is to provide the court with the responsibility to interpret in a prescriptive manner. [20]

Last Antecedents
When legislation lists a series of clauses, a "comma before a qualifying word ordinarily indicates that they are meant to apply to all antecedents while the absence of a comma indicates that they are meant to apply to the last antecedent alone."[21]

Relative words "must ordinarily be referred to the last antecedent" to give the words full meaning.[22] This rule should yield where the result "makes nonsense".[23]

Deference to Parliament
Deference must be given to the manner chosen to achieve its objectives.[24]

Legislative History
The history of legislation can be an important part of "the context" for statutory interpretation.[25] The history can sometimes provide insight into how to interpret the provision.[26]

House of Commons debates that indicate the object of the bill can regularly be relied upon as evidence for the legislative purpose.[27]

Legislative Headers and Marginal Notes
Marginal notes are of limited value.[28] However, they can be "relevant to interpreting the provisions arranged under it".[29]

  1. R v Daoust, [2004] 1 SCR 217, 2004 SCC 6 (CanLII), at para 45
  2. see D. Stuart, Criminal Law: A Treatise (5th ed. 2007), at p. 86
  3. R v Proulx 2000 SCC 61 (CanLII), per Lamer CJ at para 25
  4. Attorney General of Quebec v Carrières Ste-Thérèse Ltée, 1985 CanLII 35 (SCC), [1985] 1 SCR 831, per curiam, at p. 838
  5. Medovarski v Canada, 2005 SCC 51 (CanLII), [2005] 2 SCR 539, [2005] S.C.J. No. 31 (QL), per McLachlin CJ at paras 31 to 38
    R v Plummer 2006 CanLII 38165 (ON CA), (2006), 214 CCC (3d) 84, [2006] O.J. No. 4530 (ONCA), per Rosenberg JA at para 19
    R v Joncas, 2007 NBCA 28 (CanLII), [2007] NBJ No. 152, per Drapeau CJ at para 17
  6. R v Shand, 2011 ONCA 5 (CanLII), per Rouleau JA, at para. 107
    National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW - Canada) Local No. 27 v. London Machinery Inc. (2006), 2006 CanLII 8711 (ON CA), 79 O.R. (3d) 444 (C.A.), per Cronk JA at para. 7
  7. R.S., c. I-23, s. 11.
  8. R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ at paras 31 - 34 Canada 3000 Inc., Re; Inter‑Canadian (1991) Inc. (Trustee of), 2006 SCC 24 (CanLII), at para 36, [2006] 1 SCR 865, per Binnie J ("the notion that a statute is to be interpreted in light of the problem it was intended to address is as old at least as the 16th century”)
  9. Slaight Communications v Davidson [1989] 1 SCR 1038, 1989 CanLII 92 (SCC), per Dickson CJ
    R v Canadian Pacific Ltd., [1995] 2 SCR 1031, 1995 CanLII 112 (SCC), per Gonthier J, at para 12
    R v Nickel City Transport (Sudbury) Ltd., Nickel City Transport (Sudbury) Ltd., 1993 CanLII 8483 (ON CA)
    R v Rube, [1992] 3 SCR 159, 1992 CanLII 34 (SCC), per Lamer CJ
  10. Bell ExpressVu, supra
    Hills v Canada (Attorney General), [1988] 1 SCR 513, 1988 CanLII 67 (SCC), per L'Heureux‑Dubé J at para 93 ("Appellant ... urged that preference be given to Charter values in the interpretation of a statute, ... I agree that the values embodied in the Charter must be given preference over an interpretation which would run contrary to them... ")
    R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606, 1992 CanLII 72 (SCC), per Gonthier J ("It must be remembered that if there are two possible interpretations of a statutory provision, one of which embodies the Charter values and the other does not, that which embodies the Charter values should be adopted.")
  11. Bell ExpressVu, supra
  12. R v Hape, 2007 SCC 26 (CanLII), [2007] 2 SCR 292 at para 53
  13. R v Chowdhury, 2014 ONSC 2635 (CanLII) at para 20
  14. R v A.A. 2015 ONCA 558 (CanLII) at para 68
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at 214 to 215
    R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378, at p. 1387
    R v Bansal, 2017 BCCA 93 (CanLII), at para 41 (the principles "presumes that, unless the contrary appears, the same words will have the same meaning in a statute, particularly when they are used in close proximity")
  15. R v Charette, 2009 ONCA 310 (CanLII) at para 38 citing R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378 at p. 1387
  16. see Maurice v Priel, 1987 CanLII 207 (SK CA), at pp. 20-21
  17. R v Trang, 2001 ABQB 106 (CanLII), at para 21
  18. R v Goleski, 2014 BCCA 80 (CanLII) at para 77
    Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 SCR 1038, at p. 1077
    Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII), [2003] 2 SCR 157, at para. 39
    Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19 (CanLII), [2016] 1 SCR 306, at paras. 29-30
  19. R v Canadian Pacific Ltd., 1995 CanLII 112 (SCC), (1995), 99 CCC (3d) 97 (S.C.C.), at para 65
    Hinchey, [1996] 3 SCR 1128, 1996 CanLII 157 (SCC)
  20. R v Beauchamp, 2009 CanLII 37720 (ON SC) at paras 40 to 41
  21. R v CL, 2005 NSFC 21 (CanLII) at para 7 citing Dreidger, "Construction of Statutes (3rd Ed.) at p. 277
  22. Re Hinton Avenue, Ottawa, 1920 CanLII 443 (ON CA)
  23. R v Frank, [1978] 1 SCR 95, 1977 CanLII 152 (SCC)
  24. Beauchamp, ibid. at para 42 to 44
  25. R v A.D.H., 2013 SCC 28 (CanLII) at para 30
    Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 (CanLII), [2011] 3 SCR 471, at para 43
  26. Goleski, ibid. at para 31
    R v Ulybel Enterprises Ltd., 2001 SCC 56 (CanLII) at para 33
    Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII) at para 34
    Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62 (CanLII) at para 17
    McDiarmid Lumber Ltd. v God’s Lake First Nation, 2006 SCC 58 (CanLII) at para 46
  27. see e.g. Canadian National Railway Co v Canada (A.G.), 2014 SCC 40 (CanLII), [2014] 2 SCR 135, at para. 47
  28. Interpretation Act, s. 14
    Imperial Oil Ltd. v Canada; Inco Ltd. v Canada, 2006 SCC 46 (CanLII), [2006] 2 SCR 447, at para 57
    R v Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 SCR 541, [1987] S.C.J. No. 71 (QL) at paras 18-19
    Skapinker v Law Society of Upper Canada, 1984 CanLII 3 (SCC), [1984] 1 SCR 357, [1984] S.C.J. No. 18 (QL) at para 25 - charter interpretation, (“These headings in Part I appear to be integral to the Charter provisions and hence of more significance than the marginal notes and chapter headings sometimes appearing in the statutes.”)
  29. Ambrosi v. British Columbia (Attorney General), 2014 BCCA 123 (CanLII), at para 54
    Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 SCR 357

Interpreting the Criminal Code

The common law rules and principles can be used to explain the outlines and boundaries of a defence.[1]

Under s. 8(2) provides that the English criminal law as it existed immediately before April 1, 1955, are still applicable to Canada. This does not include the common law or statutory offences from Great Britain.[2]

If a penal provision is ambiguous as it has two reasonably capable interpretations, "that interpretation which is the more favourable to the accused must be adopted".[3]

Interpreting Terms Not Otherwise Defined
Where statute has not defined a term within the Criminal Code it is open to the judge to consult a dictionary to assist in defining its meaning.[4]

Cross References
Cross-references are not binding on interpretation and are effectively illustrative.[5]

Descriptive cross-references
3. Where, in any provision of this Act, a reference to another provision of this Act or a provision of any other Act is followed by words in parenthesis that are or purport to be descriptive of the subject-matter of the provision referred to, the words in parenthesis form no part of the provision in which they occur but shall be deemed to have been inserted for convenience of reference only.
1976-77, c. 53, s. 2.


CCC

  1. R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, per Gonthier J ("courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law."
  2. see s. 9
  3. Regina v Goulis, 1981 CanLII 1642 (ON CA), per Martin JA
    United States of America v Dynar, [1997] 2 SCR 462, 1997 CanLII 359 (SCC), per Cory and Iacobucci JJ at p. 503
  4. R v St. Pierre, 1974 CanLII 874 (ON CA), per Dubin JA
  5. eg. see R v J. J. R., 2003 CanLII 32169 (ON CA), per MacPherson JA

Specific Wording

"means" vs "includes"
The word "means" when defining terms is means to be "explanatory and restrictive" in nature. While "includes" is "extensive" in nature. [1] "Means" "indicates that the definition is exhaustive".[2] An "exhaustive" term is one where the definition "completely displace[s] whatever meanings the defined term might otherwise bear in ordinary or technical usage".[3]

Evidence to the Contrary
See Presumptions

Appellate Review
Interpretation of a section of the Criminal Code is a question of law and is reviewable on a standard of correctness.[4]

  1. R v Sheets, 1971 CanLII 130 (SCC), [1971] SCR 614, per Fauteux CJ, at pp. 619 to 620
  2. R v Wookey, 2016 ONCA 611 (CanLII), per Tulloch JA at para 34
  3. Wookey, ibid. at para 34
    R v ADH, 2013 SCC 28 (CanLII), [2013] 2 SCR 269, per Cromwell J, at para. 43
    Yellow Cab Ltd v Alberta (Industrial Relations Board), 1980 CanLII 228 (SCC), [1980] 2 SCR 761, per Ritchie J, at pp 768-69
  4. R v Goulet, 2011 ABCA 230 (CanLII), per Slatter JA at para 7
    R v Hubek, 2011 ABCA 254 (CanLII), 513 AR 194, per curiam at para 6
    R v McColl, 2008 ABCA 287 (CanLII), per Hunt JA at para 8

Interpreting Criminal Offences

There are recognized limits on the ability of criminal law to fulfill its objectives. The criminal law must be restrained and avoid over-criminalizing peoples' activities. There must be a distinction made between true-crime deserving of "harsh sanctions" and conduct that is merely undesirable or unethical but "lacks the reprehensible character of criminal acts"[1]

The criminal law must provide "fair notice of what is prohibited and clear standards of enforcement".[2]

The "most direct and authoritative evidence" of a provision's legislative purpose is in the enacting legislation, including "the beginning of a statute, in the section in which a provision is found, or in sections providing interpretive guidelines".[3]

Offences should be interpreted purposively in a manner consistent with the philosophy and rationale of the legislative objectives.[4]

Offences should not be interpreted as penalizing trivial act.[5]

strict construction
The rule of strict construction does not apply when the Offence definition is resolved and not ambiguous.[6]

There must be "express" wording that indicates that penalties include incarceration. Incarceration by implication is not sufficient.[7]

wording across different acts
Also, under s. 4(4):

4.
...
Expressions taken from other Acts
(4) Where an offence that is dealt with in this Act relates to a subject that is dealt with in another Act, the words and expressions used in this Act with respect to that offence have, subject to this Act, the meaning assigned to them in that other Act.
...
R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1.


CCC

  1. R v Hutchinson, 2014 SCC 19 (CanLII), per McLachlin CJ and Cromwell JJ, at para 18
  2. Hutchinson, ibid. at para 18
  3. R v Appulonappa, 2015 SCC 59 (CanLII), per McLachlin CJ at para 49
  4. R v Fong, 1994 ABCA 267 (CanLII), (1994), 92 CCC (3d) 171 (C.A.), per curiam, leave denied (1995), 94 CCC (3d) vii - in context of s. 152
  5. R v Beauchamp, 2009 CanLII 37720 (ON SC), per R Smith J at paras 38 to 39
  6. R v Mac, 2002 SCC 24 (CanLII), [2002] 1 SCR 856, per Bastarache J, at para 4
    R v Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 SCR 398, per Cory J at paras 27 - 31
  7. Marcotte v Canada (Deputy Attorney General), [1976] 1 SCR 108, 1974 CanLII 1 (SCC), per Dickson J

Rules of Evidence

Parliament must be explicit if it seeks to remove the common law requirements for the qualification of experts.[1]

  1. R v Bingley, [2017] 1 SCR 170, 2017 SCC 12 (CanLII), per McLachlin CJ

Charter Interpretation

The goal of Charter interpretation to secure for all people "the full benefit of the Charter's protection".[1]

Purposive Interpretation
This requires a judge to interpret a Charter right using a "purposive approach"[2] (or sometimes called "purposive analysis").[3] This mean that a right is to be understood "in light of the interests it was meant to protect".[4] It should be interpreted in "a manner that best ensures the attainment of its objects".[5]

It is important that the right be "generous" and not "a legalistic one", while at the same time not to "overshoot" the "actual purpose" of the right.[6]

Similarly the interpretation of any Charter right must not "second-guess" and instead should "respect proper choice[s]" of the government.[7]

The right must be "placed in its proper linguistic, philosophic and historical contexts".[8]


In interpreting the Charter judges must avoid "adjudicati[ng] the merits of public policy".[9]

Living Tree Doctrine
The Charter is to be interpreted using the "living tree" doctrine, which requires the meaning of the text to be capable of "growth and expansion".[10]

"Historical materials" such as legislative history should not be used to "stunt [the Charter's] growth".[11]

Legislative History
Speeches and statements of public servants and minutes of the parliamentary committees who assisted in drafting the Constitution are of limited weight for reasons including that it would freeze the rights as they were at the time of drafting.[12]

Remedies
When applying purposive interpretation it requires that remedies be interpreted in a way to provide "a full effective and meaningful remedy for Charter violations".[13] A Charter remedy must crafted to be responsive and effective.[14]

United States
In the US constitutional interpretation of the Eighth Amendment (similar to our s. 8 of the Charter) the provision "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[15]

  1. R v Morgentaler, 1988 CanLII 90 (SCC), per Dickson CJ at p. 51
    R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295 at p. 344
  2. R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190
  3. Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145
    R v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295
    R v KRJ, 2016 SCC 31 (CanLII) at para 29 - re s. 11(i)
    R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554 at paras 61 and 63 - re s. 11(i)
  4. Big M Drug Mart at p.344
    Morgentaler, supra at p. 52
    Hunter v Southam, supra R v Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613
  5. R v 974649 Ontario Inc, 2001 SCC 81 (CanLII) at para 18
  6. Big M Drug Mart, supra at para 117
  7. Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493 at para 136
  8. Big M Drug Mart, supra at para 117
  9. Re BC Motor Vehicles, ibid. at p. 499
    Morgentaler, supra at p. 53
  10. Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC), per Lamer CJ, at para 53
    Law society of Upper Canada v. Skapinker, [1984] 1 SCR 357, 1984 CanLII 3 (SCC), per Estey J
  11. Re B.C. Motor Vehicle Act, ibid. at para 53
  12. Re B.C. Motor Vehicle Act, ibid. at para 53
  13. Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3, at para 25
  14. Doucet-Boudreau, ibid. at para 25
  15. Trop v. Dulles 356 U.S. 86 (1958) [1]

Legislative Amendments

Stare Decisis

Interpreting Court Orders

Interpreting an order is a "question of law" and no deference is owed on review. It is an objective assessment on a standard of correctness.[1]

There is an exception where a judge's interpretation of his own orders is "entitled to considerable deference".[2]

Where record of the decision is available, it will be necessary to conform the order to the decision.[3]

In interpreting an order "a Court will use accepted principles of statutory and contractual interpretation to ascertain the intent of the ordering judge".[4]Those principles of statutory and contractual interpretation are "analogous" to the principles to be applied to looking at the "intent of the ordering judge"[5]

The "contextual approach to interpreting statutes ...with necessary modification, apply to the interpretation of orders."[6]


  1. Royal Bank of Canada v. Robertson, 2016 NSSC 176 (CanLII) at para 11
  2. Boily v Carleton Condo. Corp., 2014 ONCA 574 (CanLII) at para 71
  3. Robertson, supra at para 13
  4. Canadian National Railway v Holmes, 2015 ONSC 3038 (CanLII) at para 18
    Robertson, supra at para 14
  5. Robertson, supra at para 15
    L’Homme v. Pliskevicius Estate, 2011 ONSC 6102 (CanLII) at para 22
  6. Robertson, supra at para 19

See Also

Interpreting Legislative Amendments

General Principles

Amendments are presumed to be made for an "intelligent purpose" such as "clarifying or correcting a mistake in the enactment or change in the law".[1]

Amendments generally only have retrospective effect in exceptional circumstances. As there is a presumption against retrospectivity where a vested or substantive right is affected.[2]

Where an amendment to legislation effects a constitutional right, it generally means that the legislation will not be retrospective.[3]This is preferred over the older method of looking at whether the legislation is "procedural" or "substantive".[4]

New legislation that is "designed to govern only the manner in which rights are asserted or enforced" is procedural and "does not affect the substance of those rights." The act then would apply to both "pending and future cases".[5]

An amendment that has an effect on the content or existence of an available defence suggests is an indicator that it affects substantive rights, and so is not retrospective.[6]

Such an amendment of a substantive right will be retrospective only where there is "clear legislative intent" that the new provision applies retrospectively.[7]

An increase in a maximum penalty is a "clear indication to sentencing courts of the seriousness which the criminal conduct addressed by the changes is viewed by contemporary society."[8]However, the increase of minimum penalties should not be read into "too much".[9]

  1. R v A.A. 2015 ONCA 558 (CanLI) at para 69
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 579
    see also s. 45(2) of the Interpretation Act
  2. R v Dineley 2012 SCC 58 (CanLII)
  3. Dineley, ibid.
  4. Dineley, ibid.
  5. Dineley, ibid. at para 10
  6. Dineley, ibid. - removal of Carter defence creates presumption against retrospectivity
  7. R v Singh, 2016 ONSC 3739 (CanLII) at para 44
    Dineley, supra at para 10
  8. R v Richardson [2006] EWCA Crim 3186(*no CanLII links) at para 4
  9. R v WE, 2010 NLCA 4 (CanLII), (2010) 251 CCC (3d) 213 (NLCA)
    see also Maximum and Minimum Sentences

Effect on Previous Ongoing Proceedings

Where the law is changed in a manner that is procedural in nature, it applies to all matters regardless of the offence date. A change in the law that removes or adds a right will only apply to offences that post-date the amendment.[1]

It is "not generally in the public interest to delay trials simply on the basis that a pending action in the higher courts might have some effect on the trial".[2]

  1. R v Wildman, [1984] 2 SCR 311, 1984 CanLII 82 (SCC)
    See also: R v Bickford (1989), 51 CCC (3d) 181 (ONCA), 1989 CanLII 7238 (ON CA)
  2. R v Baker, 1994 CanLII 4153 (NS CA), [1994] NSJ 135 (NSCA)

Effect of Repealing Law

Effect of repeal
43. Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,
(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or
(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.
R.S., c. I-23, s. 35.
Repeal and substitution
44. Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,

(a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person;
(b) every bond and security given by a person appointed under the former enactment remains in force, and all books, papers, forms and things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with the new enactment;
(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;
(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto
(i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment,
(ii) in the enforcement of rights, existing or accruing under the former enactment, and
(iii) in a proceeding in relation to matters that have happened before the repeal;
(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;
(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;
(g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; and
(h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing, be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read as unrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment.

R.S., c. I-23, s. 36.


