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“A Summary of The Framework of Canadian Criminal Justice”
Summarized by: Maxim Ivanov, 220608865
Summary and Commentary of “Canadian Criminal Law: Policing, Prosecution, and
Corrections”,” by C. Colaguori and F. Chapman, 2023
AP/SOSC 1650 : Introduction to Criminology
Submitted to: Jackie Sikdar
January 30th, 2025
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Introduction
Different kinds of codes of law exist in the world but most commonwealth countries like
Canada use the common law system, as does the US, which is when legal precedents are
established by the courts . The civil law system is also present in Canadian law that deals
with non-criminal related issues between citizens. The Roman system of law was founded
around 450 B.C and remains an important legal framework for criminal law, contracts,
property and family issues, and is still used by most of Western Europe and Quebec
(Colaguori et al., 2023, pg. 349).
The letter of the law is the explicit, literal meaning of the written rules, meaning legal actors
within the justice system need to uphold these rules to maintain legal equity and fairness of a
just society. Legal pluralism is when multiple legal systems exist within a society/jurisdiction
like in Canada where we have Indigenous legal traditions on top of the established law. State
law are the legal rules and regulations established and enforced by a government. It is
supposed to protect individuals from harm, maintain public security and uphold human rights
as an instrument of justice, however, it is still subject to mistakes when legal agents are
responsible for miscarriages of justice like wrongful convictions (Colaguori et al., 2023, pg.
360).​
The Legal Definition of Crime
Canada’s criminal law was initially developed through England’s drafted Criminal Code but
has changed a lot in an unpredictable manner since. The legal definition of crime is as
follows: an act or behaviour that is prohibited by criminal law and enforced through
punishment. As the textbook has explored before however, just because something is illegal
doesn’t mean it’s always wrong. A public wrong is also a similar legal definition of crime,as
it is something that is wrong against the totality of society. In civil law, money may be
exchanged as a means of settling disputes whilst in criminal law, an individual's freedom is
on the line (Colaguori et al., 2023, pg. 361).
We get a lot of our legal basis and terminology from Latin. Mala in se means an act that is
evil in of itself (murder, rape, arson), whilst mala prohibita is an evil that is prohibited
because the law says its wrong (drug use, driving regulations, unlawful assembly). In Canada,
the Crown Attorney represents the state and a defence lawyer represents an accused
individual in criminal law proceedings. The due process is in large, when an individual is
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presumed innocent until proven guilty, also known as the Canadian Bill of Rights. This
means that how guilt is established is as important as the truth of the matter (Colaguori et al.,
2023, pg. 361).
The Requisite Elements of a Crime : Actus Rea and Mens Rea
The legal definition of crime also requires that two requisite elements are met: the actus rea
(the physical act itself) and the mens rea (the intent to commit the crime). This means that an
act and a state of mind must be present at the time of crime, this is why when the accused was
not in a sound state of mind, they might be deemed not-criminally responsible meaning they
did the act but they didn’t have the intention (Colaguori et al., 2023, pg. 362)
Canadian Criminal Law and the Fundamental Principles of Justice
As mentioned before, British common law is rooted within the Canadian criminal law which
is further defined by the Canadian constitution. A constitution is a fundamental set of rules or
principles that establish the rights and duties of both the government and the citizens.
Constitutional law is the framework of government of written and unwritten principles that
protects individuals and certain groups whilst defining what kind of power the government
wields and in which ways. The Constitution Act, 1867 was a document that founded
Canadian law based on the British parliamentary model which means that parliamentary
supremacy is the basis of government, but with the addition of the Charter of Rights in 1982,
certain limits were placed on the exercise of government power. These two are above all
other laws in Canada as a result. The charter outlines many of our fundamental rights and
freedoms including freedom of thought, religion, belief, freedom of press, freedom of
association, right to life, liberty, equality and many others. “Just desert” is the idea that
individuals should receive what they deserve, which in the context of criminal justice,
involves fitting the punishment to the crime (e.g value of stolen goods dictates how harsh the
sentence is). A more complex justice principle is moral blameworthiness, which is the idea
that an individual should be held morally responsible for their actions based on whether the
behaviour was wrong, whether they were in control of their actions and whether they
understood the consequences of those actions (e.g Is stealing wrong? Was the person in
control of themselves when they committed theft? Did they understand the potential
consequences of such actions?) (Colaguori et al., 2023, pg. 363-365).
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The Rule of Law
The rule of law is a phrase that describes an ordered society that obeys the law and in theory,
no one should be above it. It establishes fairness and legitimacy for the system of law. This
also means that an authority like a judge or a monarch doesn’t wield any arbitrary power
when it comes to deciding outcomes in the justice system, or in other words, the government
cannot make law, it must use the powers conferred upon it by law instead. Another important
consideration for this rule is that when a crime has occurred but the law changed after it
happened, the responsible party can only be punished to the extent of the previous law,
meaning that we cannot have retrospective laws apply in such cases. They also cannot be
retroactive which is similar to the legal maxim of nulla poena sine lege (no penalty without
law). This means that there can be no punishment if there was no law enacted at the time for
the committed crime. In summary, an offender must be allowed to go free if found innocent
by the court even if the general public finds them morally reprehensible. The due process
model has a formal process and non-adjudicative fact-finding (possibility of human error),
and places a lot of challenges on the adversarial system, in which there is a legal contest
where two parties compete for victory and the winner is declared right. A prominent example
of this is in medieval Europe, where parties would physically fight each other and determine
the winner through trial by combat (Colaguori et al., 2023, pg. 366-368).
Factual Guilt and Legal Guilt
Factual guilt refers to the facts of what happened that indicate a person's guilt (e.g illegal
recreational drugs) but if their due process rights were violated (e.g the police officer found
the drugs through an unreasonable search), then they may be considered not legally guilty.
