CHAPTER 2
THE CANADIAN LEGAL
SYSTEM: AN OVERVIEW
Chapter Objectives
2.1 Differentiate between an inquisitorial and an adversarial legal system.
2.2 Explain the division of legislative powers between the federal and provincial governments.
2.3 Describe the four sources of law in Canada.
2.4 Describe the levels within the Canadian court structure.
2.5 Compare and contrast the criminal and civil court processes.
2.6 Outline the key elements of the Canadian Charter of Rights and Freedoms.
2.7 Explain the elements of a criminal offence, list the types of criminal offences, and describe the
defences used.
Forensic psychologists work at the intersection of psychology and law. Each other chapter in this textbook describes
a component of this fascinating discipline. This chapter is somewhat different; it provides a very brief description of the Canadian legal system. We begin with the big picture; a description of Canada’s legal system and
an explanation of why the federal government passes laws in some areas and the provincial governments pass
laws in other areas. This will help students to understand the sources of Canadian law and the Canadian court
structure. Of particular importance is the Canadian Charter of Rights and Freedoms because it places principled limits on the substance, interpretation, and application of law. With this framework in place, we describe
criminal offences, what they are, how they are prosecuted, and available defenses. Prosecuting and defending
against a criminal offence almost always involves the presentation of evidence. In the last section of this chapter
we describe different kinds of evidence, with a particular emphasis on opinion/expert evidence.
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Chapter 2 The Canadian Legal System: An Overview
Legal Systems
Learning Objective 2.1
Differentiate between
an inquisitorial and an
adversarial legal system.
inquisitorial legal
system a legal system in
which the law is codified
(i.e., written down), judges
play an active role in the
proceedings, experts are
called by the court, and
the lawyers’ role is, in
part, to assist the court; it
is used in many European
countries
adversarial legal system
a legal system in which
two sides—the defence
representing the accused
versus the prosecution
(Crown) representing
the people—present
their position before an
impartial judge or jury,
who attempt to determine
the truth of the case; it is
used in North America
To better understand the North American legal system, we begin by briefly contrasting two distinct systems of law introduced in Chapter 1: the inquisitorial
system and the adversarial system. The inquisitorial legal system is used in
many European countries. In this system, the law is typically codified; that is, it
is written down systematically as a set of principles or rules. Judges play an active
role at trial in terms of directing the trial, as well as calling and questioning witnesses. Typically, experts are appointed by the court rather than being appointed
by one side in the dispute. A lawyer’s role is as much to assist the court as it is
to represent the client’s interest. Generally, the adversarial legal system is based
in common law. This means that the law is written in past court decisions. The
lawyers present evidence and examine witnesses, while the judge’s role is to be
the final arbitrator, listening to the evidence as presented by the parties. In an
adversarial system, the role of a defense lawyer is to be an advocate for the client
and to vigorously defend the clients to the full extent permitted by law. Typically,
expert witnesses are appointed by one party in the dispute.
For pedagogical reasons, we have described the two systems as if they are
distinct from one another. In practice, legal systems often have both adversarial
and inquisitorial elements but are more strongly associated with one system or
the other. For instance, the Canadian legal system is described as adversarial, but
much of our law is codified (written down) in legislation.
Some research has been done on public perceptions of legal structures.
Anderson and Otto (2003) studied participants who were familiar with the
adversarial system in the United States and participants in the Netherlands, a
country that has an inquisitorial system. They found that participants saw the
adversarial system as more fair in terms of the presentation of all relevant evidence to the judge and in terms of parties being given a full opportunity to
present their case. On all other measures, participants tended to prefer their
own legal system. Research on expert testimony found that court appointments
(as in inquisitorial systems) may help to ensure that experts present unbiased
testimony (Merckelbach, 2003) and may have a positive effect on the perceived
credibility of the experts (Cooper & Hall, 2000) compared to experts commissioned by one party to the proceeding (as in adversarial systems).
Division of Powers
Learning Objective 2.2
Explain the division
of legislative powers
between the federal and
provincial governments.
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In 1867, Canada was established under the British North America Act (BNA Act). In
1982 when the Constitution was repatriated to Canada, the BNA Act was renamed
the Constitution Act, 1867 and the Constitution Act, 1982 came into force. The
Constitution Act, 1982 contains the Constitution Act, 1867 and new acts/amendments that were passed between 1867 and 1982. In the Constitution Act, 1867,
powers to pass laws in Canada were divided such that the provinces were given
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Sources of Law
31
INSIGHT 2.1
Division of Powers: Provincial Jurisdiction
over Mental Health Law
Section 92 of the Constitution Act, 1867, gives jurisdiction
over metal health law to the provinces. Under this authority, each province has enacted mental health legislation,
including a provision for treating involuntarily committed patients. In British Columbia, the legislation specifically allows psychiatric institutions to treat involuntarily
committed patients against their will. In Ontario, involuntarily committed patients may not be treated against their will
except in very particular circumstances. In New Brunswick,
involuntarily committed patients may refuse to be treated,
but that decision may be overruled by a review board. In
Quebec, a judicial order is required to treat involuntarily
committed persons who refused treatment, and the order
will only be given in the most extraordinary circumstances.
jurisdiction over some areas (generally, areas that are of local concern) and the
federal government was given the power to pass laws in other areas (generally,
areas that are of national concern). Importantly, this is a true division of powers.
It is not the case that power over all important areas was given to one level of
government and the other level was given everything else (residual power). This
means that if the federal government attempts to pass a law in an area that is the
exclusive domain of the provinces, the federal law will be struck down as “ultra
vires”—outside the jurisdiction of the body that passed the law. Similarly, if a
provincial government tries to pass a law in an area that is in the jurisdiction of
the federal government, it will be struck down.