IA

The reference to "incurred" has the same meaning as "to render oneself liable to", "to bring upon oneself", or to be "subject to".[1]

Repeal of Offences
It appears that there is an ability to continue a prosecution for an offence that was repealed in law, so long as the conduct making up the offence was completed before the amendment and the time limitations have been complied with.[2]

  1. R v Allan (1979), 45 CCC (2d) 524 (Ont. C.A.), 1979 CanLII 3025 (ON CA), at pp. 529-30
    Smith (Committee of) v Wawanesa Mutual Insurance Co., 1998 CanLII 18861 (ON SC)
  2. see Re Yat Tung Tse and College of Physicians and Surgeons of Ontario, 1978 CanLII 1646 (ON SC)
    R v Coles, 1969 CanLII 367 (ON CA), [1970] 1 O.R. 570, 9 DLR (3d) 65, [1970] 2 CCC 340

Stare Decisis

General Principles

The principle of stare decisis (to "stand by things decided") refers to the requirement that when a legal issue has been determined and decided, other courts should follow the decision.[1]

The principle is the "glue that holds together the various levels of Canadian courts and it is the principle that elevates the rule of law above the rule of individual judges."[2] It is considered "essential to law" and a "central pillar" to our system of law. It ensures predictability without which differing results would be unjust.[3]

The requirement ensures "consistency, certainty, predictability and sound judicial administration" and the adherence to precedent "enhances the legitimacy and acceptability of judge-made law, and by so doing enhances the appearance of justice".[4]

The principles does not apply where a decision does not lay out a "substantive rule of law", but simply applies an existing rule to a set of facts.[5]

A statement of a legal principle will amount to an "opinion of the Court" where the principle is accepted by a majority of the Court.[6]

Components of Stare Decisis
The principle can be divided into two components. Stare decisis as among the same level of court ("horizontal" stare decisis) and as between different levels of court ("vertical" stare decisis).[7]

Irrelevant Factors to Application
The application of stare decisis does not depend on factors such as the length of the judgement, the extent of the judgement's analysis, or whether the decision is wrong in law.[8]

Previous Dissenter
A judge who previously dissented on the same issue before the court, should generally apply to law as it was decided by the majority on the prior case.[9]

  1. Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII) at para 38 ("...the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.)
  2. R v Hummel, (1987), 36 CCC (3d) 8 at para 7
  3. R v Arcand, 2010 ABCA 363 (CanLII) at para 182
  4. David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co., 2008 ONCA 703 (CanLII), per Laskin JA
    R v Roberts, 1997 CanLII 3313 (BC CA) ("The law should not appear to materialize as a revolutionary rabbit from a judicial magician's hat.")
  5. Delta Acceptance Corporation Ltd. v Redman, 1966 CanLII 130 (ON CA)
  6. R v Ibanescu, [2013] 2 SCR 400, 2013 SCC 31 (CanLII) at para 1 ("a statement of a legal principle that is accepted by a majority of the Court constitutes the opinion of the Court with respect to that legal principle. This is so even if some of the members of the Court who endorse that legal principle dissent from the majority’s disposition of the appeal. ")
  7. R v Puddicombe, 2013 ONCA 506 (CanLII) at para 65
    Canada v Bedford at para 39
  8. R v Youngpine, 2009 ABCA 89 (CanLII), at para 18
  9. e.g. R v Morin, [1992] 1 SCR 771, 1992 CanLII 89 (SCC), Lamer CJ in dissent, referring to his dissent in Askov (1990) ("While I have never changed my mind as regards my dissenting position, I will, as I should, apply Askov to the facts of this case.")

Exceptions

English common law sets out three exceptions of the principles of stare decisis.[1]

  1. "The court is entitled and bound to decide which of two conflicting decisions of its own it will follow"
  2. "The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords";
  3. "The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, for example, where a statute or rule having statutory effect which would have affected the decision was not brought the attention of the earlier court"

When considering overruling a precedent from the Supreme Court, the Court should balance the importance of correctness against certainty, considering whether it is more important to maintain certainty with the precedent or ensure correctness by changing it.[2] The Court should be satisfied that there are compelling reasons the precedent should be overruled. [3]

A trial judge can deviate from precedent where it is based on an argument not raised in the precedent cases or where new legal issues are raised as a product of "significant developments in the law" or if changes "in the circumstances or evidence...fundamentally" changes the "debate".[4]

The threshold for overturning prior judgement is considered "high".[5] As it should not be that the "precedential value of a ...decision ... was thought to expire with the tenure of the particular panel of judges that decided it".[6]

Overturning Precedent
A precedent established by a court should not be "lightly discarded or overruled".[7]

  1. Young v Bristol Aeroplane Co., [1944] K.B. 718
    Cross and Harris, Precedent in English Law, (4d) (Clarendon Press, Oxford, 1991) at p. 143
  2. Bedford v Canada, 2014 SCC 72 (CanLII) at para 47
  3. Canada v Craig, 2012 SCC 43 (CanLII) at para 27
  4. Bedford, supra at para 42 ("In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.")
  5. Bedford, ibid. at para 44
    Ontario (Attorney General) v Fraser, 2011 SCC 20 (CanLII) at para 57
  6. Plourde v Wal-Mart Canada Corp., 2009 SCC 54 (CanLII) at para 13
  7. Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, at para. 38
    Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, at para. 44
    R v Cody, 2017 SCC 31 (CanLII) at para 3

Horizontal Stare Decisis (Same Level of Court)

Prior decisions of a judge of the same level of court not binding upon a judge. However, where an issue has been decided upon by the same level of court the rule in Re Hansard Spruce Mills Ltd. directs that courts apply "judicial comity" and should follow the same decision unless it is in the interests of justice to do otherwise. [1]

There is some suggestion that a declaration of invalidity in relation to federal law under s. 52 of the Constitution Act, 1982 is binding on judges of the same level of court.[2]

  1. Re Hansard Spruce Mills Ltd., (1954), 13 W.W.R. 285, 34 C.B.R. 202 (B.C.), 1954 CanLII 253 (BC SC), per Wilson J
    Ottaway (Re), 1980 CanLII 401 (BC CA)
  2. R. v. McCaw, 2018 ONSC 3464 (CanLII), per Spies J

Plurality Judgements

A plurality judgement is one were a Court, usually in a panel of 5 or more, decides a case but are unable form a full majority upon the reasons for judgement.

There are no known cases in Canada that address this problem of interpreting the precedential value of the judgement.

In American law, the Courts have developed the "Narrowest Grounds" doctrine which requires inquiry into the ratio decedendi of the case which is to be the narrowest grounds upon which the concurring judgement decided the case. [1]

In South Africa, there cannot be any binding ratio for a case with less than half of the sitting judges joining the judgement.[2]

  1. Marks v United States 430 U.S. 188 (1977) - original case to develop the Narrowest Grounds doctrine, sometimes call the "Marks rule" as a result
    see also Mark Alan Thurmon, When the Court Divides 1992 Duke Law Journal Vol 42
  2. Fellner v Minister of the Interior, 4 S. AFR. L. REP. 523
    Thurmon
    (App. Div. 1954)

Ratio Decidendi and Obiter Dicta

Each statement of a judge should not be treated as if it were legislation.[1]

Ratio decidendi ("ratio") and obiter dicta ("obiter") are the terms used to distinguish between binding statements of law and commentary within a decision.

Any judicial comment in a decision that forms part of the rationale to reach his decision is considered part of the ratio and is binding upon lower courts.

A comment by a judge in a decision that does not form part of the rationale to reach his decision is considered obiter. Judicial comments that are obiter do not have binding authority on lower courts. Obiter can have persuasive authority, however.

This distinction between ratio and obiter can be fluid.[2]

The degree of weight the obiter has is proportionate to its proximity to the ratio decidendi.[3]

Stated negatively, the statements of a higher court are not binding where the words are "sufficiently tangential to the disposition of the case".[4]

On the outer edge from the ratio consists of "commentary, examples or exposition that are intended to be helpful, but are certainly not 'binding'". [5]

Courts should begin from the premise that obiter dicta from the Supreme Court is binding.[6]

The purpose of this distinction is to both promote certainty in the law as well as permit "growth and creativity".[7]

  1. R v Henry, 2005 SCC 76 (CanLII) ("The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.")
  2. e.g. see discussion in Henry
  3. R v Henry at paras 52-59 ("All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. ")
  4. Canada (Attorney General) v Bedford, 2012 ONCA 186 (CanLII) at para 69 appeal to SCC, [2013] 3 SCR 1101, 2013 SCC 72 (CanLII)
    R v Prokofiew, 2010 ONCA 423 (CanLII), aff’d 2012 SCC 49 (CanLII)
    Henry
  5. Henry
  6. R v Puddicombe, 2013 ONCA 506 (CanLII) ("In characterizing obiter from the Supreme Court of Canada, lower courts should begin from the premise that the obiter was binding.")
  7. Henry

Criminal Code and Related Definitions

Introduction

All definitions set out here apply to all uses of the word within the Criminal Code except where indicated otherwise.

Descriptive cross-references
3. Where, in any provision of this Act, a reference to another provision of this Act or a provision of any other Act is followed by words in parenthesis that are or purport to be descriptive of the subject-matter of the provision referred to, the words in parenthesis form no part of the provision in which they occur but shall be deemed to have been inserted for convenience of reference only.
1976-77, c. 53, s. 2.


CCC

Criminal Code Terms

Term Section Scope Related Sections and/or Articles
"abandon" or "expose" s. 214 Part VIII of Code [Offences Against the Person and Reputation] Abandoning Child (s. 218)
"accused" s. 2 Criminal Code many instances, see Accused in Court
"Act" s. 2 Criminal Code many instances, Definitions for General Documents, Legal Documents and Financial Instruments
"adult" s. 487.04 "In this section and in sections 487.05 to 487.0911" Only used in s. 487.07(4). See Execution of Blood Sample Warrants
"ammunition" s. 2.1 Definition of Firearms
"antique firearm" s. 2.1 Definition of Firearms
"Attorney General" s. 2 Criminal Code
"aircraft" s. 214 Part VIII of Code [Offences Against the Person and Reputation] s. 244.2, 249, 251 to 254, 255, 255.1, 258, 259, 260
"associated personnel" s. 2 Criminal Code s. 6, 424.1, 431.1. See also Definitions of Parties, Persons, Places and Organizations
"authorization" s. 2.1 and 84(1) Definition of Firearms
"automatic firearm" s. 2.1 and 84(1) Definition of Firearms
"bank-note" s. 2 Criminal Code Definitions for General Documents, Legal Documents and Financial Instruments
"bet" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"bodily harm" s. 2 Criminal Code Definition of Bodily Harm
“Canadian Forces” s. 2 Criminal Code s.5, 46, 50, 53, 54, 62, 78, 117.07, 117.08, 191, 193.1, 269.1, 366, 419 to 421, 445.01, and 672.37
"cartridge magazine" s. 2.1 and 84(1) Definition of Firearms
"cattle" s. 2 Criminal Code
"change" s. 732.1 "In this section and section 732.2" [Part XXIII - Sentencing]
"child pornography" s. 163.1 Section 163.1 only ("this section") Definition of Child Pornography
"clerk of the court" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"common bawdy-house" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"common betting house" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"common gaming house" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"common-law partner" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"complainant" s. 2 Criminal Code Role of the Victim and Third Parties
"computer data" s. 487.011 s. 487.012 to 487.0199 [relating to preservation and production of records] Definitions for General Documents, Legal Documents and Financial Instruments
"counsel" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"count" s. 2 Criminal Code Definitions for General Documents, Legal Documents and Financial Instruments
"court" s. 164(8) Section 164 Definition of Judicial Officers and Offices
"court" s. 320(8) Section 320 Definition of Judicial Officers and Offices
"court of appeal" s. 2 Criminal Code Criminal Courts
"court of criminal jurisdiction" s. 2 Criminal Code Definition of Judicial Officers and Offices
"court of criminal jurisdiction" s. 785 Part XXVII of Criminal Code Criminal Courts
"Credit card" s. 321 Part IX [Offences Against Rights of Property] s. 342, 342.01, 347.1. See also Definitions for General Documents, Legal Documents and Financial Instruments
"crime of a sexual nature" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"criminal organization" s. 2 Criminal Code Criminal Organizations
"criminal organization offence" s. 2 Criminal Code Criminal Organizations
"cross-bow" s. 2.1 and 84(1) Definition of Firearms
"data" s. 487.011 sections 487.012 to 487.0199 [relating to preservation and production of records] Definitions for General Documents, Legal Documents and Financial Instruments
"database" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"day" s. 2 Criminal Code Time and Place
"designated offence" s. 487.04 "In this section and in sections 487.05 to 487.0911"
"designated offence" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"disorderly house" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"DNA" s. 487.04 "In this section and in sections 487.05 to 487.0911"
"document" s. 321 Part IX [Offences Against Rights of Property] ("this part") Definitions for General Documents, Legal Documents and Financial Instruments
"document" s. 487.011 s. 487.012 to 487.0199 [relating to preservation and production of records] Definitions for General Documents, Legal Documents and Financial Instruments
"document of title to goods" s. 2 Criminal Code Definitions for General Documents, Legal Documents and Financial Instruments
"document of title to lands" s. 2 Criminal Code Definitions for General Documents, Legal Documents and Financial Instruments
"dwelling-house" s. 2 Criminal Code Definition of Dwelling House
"enactment" s. 6 s. 6 ("this section")
"environment" s. 2 Criminal Code
“every one”, “person” and “owner” s. 2 Criminal Code
"explosive substance" s. 2 Criminal Code Use or Possession of Explosives (Offence)
"firearm" s. 2 Criminal Code Definition of Firearms
"forensic DNA analysis" s. 487.04 "In this section and in sections 487.05 to 487.0911"
"form of marriage" s. 214 Part VIII of Code [Offences Against the Person and Reputation]
"game" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"gaming equipment" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"government or public facility" s. 2 Criminal Code
"guardian" s. 150 "In this Part" [Part V - Sexual Offences, Public Morals and Disorderly Conduct]
"guardian" s. 214 Part VIII of Code [Offences Against the Person and Reputation]
"handgun" s. 2.1 and 84(1) Definition of Firearms
"Her Majesty’s Forces" s. 2 Criminal Code
"highway" s. 2 Criminal Code
"imitation firearm" s. 2.1 and 84(1) Definition of Firearms
"indictment" s. 2 Criminal Code Definitions for General Documents, Legal Documents and Financial Instruments
"internationally protected person" s. 2 Criminal Code see Definitions of Parties, Persons, Places and Organizations
"judge" s. 83.28 Section 83.28 and 83.29 Definition of Judicial Officers and Offices
"judge" s. 320 Section 320 Definition of Judicial Officers and Offices
"judge" s. 462.3 Part XII.2 [Proceeds of Crime] Definition of Judicial Officers and Offices
"judge" s. 487.011 s 487.012 to 487.0199 [relating to preservation and production of records] Definition of Judicial Officers and Offices
"judge" s. 488.1(1) "this section" Definition of Judicial Officers and Offices
"judge" s. 490.2(5) "this section" Definition of Judicial Officers and Offices
"judge" s. 493 Part XVI [Compelling Appearance of Accused Before a Justice and Interim Release] (s. 493 to 529.5) Definition of Judicial Officers and Offices
"judge" s. 552 Part XIX [Indictable Offences — Trial Without Jury] (s. 552 to 573.2) Definition of Judicial Officers and Offices
"justice" s. 2 Criminal Code Definition of Judicial Officers and Offices
"justice system participant" s. 2 Criminal Code Intimidation of a Justice System Participant (Offence)
"keeper" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"licence" s. 2.1 and 84(1) Definition of Firearms
"mental disorder" s. 2 Criminal Code Not Criminally Responsible Due to Mental Disorder
"military" s. 2 Criminal Code
"military law" s. 2 Criminal Code
"motor vehicle" s. 2 Criminal Code Impaired Driving, Over 80 and Refusal (Offence)
"municipality" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"night" s. 2 Criminal Code Time and Place
"nuclear facility" s. 2 Criminal Code
"offence-related property" s. 2 Criminal Code Forfeiture of Offence-related Property
"offender" s. 2 Criminal Code Accused in Court
"offensive weapon" s. 2 Criminal Code
"Ontario Act" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"operate" s. 214 Part VIII of Code [Offences Against the Person and Reputation]
"optional conditions" s. 732.1 "In this section and section 732.2" [Part XXIII - Sentencing]
"organization" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"pardon" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"peace officer" s. 2 Criminal Code Peace Officers
"place" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"place" s. 286.1(5) "this section" Commodification of Sexual Services (Offence)
"prohibited ammunition" s. 2.1 and 84(1) Definition of Firearms
"prohibited device" s. 2.1 and 84(1) Definition of Firearms
"prohibited firearm" s. 2.1 and 84(1) Definition of Firearms
"prohibited weapon" s. 2.1 and 84(1) Definition of Firearms
"primary designated offence" s. 487.04 "In this section and in sections 487.05 to 487.0911"
"prison" s. 2 Criminal Code Prison Breach (Offence)
"property" s. 2 Criminal Code Possession of Stolen Property (Offence)
"property" s. 428 Part XI of the Code Possession of Stolen Property (Offence)
"proseuctor" s. 2 Criminal Code
"provincial court judge" s. 2 Criminal Code (except as set out in s. 111, 487.04) Definition of Judicial Officers and Offices
"provincial court judge" s. 111(11) "this section and sections 112, 117.011 and 117.012" of Code Definition of Judicial Officers and Offices
"provincial court judge" s. 487.04 "this section and in sections 487.05 to 487.0911" Definition of Judicial Officers and Offices
"public department" s. 2 Criminal Code
"public officer" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"public officer" s. 487.011 s 487.012 to 487.0199 [relating to preservation and production of records] Definitions of Parties, Persons, Places and Organizations
"public place" s. 150 "In this Part" [PART V - Sexual Offences, Public Morals and Disorderly Conduct]
"public place" s. 197 "In this Part" [PART VII - Disorderly Houses, Gaming and Betting]
"public place" s. 213 "In this section" Solicitation (Offence)
"public place" s. 286.1(5) "this section" Commodification of Sexual Services (Offence)
"public stores" s. 2 Criminal Code
"radioactive material" s. 2 Criminal Code
"railway equipment" s. 2 Criminal Code
"record suspension" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"registration centre" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"registration certificate" s. 2.1 and 84(1) Definition of Firearms
"replica firearm" s. 2.1 and 84(1) Definition of Firearms
"representative" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"restricted firearm" s. 2.1 and 84(1) Definition of Firearms
"restricted weapon" s. 2.1 and 84(1) Definition of Firearms
"Review Board" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"secondary designated offence" s. 487.04 "In this section and in sections 487.05 to 487.0911"
"senior officer" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"sentence" s. 785 "In this Part" [PART XXVII - Summary Convictions]
"serious offence" s. 2 and 467.1(1) Criminal Code ("this Act") Criminal Organizations
"serious personal injury offence" s. 752 Part XXIV [Dangerous Offenders And Long-Term Offenders] ("This part") Serious Personal Injury Offences
"steal" s. 2 Criminal Code
"street racing" s. 2 Criminal Code
"summary conviction court" s. 785 Part XXVII of Criminal Code Criminal Courts
"superior court of criminal jurisdiction" s. 2 Criminal Code Definition of Judicial Officers and Offices
"territorial division" s. 2 Criminal Code Definitions of Parties, Persons, Places and Organizations
"terrorism offence" s. 2 Criminal Code Terrorism Definitions
"terrorist activity" s. 2 and 83.01 Criminal Code Terrorism Definitions
"terrorist group" s. 2 and 83.01 Criminal Code Terrorism Definitions
"testamentary instrument” s. 2 Criminal Code Definitions for General Documents, Legal Documents and Financial Instruments
"theatre" s. 150 "In this Part" [PART V - Sexual Offences, Public Morals and Disorderly Conduct]
"traffic” s. 355.1 s. 355.2 and 355. Trafficking in Stolen Property (Offence)
"trustee" s. 2 Criminal Code
"unfit to stand trial" s. 2 Criminal Code Fitness to Stand Trial
"United Nations operation” s. 2 Criminal Code
"United Nations personnel” s. 2 Criminal Code
"valuable mineral” s. 2 Criminal Code
"valuable security" s. 2 Criminal Code Definitions for General Documents, Legal Documents and Financial Instruments
"verdict of not criminally responsible on account of mental disorder" s. 490.011 "in this section and in sections 490.012 to 490.032" [relating to SOIRA Orders] SOIRA Orders
"vessel" s. 214 Part VIII of Code [Offences Against the Person and Reputation] Referenced in s. 244.2, 249, 250 to 255.1, and 258 to 260.
"victim" s. 2 Criminal Code Role of the Victim and Third Parties
"warrant" s. 493 Part XVI of Code [Compelling Appearance of Accused Before a Justice and Interim Release] ("this Part") Warrant Arrests
"weapon" s. 2 Criminal Code Definition of Weapons
"wiretap offences" s. 183 Part VI [Invasion of Privacy] Wiretaps
"wreck” s. 2 Criminal Code
"writing" s. 2 Criminal Code Definitions for General Documents, Legal Documents and Financial Instruments
"Young Offenders Act" s. 487.04 "In this section and in sections 487.05 to 487.0911"
"young person" s. 487.04 "In this section and in sections 487.05 to 487.0911"

