Canadian Criminal Law/Proof of Elements/Print version

Proof of Offences

General

Identity of the accused person is always a required element to be proven for a given offence. As with all essential elements, it must be proven beyond a reasonable doubt.

It can be proven by way of the following methods, none of which are necessarily determinative:

• an eye-witness who IDs the accused as person seen committing the offence
• exclusive opportunity
• security system photographs/video
• voice identification
• finger prints
• foot prints
• DNA

Eyewitness identification

Courts are very cautious of eyewitness evidence as it is considered “inherently unreliable” as there are “dangers inherent in eyewitness testimony”. It is “well-established” that the "frailties" of eyewitness identification "can lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused”. Even honest witnesses may misidentify individuals. Consequently, identification evidence is treated differently than other evidence and special care and caution should be taken. Judges are required to give special cautions when considering identification evidence. This includes instructing himself and bearing in mind the guidelines when considering evidence of identification.

A court of appeal "will be subject findings [on identity] to closer scrutiny than is generally the case with findings of fact”.

Weighing identity evidence

Bald assertions of identity by witnesses should be given little weight. The court should consider the foundation of the statement including the opportunity and ability to observe.

It has been recommended that cases resting entirely on eyewitness testimony should require the judge to do the following:

1. recognize the danger of convicting based on eyewitness identification only;
2. note the significant factors which may have affected the identification; and
3. address those factors.

It is "incumbent upon Crown counsel to ensure that all relevant circumstances surrounding pretrial eyewitness identification procedures be fully disclosed to the defence and be made available for scrutiny by the trier of fact."

The fundamental factors affecting the weight of eyewitness evidence are:

1. opportunity to observe
2. light conditions
3. the distance from the witness to the suspect
4. the eyesight of the witness
5. colour perception
6. previous acquaintance with the accused
7. focus of attention or distraction
8. presence or absence of distinctive features or appearance of the suspect/accused

Extra caution should be taken where the witnesses had a limited opportunity to observe and the confirmative opportunity occurred while the accused was under arrest.

Absent supporting evidence, a judge cannot say that stress upon the witness is a neutral factor in accuracy of observations.

Line-ups

The key rule in giving a photo line-up is that the procedure is fair.

It was recommended in the Sophonow Inquiry that in order to avoid false identification through line-ups the procedure should include the following:

• The photo pack should contain at least 10 subjects.
• The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
• Everything should be recorded on videotape, or failing that, audiotape. In addition, or as a minimum alternative, all comments of the witness should be recorded verbatim on the form accompanying the line-up and signed by both the officer and the witness.
• The line-up should be presented by an officer who is not involved in the investigation and does not know who the suspect is.
• The officer showing the line-up should advise the witness that he does not know who the suspect is or whether there is a suspect in the line-up. The officer should also tell the witness that it is just as important to clear the innocent as it is to identify the subject.
• The photopack should be presented sequentially, not all together.
• Police officers should not speak to the witness after the line-up regarding his ability or inability to identify anyone.

Several cases have adopted these requirements or something similar.

Other factors considered include:

• evidence of distinguishing features linking the accused and the perpetrator identified by the line-up photograph.
• opportunity for the witnesses to see the perpetrator;
• familiarity with the accused prior to court;

The Sophonow guidelines for line-ups are not legally binding and so failure to follow them will not necessarily be fatal to the identification evidence.

The prior familiarity of the witness to the accused is a factor that goes to weight.

Video identification

A witness can testify to the contents of a video establishing identity of the accused without showing the video. It is generally considered akin to actual observations.

A witness who is familiar with the appearance and idiosyncrasies of the accused that is not apparent to the trier of fact, may testify to identity where the witness can 1) state the particularities of the idiosyncrasies; and 2) can show where the idiosyncrasies are revealed on the video. A voir dire must be held to determine whether the person, such as a police officer, can testify to the likeness of the video image to the suspect.

A person who is not familiar with the appearance of the accused cannot testify on identification of the accused in a video.

Dock identification

Identification of an accused in the dock is generally undesirable and unsatisfactory, and so adds very little weight to the proof of identity.

Recognition

Courts have generally made a distinction between identity evidence and recognition evidence. The difference being that identity involves a witness matching a previously observed stranger with that of the accused. Recognition is where the observer knew the person being observed and the issue is not simply identifying a person by description, but rather recognizing the person through their acquaintanceship.

Recognition, however, is not a distinct category from identification. Rather they are at different points on a spectrum of reliability.

In admitting recognition evidence, there must be sufficient indicia for a threshold degree of familiarity which depends on

1. the length of the prior relationship between the witness and the accused;
2. the circumstances of the prior relationship between the witness and the accused; and,
3. the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.

These indicia go to the weight of the evidence along with "the cumulative effect of recognition evidence provided by more than one witness and the circumstances under which the witness recognized the accused."

Before a person can claim to recognize a person they must establish that they had a prior opportunity to personally observe the accused and become acquaintanced with him.

Recognition simply means that "the witness's evidence is based in part on his or her dealings with the accused before the crimes were committed"

Recognition evidence is considered more reliable and has more weight than identification evidence.

Resemblance without anything more is not sufficient to establish identification. Other inculpatory evidence is needed.

See also

• Canadian Criminal Law/Cases/Identity

Introduction

The elements of jurisdiction and time are essential elements for all offences that must be proven beyond a reasonable doubt. While they are usually trivial to the case as a whole, they are still necessary in any case.

These elements establish that the court has both geographic and temporal authority over the matter and that the evidence is specific enough to meet the described offence found in the charging document--the information or indictment.

Jurisdiction

The charging document will state a geographic region in which the alleged offence is to said to have been committed. For the court to be convinced beyond a reasonable doubt that it has authority over the matter, there must be evidence establishing that the offence alleged "occurred" in a specific county/region and province.

