Criminal Defence

Overview of Criminal Offences

Criminal offences are set out primarily in the Criminal Code of Canada. The Criminal Code also sets out the penalties if convicted of a criminal offence, the principles to be applied in sentencing, and the application of criminal procedures to the pre-trial and trial process, and provisions concerning judicial interim release.

If you are arrested you will either be released by the police at the scene, released after arrest at the police station with a document compelling you to appear at a certain date for your first Court appearance or held in jail for a bail hearing. The police can hold you up to 24 hours before your release. 

It is the Crown Counsel, not the police or a complainant, that will determine whether the facts in any particular case meet the Crown threshold to lay charges.  Initially the Crown will decide 1) Whether there is a substantial likelihood of conviction and 2) whether it is in the public interest to lay charges.  If the facts meet that standard that Crown will likely proceed with laying charges. Just because you have been arrested does not necessarily mean you will be charged with an offence. The police will forward a report to Crown Counsel recommending charges but the final decision whether to charge or what to charge rests with the Crown, not the police.

Criminal Code offences are arranged by categories in the Criminal Code known as “Parts”. There are 28 Parts to the Criminal Code. Offences are generally grouped by category.  Some examples are “Offences Against Public Order”, “Sexual Offences, Public Morals and Disorderly Conduct”, “Offences Against the Person and Reputation”, “Offences Against Rights of Property”.  There are hundreds of Criminal Code offences. Some of the more common Criminal Code offences are assault (common assault, spousal assault, sexual assault), theft, impaired driving, and uttering threats. Drug offences are prosecuted under the federal Controlled Drugs and Substances Act, not the Criminal Code. 

There are some more obscure criminal offences in the Criminal Code. Whilst the charge of Alarming His Majesty was repealed at the end of 2018 it is a criminal offence to fraudulently take, hold, keep in your  possession, conceal, receive, appropriate, purchase or sell cattle that are found astray. So you cannot hide cows you may find. Nor can you fraudulently, in whole or in part, obliterate, alter or deface a brand or mark on cattle, or make a false or counterfeit brand or mark on cattle. It is no longer a criminal offence to challenge or attempt by any means to provoke another person to fight a duel, attempt to provoke a person to challenge another person to fight a duel, or accept a challenge to fight a dual. But it is a crime to carry out, participate in or facilitate the removal of an organ from the body of another person, knowing that the person from whom it was removed did not give informed consent to the removal. That this is so is not surprising. 

Some other less known crimes are setting or placing a trap, device or other thing that is likely to cause death or bodily harm to a person; or being in occupation or possession of a place, knowingly permit such a trap, device or other thing to remain in that place. If you are doing some home renovations you should be aware that if you leave an excavation on land that you own or of which you have charge or supervision you are under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the excavation exists. If you do not do so you could be charged under s. 263 (2) of the Criminal Code. 

Potential Civil Liability for Criminal Acts

Be aware!! Most criminal offences are also torts under the common law. This means that  you can be sued civilly for damages for such offences. This is particularly common in cases of assault, including sexual assault. There is no statute of limitation to sue for sexual assault. 

The burden of proof is lower than in a criminal case (which is proof beyond a reasonable doubt). In a civil case the burden of proof is on a balance of probabilities, i.e. more likely than not which is a considerably lower burden of proof.