Controlled Drugs and Substances Act Terms

Term Section Scope Related Sections and/or Articles
"adjudiator" s. 2 CDSA
"alternate person in charge" s. 56.1 "this section"
"analyst" s. 2 CDSA
"controlled substance" s. 2 CDSA
"designated criminal offence" s. 56.1 "this section"
"designated drug offence" s. 56.1 "this section"
"designated substance offence" s. 2 CDSA
"judge" s. 2 CDSA see s. 522 of the Criminal Code
"justice" s. 2 CDSA same as s. 2 of the Criminal Code
"offence-related property" s. 2 CDSA
"possession" s. 2 CDSA
"practitioner" s. 2 CDSA
"precursor" s. 2 CDSA
"prescribed" s. 2 CDSA
"produce" s. 2 CDSA
"provide", "sell" or "traffic" s. 2 CDSA

Evidence Act

Term Section Scope Related Sections and/or Articles
"court" s. 29 "this section" Electronic Documents
"financial institution" s. 29 "this section"
"legal proceedings" s. 29 "this section"
"business" s. 30 "In This section"
"copy" s. 30 "In This section"
"court" s. 30 "In This section"
"legal proceeding" s. 30 "In This section"
"record" s. 30 "In This section"
"corporation" s. 31 "In This section"
"government" s. 31 "In This section"
"photographic film" s. 31 "In This section"
"computer system" s. 31.8 s. 31.1 to 31.6 Electronic Documents
"data" s. 31.8 s. 31.1 to 31.6 Electronic Documents
"electronic document" s. 31.8 s. 31.1 to 31.6 Electronic Documents
"electronic documents system" s. 31.8 s. 31.1 to 31.6 Electronic Documents
"secure electronic signature" s. 31.8 s. 31.1 to 31.6 Electronic Documents
"judge" s. 38 "this section and in sections 38.01 to 38.15"
"participant" s. 38 "this section and in sections 38.01 to 38.15"
"potentially injurious information" s. 38 "this section and in sections 38.01 to 38.15"
"proceeding" s. 38 "this section and in sections 38.01 to 38.15"
"prosecutor" s. 38 "this section and in sections 38.01 to 38.15"
"sensitive information" s. 38 "this section and in sections 38.01 to 38.15"
"Council" s. 39 s. 39(1)
"cause" s. 44 Part II (s. 43 to 51)
"court" s. 44 Part II (s. 43 to 51)
"judge" s. 44 Part II (s. 43 to 51)
"oath" s. 44 Part II (s. 43 to 51)

Interpretation Act

Term Section Scope Related Sections and/or Articles
"Act" s. 35 "every enactment"
"Bank" s. 35 "every enactment"
"British Commonwealth" s. 35 "every enactment"
"broadcasting" s. 35 "every enactment"
"Canada" s. 35 "every enactment"
"Canadian waters" s. 35 "every enactment"
"Clerk of the Privy Council" or "Clekr of the Queen's Privy Council" s. 35 "every enactment"
"Commonwealth" s. 35 "every enactment"
"contiguous zone" s. 35 "every enactment"
"continental shelf" s. 35 "every enactment"
"contravention" s. 35 "every enactment"
"corporation" s. 35 "every enactment"
"county" s. 35 "every enactment"
"diplomatic or consular officer" s. 35 "every enactment"
"exclusive economic zone" s. 35 "every enactment"
"Governor", "Governor General" or "Governor of Canada" s. 35 "every enactment"
"Governor General in Council" or "Governor in Council" s. 35 "every enactment"
"Great Seal" s. 35 "every enactment"
“Her Majesty”, “His Majesty”, “the Queen”, “the King” or “the Crown” s. 35 "every enactment"
"herein" s. 35 "every enactment"
"holiday" s. 35 "every enactment"
"internal waters" s. 35 "every enactment"
"legislative assembly" s. 35 "every enactment"
"lieutenant governor" s. 35 "every enactment"
"lieutenant governor in council" s. 35 "every enactment"
"local time" s. 35 "every enactment"
"military" s. 35 "every enactment"
"month" s. 35 "every enactment"
"oath" s. 35 "every enactment"
"Parliament" s. 35 "every enactment"
"person" s. 35 "every enactment"
"proclamation" s. 35 "every enactment"
"province" s. 35 "every enactment"
"radio" or "telecommunication" s. 35 "every enactment"
"regular force" s. 35 "every enactment"
"reserve force" s. 35 "every enactment"
"security" s. 35 "every enactment"
"standard time" s. 35 "every enactment"
"statutory declaration" s. 35 "every enactment"
"superior court" s. 35 "every enactment"
"telecommunications" s. 35 "every enactment"
"territorial sea" s. 35 "every enactment"
"territory" s. 35 "every enactment"
"two justices" s. 35 "every enactment"
"United Kingdom" s. 35 "every enactment"
"United States" s. 35 "every enactment"
"writing" s. 35 "every enactment"
"telegraph" s. 36
"year" s. 37
"Act" s. 2 Interpretation Act ("this Act")
"enact" s. 2 Interpretation Act ("this Act")
"enactment" s. 2 Interpretation Act ("this Act")
"public officer" s. 2 Interpretation Act ("this Act")
"regulation" s. 2 Interpretation Act ("this Act")
"repeal" s. 2 Interpretation Act ("this Act")

See Also

Dictionaries

List of Criminal Code Amendments

Admendments to the Criminal Code. This list is current to January 1, 2015. For amendments to other legislation see List of Legislative Amendments.

Versions
There are six versions of the Criminal Code since its inception:

  • Criminal Code, 1892, S.C. 1892, c. 29
  • Criminal Code, R.S.C. 1906, c. 146
  • Criminal Code, R.S.C. 1927, c. 36
  • Criminal Code, S.C. 1953-54, c. 51
  • Criminal Code, R.S.C. 1970, c. C-34
  • Criminal Code, R.S.C. 1985, c. C-46

Parts of Code

The current sections of the Criminal Code, RSC 1985, c C-46 comprise of the following:

Part Subject Title Sections
Part I (1) General s. 3.1 to 45
Part II (2) Offences Against Public Order s. 46 to 83
Part II.1 (2.1) Terrorism s. 83.01 to 83.33
Part III (3) Firearms and Other Weapons s. 84 to 117.15
Part IV (4) Offences Against the Administration of Law and Justice s. 118 to 149
Part V (5) Sexual Offences, Public Morals and Disorderly Conduct s. 150 to 182
Part VI (6) Invasion of Privacy s. 183 to 196.1
Part VII (7) Disorderly Houses, Gaming and Betting s. 197 to 213
Part VIII (8) Offences Against the Person and Reputation s. 214 to 320.1
Part IX (9) Offences Against Rights of Property s. 321 to 378
Part X (10) Fraudulent Transactions Relating to Contracts and Trade s. 379 to 427
Part XI (11) Wilful and Forbidden Acts in Respect of Certain Property s. 428 to 447.1
Part XII (12) Offences Relating to Currency s. 448 to 462
Part XII.1 (12.1)
[REPEALED 2018, c. 16]
Instruments and Literature For Illicit Drug Use s. 462.1 to 462.2
Part XII.2 (12.2) Proceeds of Crime s. 462.3 to 462.5
Part XIII (13) Attempts-Conspiracies-Accessories s. 463 to 467.2
Part XIV (14) Jurisdiction s. 468 to 482.1
Part XV (15) Special Procedure and Powers s. 483 to 492.2
Part XVI (16) Compelling Appearance of an Accused Before a Justice and Interim Release s. 493 to 529.5
Part XVII (17) Language of Accused s. 530 to 533.1
Part XVIII (18) Procedure on Preliminary Inquiry s. 535 to 551
Part XVIII.1 (18.1) Case Management Judge s. 551.1 to 551.7
Part XIX (19) Indictable Offences-Trial Without a Jury s. 552 to 572
Part XIX.1 (19.1) Nunavut Court of Justice s. 573 to 573.2
Part XX (20) Procedure in Jury Trials and General Provisions s. 574 to 672
Part XX.1 (20.1) Mental Disorder s. 672.1 to 672.95
Part XXI (21) Appeals-Indictable Offences s. 673 to 696
Part XXI.1 (21.1) Applications for Ministerial Review-Miscarriages of Justice s. 696.1 to 696.6
Part XXII (22) Procuring Attendance s. 697 to 715.2
Part XXIII (23) Sentencing s. 716 to 751.1
Part XXIV (24) Dangerous Offenders and Long-Term Offenders s. 752 to 761
Part XXV (25) Effect and Enforcement of Recognizances s. 762 to 773
Part XXVI (26) Extraordinary Remedies s. 774 to 784
Part XXVII (27) Summary Convictions s. 785 to 840
Part XXVIII (28) Miscellaneous s. 841 to 849

Pending Amendments

Act Name Citation Royal Assent In force Summary Amended Code Sec. Amendment Text
An Act to amend the Criminal Code (bestiality and animal fighting) (Bill C-84) N/A N/A " enactment amends the Criminal Code to... define “bestiality”... expand the scope of the offence of encouraging, aiding or assisting at the fighting or baiting of animals or birds so that the offence...includes promoting, arranging, receiving money for or taking part in the fighting or baiting of animals or birds, and... also applies with respect to the training, transporting or breeding of animals or birds for fighting or baiting; and... expand the scope of the offence of building, making, maintaining or keeping a cockpit so that the offence applies with respect to any arena for animal fighting." Amends s. 160, 445.1, and 447. draft text
An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts (Bill C-75) N/A N/A Makes changes on various parts of the code, including bail, jury selection, intimate partner violence, victim fine surcharge, warrants, administration of justices offences, limitations on preliminary inquiries, increase maximum penalties, remove unconstitutional offences, and numerous changes to YCJA. draft text
An Act to amend the Criminal Code (presentence report) (Bill C-375) N/A N/A "This enactment amends the Criminal Code to require that a presentence report contain information on any aspect of the offender’s mental condition that is relevant for sentencing purposes." It adds (a.1) to s. 721(3). draft text
An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act (Bill C-51) N/A N/A "This enactment amends the Criminal Code to amend, remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms, as well as passages and provisions that are obsolete, redundant or that no longer have a place in criminal law. It also modifies certain provisions of the Code relating to sexual assault in order to clarify their application and to provide a procedure applicable to the admissibility and use of the complainant’s or a witness’s record when in the possession of the accused." It removes s. 49, 71, 125(d) and after, 143, 145 [parts], 163(2)(c), (d), (7), 164(8), 165, 198, 276.‍1 to 276.‍5, 279(3), 279.1(3), 288, 296, 359, 360, 365, 370, 371, 402, 413, 419 after (d), 427, 451, 459 after (c), 469(a)(ii), 794(2).
It replaces s. 55, 57(3), 82, 108(1), 125, 145(2), (3), (4), (5), 153.1(3), 153.1(5)(a), 153.1(5)(b), 163(1), 163(2), 164(3) to (5), 176 to 178, 183 [parts], 207(4)(c), 215(2), 273.1(2), 273.2(a), (c), 276(2), 278.1, 278.3(5), 294, 299(c), 327(1), 342.2(1), 349, 350(b)(ii), 351(1), 352, 354(2), 376, 402.2, 405, 417, 419, 429(2), 445(1)(a),(b), 447.1(1), 450, 451, 452, 454, 458, 459, 517(2), 581(4), 584(1), 601(9), 719(3.1), 743.21(2), parts of Forms 6, 9 to 11, 11.1, 12.
It adds s. 207(4.01), 276(2)(c), 276(4), 278.92 to 278.97
draft text
An Act to amend the Export and Import Permits Act and the Criminal Code (amendments permitting the accession to the Arms Trade Treaty and other amendments) (Bill C-47) N/A N/A "The enactment amends the Criminal Code to include, for interception of private communications purposes, the offence of brokering in the definition of “offence” in section 183." (second reading) It modifies s. 183. draft text

Dormant Bills

Act Name Citation Royal Assent In force Summary Amended Code Sec. Amendment Text
An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts (Bill C-39) N/A N/A "This enactment amends the Criminal Code to, among other things, remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada. It also repeals section 159 of that Act and provides that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid. It also makes consequential amendments to the Corrections and Conditional Release Act and the Youth Criminal Justice Act." It replaces s. 7(4.1), 150.1(5), 161(1.1)(a), 229(c), 258(1)(c), (d), 273.3(1)(c), 274, 275, 276(1), 277, 278.2(1)(a), 486(3), 486.4(1)(a)(i), 719(3.1), 810.1(1). It modifies s. 179(1). It adds s. 156. It repeals s. 159, 181, 230, 287, 490.011(1) "designated offence" (b)(iii) draft text
An Act related to the repeal of section 159 of the Criminal Code (Bill C-32) N/A N/A The amendments intend to "repeal section 159 and to provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid. It also makes consequential amendments to that Act, the Corrections and Conditional Release Act and the Youth Criminal Justice Act." It replaces s. 7(4.1), 150.1(5), 161(1.1)(a), 273.3.(1)(c), 274, 275, 276(1), 277, 287.2(1)(a), 486(3), 486.4(1)(a)(i), 810.1(1). It adds s. 156. draft text
An Act to amend the Criminal Code (victim surcharge) (Bill C-28) N/A N/A The amendments intend to "a) allow the court to exempt an offender from the payment of a victim surcharge in cases where the offender satisfies the court that the payment would cause the offender undue hardship and to provide the court with guidance with respect to what constitutes undue hardship;... provide that a victim surcharge is to be paid for each offence, with an exception for certain administration of justice offences if the total amount of surcharges imposed on an offender for these types of offences would be disproportionate in the circumstances; ...require courts to provide reasons for the application of any exception for certain administration of justice offences or any exemption from the payment of a victim surcharge; and... clarify that these amendments apply to any offender who is sentenced after the day on which the amendments come into force, regardless of whether or not the offence was committed before that day." It replaces s. 673(b), 737(1), (1.1), (9), 785(b) . It adds s. 737(5), (6), (6.1), (6.2), (10). draft text
An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women) (Bill S-215) N/A N/A The amendment adds the requirement for "a court, when imposing a sentence for certain violent offences, to consider the fact that the victim is an Aboriginal woman to be an aggravating circumstance". The Act adds s. 239.1 and 273.01 to the Code. draft text
An Act to amend the Criminal Code (protection of children against standard child-rearing violence) (Bill S-206) N/A N/A This amendment to the Code "removes the justification in the Criminal Code available to schoolteachers, parents and persons standing in the place of parents of using force as a means of correction toward a pupil or child under their care." (see Corrective Force, re s. 43 of Code) It repeals s. 43. draft text


See also Unproclaimed Amendments below for more laws awaiting order in council.