In a simple case, this can be accomplished by having the eye-witness to the offence or the investigating officer testify to their presence in the county, region, and province at the time of their investigations or observations.

See: Canadian Criminal Procedure and Practice/Jurisdiction and Election#Jurisdiction

Time

The charging document will state a specific date or range of dates in which the offence is said to have occurred. For the court to be convinced beyond a reasonable doubt that the offence occurred within the specific date(s), there must be evidence establishing the date. Since the charging documents never get so specific as mentioning the actual time, in terms of hours and minutes, of the alleged offence, it is not required to be that specific.

In a simple case, this can be accomplished by having the eye-witness to the offence or the investigating officer testify to the date and time of their investigations or observations.

Intent

"Intent" refers to the mental state of the individual consisting of the desire or purpose to achieve a particular consequence, or where the consequences the person sees as certain, "substantially", or "practically" certain.

Intent is often proven by way of inference.

Inferences are factual findings based on common sense.

There is the long-standing inference that a person intends the natural consequences of one’s actions applies to many situations.

The inference will be made in most any circumstances except where there may be evidence to the contrary. Doubt may be raised as to the specific intent of the person where they suffer from mental illness or were intoxicated.

Generally speaking, the inference requires the assumption that the accused has the capacity to form intent.

The presence of the word "wilfully" in an provision for an criminal code offence "generally signals a subjective mens rea requirement, but the appropriate meaning of the term ‘wilfully’ will depend on the context in which it is found." In context of a probation order, "wilful" denotes "a legislative concern for a relatively high level of mens rea" that requires a intent to breach and have a purpose in doing so.

Knowledge

Wilful Blindness

Wilful blindness refers to the accused's state of mind. The doctrine attributes "knowledge to a party whose strong suspicions have been aroused but who refrains from making inquiries to have those suspicions confirmed. The doctrine serves to override attempts to self-immunize against criminal liability by deliberately refusing to acquire actual knowledge."

It is not enough that there be a suspicion in the mind of the accused. Rather, the accused must have "virtually knew the critical fact, and intentionally declined to secure that knowledge."

The determination inquires into whether "the accused shut his ... eyes because he .. knew or strongly suspected that looking would fix him ... with knowledge?”

The doctrine is not premised on "what a reasonable person would have done, but requires a finding that the accused, with actual suspicion, deliberately refrained from making inquiries because he or she did not want his or her suspicions confirmed." To put it another way, it is not a form of "constructive knowledge" by way of a standard of reasonableness..

Where wilful blindness is established, "the knowledge imputed is the equivalent of actual, subjective knowledge."

In certain circumstances, "where an accused made some or basic inquiries, but still harboured suspicions, it remains open to the trier of fact to find wilful blindness".

Introduction

There are three types of possession:

• personal / actual possession
• constructive possession
• joint possession

Possession can be proven through both direct or circumstantial evidence.

These forms of possession are outlined in s.4 of the Criminal Code.

Possession
4. (3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

– CCC

Possession under s. 2 the Controlled Drugs and Substances Act adopts the same definition as the Criminal Code:

Definitions
2. (1) In this Act,
...
“possession”
“possession” means possession within the meaning of subsection 4(3) of the Criminal Code;

– CCC

At common law, possession requires control as well as knowledge.

Likewise, the statutory requirements of s.4(3), require that the totality of evidence establish beyond a reasonable doubt that the accused had knowledge and control.

Interpretation of Possession

Actual/Personal Possession

“Personal possession” requires that “the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty)” Thus, actual/Personal possession requires that:

1. there be an actual physical custody of the object
2. a knowledge of the nature of the object while with custody.

Constructive Possession

Constructive possession requires the following:

1. knowledge of the item
2. intent/consent to have possession of the item
3. control over the item

The crown must prove knowledge extending beyond "quiescent knowledge" that discloses some degree of control of the item

Possession can still be established even if it considered the property of some third party.

Constructive possession of drugs found in a suite or house can be established where the accused is shown to have control over a property searched and knowledge that the items were in the place. Even where the accused did not have exclusive control over the place, he can still be found in joint possession of the items.

Joint Possession

Joint possession amounts to a form of possession wherein multiple people can be deemed to be in possession or custody of the object. To establish joint possession there must be:

1. knowledge of the object,
2. consent of the accused,
3. and a degree of control over it

Innocent Possession

There is some suggestion that where the sole intent at all times of possession is to destroy or removing the accused's control over the contraband is not criminal.

Elements

Proof of possession cannot be established by looking at the evidence individually, but rather the court must look at the evidence as a whole.

The onus remains on the crown throughout. Even where the evidence "cries out for an explanation by the accused", it will simply create an evidential onus or even create a prima facie case, however, it will not require the accused to testify or prohibit from arguing that the crown failed to prove the element.

Knowledge

There cannot be possession without knowledge of the nature of the object. Knowledge requires that an accused have knowledge of “the criminal character of the item in issue” It must be proven beyond mere “quiescent knowledge” that disclosed some degree of control over the items in question.

Knowledge can be established by circumstantial evidence. It can also be established by direct or circumstantial evidence, or a combination of both.

However, it will often depend on the visibility of the object as well as the accused's connection with the location.

For example, where drugs are found in a vehicle or house the courts consider the control the accused had over the location as well as the likelihood of the accused being aware of where the items were found.

Occupancy does not automatically infer knowledge of the items within the dwelling.

Consent and Intent

The element of consent to possess an object requires that the accused consent to the object remaining in place after he or she has knowledge of its existence. This is not limited to those who approve of the custody of the drugs. A person who discovers drugs and spends time maintaining custody of it while considering what to do with it may be found to consent to possessing it.

