Presumed Innocent: Fundamentals of Canadian Law Podcast 005

We’re joined once again by Queen’s Law professor, and developer of the Law 201/701 Criminal Law module, Lisa Kerr. The topic: presumption of innocence. Why is it the bedrock of our criminal justice system? How does it level the playing field of one person versus all of society? And… is it really as venerable and ancient a principle as we think it is? Lisa joins us via Skype from New York to talk about all of this, and more!

The Brains and Brawn of Criminal Law: Mens Rea and Actus Reus

Robber is thinking of profit from robbery. Word balloon from Freepix.At the most fundamental level, criminal law is based around a single Latin phrase: “Actus non facit reum nisi mens sit rea”, which translates to “an act does not make a person guilty unless the mind is also guilty”. This means that a crime consists of two elements: the commission of a guilty act, known as actus reus, and the presence of a guilty mind, known as mens rea.

For example, section 322 of the Criminal Code defines theft as follows:

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it…

We can see there are both actus reus and mens rea elements of this offence. The actus reus of theft is taking something without colour of right (something that isn’t yours), the mens rea is intending to deprive the owner of the thing taken.

Actus Reus

For actus reus to be made out there must be a voluntary commission of an unlawful act.  All actions are presumed to be voluntary, but the defence can argue that there was no actus reus because the defendant had no voluntary control of his or her actions. This was the case in R v Parks, where the accused presented evidence that he was sleepwalking at the time he killed his mother and father in law. The Supreme Court of Canada upheld Mr. Park’s acquittal on the basis that he was not acting voluntarily.

Additionally, where the offence charged includes the occurrence of specific result, the fact that those consequences occurred is another element of actus reus. For example, section 222(1) of the Criminal Code provides that “A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.” Causing death is therefore a necessary requirement for the actus reus of homicide. In determining causation the question we ask is, whether, but for the actions of the accused, would the result have happened?

Mens Rea

Courts presume that criminal offences require some form of subjective mens rea—intent, knowledge, recklessness, or willful blindness—in relation to all aspects of the actus reus unless Parliament clearly indicates otherwise.

For some offences, Parliament has indicated that mens rea is not required. These are known as strict liability offences. For a strict liability offence it is not necessary for the Crown to prove the existence of mens rea—the act itself is the entire offence. If charged with a strict liability offence, the accused may advance the offence that they took all reasonable steps to avoid the act. An absolutely liability offence is similar, but the accused is not able to advance a defence of this nature.

So when you’re wondering if something is a crime, start with “brains and brawn,” and ask yourself if criminal intent and criminal action were both present. As we’ve seen, there are exceptions, but it’s a reasonable place to start.

– Isabelle Crew (3L, Faculty of Law, Queen’s University)

Thought balloon in illustration courtesy Freepik.

Whose law is it anyway? A guide to Canadian criminal law

Almost everyone in Canada has dealt with criminal law at some point – a criminal penalty can include a simple fine like a parking ticket on through more serious punishment for serious crimes. Even if you’ve never committed a single infraction, criminal law is an active force in all our lives.

But where does criminal law come from, and who has the power to say what is criminal? Let’s take a quick look at the fundamental sources of criminal law in Canada, starting with the basic principles and structure of our criminal justice system.

Sources of Canadian Criminal Law

To get to the origins of criminal law in Canada, we have to go all the way back to 1867 and the Constitution Act. This document, issued by the British Crown, determined the exclusive jurisdiction of the Parliament of Canada over the matters of criminal law – that Canada, as a new nation, was responsible for defining and punishing its own crime.

Parliament enacted the Criminal Code in 1892. It codifies criminal offenses in Canada, though much of its content was imported from Britain. The Code is not the only source of criminal law in Canada: it has been expanded on since its creation by other federal statutes like the Canada Evidence Act and the Controlled Drugs and Substances Act.

In 1982, a new Constitution Act was passed, along with the Canadian Charter of Rights and Freedoms. The Charter establishes the fundamental rights of Canadians, including the right to a trial within a reasonable delay, and to be presumed innocent until proven guilty.

All Criminal Law is Federal

But the provinces can still get you in trouble…

Federal and Provincial Law in CanadaUltimately, this means that all crime is federal, in the sense that the Parliament of Canada has exclusive jurisdiction over criminal law, and is the source of the Criminal Code.

But wait! The provinces also have their own powers, and can set regulations to create quasi-criminal offenses, also known as regulatory offences. The provinces also have a number of important powers associated with the administration of criminal law – they hire prosecutors, appoint provincial court judges, and are responsible for the majority of criminal law prosecutions.

Let’s expand on that by going back to the Constitution Act of 1867. Among the many things defined in the Constitution Act are how power is split between the federal and provincial governments.

The section, 92.15, of the Constitution Act specifies that provinces are in charge of “[t]he Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section”.

So what does that mean? It means that the provinces can create the quasi—criminal offences only in relation to the matters within their jurisdiction. One example is Ontario’s Liquor Control Act. It defines, among other things, who can sell alcohol and under what conditions, which is entirely in the province’s jurisdiction as laid out in our Constitution.

Provinces can, in turn, delegate power to municipalities to create and enforce their own bylaws. Things like pet control, parking, garbage dumping, etc. are traditionally municipal, and a different set of regulatory offenses.

…and most criminal cases are tried in provincial courts!

The provinces also participate in criminal matters by upholding the administration of justice within the province including the constitution and organization of provincial courts. The section 92.14  grants provinces jurisdiction over “[t]he 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”.

This seems complicated!

It is! Criminal law is not for the faint-hearted. But there are basically two things to remember:

One, there are two levels of crime. Crime as defined by the Criminal Code and other statutes, like murder, assault, theft, fraud, property crimes like arson… are all federal-level crimes. Infractions of regulations, like speeding on the highway, not licensing your pet, or serving liquor without a license, are usually provincial or municipal regulatory offenses. Provinces and municipalities can have their own courts and enforcement mechanisms for these.

And second, provinces and municipalities support the federal system by helping enforce the law. That’s why the Ontario Provincial Police or the Winnipeg police force can investigate, arrest, and prosecute people for murder (a federal crime), as well as provincial and municipal infractions. All levels support the investigation and prosecution of federal crime, but only Parliament can decide what is a crime by amending the Criminal Code.