This division of powers is described in sections 91 and 92 of the Constitution
Act, 1867. Section 91 enumerates federal powers and section 92 enumerates provincial powers. Each enumerated item, or power, is called a “head of power.”
Understanding this is important because it explains why some laws are written in federal legislation and other laws are written in provincial legislation. It
also explains why some laws are common across Canada while others are unique
to provinces. For now, you should know that jurisdiction over the enactment
of criminal law resides with the federal government (i.e., in section 91 of the
Constitution Act, 1867 ), while jurisdiction over prosecuting and enforcing criminal law (e.g., police, provincial corrections, etc.) as well as most areas of civil law,
including personal injury law and mental health law, are in provincial jurisdiction (i.e., in section 92 of the Constitution Act, 1867; see Insight 2.1).
Sources of Law
In this section we describe four sources of law: the Canadian Charter of Rights and
Freedoms, legislation (either federal or provincial), common law, and administrative law.
Learning Objective 2.3
Describe the four sources
of law in Canada.
The Canadian Charter of Rights and Freedoms
The Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms
(the Charter), is the supreme law of Canada and, generally, cannot be overridden
by statute law or common law. There are a few exceptions: the Charter can be
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Chapter 2 The Canadian Legal System: An Overview
overridden when an infringement can be demonstrably justified in a free and
democratic society or if the notwithstanding clause is invoked.
As with all written law, the Charter requires interpretation by the judiciary.
For example, section 11(b) of the Charter provides that a person charged with an
offence has the right to be tried within a reasonable time. What is an offence?
What is a reasonable period of time? These concepts must be interpreted by
judges. Interpretable language was purposely used in the text of the Charter, in
part, to reduce the likelihood that the Charter would become stagnant, reflecting
values and principles applicable in 1982 but, perhaps, not in 1999 or 2014. We
will discuss the Charter more thoroughly later in this chapter.
Legislation
Although Canada is a common-law country, much of our law is written in legislation (federal or provincial). This does not mean that the law, as written in
legislation, is clear and easily applied; most legislation cannot be applied without
further interpretation, typically by judges. This is not an accident or the result
of sloppy writing. It is impossible to anticipate and articulate each circumstance
that may trigger the legislation or to give explicit directions on how to proceed,
so the purpose of legislation is to provide guidelines that should be particular
enough to allow a judge to apply them reasonably to a set of facts.
Common Law
Law that derives from previously decided cases is called common law. Generally,
you will not find these laws written in legislation. Rather, their definitions and
applications can be found in previously decided cases (see Insight 2.2).
Administrative Law
The federal or provincial governments may delegate powers to administrative
tribunals to interpret and enforce laws in some areas. The actual laws are passed
INSIGHT 2.2
Hearsay: An Example of Common Law
Any out-of-court statement that is tendered to prove the
truth of its contents is hearsay. There are two essential elements to this definition. First, the speaker is not in court
and the statement is to be reported by someone who only
heard it. Second, the side wanting to present the statement would like the trier of fact to accept it as true. For
instance, you are asked to take the stand to say that Helen
called you Friday to say “It’s raining in England.” If your
evidence is being tendered to prove that it was raining in
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England, it is hearsay. If your evidence is being tendered to
prove that you spoke to Helen on Friday and she was alive
then, it is not hearsay and will not trigger the hearsay rules.
Hearsay is presumptively inadmissible because, absent
evidence to the contrary, it is considered to be unreliable.
To be presumptively inadmissible means that unless the
evidence can pass a certain test, it will not be allowed.
The test that must be passed to admit hearsay evidence
is that the hearsay evidence is both necessary and reliable
(R. v. Khan, 1990).
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Canadian Court Structure
33
by the body with authority to do so (that is, the federal or provincial government),
but the power to interpret and enforce the laws may be conferred on administrative bodies through legislation. This legislation outlines the boundaries of
the administrative tribunal’s authority. Importantly, administrative tribunals are
bound by applicable constitutional law, statute law, and common law, just like any
other body with authority to compel behaviour and pass sanctions. Administrative
tribunals deal with issues such as allegations of breaches of human rights, employment standards, immigration, parole, and some mental health issues.
Canadian Court Structure
In this section we discuss four levels of courts, starting with the lowest level
of court and moving to the highest level—provincial courts, provincial superior
courts, provincial courts of appeal, and the Supreme Court of Canada.1 As can
be seen in Figure 2.1, this is not a comprehensive discussion of the Canadian court
system; however, it outlines the court levels that are most relevant to our discussion. We also introduce the doctrine of stare decisis (Latin for “Let the decision
stand”). This doctrine states that judges are bound to decide like cases alike. Not
surprisingly, there can be a lot of debate about whether a particular case is “like”
a previous case, but that is beyond the scope of this discussion. Let’s imagine for
now that “like cases” can be identified.
The doctrine of stare decisis is important because it provides a measure of predictability and certainty in the law. If you know the outcome of a previous case and
it is like a pending case, you can predict, with some degree of certainty, the outcome of the pending case. Importantly, not all court decisions are binding on all
other courts. If that were the case there would be no functional appeal process (the
appeal court would be bound by the decision of the trial court) and the law would
be stagnant (it could not change a bad law or respond to changing social values).
Learning Objective 2.4
Describe the levels within
the Canadian court
structure.
stare decisis a term
meaning “let the decision
stand.” The doctrine of
stare decisis states that
judges are bound to
decide like cases alike
Provincial Courts
Provincial courts are trial courts presided over by provincially appointed judges.