Control

The element of control over the object is established by showing that the accused had an intention to exercise control. Where the person is shown to have control over the area where the object is stored, they can be found to exercise control over the object itself.

It is not necessary that the accused actually examine or look at the item to be in possession of it.

Control requires that the Crown "prove is that an accused had the ability to exercise some power (i.e., some measure of control) over the item in issue. It is not necessary for the Crown to prove that such power was in fact exercised."

A trier-of-fact may conclude that "someone living in premises in which marihuana plants or other illegal drugs are openly located is in a position to exercise some measure of control over those drugs."

Specific scenarios

Items found in a Vehicle

There are differing lines of cases on whether finding of an item within a motor vehicle owned and operated by an accused is prima facie proof of possession by the accused.

"[M]ere passive acquiescence in the transportation of the drugs" is not sufficient

A sole occupant and driver in close proximity to drugs in plain view allows the inference of knowledge and control. (R v Mulligan-Brum, 2011 BCCA 410 at para 13)

The Crown must prove the accused knew of the presence of the drug in the vehicle and that that he had a measure of control over it.

However, "where one of two persons has opium in his custody or possession, another who knows that fact, even though he has no measure of control over it, but nevertheless co‑operates with the person who has such custody in an effort to prevent detection" that person has possession.

Items Found in a Residence

Generally, personal papers are to be found in a location where a person has access and control. It is a valid inference to infer that where documents such as “income tax forms, invoices, cancelled cheques, leases, insurance papers and the like” are found in a residence that the person identified in the documents is an occupant with “a significant level of control”.

Mere presence in a residence and knowledge of the presence of contraband in the room or residence is not sufficient to establish possession, evidence must show control.

Other

Knowledge may be inferred from physical possession of a receptacle containing concealed contraband, however, it cannot create a presumption.

A passenger may be in possession of a stolen car. It depends on the number of factors suggesting knowledge and control. Suggested factors include:

1. recency of theft
2. driver fled once there was a collision
3. actions, demeanour and utterances of passenger suggesting knowledge and control
4. fleeing from the car with the driver and attempt to dispose of evidence
5. the passengers ability to see the damage to the ignition from starting without a key

See Also

• Canadian Criminal Law/Recent Possession - extends liability where possession is recent in time to an index offence

Proof of Ownership

Under s. 380, "property" does not relate to ownership. It concerns the lawful possession of some thing which is transferred by some deceitful act.

Any property that is required for a preliminary inquiry or trial for an offence under section 334, 344, 348, 354, 355.2, 355.4, 362 or 380 that has been returned, may by photographed by police. (491.2(1))

Photograph "includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, and X-ray film, a motion picture and a videotape." (491.2 (8))

Photographs taken under s. 491.2 that are accompanied by a certificate containing the statements are admissible with the same "probative force" as the property was proved the ordinary way absence evidence to the contrary. (491.2(2))

Under s. 491.2(3), the certificate should contain a statement outlining that:

1. the person took the photograph under the authority of 491.2(1)
2. the person is a peace officer or took the photograph under the direction of a peace officer, and
3. the photograph is a true photograph

There must also be an affidavit or solemn declaration that "the property was not altered in any manner before the photograph". (491.2(4))

The Crown must give "reasonable notice of intention to produce it in evidence" before any photos can be admitted into evidence "unless the court orders otherwise". (491.2 (5))

The Court may require the attendance of the officers who gave the statements for examination. (491.2(6)) The court may also require the returned property be re-acquired to be brought to court for examination. (491.2(7))

Under s. 657.1, evidence regarding the property, such as value and ownership, can be given by way of affidavit or solemn affirmation from the lawful owner absent evidence to the contrary.

The affidavit must state:

1. that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;
2. the value of the property;
3. in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;
4. in the case of proceedings in respect of an offence under section 342, that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 or that no credit card that meets the exact description of that credit card was ever issued; and
5. any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1).

Parties must be given "reasonable notice of intention to produce" this evidence by affidavit.(657.1(3)) The court may still order that the affiant attend court to be examined.

See also [rules of civil procedure in proving exhibits].

Case Digests

• R. v. Savage, [2003] O.J. No. 4052
• R. v. Botha, 2011 ONCJ 326 -- acquitted; unable to make inference of intent; ID not made out
• Canadian Criminal Law/Offences/Theft and Possession

Introduction

Much of the foundation of criminal law lies in the premise that the accused had a requisite "mens rea" (or guilty state of mind) when committing the offence. In principle a person should only be convicted of an offence for which they had some degree of awareness or intention when committing the criminal act. This is closely tied to the theory of moral culpability which is what criminal law is attempting to address and as such is constitutionally required under s. 7 of the Charter.

The criminal law generally does not include offences for which the accused was not subjectively aware to some degree of the offence. Further, there is no duty of precaution upon an individual to ensure that they do not perform the illegal act without their intent or knowledge. This is in contrast to regulatory offences and other forms of civil liability which generally require only an objective standard of responsibility. This is known as a "duty of care" and "standard of care". The duty of care is the legal obligation to maintain a certain standard. The standard of care is the specific standard of conduct that is imposed by law upon an individual which, if violated, could result in liability of some sort or another.

Duty of Care

Certain criminal offences create a duty of care, where, if the standard of care is violated, will result in a criminal act. The offences that impose a duty of care include:

1. unsafe storage of a firearm (86)
2. Criminal negligence (219)
3. dangerous operation of a motor vehicle 249

Standard of Care

The modern foundation of duty of care in criminal law originated from the case of R v Hundal 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867. The case stated that to determine whether an act violated a standard of care requires a "modified objective test"

For any offence where the standard of care involves objectively dangerous conduct, the conduct must be shown to be a "marked departure" from the norm. Wherein a "reasonable person in the position of the accused would have been aware of the risk" and "would not have undertaken the activity". The assessment, then, is of a "reasonably prudent person in the circumstances" the accused found himself when the events occurred.

