Criminal Code (Canada)
|An Act respecting the Criminal Law|
|Citation||RSC 1985, c C-46|
|Enacted by||Parliament of Canada|
|Date enacted||First enacted: SC 1892, c 29; carried forward in statute revisions, RSC 1906, c 146 and RSC 1927, c 36; substantially revised and re-enacted, SC 1953-54, c 51; carried forward in statute revisions, RSC 1970, c C-34 and RSC 1985, c C-46|
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law" (R.S.C. 1985, c. C-46, as amended). Section 91(27) of the Constitution Act, 1867 establishes the sole jurisdiction of Parliament over criminal law in Canada.
The Criminal Code contains some defences, but most are part of the common law rather than statute. Important Canadian criminal laws not forming part of the code include the Firearms Act, the Controlled Drugs and Substances Act, the Canada Evidence Act, the Food and Drugs Act, the Youth Criminal Justice Act and the Contraventions Act.
The Criminal Code was first enacted in July 1892 after being a pet project of the Minister of Justice of the time, Sir John Sparrow David Thompson. It was based on a drafted code called "the Stephen Code", written by Sir James Fitzjames Stephen as part of a Royal Commission in England in 1879, and influenced by the writings of Canadian Jurist George Burbidge.
The main body of the Criminal Code is divided into the following major components:
- Part I - General
- Part II - Offences Against Public Order
- Part II.1 - Terrorism
- Part III - Firearms and Other Weapons
- Part IV - Offences Against the Administration of Law and Justice
- Part V - Sexual Offences, Public Morals and Disorderly Conduct
- Part VI - Invasion of Privacy
- Part VII - Disorderly Houses, Gaming and Betting
- Part VIII - Offences Against the Person and Reputation
- Part IX - Offences Against Rights of Property
- Part X - Fraudulent Transactions Relating to Contracts and Trade
- Part XI - Wilful and Forbidden Acts in Respect of Certain Property
- Part XII - Offences Relating to Currency
- Part XII.1 - Instruments and Literature For Illicit Drug Use
- Part XII.2 - Proceeds of Crime
- Part XIII - Attempts-Conspiracies-Accessories
- Part XIV - Jurisdiction
- Part XV - Special Procedure and Powers
- Part XVI - Compelling Appearance of an Accused Before a Justice and Interim Release
- Part XVII - Language of Accused
- Part XVIII - Procedure on Preliminary Inquiry
- Part XIX - Indictable Offences-Trial Without a Jury
- Part XIX.1 - Nunavut Court of Justice
- Part XX - Procedure in Jury Trials and General Provisions
- Part XX.1 - Mental Disorder
- Part XXI - Appeals-Indictable Offences
- Part XXI.1 - Applications for Ministerial Review-Miscarriages of Justice
- Part XXII - Procuring Attendance
- Part XXIII - Sentencing
- Part XXIV - Dangerous Offenders and Long-Term Offenders
- Part XXV - Effect and Enforcement of Recognizances
- Part XXVI - Extraordinary Remedies
- Part XXVII - Summary Convictions
- Part XXVIII - Miscellaneous
The main body is followed by schedules (i.e. appendices) relating to some of the above-mentioned Parts and a series of prescribed legal forms, such as Form 5 which sets out the proper legal wording for a search warrant.
The Criminal Code has been revised numerous times, including the consolidation of federal statutes that occurred during 1955 and 1985. One of the major revisions of the code occurred with the passage of the Criminal Law Amendment Act, 1968-69, whose provisions included, among other things, the decriminalization of homosexual acts between consenting adults, the legalization of abortion, contraception and lotteries, new gun ownership restrictions as well as the authorization of breathalyzer tests on suspected drunk drivers. The Criminal Code, in its present form, is part of the 1985 consolidated statutes with further major amendments since that year.