They hear most criminal cases, about half of the family cases (e.g., those involving neglected/abused children, adoption, and division of property), almost all
youth cases, and civil cases that involve small amounts of money. When a trial
is heard in a provincial court, there is no option to be tried by a jury. Decisions
are not binding on other provincial court judges or on any other court. Although
not binding, decisions of other judges at the same court level are persuasive, and
like cases should be decided alike unless compelling arguments to do otherwise
are accepted.
1
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In this chapter, “provinces” refers to “territories” also and “provincial” also refers to “territorial.”
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34
Chapter 2 The Canadian Legal System: An Overview
Supreme Court of Canada
Court Martial
Appeal Court
Provincial/Territorial
Courts of Appeal
Provincial/Territorial
Superior Courts
Militarty Courts
Federal Court
of Appeal
Federal Court
Tax Court
of Canada
Provincial/Territorial
Courts
Provincial Administrative
Tribunals
Federal Administrative
Tribunals
Figure 2.1 Outline of Canada’s court system
Note: Northwest Territories and Yukon have the same court structure as each of the provinces but the courts are called territorial courts rather than provincial courts. In Nunavut,
there is no territorial court; matters that would normally be heard at this level are heard by
the Nunavut Court of Justice, which is a superior court. The Nunavut Court of Justice combines the power of the superior trial court and the territorial court so that the same judge
can hear all cases that arise in the territory. Source: Justice Canada, 2013, www.justice.
gc.ca/eng/csj-sjc/ccs-ajc/page3.html. Reproduced with permission of the Minister of
Public Works and Government Services Canada, 2013.
Provincial Superior Courts
Provincial superior courts are trial courts presided over by federally appointed
justices. They hear some criminal and civil cases, applications for divorce, and
appeals from provincial courts on matters of small claims, family cases, and less
serious criminal matters (e.g., summary convictions, which are defined in the
“Criminal Offences” section).
For cases heard in provincial superior court, accused persons may elect trial
by judge alone or trial by judge and jury if they may be subject to a prison term of
five years or more. Decisions are binding on provincial courts in that province and
are persuasive for other superior court judges in the same province as well as for
courts in other provinces.
Provincial Courts of Appeal
Provincial courts of appeal hear civil and criminal appeals. They are appeal
courts, not a trial courts. That is, they do not hear from witnesses, and,
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Canadian Court Structure
35
ordinarily, evidence that was not presented at trial cannot be raised on appeal.
These courts are presided over by federally appointed justices in groups (panels) of three or five justices. The fi nal decision of the court is the judgment
of the majority; a unanimous decision is not needed. Parties who wish to appeal
to the provincial court of appeal must apply to do so. The court may agree
or decline to hear the appeal. This is not a decision on the merits of the case.
Instead, it is the initial decision as to whether an appeal will be heard. The
Crown or the defence can apply to appeal a sentence. The Crown may apply to
appeal a verdict (the Crown would only apply to appeal an acquittal, of course)
on a question of law. The accused may apply to appeal the verdict (the accused
would only apply to appeal a conviction, of course) on a question of law, fact, or
mixed law and fact.
Note that in Canada the Crown can sometimes apply to appeal an acquittal. Some of you will recall the O. J. Simpson murder trial. Many Americans
thought Simpson was guilty of murdering his ex-wife and her boyfriend, but he
was acquitted at trial. When the acquittal was announced, all criminal proceedings were complete because, in the United States, the prosecution cannot appeal
an acquittal. In Canada, as long as there is an appealable question of law, the
Crown can apply to appeal an acquittal.
What are questions of law, fact, and mixed law and fact? This is best answered
with an example. Suppose it is a crime to be too tall. A question of law is, “How
tall must a person be to be too tall?” Let’s say the answer is six feet tall. A question of fact is, “How tall is the defendant?” Let’s say in this case the man is five
foot eleven. A question of mixed law and fact is, “Is this man so tall that he has
committed an offence?” In this example, the answer would be “no.”
Decisions of provincial courts of appeal are binding on superior courts and
provincial courts in that province, and they are persuasive on courts in other
provinces that have the same law.
Supreme Court of Canada
Appeals to the Supreme Court of Canada (Figure 2.2) must have been heard in a
provincial court of appeal first. Parties who wish to appeal to the Supreme Court
of Canada must first apply to do so; the Court may agree or decline to hear the
appeal. On questions of law, either the accused or the Crown may appeal to
the Supreme Court of Canada. Appeals are heard by a panel of five, seven, or
nine justices. The decision of the court does not have to be unanimous. The
majority judgment is binding.
Decisions of the Supreme Court of Canada are binding on all inferior
courts that are subject to the law under appeal. Recall that some laws are
under provincial jurisdiction (listed in s. 92 of the Constitution Act), so only
the provinces that have enacted the same law are bound by a decision of the
Supreme Court of Canada that addressed the law. For instance, in Starson
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Chapter 2 The Canadian Legal System: An Overview
Figure 2.2 Members of the Supreme Court of Canada
Back row from left: Madam Justice Andromache Karakatsanis, Mr. Justice Thomas
A. Cromwell, Mr. Justice Michael J. Moldaver, and Mr. Justice Richard Wagner; front row
from left, Madam Justice Rosalie Silberman Abella, Mr. Justice Louis LeBel, the Right
Honourable Beverley McLachlin, P.C. Chief Justice of Canada, Mr. Justice Morris J. Fish,
and Mr. Justice Marshall Rothstein. Ottawa, December 3, 2012. (Sean Kilpatrick/The
Canadian Press)
v. Swayze (2003) the Supreme Court of Canada held that, in the circumstances
and given the law that applied in Ontario at the time, Starson could not be
treated for his mental illness against his will. Starson had been accused of
uttering death threats. He was involuntarily committed to a forensic psychiatric hospital after he was found not criminally responsible on account of mental
disorder. That judgment was not binding in British Columbia, because there
is a provision in the BC Mental Health Act that allows for involuntary treatment of involuntarily committed patients. Decisions of the Supreme Court of
Canada that relate to federally enacted laws (e.g., criminal law) are binding
throughout Canada. The Supreme Court of Canada is not bound by its own
decisions. The Court must be able to reverse its own decisions when it is
appropriate to do so.