Thus, if the accused actions' show a marked departure from the standard of care described in the offence provision, he still cannot be convicted if a reasonably prudent person in the position of the accused would not have been aware of the risk or would not have been able to avoid the creating the risk.

This standard was determined to be constitutionally acceptable.

General Principles

Certain offences in the criminal code require not only that the offender do a prohibited act along with the requisite mens rea, but also that the act caused a particular result. Criminal responsibility for causation must be established in fact and in law. This makes a distinction between the physical, biological, or medical cause a particular result and the legal boundary that would attribute responsibility to the accused for the result.

The standard to prove causation is the same as between all homicide offences, including murder, manslaughter, operation of a motor vehicle causing death. Likewise, the standard applies equally to offences involving bodily harm.

The criminal standard of causation in criminal matters is that the "accused's conduct be at least a contributing cause of the [result], outside the de minimis range"

Criminal law does not include any issues of contributory negligence nor does it apportion responsibility for harm caused outside of sentencing.

The inference of foreseeability can be rebutted with evidence of intoxication.

Causation in Homicide

Homicide is defined in s.222(1) as occurring where a person "directly or indirectly, by any means, ... causes the death of a human being.". Culpable Homicide (i.e. murder, manslaughter, or infanticide) is defined in section 222(5) as "when [a person] causes the death of a human being...by means of an unlawful act".

Causation is explicitly identified as existing where the death might have been otherwise "been prevented by resorting to proper means"(s. 224) or where the immediate cause of death is proper or improper treatment applied in good faith (s.225) or where the victim is already suffering from a terminal condition. (s 226)

The "Smithers test" for causation applies to all types of homicide. The test requires that the accused's act be a "significant contributing cause" of death beyond something trifling or minor. Thus, the unlawful act remains the legal cause of death even where the act by itself would not have cause death as long as it was beyond the de minimus.

By implication, causation is in no way limited to a direct, an immediate, or the most significant cause.

Where the offence is "constructive murder" under s. 231(5), that there is an added requirement.

A distinction is made between factual causation and legal causation. The former being the broader of the two.

• Factual causation requires "an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result" (Nette, at para. 44) To put it simply, the question is "but for" the act would death have arose?
• Legal Causation addresses the moral element of whether the accused "should be held responsible in law for the death"

Intervening Acts

The doctrine of intervening acts can limit the scope of legal causation. The law recognizes an intervening cause that "'break the chain of causation' between the accused's acts and the death" which results in the "accused’s actions not being a significant contributing cause of death"

See Also

• R. v. Kippax, 2011 ONCA 766 at 21-28

Introduction

A criminal organization is defined in s. 467.1 of the Criminal Code:

467.1 (1)

...

“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

– [10]

Proof of Criminal Organization

Evidence must establish that the group is a criminal organization. It must be established on a case-by-case basis. Proof of direct control of the organization is a high standard.

Factors to consider whether the group is a criminal organization include:

1. rules between the men,
2. defined roles and structure,
3. communication between the participants,
4. actual or pending material benefit to the parties,
5. an organizational structure that promotes the commission of offences.

The courts should not be rigid in applying the definition and must use a purposive approach. Criminal organizations have no incentive to have a formal structure and tend to be flexible. However, "some form of structure and degree of continuity are required".

Effect

Several offences require there is a criminal organization:

1. Enhancing a criminal organization (s. 467.11)
2. Committing for the benefit of a criminal organization (s.467.12)
3. Instruct the commission of an offence for a criminal organization (s.467.13)

Others are modified by the existence of a criminal organization:

1. Conspiracy (s.465)
2. Counselling (s.22)
3. Accessory after the fact (s.23)
4. Possessing explosives for a criminal organization (s.82(2))
5. Intimidating the justice system and journalists (s.423.1)

Where an offence is found to be a criminal organization offence (s.2):

• the penalties will be consecutive (s.467.14)
• the wiretap powers are expanded
• there is a reverse onus on bail (s. 515(6)(a)(ii)
• presumption of 1st degree murder in a murder charge (s.231(6.1))

General Principles

The Crown has the duty to prove an exhibit's integrity beyond a reasonable doubt. It must be shown that the items in evidence before the court in trial were the same items seized during the investigation. So for example, the Crown must prove that the drugs presented in court are the same that were seized at the scene of the investigation. Where the proof of the item is part of an essential element of the case, such as in a drug possession case, then it should be proven beyond a reasonable doubt. Gaps in continuity are not fatal unless they raise a reasonable doubt about the exhibit’s integrity.

However, it has been said that generally speaking, "continuity of an exhibit goes to weight, not to admissibility." A party who cannot "prove absolute continuous possession...would not preclude admissibility".

There is no specific requirement to that the crown lead continuity evidence. Nor does every person in the chain of possession need to testify. The evidence of continuity should be lead where there is potential evidence before the court, by direct or circumstantial evidence or by inference, that may raise doubt as to the continuity. Even where gaps may raise a reasonable doubt about the item in court is the same seized initially by police, it may still be admissible and the doubt will simply go do weight. For example, problems with continuity and integrity of recordings generally goes to their weight not the admissibility of the contents of the recordings.

The evidence seized by police will be catalogued and given identifying numbers. These numbers should remain consistent throughout the case. So whether the items are sent to a lab for analysis, they will always be identifiable as the same once they are presented in court. Any changes of the numbering system should be recorded and explained in court. Failure to properly track the exhibits by their identifying numbers may raise doubt as to their continuity.

Bodily Harm

Section 2 of the Criminal Code defines "bodily harm" as:

s.