2015 to Present

Act Name Citation Royal Assent In force Summary Amended Code Sec. Amendment Text
An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts 2018, c. 21 (Bill C-46) June 21, 2018 June 21, 2018 (s. 1 to 11)
December 18, 2018 (s. 12 to 50)
Part 1 amends the provisions of the Criminal Code that deal with offences and procedures relating to drug-impaired driving. Among other things, the amendments ... enact new criminal offences for driving with a blood drug concentration that is equal to or higher than the permitted concentration; ... authorize the Governor in Council to establish blood drug concentrations; and ... authorize peace officers who suspect a driver has a drug in their body to demand that the driver provide a sample of a bodily substance for analysis by drug screening equipment that is approved by the Attorney General of Canada. Part 2 repeals the provisions of the Criminal Code that deal with offences and procedures relating to conveyances, including those provisions enacted by Part 1, and replaces them with provisions in a new Part of the Criminal Code that, among other things, ... re-enact and modernize offences and procedures relating to conveyances; ... authorize mandatory roadside screening for alcohol;... establish the requirements to prove a person’s blood alcohol concentration; and... increase certain maximum penalties and certain minimum fines. It replaces s. 253(3), (4), 254(2). It adds 253.1. It modifies/replaces s. 253 to 259, 335(2), 461(3), 487.04, 487.1(1),(5),(7),(8), 662(5), 673, 680(1), 729.1(2),(3), 752, 785, 811.1(2), Form 5.04, 5.1, 5.2. It adds s. 320.11 to 320.4. official text
An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (Cannabis Act) 2018, c. 16 (Bill C-45) June 21, 2018 On Royal Assent (s. 160.1, 161, 188 to 193, 194, 199 to 202, 206, and 225)
October 16, 2018 (remainder)
"...it repeals Part XII.1 of the Criminal Code, which deals with instruments and literature for illicit drug use, and makes consequential amendments to that Act." It replaces s. 25.1(14), 462.331(1), 462.37(2.02)*, 462.341, 462.341, 490.81(1), 729(2), 737(1). It modifies s. 109(1), 110(1)(a), 183, 462.37(2.02), 553(c), 673, 785, Form 5.04. It adds 487.04(a.1), 515(4.1)(b.2). It repeals Part XII.1. [first reading version] official text
Preclearance Act 2017, c. 27 (Bill C-23) December 12, 2017 It adds s. 117.071 and 579.001. official text
An Act to amend the Criminal Code (mischief) 2017, c. 23 (Bill C-305) December 12, 2017 On Royal Assent "This enactment amends the Criminal Code to add to the offence of mischief relating to religious property the act of mischief in relation to property that is used for educational purposes, for administrative, social, cultural or sports activities or events or as a residence for seniors." Replaces s. 430(4.1). Adds s. 430(4.‍101) official text
An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources) 2017, c. 22 (Bill S-231) October 18, 2017 On Royal Assent "The enactment ... amends the Criminal Code so that only a judge of a superior court of criminal jurisdiction or a judge within the meaning of section 552 of that Act may issue a search warrant relating to a journalist. It also provides that a search warrant can be issued only if the judge is satisfied that there is no other way by which the desired information can reasonably be obtained and that the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in the collection and dissemination of information. The judge must also be satisfied that these same conditions apply before an officer can examine, reproduce or make copies of a document obtained under a search warrant relating to a journalist." It adds s. 488.01. official text
An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts 2017, c. 7 (Bill C-37) May 18, 2017 On Royal Assent "It... makes ... amendments to the Criminal Code and the Seized Property Management Act" related to CDSA amendments. It replaces s. 83.13(4)(a), (b), 83.13(5), (6), (7) to (9), 462.331(3)(a), (b), 462.331(4),(5), (6(a), (b), (7), (8), 462.37(1), (2), 462.38(2)(b), 462.41(2), 490.1(1), (2), (4)(a),(b), 490.4(2) 490.41(2)(a),(b), 490.81(3)(a),(b), (4), (5), 490.81(6)(a),(b), 490.81(7), (8). It adds s. 83.13(4)(c), 83.13(8.1), (9.1), 462.331(7.1), (8.1), 490.81(7.1), (8.1). official text
An Act to amend the Canadian Human Rights Act and the Criminal Code 2017, c. 13 (Bill C-16) June 19, 2017 On Royal Assent This amendment to the Code aims to "extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence." It replaces s. 318(4) and 718.2(a)(i) official text
An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) 2016, c. 3 (Bill C-14) June 17, 2016 s. 4 and 5 of the Act [relates to s. 241.‍31 and 241.4(2) of Code] is in force on June 17, 2017 The amendment amends the Criminal Code to, "...create exemptions from the offences of culpable homicide, of aiding suicide and of administering a noxious thing, in order to permit medical practitioners and nurse practitioners to provide medical assistance in dying and to permit pharmacists and other persons to assist in the process;...specify the eligibility criteria and the safeguards that must be respected before medical assistance in dying may be provided to a person; ...require that medical practitioners and nurse practitioners who receive requests for, and pharmacists who dispense substances in connection with the provision of, medical assist­ance in dying provide information for the purpose of permitting the monitoring of medical assistance in dying, and authorize the Minister of Health to make regulations respecting that information; and ... create new offences for failing to comply with the safeguards, for forging or destroying documents related to medical assistance in dying, for failing to provide the required information and for contravening the regulations." It replaces s. 14, 241, 241.1, 241.2, 241.3, 241.4, 241.‍31 adds s. 227, and modifies s. 241.4(2), 245 official text
An Act to amend the Criminal Code (law enforcement animals, military animals and service animals) 2015, c. 34 (Bill C-35) June 23, 2015 On Royal Assent "This enactment amends the Criminal Code to better protect law enforcement animals, military animals and service animals and to ensure that offenders who harm those animals or assault peace officers are held fully accountable." It adds s. 270.03, 445.01 and 718.03 official text
Zero Tolerance for Barbaric Cultural Practices Act 2015, c. 29 (Bill S-7) June 18, 2015 July 16, 2015 [PC No. 2015-1073] Amends Criminal Code to "clarify that it is an offence for an officiant to knowingly solemnize a marriage in contravention of federal law; provide that it is an offence to celebrate, aid or participate in a marriage rite or ceremony knowing that one of the persons being married is doing so against their will or is under the age of 16 years; provide that it is an offence to remove a child from Canada with the intention that an act be committed outside Canada that, if it were committed in Canada, would constitute the offence of celebrating, aiding or participating in a marriage rite or ceremony knowing that the child is doing so against their will or is under the age of 16 years; provide that a judge may order a person to enter into a recognizance with conditions to keep the peace and be of good behaviour for the purpose of preventing the person from committing an offence relating to the marriage of a person against their will or the marriage of a person under the age of 16 years or relating to the removal of a child from Canada with the intention of committing an act that, if it were committed in Canada, would be such an offence; and provide that the defence of provocation is restricted to circumstances in which the victim engaged in conduct that would constitute an indictable offence under the Criminal Code that is punishable by five years or more in prison. ". The amendment involves replacing s. 150.1(2.1), 232(2), 232(3)(a), 295, and 811. It also adds s. 150.1(2.2), 293.1, 293.2, and 810.02 and it changes s. 273.3(1). official text
Tougher Penalties for Child Predators Act 2015, c. 23 (C-26) June 18, 2015 July 16, 2015 (s. 2 to 19) [PC No. 2015-1074]
December 1, 2016 (s. 21 to 28) [PC No. 2016-0989]
Amends the Criminal Code to "increase mandatory minimum penalties and maximum penalties for certain sexual offences against children; increase maximum penalties for violations of prohibition orders, probation orders and peace bonds; clarify and codify the rules regarding the imposition of consecutive and concurrent sentences; require courts to impose, in certain cases, consecutive sentences on offenders who commit sexual offences against children; and ensure that a court that imposes a sentence must take into consideration evidence that the offence in question was committed while the offender was subject to a conditional sentence order or released on parole, statutory release or unescorted temporary absence." Creates a public database of child sex offenders under the High Risk Child Sex Offender Database Act. It amends s. 151, 152, 153, 160, 161, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 212, 271, 272, 718.2, 718.3, 733.1, and 811. official text
Anti-terrorism Act, 2015 2015, c. 20 (Bill C-51) June 18, 2015 July 1 and August 1, 2015 [PC# 2015-1053] The Act "amends the Criminal Code to, with respect to recognizances to keep the peace relating to a terrorist activity or a terrorism offence, extend their duration, provide for new thresholds, authorize a judge to impose sureties and require a judge to consider whether it is desirable to include in a recognizance conditions regarding passports and specified geographic areas. With respect to all recognizances to keep the peace, the amendments also allow hearings to be conducted by video conference and orders to be transferred to a judge in a territorial division other than the one in which the order was made and increase the maximum sentences for breach of those recognizances. It further amends the Criminal Code to provide for an offence of knowingly advocating or promoting the commission of terrorism offences in general. It also provides a judge with the power to order the seizure of terrorist propaganda or, if the propaganda is in electronic form, to order the deletion of the propaganda from a computer system. Finally, it amends the Criminal Code to provide for the increased protection of witnesses, in particular of persons who play a role in respect of proceedings involving security information or criminal intelligence information, and makes consequential amendments to other Acts." It amended s. 2, 83.3(7.1), (8.1), 83.31(2), (3), 487.04, 810.01(8), 810.011(6), 811(a), (b), added s. 83.221 to 83.223, 83.3(11.1), (11.2), 486.7, 810.011, 810.21, 810.22, and replaces s. 83.3(2)(a), (b), 83.3(4), 83.3(8)(a), (b), (12), 195(1)(a), (b), 486(1), 810.01(1) official text
An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts 2015, c. 13 (Bill C-32) April 23, 2015 July 23, 2015 (some s. delayed, see s. 37 to 44 of Act) [PC# 2015-0846 and 2016-0366] "This enactment amends the Criminal Code to... align the definition of “victim” with the definition of “victim” in the Canadian Victims Bill of Rights... protect the privacy and security interests of complainants and witnesses in proceedings involving certain sexual offences and ensure that they are informed of their right to be represented by legal counsel... broaden the conduct to which the offence of intimidation of justice system participants applies... expand the list of factors that a court may take into consideration when determining whether an exclusion order is in the interest of the proper administration of justice... make testimonial aids more accessible to vulnerable witnesses... enable witnesses to testify using a pseudonym in appropriate cases... make publication bans for victims under the age of 18 mandatory on application... provide that an order for judicial interim release must indicate that the safety and security of every victim was taken into consideration... require the court to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor in certain circumstances... add victim impact statement forms to assist victims to convey their views at sentencing proceedings and at hearings held by Review Boards... provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective... clarify the provisions relating to victim impact statements... allow for community impact statements to be considered for all offences... provide that victims may request a copy of a judicial interim release order, probation order or a conditional sentence order... specify that the victim surcharge must be paid within the reasonable time established by the lieutenant governor of the province in which it is imposed... provide a form for requesting a restitution order; and... provide that courts must consider the making of a restitution order in all cases, and that, in multiple victim cases, a restitution order may specify the amounts owed to each victim and designate the priority of payment among the victims." It also creates certain rights for victims in criminal proceedings. It adds s. 2.2, 278.4(2.1), 486.31, 515(13), 606(4.1) to (4.4), 737.1, 739.1 to 739.4, and Form 48.1 in Part XXVIII. It replaces s. 287.2(1), (1)(b), 287.3(5), 287.5(2), 278.6(3), 278.7(2), (3), 423.1(1), 486(2), 486.1(1) to (3), 486.2, 486.3(1) to (4.1), 486.4(1), (1)(a), (1)(b), (2), 486.5(1), (2), (7)(b), 672.5(14), 718 (a), (f), 718.2(e), 722, 722.2, 732.1(5)(a), 737(4), 741, 741.1, 742.3(3)(a), Form 34.1 in Part XXVIII. It repeals s. 380.3, 380.4, 423.1(2), 672.5(16), 745.63(2). official text
Miscellaneous Statute Law Amendment Act, 2014 2015, c. 3 (Bill C-47) February 26, 2015 On Royal Assent The amendment means to "correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect". It amends s. 2, 84(1), 164(8), 493, 552, schedule to Part XXV, it replaces s. 188(4)(c), (e), 287(6)(a), 320(8), 482(2)(l), 745.6(3)(c), (e), 812(1)(c), (f) , (g). official text
Act to amend the Criminal Code (assaults against public transit operators) 2015, c. 1 (Bill S-221) February 25th, 2015 February 25th, 2015 "This enactment amends the Criminal Code to require a court to consider the fact that the victim of an assault [offences under s. 264.1(1)(a) or any of sections 266 to 269] is a public transit operator to be an aggravating circumstance for the purposes of sentencing." It adds s. 269.01. official text

2010 to 2014

Act Name Citation Royal Assent In force Summary Amended Code Sec. Amendment Text
Protecting Canadians from Online Crime Act 2014, c. 31 (Bill C-13) December 9, 2014 March 9, 2015 The "enactment amends the Criminal Code to provide...for ... a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender;... the power to make preservation demands and orders to compel the preservation of electronic evidence;...new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things; ...a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications; ... warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake; and ... a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders can be issued by a judge who issues the authorization and by specifying that all documents relating to a request for a related warrant or order are automatically subject to the same rules respecting confidentiality as the request for authorization." It adds s. 4(8), 162.1, 162.2, 186(8), 187(8), 188(6), 342.2(4), Form 5.001 to 5.0091, replaces s. 164(1), (3) to (5), (7), 164.1(5), (7), 320.1(1), (5), (7), 327 , 342.1(1), 342.2(1), (2), 371, 372, 430(1.1), 430(5), (5.1), (8), 487.011 to 487.02, header of 487.1, 487.3(1)(b), 492.1, 492.2, 810(1), it modifies s. 164(8), 164.1(1), 164.2(1), 183, 342.1(2), 487.3(1) 738(1) and repeals s. 326(2), 342.1(2). official text
Protection of Communities and Exploited Persons Act 2014, c. 25 (Bill C-36) November 6th, 2014 December 6th, 2014 "This enactment amends the Criminal Code to ... create an offence that prohibits purchasing sexual services or communicating in any place...; create an offence that prohibits receiving a material benefit that derived from the commission of this [purchasing offence]; create an offence that prohibits the advertisement of sexual services offered for sale and to authorize the courts to order the seizure of materials containing such advertisements and their removal from the Internet; modernize the offence that prohibits the procurement of persons for the purpose of prostitution; create an offence that prohibits communicating... for the purpose of selling sexual services ... [in a public place where children frequent]; ...and specify that, for the purposes of certain offences, a weapon includes any thing used, designed to be use or intended for use in binding or tying up a person against their will." It modifies s. 2(b), 212(2), (4), 150.1(5), 161(1.1)(a), 183, 274, 278.2(1)(a), 486(3), 486.4(1)(a) and (b), 486.04, 490.011(1), 810.1(1). It adds 161(1.1)(d), 286.1 to 286.5, 487.04 segments, 752 segments. It replaces s. 164(1), (3) to (5), (7), (8), 164.1(1), (5), (7), 171.1(1)(a), 172.1(1)(a), 172.2(1)(a), 197(1) definitions, 213(1), 278.2(1), 279.02, 279.03, 487.04 segments, 487.051, 490.012(1), (2), (3)(a), 490.013(2.1), 490.02904(3)(d), 753.1(2)(a), Form 5.04 (b)(iii), Form 53 segments. It repeals s. 197(1) definitions, 212, 487.04 segments, 490.011(1) segments, 752 segments. official text
Tackling Contraband Tobacco Act 2014, c. 23 (Bill C-10) November 6, 2014 April 10, 2015 [PC# 2015-0339] Amends Code to "create a new offence of trafficking in contraband tobacco and to provide for minimum penalties of imprisonment for repeat offenders". It amends s. 2, adds s. 121.1. official text
An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders) 2014, c. 21 (Bill C-489) June 19, 2014 September 19, 2014 "This enactment amends section 161 of the Criminal Code to require a court to consider making an order prohibiting certain offenders from being within two kilometres, or any other distance specified in the order, of any dwellinghouse where the victim identified in the order resides or of any other place specified in the order. It also amends subsection 732.1(2) (probation) to ensure that the offender abstains from communicating with any victim, witness or other person identified in a probation order, or refrains from going to any place specified in the order, except in accordance with certain conditions. It makes similar amendments to section 742.3 (conditional sentence orders) and subsection 810.1(3.02) (conditions of recognizance)." It amends Code provisions relating to probation orders, conditional sentence orders, peace bonds, and 161 orders requiring judges to put restrictions on accused against being near or contacting victims or witnesses. It adds 161(1)(a.1), 732.1(2)(a.1), 732.1(2.1), (2.2), 742.3(1.1) to (1.3), and 810.1(3.02)(b.1). official text
Combating Counterfeit Products Act 2014, c. 32 (Bill C-8) November 6, 2014 January 1, 2015 [PC# 2014-1451] Consequential amendments to the Code relating to new offences in the Copyright and Trade-marks Act. It amends s. 183. official text
An Act to amend the Criminal Code and the National Defence Act (criminal organization recruitment) 2014, c. 17 (Bill C-394) June 19, 2014 On Royal Assent "This enactment amends the Criminal Code to make it an offence to recruit, solicit, encourage, coerce or invite a person to join a criminal organization. It establishes a penalty for that offence and a more severe penalty for the recruitment of persons who are under 18 years of age. This enactment also makes a related amendment to the National Defence Act." It amends s. 2, 183, 185, 186, 462.48(1.1), 467.1(2), 467.2(1), 467.2(2), 487.04(a.1).

It adds s. 467.111. It replaces s. 467.14, 486.2(5)(a), 515(6)(a)(ii), 743.6(1.1), 743.6(1.2).