When you read legal decisions, think about the court level that released the
decision. If it is a Supreme Court of Canada decision, it is the law in all jurisdictions bound by that law. A provincial court of appeal decision is binding on trial
courts in that province and persuasive on courts in other provinces. If you read
a decision from a provincial superior court, generally it is binding on provincial
courts in that province and persuasive in provinces bound by that law. For information on reading appeal decisions, see Insight 2.3.
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The Court Process
37
INSIGHT 2.3
How to Read an Appeal Decision
from the minority. Often, but not always, the majority decision is reported first.
Fourth, identify clearly the issues that are the basis of
the appeal. The court may split differently on the different
issues. Consider an appeal panel with Justices A, B, C, D,
and E in a case that involves two issues. On issue 1 (e.g.,
was there a Charter infringement?), the court may be split
such that Justices C, D, and E conclude that there was a
Charter infringement, and Justices A and B conclude that
there was not. On issue 2 (e.g., is the infringement demonstrably justified in a free and democratic society?), Justices
D and E may find that it is justified, and Justice C may find
that it is not. Note that in this case, although three justices
found a Charter infringement, the appeal would fail.
To further complicate things, it is not unusual for
two justices to come to the same conclusion for different
reasons. For instance, a conclusion that the trial judge’s
finding on credibility is patently unsupportable may be
explained by some justices as a consequence of too many
inconsistencies and by others as testimony that defies
logic. If this happens, look for the reasons of the majority;
this will be what binds lower courts.
First, determine who is bringing the appeal and who is
responding to the appeal. In a criminal case, if a person was
convicted at trial and appeals the decision to the provincial
court of appeal, the convicted person is the appellant and
the Crown is the respondent. If the appellant (the convicted
person in this example) wins the appeal, and if the Crown
appeals to the Supreme Court of Canada, the convicted person becomes the respondent and the Crown becomes the
appellant. In a civil court trial, the person bringing the action
is the plaintiff and the person responding to the action is the
defendant. If the plaintiff loses at trial and appeals the decision
to the provincial court of appeal, the original plaintiff becomes
the appellant and the original defendant is the respondent.
If the trial decision is overturned at the provincial court of
appeal, and if that decision is appealed to the Supreme Court
of Canada, the appellant at the Supreme Court of Canada is
the original defendant and the respondent at the Supreme
Court of Canada is the original plaintiff. As you can see, it can
be very complicated, so it is best to figure out which party is
which before you begin to read the decision.
Second, read the headnote at the beginning of the
case. This is like an abstract, but it is often much longer.
Its role is the same: to summarize the case.
Third, determine how many judges are sitting on appellant the party bringing an appeal
the panel. You will need this information to know which
decision is the majority decision and which decision came respondent the party responding to an appeal
The Court Process
Most cases that proceed in the criminal courts may also proceed in civil courts
if personal loss is involved. Although not required, it is typically true that a case
which may proceed both civilly and criminally will go to criminal court first.
There are several important distinctions between civil and criminal processes
(summarized in Table 2.1). The purpose of criminal law is to deal with the perpetrator, whereas the purpose of civil law is to restore the injured party to the
pre-injury state. When a case proceeds criminally, the police investigate the
allegation, the Crown brings the charge and prosecutes the case, and the State
pays for the prosecution. Contrast this with a case that proceeds civilly, where
the plaintiff investigates and hires a lawyer to commence the proceedings and
to argue the case in court. (Although, as discussed in Chapter 4, it is becoming
more common for people to represent themselves in court.) In both civil and
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Learning Objective 2.5
Compare and contrast the
criminal and civil court
processes.
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Chapter 2 The Canadian Legal System: An Overview
Table 2.1 The Process of Proceeding Criminally and Civilly
Criminal
Civil
Purpose
Deal with the perpetrator
Restore the injured party
Who investigates?
The police
An individual
Who brings the case to
court?
The Crown
The plaintiff
Who pays for the
prosecution?
The State
The plaintiff
Who pays for the defence?
The defendant
The defendant
Who must prove the case?
The Crown
The plaintiff
Standard of proof
Beyond a reasonable doubt
On a balance of probabilities
Possible outcome
Restriction of liberty
Monetary award
criminal proceedings, the defendant is responsible for the costs of the defence.
In both processes, the burden is on the Crown (criminal) or the plaintiff (civil)
to prove the allegation beyond a reasonable doubt (criminal burden) or on a balance of probabilities (civil burden). If the allegation is proved, the defendant will
likely have some restrictions on liberty imposed (criminal) or be required to pay
a monetary award (civil).
The Canadian Charter of Rights and Freedoms
Learning Objective 2.6
Outline the key elements
of the Canadian Charter of
Rights and Freedoms.