...

“bodily harm”
...

“bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature;

Aggravated Assault

See also: Canadian Criminal Law/Offences/Aggravated Assault and Canadian Criminal Law/Offences/Aggravated Sexual Assault

General Principles

Section 2 of the Controlled Drugs and Substances Act states:

Definitions
2. (1) In this Act,

...

“traffic” means, in respect of a substance included in any of Schedules I to IV,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations.

– CDSA

Offer to Sell

Trafficking by offer under s. 2(2)(c) only requires that the crown prove an intent to make the offer. It is not necessary to prove that the accused had an intent to follow through with the offer. As such, there is no need to prove that the accused had drugs on themselves at the time or was capable of fulfilling the request.

Opinion Evidence on Trafficking

To prove that someone was in possession of a controlled substance for the purpose of trafficking, the Crown must call expert evidence to given an opinion that the circumstances allow for the inference that the possessor intended to traffick.

See also: Canadian Criminal Evidence/Opinion/Expert Evidence for details on the law of expert evidence.

Evidence of Intent

Amount of drugs
Trafficking can be inferred where the quantity/purity/value of drugs is high.

Where an accused is a user of drugs, there may be evidence suggestive that the drugs found in their possession may be consistent with personal use as opposed to trafficking. The amounts required to maintain the addiction and the habits of typical users are relevant. Either party is permitted to lead evidence concerning typical use, however, this usually takes the form of expert evidence.

The amount of drugs alone cannot be used to establish trafficking.

Marijuana amounts in the range of 3 pounds have been found to be unreasonable to be considered consumable for personal use.

Money
Large quantities of unexplained wealth can allow a judge to lead to the conclusion of trafficking. This is particularly true where cash is in small denominations and is found near drugs.

Packaging
Where packaging is found this may allow a judge to infer an intent to traffick. Packaging in numerous quantities, such as numerous small baggies, can create such an inference.

Dial-a-Dope operations

A Dial-a-Dope operation is the manner in which drugs are often distributed to their customers. The seller and buyer will contact each other by phone and arrange to make an exchange at a pre-determined location.

The Crown will often adduce evidence to argue that the evidence suggests that such an operation was undertaken. This is determined by expert opinion of the evidence suggestive of such an operation.

Several cases have considered the methods of a dial-a-dope operation.

See Also

• Canadian Criminal Law/Offences/Drug Trafficking

Doctrines of Liability

Generally

Parties to offence
21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
R.S., c. C-34, s. 21.

– CCC

Section 21 outlines four ways in which a person can be criminally liable for an act. A person can be a principal, an aider, an abettor, or have common intention to commit an offence.

In any of the circumstances, a party to an offence must have both knowledge and intent.

Where a person provides directions or instructions to a potential buyer to make a purchase of drugs from a seller, that can amount to aiding and abetting in trafficking arising from the eventual sale.

Section 21(1)(a): Commits

A person "actually commits" an offence when he does some act "towards the commission of the offence" with requisite mens rea or uses an agent to commit it.

This means that where there is multiple people all doing some act together towards the shared achievement of the offence, each is actually committing the offence as a "joint principle offender".

This means that where it is proven that multiple people acted with an intention to commit murder, it is "legally irrelevant" to determine who pulled the trigger.

Section 21(1)(b), (c): Aiding and Abetting

The actus reus of aiding or abetting is "doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed"

Section 21(2): Common Intention

A common intention is whether two or more persons "have in mind the same unlawful purpose." The common intention may form "in the instant of the offence being committed, the mutual intention to pursue unlawful purpose and to assist each other therein being formed at the very moment of carrying it out."

So for example, where a second party joins in on an assault by a primary party, there will be a common intention formed.

Murder
A girlfriend of the principal was an abettor of first degree murder under s. 21(1)(c) by standing by during the murder and yelled "kill him Georgie".

The girlfriend of a principal was an abettor of manslaughter where she gave the principal a weapon for the purpose of attacking the victim. However, without the formed intent in giving the weapon, there will be no conviction. Unless there is some duty to act, a bystander who is present and watches a murder cannot be found guilty of any offence connected to the murder.

Counselling (s.22)

Person counselling offence
22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
Idem
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
Definition of “counsel”
(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.
R.S., 1985, c. C-46, s. 22; R.S., 1985, c. 27 (1st Supp.), s. 7.

– CCC

"Counsel" under this section is more that simply advising, it has the "meaning of actively inducing" (R v Sharpe, 2001 SCC 2)

The mens rea of counselling requires evidence that “an accused either intended that the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accused’s conduct"

Where a threat allegedly counsels murder the test to be applied is whether 1) an ordinary person would view the statement objectively would take it as an invitation to kill and 2) the accused either intended or knowingly counselling the victim's murder while aware of the unjustified risk that murder would likely be committed.

Where offence is not committed

Counselling offence that is not committed
464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,

(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and

(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 464; R.S., 1985, c. 27 (1st Supp.), s. 60.

– CCC

Organizations as Parties

Offences of negligence — organizations
22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority

(i) one of its representatives is a party to the offence, or

(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

2003, c. 21, s. 2.

Other offences — organizations
22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;

(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or

(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.

2003, c. 21, s. 2.

– CCC

Cases on Parties

• R. v. Opio, 2011 ABPC 392 -- guilty as party to trafficking
• R. v. Mohamed, 2011 ABCA 350 || convicted as driver; D argued that he was not aware of what was going on
• R. v. Crowchild, 2011 ABPC 299 -- guilty aggravated assault; not guilty robbery
• R. v. Laurencelle, 1999 BCCA 511
• R. v. Sparrow (1979) 51 C.C.C. (2d) 443, 12 C.R. (3d) 158 (Ont. C.A.) -- guilty
• R. v. Thatcher [1987] 1 S.C.R. 652 -- guilty
• R. v. McMaster, [1996] 1 S.C.R. 740. -- guilty
• R. v. Dunlap and Sylvester, [1979] 2 S.C.R. 881.