official text
An Act to amend the Criminal Code (mischief relating to war memorials) 2014, c. 9 (Bill C-217) June 19, 2014 On Royal Assent Enacts "the offence of committing mischief in relation to a war memorial or cenotaph". It adds s. 430(4.11). official text
An Act to amend the Criminal Code (personating peace officer or public officer) 2014, c. 17 (Bill C-444) June 19, 2014 On Royal Assent "This enactment amends the Criminal Code to establish that personating a police officer or a public officer for the purpose of committing another offence must be considered by a court to be an aggravating circumstance for sentencing purposes." It adds 130.1 which increases penalties for the offence of personating peace officers. official text
Not Criminally Responsible Reform Act 2014, c. 6 (Bill C-14) April 10, 2014 July 10, 2014 "This enactment amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public and to create a scheme for finding that certain persons who have been found not criminally responsible on account of mental disorder are high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments." It creates new consideration of "high risk" offenders found to be NCR. It amends 672.1(1), 672.11(d.1), 672.121, 672.54, Form 48, Form 48.1. It replaces s. 672.5(1), 672.5(15.2) to (16), 672.51(1), 672.5401, 672.75, 672.76(2)(a), 672.81(1.4) (1.5), 672.88, 672.89. It added 672.21(3)(c), 672.47(4), (5), 672.5(5.2), 672.5(13.3), 672.541, 672.542, 672.56(1.1), 672.64, 672.76(2)(a.1), 672.84. official text
An Act to amend the Criminal Code (kidnapping of young person) 2013, c. 32 (Bill C-299) June 26, 2013 On Royal Assent "This enactment amends the Criminal Code to prescribe a minimum punishment of five years when a kidnap victim is under sixteen years of age, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the victim." It amends s. 279 on kidnapping. official text
Strengthening Military Justice in the Defence of Canada Act 2013, c. 24 (Bill C-15) June 19, 2013 October 18, 2013 (s. 17, 97 and 104), June 1, 2014 (remainder) Minor grammatical edits. It makes minor edits to french wording in s. 5 of Form 52 official text
An Act to amend the Criminal Code (prize fights) 2013, c. 19 (Bill S-209) June 19, 2013 August 20, 2012 The amendment "expand[s] the list of permitted sports under the prize fighting provisions". It replaces s. 83(2). official text
Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act 2013, c. 15 (C-309) June 19, 2013 On Royal Assent "This enactment amends the Criminal Code to make it an offence to wear a mask or other disguise to conceal one’s identity while taking part in a riot or an unlawful assembly." Amends Code to include an offence for wearing a disguise or mask when participating in a riot or unlawful assembly It amends s. 65 and 66. official text
Nuclear Terrorism Act 2013, c. 13 (Bill S-9) June 19, 2013 November 1, 2013 [PC# 2013-0983] "This enactment amends the Criminal Code to create four new offences relating to nuclear terrorism in order to implement the Amendment to the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism." It amends s. 2, 183, 487.04, 607(6), adds s. 7(2.21), 82.2 to 82.7, it replaces s. 83.01(1)(a)(v), it repeals s. 7(3.2) to (3.6). official text
Increasing Offenders’ Accountability for Victims Act 2013, c. 11 (Bill C-37) June 19, 2013 October 24, 2013 [PC# 2013-1061] This Act amends s. 737 to require victim fine surcharges upon sentencing in all cases. It replaces s. 673(b), 737(1), 737(2)(a) and (b), 785(b), it repeals s. 737(5) and (6), 737(10), it amends s. 737(9) official text
Combating Terrorism Act 2013, c. 9 (Bill S-7) April 25, 2013 July 15, 2013 "This enactment replaces sections 83.28 to 83.3 of the Criminal Code to provide for an investigative hearing for the purpose of gathering information for an investigation of a terrorism offence and to allow for the imposition of a recognizance with conditions on a person to prevent them from carrying out a terrorist activity. In addition, the enactment provides for those sections to cease to have effect or for the possible extension of their operation. The enactment also provides that the Attorney General of Canada and the Minister of Public Safety and Emergency Preparedness include in their respective annual reports their opinion on whether those sections should be extended. It also amends the Criminal Code to create offences of leaving or attempting to leave Canada to commit certain terrorism offences." It adds s. 83.31(1.1), (3.1). It replaces s. 7(2)(b) and (c), 83.08(2), 83.1(1), 83.23, 83.28, 83.29, 83.3, 83.32(1) to (2), 83.32(4), 83.33, 462.48(2)(d). It amends s. 183, 487.04 segments. It adds s. 83.181, 83.191, 83.201, 83.202. It repeals s. 83.1(2) official text
Response to the Supreme Court of Canada Decision in R v Tse Act 2013, c. 8 (Bill C-55) March 27, 2013 s. 5 (Sept 27, 2013) remainder (Mar 27, 2013) "This enactment amends the Criminal Code to provide, in response to the Supreme Court’s decision in R. v. Tse, safeguards related to the authority to intercept private communications without prior judicial authorization under section 184.4 of that Act. Notably, the enactment... requires the Minister of Public Safety and Emergency Preparedness and the Attorney General of each province to report on the interceptions of private communications made under section 184.4... provides that a person who has been the object of such an interception must be notified of the interception within a specified period... narrows the class of individuals who can make such an interception; and... limits those interceptions to offences listed in section 183 of the Criminal Code." It replaces s. 184.4, 195(1), (2), (3), (5). It adds s. 195(2.1), 196.1. It modifies s. 183, 191(2)(a) and (b.1). official text
Protecting Canada's Seniors Act 2012, c. 29 (Bill C-36) December 14, 2012 January 13, 2013 "This enactment amends the Criminal Code to add vulnerability due to age as an aggravating circumstance for sentencing purposes." It adds s. 718.2(a)(iii.1). official text
An Act to amend the Criminal Code (trafficking in persons) 2012, c. 15 (Bill C-310) June 28, 2012 June 28, 2012 extends scope of trafficking in persons offences to include those operating outside of Canada. It amended s. 7(4.1) and 279.04 official text
Citizen's Arrest and Self-Defence Act 2012 c. 9 (Bill C-26) June 28, 2012 March 11, 2013 [PC# 2013-0016] "This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons." It replaces s. 34 to 42, 494(2), it adds s. 494(4). official text
An Act to amend the Criminal Code and the Firearms Act (Ending the Long-gun Registry Act) 2012, c. 6 (Bill C-19) April 5, 2012 April 5, 2012 It removes requirements relating to the "requirement to register firearms that are neither prohibited nor restricted". It replaces s. 91(1),(4)(b)(ii), (5), 92(1), (4)(b)(ii), 94(1)(2)(a)(i) and (ii), 95(1), 106(1)(a) and (b), 108(3) and 117.03(1) and (2). It repeals s. 92(5) and (6), 94(5). official text
Safe Streets and Communities Act 2012, c. 1 (Bill C-10) Mar 13, 2012 June 13, 2012 (s. 52 to 107, 147) [PC# 2012-0770]
August 9, 2012 (s. 10 to 31 and 35 to 38) [PC# 2012-0841]
October 23, 2012 (s. 167 to 203) [PC# 2012-0841]
November 6, 2012 (s. 32(1), 33, 39 to 47, 49 and 50) [PC# 2012-0841]
November 20, 2012 (s. 34) [PC# 2012-0841]
February 28, 2013 (s. 160) [PC# 2013-0121]
The Act "amends the Criminal Code to... increase or impose mandatory minimum penalties, and increase maximum penalties, for certain sexual offences with respect to children;... create offences of making sexually explicit material available to a child and of agreeing or arranging to commit a sexual offence against a child;... expand the list of specified conditions that may be added to prohibition and recognizance orders to include prohibitions concerning contact with a person under the age of 16 and use of the Internet or any other digital network;... expand the list of enumerated offences that may give rise to such orders and prohibitions; and... eliminate the reference, in section 742.1, to serious personal injury offences and to restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life and for specified offences, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years." Most amendments are changes to the sentencing provisions of child-related sex offences and serious offences with available Conditional Sentences. It amends s. 7(4.1), 161(1), 161(1.1)(a), 164.2(1), 172.1(1), 183, 271, 272(2), 273(2), 486(3), 487.04(a), 752, 810.1(1), and Form 5.04. It replaces s. 151(a), (b), 152(a), (b), 153(1.1)(a), (b), 155(2), 160(3), 163.1(2)(b), 163.1(3)(b), 163.1(4)(a) and (b), 163.1(4.1)(a) and (b), 170(a) and (b), 171(b), 172.1(2), 173, 515(4.1)(c), 515(6)(d), 553(c)(xi), 742.1, 753.1(2)(a), 810.1(3.02)(a). It adds s. 171.1, 172.2. official text
Fair and Efficient Criminal Trials Act 2011, c. 16 (Bill C-2) June 26, 2011 s. 2,4-6, 7(2),(4), 10, 11, and 14-16 (August 15, 2011) and remaining (Oct 24, 2011) [PC# 2011-0827] Creates power to appoint case mgmt judge with certain powers. Makes additions to protect jurors more and increases available numbers. Binds re-trials to previous voir dires. it adds s. 523(1.2) and 551.1 to 551.8, 631(2.1), 652.1 and 653.1. Replaces s. 523(2), 601, 631(3), (3.1), (5), and (6), 640(2.2), 641, 642.1(1), 643(1), 669.2(3) and (4) and 795. official text
Response to the Supreme Court of Canada Decision in R v Shoker Act 2011, c. 7 (Bill C-30) March 23, 2011 March 12, 2015 [PC# 2014-1449] "This enactment amends the Criminal Code to allow a court to require that an offender or defendant provide a sample of a bodily substance on the demand of peace officers, probation officers, supervisors or designated persons, or at regular intervals, in order to enforce compliance with a prohibition on consuming drugs or alcohol imposed in a probation order, a conditional sentence order or a recognizance under section 810, 810.01, 810.1 or 810.2 of that Act." It adds s. 729.1, 732.1(7) to (12), 732.11, 742.3(5) to (10), 742.31, 810(3.1), (3.2), 810.1(3.02)(f), (g), 810.2(4.1)(f), (g), 810.3, 810.4, 811.1 and Form 51. Replaces s. 732.1(3)(c), 742.3(2)(a), 810(3), 810(4), and 810.01(4.1). official text
Standing up for Victims of White Collar Crime Act 2011, c. 6 (Bill C-21)
SI/2011-82
March 23, 2011 November 1, 2011 [PC# 2011-1121] Adds mandatory minimum for fraud over one million and amends the aggravating factors found in s. 380.1. Creates prohibition orders under 380.2, more restitution orders under s. 380.3 and community impact statements under s. 380.4. official text
Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act 2011, c. 5 (Bill C-48) March 23, 2011 December 2, 2011 [PC# 2011-1383] Amendments with respect to "parole inadmissibility period for offenders convicted of multiple murders". It add s. 675(2.3), 676(6), 745.21, and 745.51. official text
An Act to amend the Criminal Code and another Act 2011, c. 2 (Bill S-6) December 2, 2011 On Royal Assent [PC# 2011-1384] The act "amends the Criminal Code with regard to the right of persons convicted of murder or high treason to be eligible to apply for early parole". It adds s. 745.01(2), 745.21, 745.51, 745.6(1)(a.1), 745.6(2.1) to (2.8). It also replaces s. 745.6(1), 745.61(1), (2), (3) to (5), 745.63(6)(a) and 745.63(8). official text
An Act to amend the Criminal Code (justification for detention in custody) 2010, c. 20 (Bill C-464) December 15, 2010 On Royal Assent The Act "amends the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the public, including any person under the age of 18 years." It replaces s. 515(10)(b). official text
An Act to amend the Criminal Code (suicide bombings) 2010, c. 19 (Bill S-215) December 15, 2010 November 30, 2011 [PC# 2011-1322] The act "clarif[ies] that suicide bombings fall within the definition terrorist activity." It adds s. 83.01(1.2) official text
Protecting Victims From Sex Offenders Act 2010, c. 17 (Bill S-2) December 15, 2010 April 15, 2011 It amends he Criminal Code to "enhance police investigation of crimes of a sexual nature and allow police services to use the national database proactively to prevent crimes of a sexual nature", "require[s] sex offenders arriving in Canada to comply with" SOIRA, and "provide[s] that sex offenders who are subject to a mandatory requirement to comply with the Sex Offender Information Registration Act are also subject to a mandatory requirement to provide a sample for forensic DNA analysis". The act replaces s. 173(2), 490.012, 490.013(3), 490.014, 490.015(1)(c), 490.015(4), 490.016(1), (3), 490.017(2), 490.023(2), (4), 490.024(2), 490.025, 490.026(1), (5), 490.027(1), (3), 490.029(2). It adds s. 490.02901 to 490.02911. It also amends s. 487.04, 490.011(1), 490.018(1)(d), 490.019. official text
An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime) 2010, c. 14 (Bill S-9) November 18, 2010 April 29, 2011 The act "create[s] offences in connection with the theft of a motor vehicle, the alteration, removal or obliteration of a vehicle identification number, the trafficking of property or proceeds obtained by crime and the possession of such property or proceeds for the purposes of trafficking, and to provide for an in rem prohibition of the importation or exportation of such property or proceeds". It amends s. 183. It adds s. 333.1, 353.1, 355.1 to 355.5. It replaces s. 462.3(3)(b)(i), 462.34(7), 462.48(1.1)(b), 491.2(1), and 593(1). official text
An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years) 2010, c. 3 (Bill C-268) June 29, 2010 June 29, 2010 The act creates "minimum punishment of imprisonment for a term of five years for offences involving trafficking of persons under the age of eighteen years". It amends s. 183, 487.04, 490.011(1), and 752. It adds s. 279.011. It replaces s. 279.02, 279.03, 486(3), 486.4(1)(a)(i) official text

2005 to 2009

Act Name Citation Royal Assent In force Summary Amended Code Sec. Amendment Text
Truth in Sentencing Act 2009, c. 29 October 22, 2009 February 22, 2010 The act "specif[ies] the extent to which a court may take into account time spent in custody by an offender before sentencing". It adds s. 515(9.1). It replaces s. 719(3) and Form 21 in Part XXVIII. official text
An Act to amend the Criminal Code (identity theft and related misconduct) 2009, c. 28 (Bill C-27) October 22, 2009 January 8, 2010 The changes to the Code "create offences of identity theft, trafficking in identity information and unlawful possession or trafficking in certain government-issued identity documents, to clarify and expand certain offences related to identity theft and identity fraud, to exempt certain persons from liability for certain forgery offences, and to allow for an order that the offender make restitution to a victim of identity theft or identity fraud for the expenses associated with rehabilitating their identity". It adds s. 56.1, 356 (3), 366(5), 368.1, and 368.2, 402.1, and 402.2. It also replaces s. 130, 342(3), 342(4), 342.01(1), 356(1), 368(1), 369, and 403. It amends s. 183 and 738(1). official text
An Act to amend the Criminal Code (organized crime and protection of justice system participants) 2009, c. 22 June 23, 2009 October 2, 2009 The amendments to the Code "add to the sentencing provisions for murder so that any murder committed in connection with a criminal organization is first degree murder, regardless of whether it is planned and deliberate; to create offences of intentionally discharging a firearm while being reckless about endangering the life or safety of another person, of assaulting a peace officer with a weapon or causing bodily harm and of aggravated assault of a peace officer; and to extend the duration of a recognizance to up to two years for a person who it is suspected will commit a criminal organization offence, a terrorism offence or an intimidation offence under section 423.1 if they were previously convicted of such an offence, and to clarify that the recognizance may include conditions such as electronic monitoring, participation in a treatment program and a requirement to remain in a specified geographic area." It adds s. 2.1, 244.2, 270.01, 270.02, 718.02 replaces s. 84(1), (5)(b), 85(1), 231(6.01) to (6.2), 239(2)(b), 244(3)(b), 272(3)(b), 279(1.2)(b), 344(2)(b), 346(1.2)(b), 515(6)(a)(vii), 810.01(3), 810.01(5) to (5.2) and it amends s. 183, 487.04. official text
Budget Implementation Act 2009, c. 2 March 12, 2009 On Royal Assent Consequential amendments to the Code relating to larger changes to the Competition Act. It amends s. 183 official text
An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) 2008, c. 18 (Bill C-13) May 29, 2008 May 29, July 2, and October 1, 2008 "This enactment amends various provisions of the Criminal Code in relation to criminal procedure, language of the accused, sentencing and other matters." It adds s. 255(3.1), 259(2.1), 507.1(11), 530.01, 503.1(c.1), 530.2, 533.1, 537(1.01), 634(2.2), 683(7), 685(2), 695(2) and (3), 715(2.1), 720(2), 743.21. It replaces s. 4(7), 145(3), 164.2(1), 202(1)(i), 204(2), 259(1.1) to (1.4), 259(2)(a), 259(4), 351, 481.2, 487(2), (4), 487.03(1), (1.1), 490(17), 530(3), (5), (6), 530.1, 530.1(d) and (e), 531, 565(2) and (3), 568, 569 640(2) to (3), 676(1.1), 683(5) to (5.1), 701.1, 732.1(5) and (6), 734(5), 734.2, 742.3(3) and (4), 743.5(1), 743.5(3), 787(1), 803(2) and (3), Form 12. It repeals s. 117.13(4), (5), 487.055(6), 501(5), 509(3), 701(3), 729(4) and (5), 742.6(6) and (7). official text
An Act to amend the Criminal Code (cruelty to animals) 2008, c. 12 (S-203) April 17, 2008 On Royal Assent The "enactment amends the Criminal Code to increase the maximum penalties for animal cruelty offences." It replaces s. 444, 445, 445.1, 446, 447, and 447.1. official text
Tackling Violent Crime Act 2008, c. 6 (C-2)
SI/2008-34
February 28, 2008 May 1, 2008 (s. 1 to 17, 28 to 38, 57, 58)
July 2, 2008 (s. 18 to 27, 39 to 53, 55, 56, 59, and 60)
"This enactment amends the Criminal Code by... creating two new firearm offences and providing escalating mandatory sentences of imprisonment for serious firearm offences;... strengthening the bail provisions for those accused of serious offences involving firearms and other regulated weapons;... providing for more effective sentencing and monitoring of dangerous and high-risk offenders;...introducing a new regime for the detection and investigation of drug impaired driving and strengthening the penalties for impaired driving; and... raising the age of consent for sexual activity from 14 to 16 years." It adds s. 84(5), (6), 98.1, 150.1(6), 253(2), 254.1, 258.1, 272(3) and (4), 273(3) and (4), 279(1.2) and (1.3), 279.1(2.1) and (2.2), 344(2) and (3), 346(1.2) and (1.3), 752.01, 753.01, 753.02, 755, it replaces s. 85(1)(a), 85(3)(a), (b) and (c), 91(1), (2), 92(1), (2), 93(1), 94(1), 95(1), 95(2)(a), 98, 99(2), (3), 100(2), 103(2), 150.1(1) and (2), 172.1(1)(b) and (c), 239, 244, 254(2) to (6), 255(1)(a)(i) to (iii), 255(1)(c), 255(2) and (3), 256(5), 257(2), 259(1), 261, 272(2)(a), 273(2)(a) and (a.1), 279(1.1)(a) and (a.1), 279.1(1), 279.1(2)(a), 344(a), 346(1.1)(a), 515(10)(c), 662(6), 743.1(3.1), 752.1, 753.1(3), 753.2(2), 753.3(1), 753.4(1), 757, 759(1) to (5), 810.1(3), 810.2(3), 810.2(5) to (6), it amends s. 150.1(4), 151, 152, 153(2), 160(3), 161(1), 170(a) and (b), 171(a) and (b), 173(2), 183(a), 253(1), 254(1), 255(4), 258(1), 259(2), 273.3(1)(a) and (b), 348.1, 487.04, 490.011(1), 515(6), 752, 753, 753.2(1), 754(1), 810.1(1), (3)(a) and (b), it repeals 753(6), 753.1(4) and (5). official text
An Act to amend the Criminal Code (unauthorized recording of a movie) 2007, c. 28 (Bill C-59) June 22, 2007 On Royal Assent "This enactment amends the Criminal Code to prohibit the unauthorized recording of a movie in a movie theatre (camcording)." It adds s. 432. official text
An Act to amend certain Acts in relation to DNA identification 2007, c. 22 (Bill C-18) June 22, 2007 June 22, 2007 and Jan 1, 2008 This enactment amends the Criminal Code ... [amending] the provisions ... relating to orders for the taking of samples of bodily substances for forensic DNA analysis apply to persons who are sentenced ... allows an order to be made ... adds attempted murder and conspiracy to commit murder or to cause another person to be murdered to the offences covered by section 487.055 ... permits an application to be made ... when a person is still serving a sentence of imprisonment for one of the specified offences, rather than requiring that they be serving a sentence of imprisonment of two years or more for that offence;... in certain circumstances, allows ... [a person] to appear by closed-circuit television or a similar ... allows samples of bodily substances to be taken under the Criminal Code ... at the place, day and time set by an order or a summons or as soon as feasible afterwards;... specifies that it is an offence ... to fail to comply with such an order or summons.

It adds s. 487.055(1)(c.1), 487.055(3.01), 487.055(3.11), 487.0551, 487.0552, 487.056(4) to (6), 487.057(3). It replaces s. 487.04 [in part], 487.051, 487.054, 487.055(1)(d) and (e), 487.055(4), 487.056(1), 487.056(2) and (3), 487.057(1), 487.058, 487.06(1), 487.06(3), 487.07(1), 487.071(1), 487.071(2)(b), 487.08(1.1), 487.091(1)(a), 487.091(1)(b), 487.091(2) 487.091(3), 487.0911(1) to (3), 703(2), Forms 5.03 to 5.06, Form 5.07, Forms 5.08 and 5.09. It repeals s. 487.03(2), 487.055(7) to (10), Form 28.1.

official text
An Act to amend the Criminal Code (luring a child) 2007, c. 20 (Bill C-277) June 22, 2007 On Royal Assent "This enactment amends the Criminal Code to increase from five years to ten years the maximum punishment for an offence under section 172.1 (luring a child). It also specifies that, in the case of a summary conviction for this offence, the maximun [sic] punishment is eighteen months." It replaces s. 172.1(2)(a) and (b). official text
An Act to amend the Criminal Code in order to implement the United Nations Convention against Corruption 2007, c. 13 (Bill C-48) May 31, 2007 On Royal Assent "This enactment makes technical amendments to the corruption and offence-related provisions of the Criminal Code to implement the United Nations Convention against Corruption." It amends s. 2, 118, 490.1(1), it replaces s. 119(1), 120, 121(1)(b) to (f), 123(1) and (2), 426(1)(a), 490.1(2), 490.1(3), 490.2(1) and (2), 490.4(3), 490.41(1). official text
An Act to amend the Criminal Code (conditional sentence of imprisonment) 2007, c. 12 (Bill C-9) May 31, 2007 Dec 1, 2007 "This enactment amends section 742.1 of the Criminal Code to provide that a person convicted of a serious personal injury offence as defined in section 725 of that Act, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more is not eligible for a conditional sentence." It replaces s. 742.1. official text
An Act to amend the Criminal Code (criminal interest rate) 2007, c. 9 (Bill C-26) May 3, 2007 On Royal Assent "This enactment amends the Criminal Code by exempting persons from the application of section 347 of that Act in respect of agreements for small, short-term loans. The exemption applies to persons who are licensed or otherwise authorized to enter into such agreements by designated provinces that have legislative measures that protect recipients of payday loans and that specify a limit on the total cost of those loans." It replaces s. 347(1). It adds s. 347.1. official text
An Act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act 2007, c. 5 (Bill S-3) March 29, 2007 Sept 12, 2008 "It ... makes certain amendments to the Criminal Code and the Sex Offender Information Registration Act to enhance the administration and enforcement of the current registration scheme for sex offender information."