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Besides criminal and civil law, psychologists and other social scientists may also
be involved in human rights law. There are two broad sources of human rights
protections in Canada: human rights codes and the Canadian Charter of Rights and
Freedoms. Two important criteria are considered when determining which law
applies: the identity of the alleged discriminator, and the nature of the discrimination. If the alleged discriminator is a government actor who is accused of infringing
a fundamental right listed in the Charter (e.g., freedom of speech or unreasonable
search and seizure), the Canadian Charter of Rights and Freedoms may apply, and the
case will likely be heard in a court of law. If the alleged discrimination involves one
of the prohibited grounds listed in a human rights act (e.g., disability, race, national
or ethnic origin, colour, religion, age, sex, sexual orientation, marital status), the
case may be heard under the federal or a provincial human rights acts. Which one?
If the alleged discriminator is under federal jurisdiction (e.g., a bank), the case may
be heard under the Canadian Human Rights Act by a human rights tribunal. If the
alleged discriminator is not under federal jurisdiction (e.g., a condominium association, a private business owner), the case may be heard under the applicable provincial
human rights code by a human rights tribunal. Provincial and federal human rights
acts are “mere” legislation and can be amended or revoked relatively easily (as can
any piece of legislation). The Charter is “entrenched,” and although it is possible
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The Canadian Charter of Rights and Freedoms
39
to amend it, the amending formula is very complex and the process has not been
undertaken since the Charter was enacted in 1982.
The Canadian Charter of Rights and Freedoms, being part of the Constitution Act,
1982, is the supreme law of Canada. Government actors cannot pass legislation
that infringes our Charter rights, nor can government actors behave in a manner
that infringes our Charter rights. There are three important elements to remember. First, the Charter protects us against unconstitutional actions of government actors. It does not protect us against the actions of non-government actors.
So if your landlord discriminates against you, or if your employer discriminates
against you (assuming your employer is not a government actor), you do not have
a Charter argument. Because the Charter was intended, in large part, to protect
individuals from potential abuses of State power, it is not surprising that much
of the Charter deals with protection of persons accused of an offence—this is the
group against whom the State has the potential to be most oppressive.
There are two ways that Charter rights can be infringed: the law itself may
infringe Charter rights, or the way the law was applied may infringe Charter
rights (see Figures 2.3a and 2.3b). If a law is passed that infringes a Charter right
(e.g., a law that allows the police to search without a warrant), s. 52 of the Charter
allows a court to do one of three things.
First, it may strike down the legislation in its entirety. For example, the
Supreme Court of Canada struck down the constructive murder provision in
the Criminal Code as being contrary to ss. 7 and 11(d) of the Charter. Constructive
murder meant a person was guilty of culpable murder if that person caused the
death of another in the commission of a particular other offence, even if the person did not intend for death to occur. The Court held that it is contrary to both
fundamental justice (s. 7) and the right to fair hearing (s. 11(d)) to fail to require
the Crown to prove intent to kill (R. v. Vaillancourt, 1987).
Second, a court may read down (rewrite/revise) the part of the legislation
that is contrary to a Charter right. That may involve striking down or striking
out that part of the legislation. For example, if a law is passed that requires police
to have a warrant before entering a private residence except if the police suspect
pornography has been produced in that location, the courts may strike out the
part of the legislation that allows warrantless searches in those circumstances.
Third, a court may read in elements that bring the legislation in line with
the Charter. For example, if a law confers a benefit on single mothers but does not
confer the same benefit on single fathers, the court may “read into” the legislation that the benefit is provided to all single parents (to strike it down would be
a hardship to single mothers).
Section 1 of the Charter allows legislators to pass a law that is contrary to
Charter rights if it is a reasonable limit that can be demonstrably justified in a
free and democratic society. For example, some of our drinking and driving laws
infringe Charter rights in that they deny the right to counsel when a person is
detained at a roadside check for impaired drivers. However, the objective that the
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Chapter 2 The Canadian Legal System: An Overview
Strike down the law
The law itself infringes
Charter rights
Read down the law to be
consistent with the
Charter
The Canadian Charter of Rights and
Freedoms guarantees the rights and
freedoms set out in it are subject only
to such reasonable limits prescribed
by law as can be demonstrably justified
in a free and democratic socitey (s.1).
Read in elements to
make the law consistent
with the Charter
Figure 2.3a Infringement of Charter rights: The law itself infringes Charter rights
The way the law was
applied infringes
Charter rights
Any remedy that is
just and appropriate
in the circumstances
Evidence is
inadmissible
If, having regard to all the
circumstances, the admission of it
(the evidence) in the proceeding
would bring the administration of
justice into disrepute (s. 24(2)).
Figure 2.3b Infringement of Charter rights: The way the law was applied infringes Charter rights
laws are designed to achieve (i.e., reduce the harm that comes from impaired driving) is important and so can support a “relatively minor” Charter infringement.
We just discussed what could happen if a law is passed that infringes a
Charter right. It is also possible that a law is consistent with the Charter but is
enforced or applied in a way that infringes a Charter right. For example, let’s say
you were arrested, placed in a police car, read your right to a lawyer, and then
questioned—all in the police car. In this case, the way the police officer administered the law (i.e., the right to counsel upon arrest or detention) was probably an
infringement of your Charter s. 10 right because you were not given a reasonable
opportunity to contact a lawyer. Let’s further assume that while you were in the
police car, you said things that implicated you in a crime. Can the incriminating
statements be used against you in court? Section 24 of the Charter allows the
court to do one of two things. It may apply any remedy that is just and appropriate in the circumstances (e.g., stay the proceedings). Or the court may exclude
any evidence that was obtained as a result of the Charter infringement if, “having
regard to all the circumstances, the admission of it in the proceeding would
bring the administration of justice into disrepute” (Charter s. 24(2)). As you will
learn later in this course, the last part of s. 24 is very important, so we will repeat
it: the court may exclude the evidence if “having regard to all the circumstances,
the admission of it in the proceeding would bring the administration of justice
into disrepute.” If admission of the evidence would not bring the administration
of justice into disrepute, it may be admitted at trial.