See Also

• Canadian Criminal Law/Offences/Accessory After the Fact
• Canadian Criminal Law/Conspiracy

Generally

The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of the offence, and in certain circumstances was also a party to the initial offence.

When considering whether to make the inference of recent possession, the trier-of-fact must take into account all the circumstances. This includes common sense factors such as the amount of time that passed between possession and the offence.

Recency is a matter of circumstances such as type and size of the items. In certain cases recency can include periods longer than a month.

To permit the inference, the Crown must establish 1) that the accused was found in possession of the item and 2) that the item was recently stolen. Where it can be said that the accused was found in recent possession without explanation to trier of fact may, but not necessarily, draw the inference regarding the accused's role in the theft or related offences.

Factors to consider whether the possession was "recent" includes:

1. the nature of the object;
2. the rareness of the object;
3. the readiness with which the object can, and is likely to, pass to another; and
4. the ease of identification.

Where the doctrine has been invoked, the Defence can counter the presumption by way of a reasonable explanation.

It is not necessary to go beyond the test for recent possession to determine the accused's degree of participation. That is, whether the accused was a principle or accomplice.

Cases

• R. v. Palaga, 2008 SKCA 36 -- acquitted of B&E
• R. v. Goulet, 2005 SKPC 104 -- convicted of B&E
• R. v. Harris, 1995 CanLII 4187 (NS CA) -- convicted of B&E
• R. v. J.R.L.J., 1994 CanLII 7617 -- convicted of B&E

Lesser included offences

A judge must consider, where the evidence does not make out a particular charged offence, whether it makes out an "included" offence. This is, a secondary offence which underlies the actual charge.

The test for whether an offence is “included” in another offence is "if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must “necessarily” be included..."

There are three ways in which an offence can be included in a charge:

1. offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;
2. offences included in the enactment creating the offence charged, e.g., common assault in a charge of sexual assault;
3. offences which become included by the addition of apt words of description in the principle charge.

Examples

• mischief is not included in break and enter (R. v. Robitaille, 2012 ONCJ 155)

General Principles

A person attempting to commit an offence can be criminally liable for the attempt. For any attempt to be made out, the person's actions must be more than "mere preparation":

Attempts
24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
Question of law
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

R.S., c. C-34, s. 24.

– CCC

There is no general criterion to distinguish between mere preparation and actual attempt.

There is however a "qualitative" distinction that can be made:

"...the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question."

The trial judge should consider the "relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished.”

Legislation

Conspiracy
465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;

(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that he did not commit that offence, is guilty of an indictable offence and liable

(i) to imprisonment for a term not exceeding ten years, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term not exceeding fourteen years, or

(ii) to imprisonment for a term not exceeding five years, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than fourteen years;

(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and

(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.

(2) [Repealed, 1985, c. 27 (1st Supp.), s. 61]

Conspiracy to commit offences
(3) Every one who, while in Canada, conspires with any one to do anything referred to in subsection (1) in a place outside Canada that is an offence under the laws of that place shall be deemed to have conspired to do that thing in Canada.

Idem
(4) Every one who, while in a place outside Canada, conspires with any one to do anything referred to in subsection (1) in Canada shall be deemed to have conspired in Canada to do that thing.

Jurisdiction
(5) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) or (4), proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada, and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

Appearance of accused at trial
(6) For greater certainty, the provisions of this Act relating to

(a) requirements that an accused appear at and be present during proceedings, and

(b) the exceptions to those requirements,

apply to proceedings commenced in any territorial division pursuant to subsection (5).

Where previously tried outside Canada
(7) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) or (4) and that person has been tried and dealt with outside Canada in respect of the offence in such a manner that, if the person had been tried and dealt with in Canada, he would be able to plead autrefois acquit, autrefois convict or pardon, the person shall be deemed to have been so tried and dealt with in Canada.

R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121.

– CCC

Proof of the Offence

1. identity of accused
2. date and time of incident
3. jurisdiction (incl. region and province)
4. the words communicated in the conspiracy
5. there was an agreement made between the parties
6. the parties had an intention to agree to put a "common design into effect" and did in fact agree
7. the parties did not change their minds or intention to put common design into effect

Principles

A conspiracy is an agreement between two or more persons to do an unlawful act.

There must be an "intention to agree, the completion of an agreement and a common design." The Crown needs only prove that there was "a meeting of the minds with regard to a common design to do something unlawful".

To prove conspiracy the facts must satisfy a three-part test from R. v. Carter, [1982] 1 S.C.R. 938 1982 CanLII 35:

1. has the Crown proven beyond a reasonable doubt the existence of the conspiracy?
2. has the Crown proven that the accused was probably a member of the conspiracy?
3. considering all of the evidence, is the accused guilty beyond a reasonable doubt of being a member of the conspiracy?

A conspiracy must include (1) an agreement and (2) the unlawful objective or "common design".

As well, unlawful objective does not need to come about. It is the planning that is the criminal act.

An conspiracy made over the telephone will occur within the jurisdiction of both calling parties.

It is not relevant whether "from an objective point of view, commission of the offence may be impossible."

Agreement

An agreement can be implied or tacit. It requires a meeting of the minds to create a common intention to commit an offence. The parties must have knowledge of a common goal and agreement to achieve it.

It is not enough that there be a common intention. Nor is passive acquiescence to a criminal plan sufficient, knowledge of the plan, or nor wilful blindness.

It is not a "formal agreement" and may be implicit.

There must be a "a common plan with a common objective".