By means of legal challenges under the Canadian Charter of Rights and Freedoms, numerous sections of the Criminal Code have been struck down by the Supreme Court of Canada as infringing on a constitutional right as defined in this 1982 constitutional document. The offending sections are usually removed altogether, or heavily qualified, when new laws are passed. In other instances, such as Section 287 regarding qualified abortions, the Canadian Parliament does not repeal (i.e. erase) the infringing section from the text of the Criminal Code and so the remaining text is simply null, void and unenforceable by the police and the criminal justice system.
Before the terrorist attack against the World Trade Center on September 11, 2001, the Criminal Code contained almost no specific reference to terrorism. After that event, the Canadian Parliament passed Bill C-36, the Anti-terrorism Act (S.C. 2001, c.41) which received royal assent on December 18, 2001. This statute added an entire new component to the Criminal Code. Falling between Part II and Part III is now Part II.1 - Terrorism, which contains numerous provisions regarding the financing of terrorism, the establishment of a list of terrorist entities, the freezing of property, the forfeiture of property, and participating, facilitating, instructing and harbouring of terrorism.
Young persons, ages 12 to 17, may be charged with offences under the Criminal Code, are prosecuted in much the same way as adults under the Criminal Code, and are subject to the same laws of evidence. However, sentencing, procedure and evidence law are modified to some extent by the Youth Criminal Justice Act. Depending on the severity of the crime, the Crown Prosecutor may argue for a youth to receive an adult sentence after the age of 14. In this case, the judge will make the decision. Under the Young Offenders Act, the youth would be transferred to adult court in order to receive an adult sentence. This is no longer the case. Under the Youth Criminal Justice Act (YCJA) the young person would receive the adult sentence in youth court.
If the young person is given an adult custody sentence, he/she will attend a youth facility until becoming an adult at the age of 18. At this time it will be decided if the youth is transferred to an adult facility, or if he/she is to remain at the youth facility until the age of 20. If an adult sentence is given, the young person's name will be published and he/she will receive a permanent adult criminal record.
In 2012, Bill C-10 made amendments to the Youth Criminal Justice Act regarding youth and adult sentences:
- The YCJA contains some important changes regarding adult sentencing: The transfer process is eliminated. Instead, the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence.
- According to the amendments proposed in Bill C-10, the onus of proof would lie with the Crown prosecutor who files an application to impose an adult sentence on a young person. To have an adult sentence imposed, the prosecutor will have to convince the youth court that: the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and a youth sentence would not be of sufficient length to hold the young person accountable for his or her offending behaviour (clause 183 of the bill). The amendment in Bill C-4 explicitly stated that the court must be satisfied beyond a reasonable doubt that both of these criteria were met to impose an adult sentence. However, Bill C-10 does not state which standard of proof is to be used, leaving some uncertainty as to what standard the court is to apply in such circumstances. Under the current rules of the YCJA, in its decision to impose an adult sentence, a youth court must consider the seriousness and circumstances of the offence, the age, maturity, character, background and previous record of the young person and any other factors it deems relevant.76 9.2.7 Place of Detention (Clause 186) Currently the youth court decides, after a hearing, on the appropriate place of detention. Section 76(2) of the YCJA provides for a presumption based on the age of the young person: If the young person is under the age of 18 years at the time that he or she is sentenced, the court shall order that he or she be placed in a youth custody facility. If the young person is 18 years or older at the time that he or she is sentenced, the court shall order that he or she serve the sentence in a provincial correctional facility for adults or, if the sentence is two years or more, in a federal penitentiary for adults.77 However, the court may order that a young person under the age of 18 will serve his or her sentence in a correctional facility for adults if the Crown prosecutor proves, for example, that the young person is preventing or impeding the progress of other young persons confined at a place of detention and presents a threat to their safety.78 Clause 186 of the bill replaces section 76(2) of the YCJA in order to remove the possibility that a young person under the age of 18 might serve his or her sentence at an adult correctional facility. The bill thus provides that young persons under the age of 18 will, in all cases, serve their sentences at a youth custody facility.