Criminal law of Canada

[1] In all Canadian provinces and territories, criminal prosecutions are brought in the name of the "King in Right of Canada".

[2] The Attorney General can also require a case to be tried by the superior trial court with a jury (section 568).

In these offences, the level of court and whether the accused has an option over their mode of trial will be determined by how the Crown elects to proceed.

[5] Exceptions to the mens rea requirement exist for strict and absolute liability offences.

The external elements typically require there to be an "act", within some "circumstances", and sometimes a specific "consequence" that is caused by the action.

A true defence arises when some circumstances afford the accused a partial or complete justification or excuse for committing the criminal act.

In some cases common law defences are superseded by statutory enactment, for example duress, self-defence and as mentioned above, extreme intoxication.

In the case of duress the Supreme Court of Canada struck down the statutory provision as violative of s. 7 of the Charter, leaving the broader common law defence instead.

Statutory encroachments on the scope of common law defences can violate s. 7 of the Charter if they unacceptably reduce the fault requirement of offences.

For example, the mistake of fact defence involves an assertion that the accused misunderstood some material factual matter that prevented him from forming the requisite mens rea for the offence.

In the context of sexual assault, for example, a mistake of fact defence usually involves an assertion that the accused did not realize the complainant was not consenting.

defence", which is really just an assertion by the accused that the Crown has failed to prove the identity of the perpetrator of a crime beyond a reasonable doubt.

In reality they are just clusters of specific shortcomings that arise frequently in the prosecution of certain kinds of offences.

Sometimes the defence will raise an issue capable of leading either to the termination of the proceedings or the exclusion of evidence.

For example, if the accused is not brought to trial within a reasonable time, the proceedings must be stayed for delay by virtue of ss.

Cases of abuse of process arise in certain other circumstances, and they can also can involve Charter breaches, and there is significant overlap.

A person who alleges an offence, generally a police officer, prepares an Information, swearing under oath the facts supporting the charge.

Private prosecutions in Canada are usually restricted to regulatory offences such as practicing law without a licence and cruelty to animals.

Where the accused is charged with an indictable offence, the Crown must prove a prima facie case before a judge of a provincial court.

[11] The presiding judge must determine whether there is sufficient evidence for a jury, acting reasonably and judicially, to convict the accused.

Section 536(4) of the Criminal Code, proclaimed in force in 2004, indicates a preliminary inquiry is no longer automatic after an accused elects to be tried in a superior court.

The Attorney General may also, in rare cases, bypass the preliminary inquiry and issue a direct indictment.

[12] As of June 21, 2019, the coming into force of the Liberal government's Bill C-75 restricts the availability of the preliminary inquiry to offences punishable by 14 years imprisonment or more.

Where the trial is by judge alone, the judge will determine all facts which were proven and allow the parties to adduce additional evidence concerning disputed facts which may form the basis for finding aggravating or mitigating circumstance (i.e., the extent of injuries sustained by a victim).