It adds s. 490.016(3), 490.017(2), 490.023(1.1), 490.027(3), 490.031(2), 490.0311 It replaces s. 490.011(1) [in part], 490.012, 490.012(1) to (3), 490.013(2)(a) to (c), 490.013(3) and (4), 490.013(5), 490.015, 490.016(1), 490.018(3)(b), 490.019 [header], 490.02(1), 490.02(2)(a) and (b), 490.02(2)(c), 490.021(2), 490.022(1)(a) and (b), 490.022(3)(a) and (b), 490.022(3)(c), 490.022(3)(d), 490.023(1), 490.025 and 490.026, 490.027(1), 490.028 and 490.029, 490.03(1)(a) and (b), 490.03(2) to (4), 490.031, Form 52, Form 53 It repeals s.

official text
An Act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act 2006, c. 14 (Bill C-19) December 14, 2006 On Royal Assent "This enactment amends the Criminal Code to create an offence of street racing based on dangerous driving and criminal negligence offences. This enactment increases, in street racing situations, the maximum punishments for some offences and also provides for minimum prohibitions on driving that increase on a second and subsequent offence." It amends s. 2, 260(1), 673, 785, it adds s. 249.2, 249.3, 249.4, 259(3.1) to (3.4), it replaces s. 259(5), 261(1) and (2). official text
Federal Accountability Act 2006, c. 9 (C-2) December 12, 2006 March 1, 2007 It "amends the ... Criminal Code to create indictable offences for fraud with respect to public money or money of a Crown corporation, and makes persons convicted of those offences ineligible to be employed by the Crown or the corporation or to otherwise contract with the Crown." It replaces s. 750(3). official text
An Act to amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another Act 2005, c. 44 (Bill C-53) November 25, 2005 On Royal Assent "This enactment amends the Criminal Code ... to provide a reverse onus of proof in proceeds of crime applications involving offenders who have been convicted of a criminal organization offence or certain offences under the Controlled Drugs and Substances Act. The enactment provides that a court shall make an order of forfeiture against any property of an offender [where] the offender has engaged in a pattern of criminal activity or has an income unrelated to crime that cannot reasonably account for all of the offender’s property. The enactment also amends the Criminal Code to clarify the authority of the Attorney General of Canada in regards to proceeds of crime and to clarify the definition “designated offence” in regards to offences that may be prosecuted by indictment or on summary conviction. It also amends a provision of the Criminal Code to ensure the equivalency of the English and French versions."

It adds s. 462.37(2.01) to (2.07). It replaces s. 462.3 (1) [in part], 462.3(3), 462.32(1), 462.33(2)(c), 462.33(3), 462.33(5), 462.33(10)(c), 462.341, 462.37(3), 462.4(a), 462.41(1), 462.41(3) [in part], 462.42(1), 462.45, 462.46(1), 689(1).

official text
An Act to amend the Criminal Code (trafficking in persons) 2005, c. 43 (Bill C-49) November 25, 2005 On Royal Assent "This enactment amends the Criminal Code to ... create an offence of trafficking in persons that prohibits a person from engaging in specified acts for the purpose of exploiting or facilitating the exploitation of another person; ... create an offence that prohibits a person from receiving a financial or other material benefit that they know results from the commission of the offence of trafficking in persons; ... create an offence that prohibits concealing, removing, withholding or destroying travel documents or documents that establish or purport to establish another person’s identity or immigration status for the purpose of committing or facilitating the offence of trafficking in persons; and ... establish that a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that could reasonably be expected to cause the other person to believe that their safety or that of someone known to them would be threatened if they failed to do so or if, by means of deception or the use or threat of force or of any other form of coercion, they cause the other person to have an organ or tissue removed."

It adds s. 279.01, 279.02, 279.03, 279.04. It replaces s. 183 [in part], 279 [header], 486(1.1), 486(2.1), 486(3)(a)(i), 487.04 [in part], 490.011(1) [in part], 738(1)(b).

official text
An Act to amend the Criminal Code and the Cultural Property Export and Import Act 2005, c. 40 November 25, 2005 On Royal Assent "This enactment amends the Criminal Code to prohibit certain offences, including theft, robbery, mischief and arson against cultural property protected under the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. Those amendments allow for the prosecution of such offences when committed outside Canada by Canadians."

It adds s. 7(2.01), (2.02), 430(4.2). It replaces s. 2 [in part].

official text
Canada Border Services Agency Act 2005, c. 38 (C-26) November 3, 2005 December 12, 2005 Incidental amendments in creating the Canada Border Services Agency. It amends s. 2. official text
An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act 2005, c. 32 (Bill C-2) July 20, 2005 November 1, 2005 (s. 1 to 12, 24, 25) and January 2, 2006 (s.13 to 23, 26 to 27.1) "This enactment amends the Criminal Code to ... amend the child pornography provisions with respect to the type of written and audio material that constitutes child pornography, and with respect to the child pornography offences, defences and penalties; ... add a new category to the offence of sexual exploitation of young persons and make additional amendments to further protect children from sexual exploitation;... increase the maximum penalty for child sexual offences, for failing to provide the necessaries of life and for abandoning a child;... make child abuse an aggravating factor for the purpose of sentencing and direct the courts to give primary consideration to the objectives of denunciation and deterrence in sentencing for offences involving abuse of a child; ... amend and clarify the applicable test and criteria that need to be met for the use of testimonial aids, for excluding the public, for imposing a publication ban, for using video-recorded evidence or for appointing counsel for self-represented accused to conduct a cross-examination of certain witnesses; and ... create an offence of voyeurism and the distribution of voyeuristic material." It adds s. 153(1.1), (1.2), 161(1.1), 162, 163.1(4.3), 486.1, 486.2, 486.3, 486.4, 486.5, 486.6, 718. It replaces s. 127, 150.1(2) and (3), 151, 152, 153(1), 161(1), 163.1(1) to (4), (4.1), (6), (7), 164(1), (3) to (5), (7), (8) [definition], 164.1(1), (5), (7), 170, 171, 183 [definition], 212(2), (4), 215(3), 218, 276.3, 278.9(1), 486, 487.2(1), 539(1), 542(2), 631(6), 648(1), 672.51(11), 715.1, 715.2, 718.2(a)(ii). It repeals s. 487.2(2), 539(4), 542(3), 648(3). official text
An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act 2005, c. 25 May 19, 2005 On Royal Assent and January 1, 2008

It adds s. 487.051(4), 487.055(3)(a.1), 487.055(3)(b)(iv) to (vi), 487.0561, 487.0911. It replaces s. 487.04 [in part], 487.051(1) to (3), 487.052 and 487.053, 487.055(1), 487.056(1), 487.071, 487.08(1.1), 487.08(4), 487.091(1) and (2), Forms 5.03 to 5.06, Forms 5.08 and 5.09. It repeals s. 487.08(2.1).

official text
An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts 2005, c. 22 (Bill C-10) May 19, 2005 On Royal Assent "This enactment amends Part XX.1 of the Criminal Code governing persons found unfit to stand trial or not criminally responsible on account of mental disorder. The amendments, among other things, include ... repealing unproclaimed provisions related to capping, dangerous mentally disordered accused and hospital orders; ... expanding the authority of Review Boards by enabling them to order an assessment of the accused, adjourn hearings and protect the identity of victims and witnesses; ... permitting the oral presentation of victim impact statements at disposition hearings and adjournments allowing the victim to prepare the statement; ... permitting Review Boards to extend the time for holding a review hearing to a maximum of 24 months in certain circumstances; ... permitting the court to hold an inquiry and order a judicial stay of proceedings for an accused found unfit to stand trial, if the accused is not likely to ever be fit to stand trial and does not pose a significant risk to the safety of the public and a stay is in the interests of the proper administration of justice; ... specifying that the transfer provisions require the consent of the appropriate Attorneys General in all cases and enabling transfers of an accused who is not in custody; and ... allowing peace officers arresting an accused who is in contravention of an assessment order or a disposition to release, detain, compel the appearance of or deliver the accused to a place specified in the order." It added s. 672.1(2), 672.121, 672.16(1.1), (1.2), 672.33(1.1), 672.45(1.1), 672.47(3), 672.5(5.1), 672.5(13.2), 672.5(15.1), (15.2), (15.3), 672.501, 672.85 [header], 672.851, 672.852. It replaced s. 672.1 [renumbered], 672.1(1) [in part], 672.11(e), 672.13(2), 672.14(3), 672.15(1), 672.16(1), 672.16(2), 672.16(3), 672.17, 672.191, 672.2(2), 672.2(4), 672.5(8), 672.5(16), 672.51(11), 672.52(2), 672.54, 672.541, 672.63, 672.67(2), 672.81(2), 672.82(1), 672.85, 672.85(b), 672.86(1)(b), 672.86(3), 672.91 to 672.94, 673 [definition], Form 48.

It repealed s. 672.21(3)(c), 672.55(2), 672.64 to 672.66, 672.79, 672.8, 672.83(2), 672.84, schedule to Part XX.1, 747 [header], 747 to 747.8, Form 51.

official text
Department of Public Safety and Emergency Preparedness Act 2005, c. 10 March 23, 2005 April 4, 2005

It replaces s. 83.05(1.1) to (4), 83.05(6)(a), 83.05(7) to (10), 83.06(1) and (2), 83.07, 83.09(1) and (2), 185(1), 186(6), 187(2), 196(1) and (2).

official text

2000 to 2004

Act Name Citation Royal Assent In force Summary Amended Code Sec. Amendment Text
An Act to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety 2004, c. 15 (C–7) May 6, 2004 Dec 1, 2004 The Act "adds a new offence to the Criminal Code for communicating information or committing any act that is likely to lead others to falsely believe that terrorist activity is occurring, with the intention of causing persons to fear death, bodily harm, substantial damage to property or serious interference with the lawful use or operation of property." It adds s. 83.231. official text
An Act to amend the Criminal Code and other Acts 2004, c. 12 (Bill C–14) April 22, 2004 April 22, 2004 and Oct 1, 2004 The Act "amends the Criminal Code by... establishing more serious offences for placing, or knowingly permitting to remain in a place, a trap, device or other thing that is likely to cause death or bodily harm to a person;... permitting the use of as much force as is reasonably necessary on board an aircraft to prevent the commission of an offence that would be likely to cause immediate and serious injury to the aircraft or to any person or property in the aircraft;... modifying the provision dealing with the provision of information on oath in relation to weapons; and... creating an exemption to the offence of intercepting private communications in order to protect computer systems." It replaces s. 7(8), 117.04, 247, 462.43(1)(c), 536(4), (4.1), 536.1(3), (4), 729(1)(b), 732.2(1)(c), 741(1), 742.2(2), 742.6(10), (12), (14) to (16), 742.6(17), 742.7(1), (4). It modifies s. 184(2), 193(2). It adds s. 27.1, 184(3) and Form 46. official text
An Act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts 2004, c. 10 (Bill C–16) April 1, 2004 Dec 15, 2004 "The enactment amends the Criminal Code to enable the Crown to apply for an order to require an offender who is convicted of, or found not criminally responsible on account of a mental disorder for, certain offences to report regularly to a designated registration centre and provide information. It creates a new Criminal Code offence for failure to comply with the order, as well as an offence for providing false or misleading information."

It adds s. 490.011, 490.012, 490.013, 490.014, 490.015, 490.016, 490.017, 490.018, 490.019, 490.02, 490.021, 490.022, 490.023, 490.024, 490.025, 490.026, 490.027, 490.028, 490.029, 490.03, 490.031, 490.032, Form 52 [in part]

official text
An Act to amend the Criminal Code (capital markets fraud and evidence-gathering) 2004, c. 3 (Bill C–13) March 29, 2004 Sept 15, 2004 (s. 2 to 8) and Sept 15, 2005 (s. 1) "This enactment amends the Criminal Code by creating a new offence of prohibited insider trading and creating a new offence to prohibit threatening or retaliating against employees for disclosing unlawful conduct. The enactment increases the maximum penalties and codifies aggravating and non-mitigating sentencing factors for fraud and certain related offences and provides for concurrent jurisdiction for the Attorney General of Canada to prosecute those offences. The enactment also creates a new procedural mechanism by which persons will be required to produce documents, data or information in specific circumstances." It amends s. 2, 382. It replaces s. 380(1)(a), 380(2), 487.3(1), 487.3(4). It adds s. 380.1, 382.1, 425.1, 487.011 to 487.017. official text
An Act to amend the Criminal Code (criminal liability of organizations) 2003, c. 21 (Bill C-45) November 7, 2003 March 31, 2004 (all except s. 556), June 1,2004 "This enactment amends the Criminal Code to ... establish rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives; ... establish a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public; ... set out factors for courts to consider when sentencing an organization; and ... provide optional conditions of probation that a court may impose on an organization." Also known as the "Westray Bill", it created legal duties to employers for workplace safety. It amends s. 2, 362(1)(c), 620 to 623, 732.1(1), 734(1), 735(1), it added s. 22.1, 22.2, and 217.1, 718.21, 732.1(3) to (3.2), replaces s. 328(e), 362(1)(d), 462.38(3)(b), 538, 556, 570(5), 650(1), 703.2, 721(1), 727(4), 730(1), 735(1)(b), 735(2), 800(3), 556, it repealed s. 391. official text
An Act to amend the Criminal Code (firearms) and the Firearms Act 2003, c. 8 (Bill C-10A) May 13, 2003 May 30, 2003 and August 15, 2003 "This enactment amends the Criminal Code and the Firearms Act in order to simplify compliance with the firearms program, to modernize administrative procedures and to meet Canada’s emerging international obligations by ... in Part III of the Criminal Code, ... modernizing the description of firearms that are deemed not to be firearms for the purpose of the Firearms Act and certain provisions of the Criminal Code, ... providing that there is no forfeiture of goods that are the subject of a prohibition order made under section 515 of the Criminal Code, and ... providing that an authorization, licence or registration certificate for firearms be revoked or amended only for the period that a prohibition order made under that section is in force;"

It adds s. 84(1) [definition], 115(1.1). It replaces s. 84(3)(d)(i) and (ii), 85(1)(a), 109(1)(c), 116, 117.07(2)(h), 515(4.1)(c).

official text
Excise Act, 2001 2002, c. 22 June 13, 2002 On Royal Assent and July 1, 2003 Consequential amendments to the Code in enacting the Excise Act (partially repealed at a later date)

It replaces s. 2 [definitions], 78(2), 183 [definitions], 462.3(b.1) [definitions].

official text
Yukon Act 2002, c. 7 April 1, 2003 March 27, 2002 The Act intends to "replace the Yukon Act in order to modernize it and to implement certain provisions of the Yukon Northern Affairs Program Devolution Transfer Agreement, and to repeal and make amendments to other Acts". It amends s. 2, 552, schedule to Part XXV, it replaces s. 8(1)(a), 164(8)(d), 188(4)(f), 287(6)(e), 320(8)(d), 493(e), 533, 745.6(3)(f), 745.64(2), 812(1)(h), and 814(4). official text
Youth Criminal Justice Act 2002, c. 1 (Bill C-7) February 19, 2002 April 1, 2003

It replaces s. 487.04 [definitions], 487.051(1), 487.052(1), 487.053(b), 487.056(1), 487.071(1)(a) and (b), 667(1), 718.3(4), 721(3)(b), 743.4 and 743.5, Form 5.03, Form 5.04.

official text
An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts 2001, c. 32 (Bill C-24) December 18, 2001 Jan 7, 2002 and Feb 1, 2002 "The enactment amends the Criminal Code by ... providing additional protection to members of the Senate and the House of Commons and persons who play a role in the administration of criminal justice from certain acts of intimidation directed against them or their families; ... providing law enforcement officers and other persons acting at their direction with circumscribed protection from criminal liability for certain otherwise illegal acts committed in the course of an investigation or enforcement of an Act of Parliament; ... extending the application of its proceeds of crime provisions to indictable offences under the Criminal Code and other Acts of Parliament, with a few exceptions; ... extending the application of its provisions relating to offence-related property to indictable offences under the Criminal Code; ... providing for the management, by judicial order, of proceeds of crime and offence-related property, whether seized or restrained; and ... providing broader measures for investigation and prosecution in connection with organized crime by expanding the concepts of criminal organization and criminal organization offence and by creating three new offences relating to participation in the activities — legal and illegal — of criminal organizations, and to the actions of their leaders." It requires a review of s. 25.1 tto 25.4 after 3 years. It adds s. 25.1, 25.2, 25.3, 25.4, 231(6.2), 423.1, 462.3(1) ["proceeds of crime"], 462.3(1) [definitions], 462.3(2) to (4), 462.32(4.1), 462.331, 462.38(2.1), 462.43(2), 467.11, 467.12, 467.13, 467.14, 486(1.5), 486(2.101), 490.2(4.1), 490.41, 490.81, 515(4.1)(b.1), 743.6(1.2). It replaces s. 2 [definitions], 183 [definitions], 185(1.1), 186(1.1), 186.1, 196(5), 423(1), 462.3 [number change], 462.31(1)(a) and (b), 462.32(1), 462.33(3), 462.33(3.1), 462.33(7), 462.34(6)(a)(i), 462.34(6)(b), 462.36, 462.37(1) and (2), 462.38(1), 462.38(2)(b), 462.38(3), 462.39, 462.41(2)(c), 462.41(3)(a), 462.42(1)(a), 462.42(4), 462.47, 462.48(1), 462.48(2), 462.48(2)(d), 462.48(3), 467.1, 467.2, 486(2.11) and (2.2), 486(4.1), 486(4.7)(b) to (e), 486(4.9)(c), 490.1(1), 490.1(2) and (3), 490.2(1) and (2), 490.2(3), 490.4(2)(c), 490.4(3)(a), 490.5(1)(a) and (b), 490.5(4)(a), 490.8(2)(a), 490.8(3), 490.8(8)(a), 515(4.2), 515(6)(a)(ii), 631(3) to (5), 632, 633, 641, 643(1) and (2), 645(5), 743.6(1.1), 810.01(1) and (3),

It repeals s. 462.3(1) [definitions].

official text
Anti-terrorism Act 2001, c. 41 (Bill C-36) December 18, 2001 December 18, 2001, Dec 24, 2001, January 7, 2002, February 1, 2002, June 28, 2002, and July 2, 2003 It "amends the Criminal Code to implement international conventions related to terrorism, to create offences related to terrorism, including the financing of terrorism and the participation, facilitation and carrying out of terrorist activities, and to provide a means by which property belonging to terrorist groups, or property linked to terrorist activities, can be seized, restrained and forfeited. It also provides for the deletion of hate propaganda from public web sites and creates an offence relating to damage to property associated with religious worship."