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The following are a few more Charter sections that you will read about in the
following chapters.
Section 7: “Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the principles
of fundamental justice.”
Section 8: “Everyone has the right to be secure against unreasonable search
and seizure.”
Section 10: “Everyone has the right, upon arrest or detention, to obtain and
instruct counsel without delay and to be informed of that right.”
Section 11: “A person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against the person in
respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair
and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f ) except in the case of an offence under military law tried before a
military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe
punishment.”
A few comments about sections 7 and 11(b) are warranted. The s. 7 right
to fundamental justice has been interpreted to include the right to silence. The
right to silence does not mean that if accused people testify at their trial, they
may refuse to answer particular questions; it means that accused persons do not
have to testify. It also does not mean that the police must stop questioning suspects when they invoke the right to silence. The police may continue to ask
questions, and accused persons may continue to refuse to answer them.
Under s. 11(b), the accused has a right to a trial within a reasonable
period. The time begins when the charge is laid, not when the offence
occurred. To calculate the time from when the offence occurred would be
akin to imposing a limitations period on criminal offences. With very few
exceptions (e.g., summary offences) there are no limitation periods on criminal offences in Canada.
Learning Objective 2.7
Criminal Offences
All criminal offences are listed in the Criminal Code of Canada (1985). Under each
offence description, the elements of the offence are listed and the type of offence is
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Explain the elements of
a criminal offence, list
the types of criminal
offences, and describe
the defences used.
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Chapter 2 The Canadian Legal System: An Overview
Summary
Provincial Court
(no jury)
Provincial Court
Indictable
Hybrid
Electable (discretion
of Accused)
Superior Court
(judge alone or
judge and jury)
Provincial Court
(judge alone)
Superior Court
(judge alone)
Superior Court
(judge and jury)
Figure 2.4 Types of criminal offences
articulated. (See Figure 2.4 for the different types of criminal offences.) Available
defences are not listed in the Criminal Code, but they are described below.
Elements of Criminal Offences
actus reus the act that
constitutes a criminal
offence; Latin for “guilty
act”
mens rea the mental state
of the perpetrator at the
time of the offence; Latin
for “guilty mind”
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There are at least two elements in most criminal offences; the actus reus and the
mens rea. The actus reus is the act itself. Generally, in criminal law, the actus reus
requires that the person committed a particular act. Occasionally, the actus reus is
failure to do something that is required by law (e.g., failure to provide the necessities of life for your child). The mens rea is the mental state of the perpetrator at the
time of the offence. This is not motive. A person can intend to commit a criminal
offence without having a motive to do so. The specific mens rea that is needed
to prove an offence will vary with the crime. For instance, the offence of firstdegree murder generally requires the Crown to prove that the accused planned
and deliberated on the murder. There are exceptions to this—for instance,
murder of a police officer is first degree whether or not the mens rea of planning
and deliberation is proven. For the offence of second-degree murder, the mens rea
the Crown must prove is that the accused intended to cause bodily harm, knew
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Criminal Offences
43
or ought to have known that death was likely, and recklessly disregarded whether
death would ensue or not. For the offence of manslaughter, the Crown must prove
that the actions of the defendant caused the death of the victim, and the mens rea
of first-and second-degree murder cannot be proven.
Types of Criminal Offences
There are three types of criminal offences: summary, indictable, and hybrid.
Each type is discussed below and illustrated in Figure 2.4.
Summary Offences
Summary offences are less serious offences that carry penalties of a fine of not
more than $2,000 and/or a prison term of not more than six months. Generally,
there is a six-month limitations period on summary offences. That is, a charge
must be laid within six months of the date of the offence, unless the Crown and
accused agree to extend this limit. Summary offences are heard in provincial
court and cannot be heard by a jury. Examples of summary offences are vagrancy
and unlawful assembly.
summary offence a less
serious criminal offence
that carries relatively
minor penalties
Indictable Offences
Indictable offences are more serious offences. There are three classifications
of indictable offences. First, some indictable offences are within the exclusive
jurisdiction of a superior court. They include the most serious offences, such
as first-degree murder. Second, some indictable offences are within the exclusive jurisdiction of the provincial court. They are the least serious indictable
offences, such as keeping a gaming or betting house and keeping a common
bawdy house. Third, some indictable offences are electable offences, which
means the accused decides if the case will be heard in a provincial court or in a
superior court. Offences that are electable include manslaughter.
Hybrid Offences
Hybrid offences may proceed as indictable offences or as summary offences, at
the discretion of the Crown. Remember that summary offences have a limitations period of six months. Imagine if the accused could elect to proceed either
summarily or by indictment; the accused would always elect to proceed summarily if the crime was committed more than six months ago. An example of a
hybrid offence is assault.
indictable offence a more
serious criminal offence
that may carry very
serious penalties
electable offence a
indictable offence that
can be heard in provincial
court or in superior court,
at the discretion of the
accused
hybrid offence a criminal
offence that can proceed
as a summary offence or
indictable offence, at the
discretion of the Crown
Defences
The accused may choose not to mount a defence if it is believed that the Crown
has not proven each element of the offence. Recall that the Crown must prove
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Chapter 2 The Canadian Legal System: An Overview
Negate actus
reus
Involuntary act
Automatism
(insane or
not insane)
Negate mens rea
Insanity
Intoxication
Mistake of fact
Justification
Defence of
property
Self-defence
Correction of
children
Excuse
Entrapment
Provocation
Necessity
Duress
Figure 2.5 Classes of defences
justification the accused
admits having committed
the offence, but argues
that it was justified (e.g.,
self-defence)
excuse the accused
admits having committed
the offence but argues
that there is a legal
excuse for the act (e.g.,
provocation)
negating the actus reus a
situation in which the
accused admits to having
committed the offence
but argues that the
actions were not under
voluntary control
negating the mens rea a
situation in which the
accused admits to having
committed the offence
but argues that the
requisite mens rea was
absent
beyond a reasonable doubt that this accused had the requisite mens rea and actus
reus as stated in the Criminal Code.
