Tyson Dahlem Criminal Defence

 Where Does Criminal Law Come From?

The primary source of criminal law is the Criminal Code of Canada.  This is a statute, passed by Parliament, that does the following:

  • defines what is a crime;
  • sets out a range of  punishment for that crime;
  • establishes procedure for the courts to follow in prosecuting accused persons;
  • defines some of the legal defences for accused persons;
  • establishes bail and pre-trial release procedure and conditions; and
  • essentially creates the whole structure for the courts to follow in the trial of criminal cases.

The federal government has the exclusive power to create criminal offences. There are other statutes passed by Parliament that are also criminal law: the Controlled Drugs and Substances Act and the Firearms Act are examples. All criminal statutes passed by Parliament are in effect nationwide.

The second major source of criminal law is "the common law". The common law is the accumulated decisions of judges over the years. The common law may differ substantially from province to province, as the courts of one province may rule in a different fashion from those in another province. The common law interprets the criminal statutes and amplifies them. The common law expands on what Parliament set out in the Criminal Code. The common law is what establishes sentencing ranges for any given crime, based on the principle that similar offenders who commit similar crimes should be punished in a similar fashion. The common law is made by judges and lawyers in court everyday that court sits.

The Province of Alberta, as with all provinces, has the power to pass statutes to regulate areas of provincial responsibility. A common example is the Traffic Safety Act. This is a purely provincial matter. Violations of the Traffic Safety Act are not crimes, though it is possible to be jailed for violations of this act, as well as many other provincial statutes.

Types of Offences

There are three main types of offences: summary offences, indictable offences, and regulatory offences.

Summary offences

Criminal offences are divided into two main types, one of which is "summary". This method of proceeding is the less serious form, with lower maximum punishments, and simplified procedures for trial. For example, it is impossible to get a jury trial for a summary offence. In most cases, the Crown Prosecutor has the ability to chose how the offence will be prosecuted. Some offences are automatically classified as summary offences. Summary offences are almost exclusively prosecuted in Provincial Court. There are far too many permutations of offence, classification, and procedural differences to describe here. 

Indictable Offences

The other type of criminal offence is "indictable". Serious offences such as murder, drug trafficking and sexual assaults are virtually all prosecuted by "indictment". The maximum punishments are greater, and there is a much greater range of procedural options for conducting the trial. Indictable offences are tried in both the Provincial Court and the Court of Queen's Bench. The trial of some offences, such as murder, is the exclusive jurisdiction of the Court of Queen's Bench.  

The accused person charged with an indictable offence has several choices in trial process.  The possibilities are:

  • trial in Provincial Court;
  • trial in Queen's Bench with a Justice, no preliminary inquiry;
  • trial in Queen's Bench with a Justice and a Jury, no preliminary inquiry;
  • trial in Queen's Bench with a Justice, with preliminary inquiry; and
  • trial in Queen's Bench with a Justice and a Jury, with preliminary inquiry.

The preliminary inquiry is hearing in Provincial Court to determine whether or not there is enough evidence to proceed to trial.  

Elements of a Criminal offence

All criminal offences have two parts: the mens rea and the actus reus.

Mens Rea is Latin for "guilty mind". This refers to the level of intent necessary for guilt for any given offence.  Actus reus refers to the "guilty act".



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