It adds s. 83.01, 83.02, 83.03, 83.04, 83.05, 83.06, 83.07, 83.08, 83.09, 83.1, 83.11, 83.12, 83.13, 83.14, 83.15, 83.16, 83.17, 83.18, 83.19, 83.2, 83.21, 83.22, 83.23, 83.24, 83.25, 83.26, 83.27, 83.28, 83.29, 83.3, 83.32, 83.33, 231(6.01), 320.1, 424.1, 430(4.1), 431.1, 431.2, 462.48(1)(d), 486(2.101), (2.102), (2.11), (2.2), (4.11), 490.1(1.1), 515(4.3), 515(6)(a)(iii) to (v), 718.2(a)(v), 743.6(1.2) It replaces s. 2 [definitions], 7(3), 7(3.71) to (3.75), 7(7), 7(10), 183, 185(1.1), 186(1.1), 186.1, 196(5), 424, 431, 462.3 [in part], 486(2.11) and (2.2), 486(4.1), 486(4.7)(b) to (e), 486(4.9)(c), 487.04(a)(i) [in part], 515(4.1), 515(4.2), 810.01(1), 810.01(3), 811[in part].

official text
An Act to amend the Criminal Code (alcohol ignition interlock device programs) 2001, c. 37 (Bill C-46) December 18, 2001 Dec 18, 2001 "This enactment amends the Criminal Code to allow the court to authorize repeat offenders subject to driving prohibition orders to drive, if they register in a provincial alcohol ignition interlock device program. The enactment provides that no authorization has effect until a minimum period of prohibition has been completed of 3, 6 or 12 months for a first, second or subsequent offence, respectively." It adds s. 259(1.1) to (1.4) official text
Criminal Law Amendment Act, 2001 2002, c. 13 (Bill C-15A) June 4, 2002 July 23, 2003 (s. 79), June 1, 2004 (s. 24 to 46, 48, 59 and 72) "This enactment amends the Criminal Code by ... adding offences and other measures that provide additional protection to children from sexual exploitation, including sexual exploitation involving use of the Internet; ... increasing the maximum penalty for criminal harassment; ... making home invasions an aggravating circumstance for sentencing purposes; ... creating an offence of disarming, or attempting to disarm, a peace officer; ... codifying and clarifying the review process for applications to the Minister of Justice with respect to allegations of miscarriage of justice; and ... reforming and modernizing criminal procedure with respect to ... procedural aspects of preliminary inquiries, ... the disclosure of expert evidence, ... rules of court in relation to case management and preliminary inquiries, ... electronic documents and remote appearances, ... a plea comprehension inquiry scheme, ... private prosecutions, ... the selection of alternate jurors, and ... restriction on the use of agents."

It added s. 3.1, 163.1(4.1) and (4.2), 164.1, 164.2, 164.3, 172.1, 270.1, 348.1, 482.1, 507.1, 536.2 to 536.5, 537(1)(j.1), 537(1.1), 540(7) to (9), 579.01, 606(1.1), (1.2) and (5), 626.1, 631(2.1), 634(2.1), 642.1, 650.01, 650.02, 657.3(3) to (7), 683(2.1) and (2.2), 688(2.1), 696.1 to 696.6, 715(4), 774.1, 802.1. It replaced s. 7(2.31)(b), 7(4.2) and (4.3), 161(1), 163.1(3), (6), and (7), 164(4), 264(3)(a), 274, 275, 276(1), 277, 482(2), 482(3)(c), 485(1.1), 485(2.1), 507(1), 529.1(b), 535, 536(2), 536(4), 536.1(2) to (5), 537(1)(i), 540(1)(a), 549(1.1) and (2), 554(2), 555(3)(a), 555.1(3) and (4), 556(2)(b), 556(3) and (4), 557, 560(1), 561(2), 561.1(1) to (3), 561.1(5) to (7), 562.1(1) and (2), 563.1(1), 565(2), 566.1(1) and (2), 567 to 568, 569(1), 574, 577, 598(2), 625.1(2), 631(3), (4), and (5), 632(b), 634(2), 641(1), 642(1), 643(1) and (1.1), 646, 650(1), 673 [in part], 676(5), 679(7), 689(1), 731.1, 734.3, 742.2, 753.1(2)(a), 785 [in part], 810.01(2) and (6), 810.1(1) to (4), 810.2(2) and (7), 822(4), 841 to 849, Form 7.1, (b), Form 11.1, (a). It repeals s. 214 [in part], 690.

official text
Immigration and Refugee Protection Act 2001, c. 27 November 1, 2001 June 28, 2002 (partially repealed) Incidental amendments to the Criminal Code in creating the IRPA. It amends s. 462.3, it replaces s. 477.1(a)(ii). official text
Canada Shipping Act, 2001 2001, c. 26 November 1, 2001 July 1, 2001 Incidental amendments to the Criminal Code when introducing the Canada Shipping Act. It repeals s. 44. official text
An Act to amend the Criminal Code (impaired driving causing death and other matters) 2000, c. 25 (Bill C-18) June 29, 2000 March 15, 2001 It replaces s. 255(3), 256(1). It repeals s. 553(c)(vii). final bill text
Crimes Against Humanity and War Crimes Act 2000, c. 24 (Bill C-19) June 29, 2000 October 23, 2000 It repeals s. 7(3.71) to (3.77). It modifies s. 183, 469, 745. It replaces s. 607(6). final bill text
Proceeds of Crime (Money Laundering) Act 2000, c. 17 (Bill C-22) June 29, 2000 Oct 28, 2001 Minor incidental amendments to Code relating to Proceeds of Crime Act It replaces s. 488.1(11). final bill text
An Act to amend The National Defence Act, the DNA Identification Act, and the Criminal Code 2000, c. 10 (Bill S-10) June 29, 2000 June 30, 2000 This Act makes amendments to the Code to "extend the prohibition against unauthorized use of bodily substances and the results of forensic DNA analysis to include those obtained under the National Defence Act." It also "amendments to the Criminal Code clarify and strengthen the existing regime concerning the taking of bodily substances for the purpose of forensic DNA analysis." It modifies s. 487.03, 487.057(1), 487.06, replaces s. 487.053, 487.055(2), 487.055(3.1), 487.056(2), (3), 487.058, 487.07 (1), (3), 487.071(1), 487.08(1), (1.1), (2), (2.1), and 487.091(3). It adds FORM 28.1. final bill text
An Act to amend the Criminal Code (flight) 2000, c. 2 (Bill C-202) March 30, 2000 March 30, 2000 It adds s. 249.1, and replaces s. 259(2), 622(5). final bill text
An Act to amend the Criminal Records Act and to amend another Act in consequence 2000, c. 1 (Bill C-7) March 30, 2000 August 1, 2000 This act makes minor amendments to the Code. It replaces s. 750(4). final bill text

Amendments 1984 to 1999

Amendments Pre-1984

Unproclaimed Amendments

Act Name Citation Royal Assent In force Summary Amendment Text
An Act to amend the Criminal Code (exploitation and trafficking in persons) S.C. 2015, c. 16 (Bill C-452) June 18, 2015 In force on OIC Amends s. 279.01 to 279.05 to create a presumption of culpability for those living with exploited persons. It also makes sentences under these sections consecutive.
NB: An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons) (Bill C-38) amends the provision relating to the bill coming into force.
text

Versions of Criminal Code (2002 to Present)

Versions of Criminal Code as recorded by CanLII


See Also

Constitutional Challenges to Legislation

Introduction

Section 52 of the Constitution Act, 1982 establishes the supremacy of the Constitution over all other laws in Canada:

Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.


CONST, 1982

Any laws that are found in violation of any part of the Constitution, including the Charter, will be of no force or effect.

Any person with legal standing may make an application to the court declare any provincial or federal law unconstitutional and of no force or effect.

Any challenge to federal legislation requires that notice be given to the Attorney General of Canada.

Procedure

Arguments challenging the constitutionality of a statute should be heard only at the end of all the evidence.[1]

It has been suggested that Courts should not entertain constitutional issues if it is not necessary to resolve the case.[2]

Presumption
There is a presumption of constitutionality for all legislation.[3] When there are "two plausible characterizationagrees of a law, we should normally choose that which supports the law's constitutional validity".[4]

Evidence in Challenging Legislation
It is accepted that to challenge legislation there should be both "adjudicative facts" and "legislative facts".[5]

  1. R v Iverson, 2009 ABPC 254 (CanLII), at para 8 - Defence must call "evidence to the contrary" before making charter argument
    c.f. R v Tidlund, 2010 ABPC 29 (CanLII)
  2. R v Kinnear, 2005 CanLII 21092 (ON CA) at para 59
  3. Siemens v Manitoba (Attorney General), 2003 SCC 3 (CanLII), [2003] 1 SCR 6 at para 33 per Major J.
  4. Siemens, ibid. at para 33
  5. MacKay early 90s
    Danson v Ontario (Attorney General), [1990] 2 SCR 1086, 1990 CanLII 93 (SCC)
    Mackay v Manitoba, [1989] 2 SCR 357, 1989 CanLII 26 (SCC), - discusses evidential requirements and states "Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel".

Notice

Where the defence challenges the constitutionality of a provision in the Criminal Code, notice must be given to the Attorney General of Canada. Where the provision is within provincial legislation, Attorney General of the province must be given notice.[1]

The provincial Judicature Act and/or the civil procedure rules may set out he te requirements of notice for a constitutional question.[2]

Generally, notice must be given to both the Attorney General of Canada and the Attorney General of the province before the issue can be heard.[3]

  1. e.g. Nova Scotia Civil Procedure Rule 31.19 and Constitutional Questions Act, RSNS 1989, c.89
  2. R v Turnbull, 2016 NLCA 25 (CanLII)
  3. Turnbull, ibid. at para 12
    NF: see Judicature Act RSNL 1990, c. J-4 at s. 57(1)

Division of Powers

Legislation concerning criminal law must have three prerequisites:[1]

  • a valid criminal purpose,
  • prohibition, and
  • penalty
  1. R v Van Kessel Estate, 2013 BCCA 221 (CanLII) at para 24

Overlap and Incidental Effect

Legislation that overlaps with concerns of other levels of government is acceptable.[1]

  1. General Motors of Canada Ltd. v City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 SCR 641, at p. 669 ("overlap of legislation is to be expected and accommodated in a federal state")
    Reference re Firearms Act, [2000] 1 SCR 783, 2000 SCC 31 (CanLII)

Section 7: Life, Liberty and Security of Person

Section 7 of the Charter protects an individual's autonomy and personal legal rights from actions of the government in Canada.

Under the heading of "Legal Rights", the section states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.


CCRF

There are three distinct types of protection within the section:[1]

  • the right to life,
  • the right to liberty, and
  • the right to security of the person.

An applicant must establish that at least one of the three rights have been infringed upon as a result of the proceedings against him.[2]

Denial of these rights only result in a breach if they breach "fundamental justice". A remedy can only be achieved if the breach cannot be saved under s. 1 of the Charter.(see Section 1, section below)

  1. R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30 at p.52
  2. R v Beare, 1988 CanLII 126 (SCC), [1988] 2 SCR 387, [1987] SCJ No 92 at para 28
    Reference re Motor Vehicle Act (British Columbia) s 94(2), 1985 CanLII 81 (SCC), [1985] 2 SCR 486, [1985] SCJ No 73 at para 30

"Everyone"

In the section, "everyone" refers to all people within Canada, including non-citizens.[1] However, it does not apply to corporate entities.[2]

  1. Singh v Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 SCR 177
    Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 SCR 3
  2. Irwin toy ltd. v Quebec (Attorney general), 1989 CanLII 87 (SCC), [1989] 1 SCR 927

Life Interests

The prohibition on possession of marijuana does not engage the "life interest" where consumption could prevent people from being ill.[1]

  1. Hitzig v Canada, 2003 CanLII 30796 (ON CA), (2003), 177 CCC (3d) 449 (Ont. C.A.)

Liberty Interests

The right to liberty protects an individual's freedom to act without physical restraint (i.e., imprisonment would be inconsistent with liberty unless it is consistent with fundamental justice). The court described it as "[touching] the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal."[1]

Any offence that creates a "real possibility of imprisonment" will be sufficient to engage the liberty interest.[2]

  1. R v Clay, 2003 SCC 75 (CanLII), [2003] 3 SCR 735
  2. R v Zwicker, 2003 NSCA 140 (CanLII), 49 MVR (4th) 69, leave denied [2004] SCCA No 54

Security Interests

The right to security of the person consists of rights to privacy of the body and its health[1] and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm (stress) to the mental state of the individual.[2]

Not every interference will amount to an "adverse impact on security of the person" under s. 7. There must be "serious" "psychological or physical" impact. [3]

  1. Hogg, Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, 981.
  2. Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 SCR 307
  3. Chaoulli v Quebec, [2005] 1 SCR 791, 2005 SCC 35 (CanLII), at para 123

Section 7: Principles of Fundamental Justice

Section 7 applies to all matters concerning the "state's conduct in the course of enforcing and securing compliance with the law".[1] It can even apply to laws and state actions that are "entirely unrelated to adjudicative or administrative proceedings".[2]

It is an open question whether s. 7 imposes positive obligations upon the state.[3]

Causation
There must be "sufficient causal connection" between the law or state actions and the limitation on life, liberty or security of the person.[4] The law need not be the only or "dominant" cause of the deprivation, however, it must be "real" and not "speculative".[5]

Life
The right to life is implicated anytime the state increases the risk of death.[6]

Liberty

Security of the Person

Section 1 of the Charter
Section 1 permits the state to justify infringement of the Charter where "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

This section has been said to have limited use when considering violations of s. 7 of the Charter. The most likely appropriate circumstances will be in cases of "natural disasters, the outbreak of war, epidemics and the like".[7]

  1. Gosselin v Quebec (Attorney General), [2002] 4 SCR 429, 2002 SCC 84 (CanLII), at para 77 to 78
    New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46, 1999 CanLII 653 (SCC), at para 65
  2. Chaoulli v Quebec (A.G.), 2005 SCC 35 (CanLII) at paras 124, 194-199
  3. Gosslin v Quebec (AG), [2002] 4 SCR 429, 2002 SCC 84 (CanLII), at para 82 to 83
  4. Bedford v Canada (A.G.), [2013] 3 SCR 1101, 2013 SCC 72 (CanLII), at para 76
  5. Bedford, ibid.
  6. Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII), per curiam at para 62
    Chaoulli, supra at paras 112-124 and 200
  7. Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, 2002 SCC 1 (CanLII) at para 78

Section 12: Cruel and Unusual Punishment

See also: Cruel and Unusual Punishment

Section 1: Justifiable Limitation of Rights

Remedy for Unconstitutional Provisions

The remedy must be guided by the "principles of respect for the purposes and values of the Charter, and respect for the role of the legislature".[1]

The remedy must be "the measures that will best vindicate the values expressed in the Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective".[2]

Powers of Provincial Court Regarding Unconstitutional Legislation
A statutory court such as a provincial court only has a power of a finding of "statutory invalidity" and not a power to make a "declaration of statute invalidity" under s. 52 of the Constitution Act, 1982. As a result the finding has no authority over other cases.[3]

  1. Nociar v Her Majesty the Queen, 2008 CMAC 7 (CanLII), at para 34
    Corbière v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203, 1999 CanLII 687 (SCC), at para 110
  2. Nociar, supra at para 34
    Corbière v Canada (Minister of Indian and Northern Affairs), supra at para 110
  3. R v Lloyd, 2016 SCC 13 (CanLII) at paras 14-20

See Also

Principles of Fundamental Justice

General Principles

Section 7 of the Charter prohibits the state from interfering a person's rights to "life, liberty and security of the person. Section 7 states that:

Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.


CCRF

The rights enumerated under s. 7 of the Charter can be compromised in the cases where the infringing law is in "accordance with the principles of fundamental justice".[1]That is, there are core values within the justice system that must prevail over these rights for the greater good of society. These include natural justice and substantive guarantees,[2] including rights guaranteed by the other legal rights in the Charter (i.e., rights against unreasonable search and seizure, guaranteed under section 8 of the Charter, and against cruel and unusual punishments, under section 12, are part of fundamental justice under section 7 as well). Other "Principles" are determined by the court and form the basis of the Canadian legal system.

Requirements of a Principle of Fundamental Justice
It "must be a legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person."[3]

The principle is "informed in part by the rules of natural justice and the concept of procedural fairness"[4]

Procedural Requirements
The PFJ do not require that an accused be entitled to the most favourable procedures possible.[5]

Whether a particular procedure will conform to the PFJ is may require the judge "to balance the competing interests of the state and individual".[6] What is required will depend on the context.[7]

Established Principles of Fundamental Justice
Established Principles of Fundamental Justice include:

  • Arbitrariness
  • Vagueness
  • Overbreadth
  • Right to Silence
  • Minimum Level of Mens Rea
  • Right to Full Answer and Defence
  1. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30 at p.56
  2. first suggested in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486
    Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 SCR 350 at para 19 ("Section 7 of the Charter requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process. These principles include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security...")
  3. R v Malmo-Levine; R v Caine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571
  4. Ruby v Canada (Solicitor General), [2002] 4 SCR 3, 2002 SCC 75 (CanLII) at para 39
    Charkaoui, supra at para 19
  5. R v Lyons, [1987] 2 SCR 309, 1987 CanLII 25 (SCC)
    R v Mills, [1999] 3 SCR 668, 1999 CanLII 637 (SCC) PFJs "do not guarantee the most favourable procedures conceivable."
  6. Ruby, ibid. at para 39
    Charkaoui, supra at para 20 ("Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake:")
  7. Charkaoui, supra at para 20

Standing

The meaning of "everyone" includes ever person physically present in Canada.[1] All individuals, including those non-citizens within Canada, are able to claim rights under s. 7 Charter.[2]

Actions Outside of Canada

See also: Extra-Territorial Jurisdiction of the Courts

Section 7 may be relied upon by a party for conduct occurring outside of Canada where it is established that the Canadian government participated "in activities of a foreign state or its agents that are contrary to Canada’s international obligations or fundamental human rights norms".[3]

In extradition or deportations, the Canadian government are participants in any deprivation of rights under s. 7 of the Charter where it is a "foreseeable consequences" of their involvement and there is a "sufficient causal connection" between the government action and the deprivation of rights.[4]

Corporate Persons
A corporation does not have the same rights under s. 7 of the Charter as those of an individual.[5] A corporation however may rely upon the Charter in its defence under criminal or civil proceedings advanced by the government.[6]

  1. Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, 1985 CanLII 65 (SCC) ("I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.")
  2. Charkaoui, supra at para 17 and 18
  3. Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3 (CanLII), at para 14
    R v Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, per LeBel J, at para 52
  4. United States v. Burns, [2001] 1 SCR 283, 2001 SCC 7 (CanLII), at paras 59 to 60
    Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, 2002 SCC 1 (CanLII), at para 54 ("where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand")
    Application under s. 83.28 of the Criminal Code (Re), [2004] 2 SCR 248, 2004 SCC 42 (CanLII) at para 75 (The "guarantees of fundamental justice apply even where deprivations of life, liberty or security may be effected by actors other than the Canadian government, if a sufficient causal connection exists between the participation of the Canadian government and the ultimate deprivation effected")
  5. British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, 1995 CanLII 142 (SCC)
    Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 1989 CanLII 87 (SCC)
  6. R v Big M Drug Mart Ltd., [1985] 1 SCR 295, 1985 CanLII 69 (SCC)
    R v Wholesale Travel Group Inc., [1991] 3 SCR 154, 1991 CanLII 39 (SCC)

Infringement of Life, Liberty and Security of the Person

To find a breach under s. 7, a claimant must establish:[1]

  1. whether the accused was deprived . of one of the three interests;
  2. whether the deprivation accords with any identified principle(s) of fundamental justice.
  1. R v Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74 (CanLII), per Gonthier and Binnie JJ at para 83
    R v White, [1999] 2 S.C.R. 417, 1999 CanLII 689 (SCC), per Iacobucci J at para 38
    R v S(RJ), [1995] 1 SCR 451, 1995 CanLII 121 (SCC), at p 479

Arbitrariness

It is a principle of fundamental justice that laws should not be arbitrary.[1] That is, the state cannot limit an individual's rights where "it bears no relation to, or is inconsistent with, the objective that lies behind [it]".[2]

  1. R v Malmo-Levine; R v Caine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571
  2. Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519

Vagueness

The "Principles of Fundamental Justice" require laws to have a clear and understandable interpretation so as to properly define the rule or offence.