If the accused decides to mount a defence, it may be based on identification—“I did not commit the offence.” If the accused admits to committing the
offence, there are four classes of defences (see Figure 2.5). The accused could
attempt to negate the actus reus by claiming that it was an involuntary act, such as
an assault that took place in the course of an epileptic attack or automatism. The
accused could attempt to negate the mens rea by claiming to have been mentally
disordered at the time of the offence (more about this in Chapter 3), to have been
intoxicated at the time of the offence, or to have reasonably misunderstood critical facts (such as whether the complainant consented to having sex). The accused
could use a justification, such as self-defence, defence of property, or correction
of children. The accused could claim an excuse for having committed the act,
such as entrapment, necessity, duress, provocation, or mistake of law.
If the defence involves negating the actus reus or negating the mens rea,
the accused need only raise a reasonable doubt with the defence. If the defence
involves a justification or excuse, the accused must establish the defence on a
balance of probabilities.
Evidence
When a criminal offence has been committed and there is not a guilty plea,
there will be a trial in which evidence will be presented. The evidence will be
heard by the trier of law and the trier of fact. Recall the earlier example used to
explain the difference between questions of law and questions of fact. The hypothetical issue was that it is a crime to be too tall. The question of law is, “What
is too tall?” This is a question for the trier of law to decide. The question of fact
is, “How tall is the accused?” This is a question for the trier of fact to decide.
If a case is being heard by a judge sitting alone, the judge is the trier of law and
the trier of fact. If a trial is before a judge and a jury, the judge is the trier of law
and the jury is the trier of fact. In this section, we discuss, very generally, the
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45
law of evidence, including the source of evidence law, admissible evidence, and
expert evidence.
Source of Evidence Law
The laws of evidence were developed over the centuries to ensure that courts
only hear evidence needed to render fair and just decisions. Although most laws
of evidence can be found in case law (i.e., common law), there are statutes that
provide for some laws of evidence. The most relevant statutes are the Canada
Evidence Act (which governs admissibility of evidence in some criminal trials)
and provincial evidence acts. Each province has its own evidence act that governs
some criminal proceedings and most civil proceedings.
Admissible Evidence
As a starting point, all information that is logically probative of a material fact
will be admitted in evidence unless it is inherently unreliable (e.g., hearsay evidence), its prejudicial effect outweighs its probative value (e.g., evidence of bad
character of the accused), or it should be prohibited on policy grounds (e.g.,
obtained as a result of a Charter breach). A piece of evidence may be admitted but
given no weight— admissibility and weight are separate issues. A three-yearold child may be admitted as a witness, but the trier of fact may decide that the
child’s memory is so unreliable that no weight can be given to the testimony.
admissibility
determination of whether
or not evidence can be
heard
weight determination of
how important evidence is
deemed to be
Opinion/Expert Evidence
Ordinarily, witnesses are not allowed to present opinions to court; they are confined to testimony concerning what was perceived through their senses. Expert
witnesses testify in court about specialized knowledge they possess and provide
opinions based on that specialized knowledge; this is known as expert evidence.
Forensic psychologists are often called upon to testify regarding matters of mental health (in the case of a clinical forensic psychologist) or general theory and
research in psychology and law. Generally, clinical forensic psychologists are
involved as expert witnesses after they have evaluated a defendant; they are called
to testify regarding that defendant’s mental state and how it relates to the legal
issue at hand (such as insanity, competency, dangerousness, civil commitment,
etc.). It is possible, however, for forensic psychologists to serve as general expert
witnesses. In this case, instead of testifying regarding specialized knowledge
about a particular defendant/complainant, they may be called to testify regarding broader psychological principles in which they have specialized knowledge or
expertise. This role is usually performed in conjunction with another role, such
as that of researcher, academic, or evaluator, and thus is generally not the only (or
even the primary) role in which a forensic psychologist engages. Forensic psychologists in the expert witness role may participate in both criminal and civil
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expert evidence opinion
evidence provided by a
witness with specialized
knowledge
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Chapter 2 The Canadian Legal System: An Overview
proceedings and are usually trained either in general psychology or in a particular psychological specialty such as clinical psychology.
In R. v. Mohan (1994), the Supreme Court of Canada provided the following
four criteria for admission of expert opinion evidence.
The opinion must be necessary. That is, the content of the expert’s testimony is outside the experience and knowledge of the trier of fact, and the trier
of fact ought to have this information to help it render a fair and just decision.
For instance, until recently, experts could be called to court to explain why a
child sexual abuse complainant would not report the offence at the first available
opportunity. In fact, most children delay reporting their abuse for a considerable
amount of time and for myriad reasons. Without this information about delayed
disclosure from an expert, a trier of fact may draw an incorrect and adverse conclusion from a child’s failure to report immediately.