Where there is a pre-existing conspiracy, the accused must have adopted it or consented to participate in achieving the goal.

A conditional agreement can still be an agreement.

The charge must identify the crime(s) planned. And it should generally identify the co-conspirators.

It is a valid defence to establish that the accused pretended to agree to the conspiracy.

Participation

A member of a conspiracy who refuses to execute the plan is still guilty.

Involvement in only part of a whole plan will still be found guilty.

An accused cannot be convicted for attempted conspiracy.

Evidence

Words of the co-conspirator are admissible against the accused. They are not hearsay and are rather the actus reus.

Further, the co-conspirators exception to hearsay makes statements admissible against the accused.

Statements by the co-conspirator that are not related to the conspiracy are not admissible against the accused.

See Also

• Canadian Criminal Law/Parties#Counselling

Interpretation

Principles of Statutory Interpretation

The fundamental principle of statutory interpretation is that "the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature"

It is understood that legislators choose to adopt “language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation”.

The principle of legality requires that legislation provide a degree of certainty, and should reflect “the overall need to use the criminal law with restraint”

No provision in an act "should be interpreted so as to render it mere surplusage.”

Under s. 12 of the Interpretation Act, "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."

It is a principle that "Parliament does not speak in vain".

"[A]bsent express language to the contrary, the same words in two subsections of the same provision should be treated alike... Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation".

Charter Interpretation

A judge must interpret a Charter right using a "purposive approach" or "purposive analysis".

Amendments

Meaning

Amendments generally only have retrospective effect in exceptional circumstances. As there is a presumption against retrospectivity where a vested or substantive right is affected.

Where an amendment to legislation effects a constitutional right, it generally means that the legislation will not be retrospective.

An amendment that has an effect on the content or existence of an available defence suggests is an indicator that it affects substantive rights, and so is not retrospective.

An increase in a maximum penalty is a "clear indication to sentencing courts of the seriousness which the criminal conduct addressed by the changes is viewed by contemporary society."However, the increase of minimum penalties should not be read into "too much".

Effect on Previous Ongoing Proceedings

Where the law is changed in a manner that is procedural in nature, it applies to all matters regardless of the offence date. A change in the law that removes or adds a right will only apply to offences that post-date the amendment.

It is "not generally in the public interest to delay trials simply on the basis that a pending action in the higher courts might have some effect on the trial".

Stare Decisis

The principle of stare decisis refers to the requirement that when a legal issue has been determined and decided other courts should follow the decision.

The principle is the "glue that holds together the various levels of Canadian courts and it is the principle that elevates the rule of law above the rule of individual judges." It is considered "essential to law" and a "central pillar" to our system of law. It ensures predictability without which differing results would be unjust.

English common law sets out three exceptions of the principles of stare decisis.

1. "The court is entitled and bound to decide which of two conflicting decisions of its own it will follow"
2. "The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords";
3. "The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, for example, where a statute or rule having statutory effect which would have affected the decision was not brought the attention of the earlier court"

When considering overruling a precedent from the Supreme Court, the Court should balance the importance of correctness and certainty, considering whether it is more important to maintain certainty with the precedent or ensure correctness by changing it. The Court should be satisfied that there are compelling reasons the precedent should be overruled.

Ratio Decidendi and Obiter

Each statement of a judge should not be treated as if it were legislation.

Ratio decidendi ("ratio") and obiter dicta ("obiter") are the terms used to distinguish between binding statements of law and commentary within a decision.

Any judicial comment in a decision that forms part of the rationale to reach his decision is considered part of the ratio and is binding upon lower courts.

A comment by a judge in a decision that does not form part of the rationale to reach his decision is considered obiter. Judicial comments that are obiter do not have binding authority on lower courts. Obiter can have persuasive authority, however.

This distinction between ratio and obiter can be fluid.

The degree of weight the obiter has is proportionate to its proximity to the ratio decidendi.

Stated negatively, the statements of a higher court are not binding where the words are "sufficiently tangential to the disposition of the case".

On the outer edge from the ratio consists of "commentary, examples or exposition that are intended to be helpful, but are certainly not 'binding'".

The purpose of this distinction is to both promote certainty in the law as well as permit "growth and creativity".

See Also

• Interpretation Act, RSC 1985, c I-21

Offence Chart

This chart currently does not include all changes to offences that occurred during 2012.

Violence-related offences

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)
Assault	265(1)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	5 years jail
Assaulting a police officer	270(1)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine.	5 years jail
Assault causing bodily harm	267(1)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	18 months jail or $5,000 fine	10 years jail
Assault with a weapon	267(2)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	18 months jail or $5,000 fine	10 years jail
Aggravated assault	268(1)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	14 years jail
Attempted murder	239(1)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	5 years jail (1st) 7 years jail (2nd or subsequent)	N/A	Life
Infanticide	237	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	2 years less a day jail or $5,000 fine	5 years jail
Manslaughter	236	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	Life
Manslaughter (firearm)	236	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	4 years jail	N/A	Life
Second-degree murder	235(2)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	Life	N/A	Life
First-degree murder	235(1)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	Life	N/A	Life

Theft-related offences

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)
Theft under $5,000	334(b)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail
Theft over $5,000	334(a)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	10 years jail
Possession stolen prop. under $5,000	355(b)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail
Possession stolen prop. over $5,000	355(a)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	10 years jail
Fraud under $5,000	380(1)(b)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail
Fraud over $5,000	380(1)(a)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	14 years jail