A law is unconstitutionally vague if it does not have clarity enough to create "legal debate". There must be clarity of purpose, subject matter, nature, prior judicial interpretation, societal values, and related provisions. This does not prevent the use of broadly defined terms so long as societal objectives can be gleaned from it.[1]

When Parliament chooses to criminalize "preliminary" conduct overbreadth and vagueness become concerns.[2]

A law is unconstitutionally vague where it does not give a person fair notice of what to avoid and does not limit the discretion of law enforcement with clear and explicit legislative standards.[3]

Factors to be considered include:[4]

  1. the need for flexibility and the interpretative role of the courts;
  2. the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate, and
  3. the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.

To determine if a law is vague the court should look at it's full interpretive context, including:[5]

  1. prior judicial interpretations;
  2. the legislative purpose;
  3. the subject matter and nature of the impugned provision;
  4. societal values; and
  5. related legislative provisions


  1. Ontario v Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 SCR 1031
    Nova Scotia Pharmaceutical Society
  2. United States of America v Nadarajah, 2010 ONCA 859 (CanLII)
  3. R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606, 1992 CanLII 72 (SCC)
    R v Levkovic, 2013 SCC 25 (CanLII) at para 2
  4. Nova Scotia Pharmaceutical Society, supra
  5. Levkovic, supra at para 48

Overbreadth

The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary.

This principle is violated when the government, in pursuing a "legitimate objective", uses "means" that unnecessarily and disproportionately interfere with an individual's rights. [1]

When Parliament chooses to criminalize "preliminary" conduct overbreadth and vagueness become concerns.[2]

As an initial step to the analysis of overbreadth is it necessary to "identify the law's purpose and effects" to determine "whether there is a disconnect between the two".[3]

The purpose must be considered in the "context of the legislative scheme" in which it is found.[4]

The identified purpose must be not too general or too specific.[5] The appropriate generality must be one of an "animating social value".[6]

  1. R v Heywood, 1994 CanLII 34 (SCC), [1994] 3 SCR 761
  2. United States of America v Nadarajah, 2010 ONCA 859 (CanLII)
  3. R v Moriarity, 2015 SCC 55 (CanLII) at para 24
  4. Moriarity, ibid. at para 24
  5. Moriarity, ibid. at para 28 ("If the purpose is articulated in too general terms, it will provide no meaningful check on the means employed to achieve it, almost any challenged provision will likely be rationally connected to a very broadly stated purpose... On the other hand, if the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them.")
  6. Moriarity, ibid. at para 28
    Carter v Canada (AG), 2015 SCC 5 (CanLII) at para 76

Requirement of Mens Rea

The "principles of fundamental justice" require that criminal offences that have sentences involving prison must have a mens rea element.[1]

For many cases, however, an objective standard of negligence has been acceptable where the elements included a proof of a "marked departure from the standard of care that a reasonable person would take in the circumstances". This has been specifically affirmed for careless use of a firearm (86),[2] failing to provide the necessities of life (215),[3] dangerous operation of a motor vehicle (249),[4] manslaughter (234 to 236),[5] and offences composed of "causing bodily harm" (267, 272, 255).[6]

An objective fault has otherwise been endorsed as constitutional with the exception of a small group of the most serious offences.[7]

For more serious crimes such as murder that impose a stigma as part of the conviction, the minimum mental element must be proven on a "subjective" level.[8]

  1. See Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486
    R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636
    R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44
    R v Hess, 1990 CanLII 89 (SCC), [1990] 2 SCR 906
  2. R v Gosset, 1993 CanLII 62 (SCC), [1993] 3 SCR 76
    R v Finlay, 1993 CanLII 63 (SCC), [1993] 3 SCR 103
  3. R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122
  4. R v Hundal, 1993 CanLII 120 (SCC), [1993] 1 SCR 867
  5. Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3
  6. R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944
  7. Creighton, per Lamer CJ. ("an objective fault requirement is constitutionally sufficient for a broad range of offences other than
  8. R v Martineau, 1990 CanLII 80 (SCC), [1990] 2 SCR 633

Punishments That Shock the Conscience

Government decisions to extradite people are bound by section 7 of the Charter.[1] Moreover, it is possible that a potential punishment in the receiving country "shocks the conscience" to the extent that the Canadian government would breach fundamental justice if they extradited people there, and thus put them at risk of something shocking. In determining what would shock the conscience, the Court said some elements of fundamental justice in Canada, such as the presumption of innocence, could be seen as "finicky" and thus irrelevant to extradition. In contrast, the possibility of torture would be shocking.[2]

  1. Canada v Schmidt, 1987 CanLII 48 (SCC), [1987] 1 SCR 500
  2. Canada v Schmidt, ibid.

Right to a Fair Trial

Racial Profiling
An state agent engaging in racial profiling will breach the principle of fundamental justice.[1]

  1. R v Smith, 2004 CanLII 46666 (ON SC), at paras 35 to 36
    R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, 45 CCC (3d) 296 at para 180

Right to Make Full Answer and Defence

See also: Right to Make Full Answer and Defence

Abuse of Process

Right to Effective Counsel

Effective counsel is a principle of fundamental justice.[1]

  1. R v GDB, [2000] 1 SCR 520, 2000 SCC 22 (CanLII), at para 24, ("Today the right to effective assistance of counsel extends to all accused persons. In Canada that right is seen as a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.")

Right to Silence

See also: Right Against Self-Crimination

The right to silence was a principle of fundamental justice.[1] Statements of the accused cannot be achieved through police trickery and silence cannot be used to make any inference of guilt.

  1. R v Hebert, [1990] 2 SCR 151, 1990 CanLII 118] (SCC)

Diminished Moral Culpability for Youths

See also: Sentencing Young Offenders

It is a PFJ that "young people are entitled to a presumption of diminished moral culpability"[1] and so the Youth Criminal Justice Act cannot create a presumption of an adult sentence upon youths.

  1. R v DB, 2008 SCC 25 (CanLII), [2008] 2 SCR 3 at para 70

Presumption of Innocence

See also: Presumption of Innocence

Conviction of the Innocent
It is also a principle of fundamental justice that "the innocent must not be convicted".[1]

  1. R v Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at para 71 per McLachlin and Iacobucci JJ
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 at para 24 per McLachlin J

Solicitor-Client Privilege

See also: Solicitor-Client Privilege

The right solicitor-client privilege is a principle of fundamental justice.[1]

  1. Canada (National Revenue) v Thompson, 2016 SCC 21 (CanLII) at para 17
    R v McClure, [2001] 1 S.C.R. 445, 2001 SCC 14 (CanLII), per Major J, at p. 453 to 460

Border Security

There is some suggestion that "Canada's effective control over its borders" is important enough to be a "principle of fundamental justice".[1]

  1. R v Jones, 2006 CanLII 28086 (ON CA), para 31

Rejected Principles

Throughout the development of fundamental justice, petitioners have suggested many principles that the Courts have rejected for not being sufficiently fundamental to justice.

Harm Requirement for Criminal Law
An element of "harm" is not an essential component to all criminal offences.[1]

Symmetry of Actus Reus and Mens Rea
There is no need for there to be symmetry between the actus reus and mens rea in all offences.[2]

The Best Interests of the Child
Laws affecting children do not always have to be "in the best interest of the child".[3]

Human Dignity
Human dignity is not a protected interest as a principle of fundamental justice.[4] It is however protected under the "life, liberty and security of person" clause of s. 7 of the Charter.[5]

Aboriginal Status
It is not a PFJ that Crown must consider the accused's aboriginal status before making decisions that will limit the judge's sentencing options.[6]

  1. R v Malmo-Levine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, - argued to strike down marijuana laws
  2. R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944
  3. Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76
  4. Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, per Sopinka J. at para 145
  5. R v Morgentaler (1998), 1988 CanLII 90 (SCC), 37 CCC (3d) 449 (S.C.C.), per Wilson J. at pp. 549-550
    Rodriguez v British Columbia (Attorney General), supra at para. 136-137
  6. R v Anderson, 2014 SCC 41 (CanLII) at paras 29 to 33

See Also

Cruel and Unusual Punishment

General Principles

Section 12 of the Charter guarantees under the heading of "treatment or punishment" that:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.


CCRF

The meaning of "cruel and unusual" focuses on whether the "treatment" was "grossly disproportionate" or "outrages the standards of decency".[1]

  1. See R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Wilson J at pages 1072-74

Treatment or Punishment

The imposition of a weapons prohibition under s. 109 is a form of punishment.[1] As is the making of a forfeiture order.[2]

The impositIon of a SOIRA Order is not.[3]

  1. R v Wiles, 2005 SCC 84 (CanLII), per Charron J at para 3
  2. R v Montague, 2014 ONCA 439 (CanLII), per Feldman JA, at para 38
  3. R v Cross, 2006 NSCA 30 (CanLII), per Bateman JA

Cruel and Unusual

Whether a sentence is "cruel and unusual" depends on "whether the sentence is grossly disproportionate", which requires that it be more than "excessive", "unfit" or "excessive". It must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable".[1]

There are two steps in the analysis:[2]

  1. examine the effect of the provision on the particular offender, which includes looking at the factors of:
    1. the gravity of the offence,
    2. the personal characteristics of the offender and the circumstances of the case,
    3. the actual effect of the punishment on the individual,
    4. the penological goals and sentencing principles upon which the sentence is fashioned,
    5. the existence of valid alternatives to the punishment imposed, and
    6. a comparison of punishments imposed for other crimes in the same jurisdiction
  2. if the punishment is not grossly disproportionate, consider "reasonable hypotheticals" that "could commonly arise in day-to day-life" but are not far-fetched or "marginally imaginable"[3]
  1. R v Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 96, per McLachlin CJ at para 14
    R v Smith, [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), per Wilson J
    R v McDonald, 1998 CanLII 13327 (ON CA), [1998] OJ 2990 (ONCA), per Rosenberg JA at para 68 ("The test for whether a punishment is cruel and unusual is whether it is grossly disproportionate to what would have been appropriate. The punishment must be so excessive as to outrage standards of decency. A sentence that is merely excessive or even unfit, is not necessarily grossly disproportionate.")
  2. Montague at para 40
    R v Morrissey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at paras 27-28
    R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 75
    R v Nur, 2013 ONCA 677 (CanLII), 117 O.R. (3d) 401, per Doherty JA at para 78, appealed to 2015 SCC 15 (CanLII), per McLachlin CJ
  3. R v Goltz, 1991 CanLII 51 (SCC), [1991] 3 SCR 485, per Gothier J, at pp. 505, 516

Reasonable Hypotheticals

Real cases should be used as starting points when crafting a reasonable hypothetical.[1]

A reasonable hypothetical cannot be "far‑fetched or marginally imaginable cases" or "remote or extreme examples".[2]

The question of "reasonable hypothetical" is simply asking whether "it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples' situations, resulting in a violation of s.12."[3] The consideration should focus on "whether the sentence would be grossly disproportionate in reasonably foreseeable cases".[4]

  1. R v Morrissey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 33
  2. R v Goltz, 1991 CanLII 51 (SCC), [1991] 3 SCR 485, per Gonthier J, at p. 506 and 515 [SCR]
  3. R v Nur, 2015 SCC 15 (CanLII), per McLachlin CJ at para 57
  4. Nur, ibid. at para 57

Mandatory Minimums

A penalty will be found to violate s. 12 of the Charter where "the punishment prescribed is so excessive as to outrage standards of decency".[1]

The analysis of the constitutionality of the sentencing provisions requires two inquiries.[2]

First, the judge must consider whether the sentence is cruel and unusual punishment based on the circumstances of the offender and offence. This involves determining what the fit and proper sentence is. Where it is "grossly disproportionate" to the mandatory minimum there will be a section 12. If it is not disproportionate, the judge may then consider reasonably hypothetical situations could be "grossly disproportionate" and be in violation of s. 12.[3]

There are only three instances where the Supreme Court of Canada have found that minimum sentences to be unconstitutional.[4]

  1. R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Lamer J at p. 1072 [SCR]
    R v Miller, [1977] 2 SCR 680, 1976 CanLII 12 (SCC), per curiam at p. 688 [SCR]
  2. Smith, supra
  3. R v Crockwell, 2013 CanLII 8675 (NL SCTD), per Leblanc J at para 32
  4. Smith, supra - 7 year minimum for importing narcotics
    R v Nur, 2015 SCC 15 (CanLII), per McLachlin CJ - 3 year minimum for possessing prohibited or restricted firearm with ammo
    R v Lloyd, 2016 SCC 13 (CanLII), per McLachlin CJ - 1 year minimum for trafficking marijuana

"Grossly Disproportionate"

To determine if a sentence is "grossly disproportionate" the court consider factors including:[1]

  • the harm caused by the offence
  • the effect of the criminalized conduct on the individual victims and the broader community;
  • the extent to which the harm done by the prohibited conduct impacts disproportionately on discrete and particularly vulnerable categories of victims;
  • the problems associated with the effective prevention and detection of the criminal activity involved in the offence;
  • the value as a deterrent of mandatory minimum sentences; and
  • the legislative intent and purpose of the provision.
  1. R v Smith at p. 1073 (SCR) per Lamer J.
    R v Roach, 2009 ONCA 156 (CanLII), per Doherty JA at para 9
    R v Goltz, [1991] 3 SCR 485, 1991 CanLII 51 (SCC), per Gonthier J, at p. 500
    R v Morrisey, [2000] 2 SCR 90, 2000 SCC 39 (CanLII), per Gonthier J at paras 27‑28
    see also R v Wiles, 2005 SCC 84 (CanLII), [2005] 3 SCR 895{, per Charron J
    R v Ferguson, 2008 SCC 6 (CanLII), (2008), 228 CCC (3d) 385 (S.C.C.), per McLachlin CJ

Considered Offences

The mandatory minimum of 5 years jail for an offence under s. 95(2)(a)(ii) for an offender with a prior related record was in violation of s. 12 and cannot be saved by s. 1.[1]

Section 5(1) of the Narcotics Control Act which required a 7 year minimum for importing controlled substances into Canada was found to be cruel and unusual.[2]

The mandatory minimum of 90 days (summary) and 12 months (indictment) for child luring was upheld as not cruel and unusual.[3]

Section 99(2) mandatory minimum of 3 years was found to be unconstitutional.[4]

The offence of distribution of child pornography with a minimum of 1 year was found to be constitutional.[5]

  1. R v Charles, 2013 ONCA 681 (CanLII), per Cronk JA
  2. R. v Smith (Edward Dewey), [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), per Lamer J
  3. R v Stapley, 2014 ONCJ 184 (CanLII), per Griffin J
  4. R v Trepanier, 2016 NBPC 2 (CanLII), per Jackson J
  5. R v Schultz, 2008 ABQB 679 (CanLII), per Topolniski J

Police Conduct

Factors to consider whether police treatment of the accused amounts to cruel and unusual include:[1]

  1. the decision to use force of any kind in the first instance;
  2. the nature and seriousness of the offence for which the arrest was made;
  3. the certitude that the offence for which the arrest was made actually occurred;
  4. the need for detention as an aspect of intervention;
  5. the protection of the officers and other persons from violence;
  6. the prospect of flight/escape;
  7. the likelihood of continuation/resumption of the offending conduct;
  8. the apparent physical condition of the person being arrested and/or alleged victims;
  9. police modules and training affecting the use of force;
  10. the prospect of escalation and retaliation;
  11. knowledge of the identity and access to the person to be arrested;
  12. the nature and extent of the force reasonably contemplated as likely to be necessary; and
  13. other exigent circumstances.

In relation to sentencing, see Charter Issues in Sentencing#Cruel and Unusual Punishment.

  1. R v Knight, 2010 ONCJ 400 (CanLII), per Clark J
    R.v. Magiskan, 2003 CanLII 859 (ON SC), [2003] O.J. No. 4490, per Zelinski J at para 27

Treatment While in Custody

Segregation per se is not cruel and unusual punishment, it must be "so excessive as to outrage standards of decency".[1]

  1. R v Olson, 1987 CanLII 4314 (ON CA), (1987), 38 CCC (3d) 534 (Ont. C.A.), per Brooke JA, aff’d [1989] 1 SCR 296, 1989 CanLII 120 (SCC), per curiam (“[s]egregation to a prison within a prison is not, per se, cruel and unusual treatment … [but] it may become so if it is so excessive as to outrage standards of decency.”)
    R v Marriott, 2014 NSCA 28 (CanLII), per Oland JA

See Also

Justifiable Limitations on Rights

General Principles

Section 1 of the Canadian Charter of Rights and Freedoms states:

Guarantee of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.


CCRF

This provision is also known as the "reasonable limits clause" or "limitations clause", as it legally allows the government to limit an individual's Charter rights.

Section 7 Violations

Overbroad and Grossly Disproportionate
Where legislation is found to be overbroad or grossly disproportionate it is generally not justifiable under s. 1 of the Charter.[1]

  1. R v Boutilier, 2016 BCCA 235 (CanLII), per D Smith J at para 84
    Canada (AG) v Bedford, 2013 SCC 72 (CanLII), per McLachlin CJ at para 129
    Carter v Canada (AG), 2015 SCC 5 (CanLII), per curiam at para 95

Prescribed by Law

The limitations on rights must be "prescribed by law". This refers to the requirement that the limitation on rights is the result of some conduct of a government or its agents following some accessible and intelligible law.

A law will be invalid where it is too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances".[1]

"Law" in this context refers to both the common law as well as statutory law.[2]

  1. Irwin Toy Ltd v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927, per Dickson C.J. and Lamer and Wilson JJ
  2. R v Shupe, 1987 CanLII 3171 (AB QB), per Cooke J at para 19

Oakes Test

The test to determine if the purpose of the law is demonstrably justifiable in a free and democratic society is known as the "Oakes Test".[1]

The test is applied once the claimant has proven that one of the provisions of the Charter has been violated.

The onus is on the Crown to pass the Oakes test. A violation of a right can only be justified where the following elements are made out on a balance of probabilities:

  1. There must be a pressing and substantial objective
  2. The means must be proportional
    1. The means must be rationally connected to the objective
    2. There must be minimal impairment of rights
    3. There must be proportionality between the infringement and objective
  1. R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, per Dickson CJ

Pressing and Substantial Objective

Minimal Impairment

Rational Connection

Proportionality

Offences Found to be Unconstitut