The opinion must be relevant to a material issue at trial. For instance, the
ability of the accused to form the requisite mens rea for first-degree murder (i.e.,
planned and deliberate) may be influenced by the amount of alcohol the accused
consumed just before the offence. In this case, the effect of a particular amount of
alcohol on a particular accused is material. However, if the accused was charged
with driving while under the influence of alcohol, intoxication is not a material
fact because it is not a defence to the offence.
The expert must be properly qualified. That is, the court must find that the
expert has the specialized knowledge required to present an opinion. A properly
qualified expert is not necessarily a person who has an advanced degree; professional experience is sometimes sufficient to qualify a person as an expert.
There are no exclusionary rules that would render the evidence inadmissible.
In other words, if the evidence is inadmissible on its face, having it reported by
an expert will not make it admissible. For instance, except in particular circumstances, evidence of the “bad character” of the accused is inadmissible. It could
not be rendered admissible just because it was tendered by an expert.
Even if evidence is admitted, that does not mean it will carry much, or even
any, weight. The difference between admissibility and weight is important. As
an example, a judge may admit an expert to provide an opinion concerning
battered-spouse syndrome, but (perhaps because the Crown was particularly
persuasive in its cross-examination of the expert) the trier of fact may choose not
to consider the evidence at all or to consider only part of it.
Summary
As a forensic psychologist, it is essential that you understand the legal system; it
will inform your research and will use your expertise to advance legal and policy
development as well as to assist with particular disputes. We began by describing,
very generally, two models of legal systems: the adversarial and inquisitorial models. Within the Canadian adversarial legal system, the Constitution Act, 1867, sets
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Discussion Questions
47
out which level of government has the authority to pass laws in particular areas.
Laws come to us from legislation and from common law. The interpretation and
enforcement of the laws are often done by courts and sometimes by administrative tribunals. When a criminal law is broken, a court of law may be called on to
determine the guilt of an individual and to administer a sanction. Whether the
trial court that makes these determinations is a provincial court or a (provincial)
superior court will depend on the type of crime and, in some cases, on decisions
made by the Crown and the defence. The Crown has the burden of proving,
beyond a reasonable doubt, that the particular accused committed the actus reus
and had the requisite mens rea. This is done by presenting admissible evidence
in court. Most commonly, this evidence is either physical or is reports of witnesses who have first-hand knowledge of the events. Sometimes the evidence also
includes opinions from experts who have met the Mohan criteria. If the Crown
appears to have proven every element of the offence, the defence may respond.
The accused could deny being the perpetrator or could attempt to negate the
mens rea, negate the actus reus, argue a justification, or argue an excuse. All elements of the Canadian legal system must be in accord with the Canadian Charter
of Rights and Freedoms; if they are not, the discord must be demonstrably justified
in a free and democratic society.
Discussion Questions
1. We began this chapter by contrasting the adversarial and inquisitorial legal system. Consider the elements of each system and decide which you prefer. Explain
why your choice is a better system.
2. Do you think mental health law should be under federal or provincial jurisdiction? In other words, should mental health law be consistent across Canada
or are there unique and regional concerns that can only be addressed through
provincial legislations?
3. Most of the Canadian Charter of Rights and Freedoms contains protections for
persons charged with offences. Is this the group that should be singled out for
protection under the Charter? Are there any other groups that you think require
special Charter protection?
4. In Canada, we do not have limitation periods for prosecuting indictable criminal offences. If an indictable crime is committed, it can be prosecuted at any
time. Most American states have statutes of limitations on criminal offences
except for murder. List five advantages and five disadvantages of not having statutes of limitations on criminal offences.
5. If you were a victim of an assault and injured as a result, you could proceed
civilly or criminally. List the advantages and disadvantages of each option; try
to go beyond what is reported in this chapter. Explain why you would proceed
either civilly or criminally.
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Chapter 2 The Canadian Legal System: An Overview
Key Terms
actus reus, p. 42
inquisitorial legal system, p. 30
admissibility, p. 45
justification, p. 44
adversarial legal system, p. 30
mens rea, p. 42
appellant, p. 37
negating the actus reus, p. 44
electable offence, p. 43
negating the mens rea, p. 44
excuse, p. 44
respondent, p. 37
expert evidence, p. 45
stare decisis, p. 33
hybrid offence, p. 43
summary offence, p. 43
indictable offence, p. 43
weight, p. 45
References
Anderson, R. A., & Otto, A. L. (2003). Perceptions of fairness in the justice system:
A cross-cultural comparison. Social Behavior and Personality, 31, 557–564.
Canada Evidence Act, R. S. C. 1985, c C5.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Constitution Act, 1982. Schedule B to the Canada Act 1982 (UK), 1982. c 11.
Criminal Code, R. S. C. 1985, c. C.46.
Cooper, J., & Hall, J. (2000). Reactions of mock jurors to testimony of a court
appointed expert. Behavioral Sciences and the Law, 18, 719 –729.
Merckelbach, H. (2003). Taking recovered memories to court. In P. J. Van Koppen
& S. D. Penrod (Eds.), Adversarial versus inquisitorial justice: Psychological
perspectives on criminal justice systems (pp. 119 –130). New York, NY: Kluwer
Academic/Plenum.
R v. Khan, [1990] S.C.J. No 81 (QL).
R. v. Mohan, [1994] S.C.J. No 36 (QL).
R v. Vaillancourt, [1987] S.C.J. No 83 (QL).
Starson v. Swayze, [2003] S.C.J. No 33 (QL).
Suggested Readings and Websites
The Canadian Charter of Rights and Freedoms: http://laws-lois.justice.gc
.ca/eng/Const/page-15.html.
Department of Justice Canada: www.justice.gc.ca.
Supreme Court of Canada: www.scc-csc.gc.ca.
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