For legal guilt to be established, the Crown has the burden of proof to indicate that the
offence was committed beyond a reasonable doubt. If the evidence is convincing enough to
prove the mens rea and actus rea, then it is considered beyond a reasonable doubt even if the
evidence isn’t necessarily certain or complete. Factual incompetence is synonymous with
factual guilt and is simply the act of doing something illegal but not engaging with the
criminal justice system, and therefore not being legally guilty (Colaguori et al., 2023, pg.
369-370).
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The Criminal Code of Canada
The division of powers between the federal and provincial government was established with
the Constitution Act, 1982 and the Charter of Rights and Freedoms which makes up the first
34 sections of the constitution. The Charter is mostly concerned with challenging the
government’s purported power in specific areas of legislation and about structuring a
relationship between the state and individuals. The constitution is supposed to provide limits
on state power and what they can or cannot do (Colaguori et al., 2023, pg. 371-372).
Sources of Criminal Law: Statute and Case Law
The Criminal Code is a federal document so only the federal government can enact criminal
legislation. The Constitution Act is responsible for this division of powers, as provincial
governments only have power with quasi-criminal matters, or in other words, specific
provincial issues (e.g driving regulations). Being ignorant of the law is not an excuse for
committing offences and as such the public is expected to know the Criminal Code. Other
provisions of criminal related documents include the Controlled Drugs and Substance Act,
that outlines more specific guidelines and regulations to drug substances within criminal law.
Legislation (e.g Criminal Code) and judge-made case law that interprets legislation are the
two primary sources of criminal law in Canada. This system is based on law interpreted by
appointed judges, which leads to risk of judicial activism (judges’ personal bias). An activist
court doesn’t focus on interpreting the law but instead on the making of the law (Colaguori et
al., 2023, pg. 372-373).
Types of Criminal Convictions in Canada
The US uses historical classifications of crime like treason, felonies (most serious) and
misdemeanors (less serious). Canada uses a slightly different classification system which are
divided into summary, indictable and hybrid offences. Depending on the severity of the
crime, different state powers may preside over the prosecution. Summary offences are not as
serious and are tried before territorial or provincial courts (e.g traffic ticket), so the
punishments may include a fine of no more than $5000 or a term of imprisonment of not
more than two years less a day in a provincial institution. Indictable offences are much more
serious (e.g murder), can include life imprisonment as a punishment for the crime (which is
typically 25 years in prison without parole) and are held in a federal penitentiary. An
indictment is a legal document that sets out the charges against the accused. If one is charged
with an indictable offense, they may have certain options like a choice of court (Provincial
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Court of Justice or Superior Court of Justice) and whether the trial will be with only a judge
or a judge with a jury. Hybrid offences may be tried as either or depending on the choice of
the Crown and circumstances surrounding the crime. By default it proceeds as an indictable
offence under the Interpretation Act s. 34 but may be lowered to a summary offence
depending on other factors (Colaguori et al., 2023, pg. 373-374).
Administrative Law and Regulatory Offence
A regulatory offence concerns itself with a wrong done to the health, convenience, safety and
welfare of the public. Administrative tribunals are executive branches of government and are
responsible for proceedings instead of traditional courtrooms as it's a non-criminal matter.
This also means that the Crown doesn’t have to fully prove the mens rea (intent) of the
individual at hand. These tribunals have the power to do the following: terminate people from
their jobs, send people back to prison, de-certify professionals, revoke licenses, deport
individuals and more (Colaguori et al., 2023, pg. 374-375).
The Main Elements of the Criminal Justice System
The style of cause is part of the unique structure of the criminal justice system. Each case
brings in the name of the state which in Canada’s case is Regina v Smith, with “Regina”
representing the Queen of England, and if it is the King of England, then the naming changes
to Rex v Smith. This naming indicates that the wrong was committed against the state and not
just the victim. The state employs a Crown Attorney to represent them while the accused can
choose to plead “guilty” or “not guilty”. A conviction and punishment will be handed out if
the accused is proven guilty. There is a maxim however that states “For the law holds, that it
is better that ten guilty persons escape, than that one innocent suffer”, emphasizing how the
fundamental basis of the system can be brought into question if an innocent person is found
guilty (Colaguori et al., 2023, pg. 375-376).
The Structure of Courts
Another division of power within the judicial system involves the separation and hierarchy of
different courts that each deal with certain matters. There are three levels to the system, with
the first one being inferior courts. These are the lower territorial or provincial courts that
handle the majority of the cases before the courts (e.g Ontario Court of Justice) including
youth courts that deal with individuals aged 12-17 at the time of the crime. A Justice of Peace
usually presides over these courts who is given authority by the Justices of the Peace Act.
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They receive information (first documents in hearing) and have certain powers to issue
summons or warrants. Then superior courts are next, that have inherent jurisdiction, which
allows adjudication of cases except where legislation curtails that authority. They deal with
the most serious criminal cases and a judge is appointed by the federal government. Courts of
appeal are found in each province and territory but the one above all of them is the federal
Supreme Court of Canada. These courts are responsible for reviewing the decisions and
outcomes of lower courts and determining whether it was a fair trial. For the Supreme Court
to consider a case, an appellate must first ask for permission to appeal said case. The
Supreme Court only reviews the most significant cases that impact the general public. The
court is composed of one chief justice and eight other justices but the panels can include
either three, five or all nine at once (Colaguori et al., 2023, pg. 376-378).
REFERENCE LIST
Colaguori, C., & Chapman, F. (2023). Chapter 10: Canadian Criminal Law: Policing,
Prosecution, and Corrections. In Crime, Deviance, and Social Control in the 21st
Century : A Justice and Rights Perspective (pp. 349–405). essay, Canadian Scholars.