Property damage Offences

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)	Mandatory Orders	Discretionary Orders
Mischief under $5,000	430(4)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail
Mischief over $5,000	430(3)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	10 years jail
Arson (disregard for human life)	433	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	life	109(1)(d) / 491	110(1)(b) / 462.37 / 486(4.1) / 738 / SDO
Arson (damage to property)	434 / 434.1	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	14 years jail	109(1)(d) / 491	110(1)(b) / 462.37 / 486(4.1) / 738 / SDO
Arson (fraudulent purpose)	435	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	10 years jail
Arson (negligence)	436(1)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	5 years jail
Possession of Incendiary Materials	436.1	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	5 years jail

Break and Enter

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)	Mandatory Orders	Discretionary Orders
Break and enter with intent (dwelling)	348	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	life	109 / 491	SDO
Break and enter with intent (not dwelling)	348	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	10 years	N/A	SDO
Being unlawfully in a dwelling-house	349	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	10 years
Possession of Break-in Instruments	351	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	10 years

Robbery

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)
Robbery (with firearm)	344. 1. (a)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	4 years	N/A	life
Robbery	343	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	life

Weapons Offences

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)	Mandatory Orders	Discretionary Orders
Unsafe storage of a firearm	86	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail (1st offence) 5 years jail (subsequent)	109; 491	110; 738
Pointing a firearm	87	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	5 years jail	109(1)(d); 491	110; 486(4.1)
Possession of a weapon for a dangerous purpose	88	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	10 years jail	s.109 (if on prohibition at the time) / s.491	s.110
Carrying concealed weapon	90	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	5 years jail	s.109 (if on prohibition at the time) / s.491	s.110
Unauthorized possession of firearm	91	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	5 years jail	109(1)(d); 491	110; 486(4.1)
Possn. of firearm knowing possn. unauthorized	92	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail
Possn. of prohibited weapon with ammunition	95	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	3 years jail (1st); 5 years jail (2nd) (by indictment)	12 months jail or $5,000 fine	10 years jail

Sexual Offences

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)	Mandatory Orders	Discretionary Orders
Sexual Interference	151	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	15 days jail (summ.) or 45 days jail (Indic.)	6 months jail or $5,000 fine	14 years jail	SOIRA (10 Summ./20 Indict.) ...
Making Child Pornography	163.1(2)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	90 days (S) / 1 year (I)	18 months	10 years	SOIRA (10 Summ./20 Indict.)
Distribution of Child Pornography	163.1(3)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	90 days (S) / 1 year (I)	18 months	10 years	SOIRA (10 Summ./20 Indict.)
Possession of Child Pornography	163.1(4)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	14 days (S) / 45 days (I)	18 months	5 years	SOIRA (10 Summ./20 Indict.)
Accessing of Child Pornography	163.1(4.1)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	14 days (S) / 45 days (I)	18 months	5 years	SOIRA (10 Summ./20 Indict.)
Child Luring	172.1	Hybrid	Dis* / SS* / F* / F+Pb / Im / Im+Pb / F+Im / CSO* [limited]	90 days (S) / 1 year (I)	18 months	10 years	SOIRA (10 Summ./20 Indict.); forfeiture (164.1); DNA (primary); 161 Order
Indecent Act	173	Summary	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	N/A	SOIRA (10yrs)...
Sexual Assault	271	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	18 months jail / $2,000 fine	10 years jail	SOIRA (10yrs Summ. / 20yrs Indict.) ...
Sexual Assault with a weapon	272(1)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	14 years jail
Sexual Assault with a weapon (firearm)	272(1)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	4 years jail	N/A	14 years jail	SOIRA (20yrs) ...
Aggravated Sexual Assault	273	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	Life	SOIRA (life) ...
Aggravated Sexual Assault (with Weapon)	273(1), 273(2)(a)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	4 years jail	N/A	Life	SOIRA (life)

Motor Vehicle Offences

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)	Mandatory Orders	Discretionary Orders
Dangerous Driving (no injury)	249(1)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	5 years jail
Dangerous Driving (injury)	249(3)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	10 years jail
Flight from Police	249.1	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	5 years jail
Driving while Impaired and Over 80 / Driving while BAC over 80mg	253(a) / 253(b)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	$1,000 fine (1st time) / 30 days jail (2nd time) / 120 days jail (3rd time)	18 months jail	5 years jail
Refusal or failure to provide a breath/blood sample	254(5)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	$1,000 fine (1st time) / 30 days jail (2nd time) / 120 days jail (3rd time)	18 months jail	5 years jail
Driving while disqualified	259(4)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail

Administration of Justice Offences

Offence	Code Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)	Mandatory Orders	Discretionary Orders
Breach of Release conditions	145(3)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail	s. 109; 491	s. 110; 738; 486(4.1)
Breach of undertaking under 499(2) or 503(2.1)	145(5.1)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail	s. 109; 491	s. 110; 738; 486(4.1)
Breach of Probation conditions	733.1(1)	Hybrid (Absolute)	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	18 months jail or $5,000 fine	4 years jail
Failure to Attend Court (recog / undertaking)	145(2)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail	N/A	s. 486(4.1)
Failure to Attend Court (summons)	145(4)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail	N/A	s. 486(4.1); 738; SDO?
Obstruct a Peace Officer	129	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail
Perjury	131, 132	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	14 years jail	N/A	s. 486(2.101) / 486(4.1) / 738 / SDO?
Fabricating Evidence with Intent to Mislead	137	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	14 years jail	N/A	s. 486(2.101) / 486(4.1) / 738 / SDO?
Giving Contradictory Evidence with Intent to mislead	136	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	14 years jail	N/A	s. 486(2.101) / 486(4.1) / 738 / SDO?
Intimidation of a Justice System Participant	423.1	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	14 years jail	s. 109 / 491 / PDO	s. 486(2.101) / 486(4.1) / 738
Breach of Recognizance	811	Hybrid (Absolute)	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	6 months jail or $5,000 fine	2 years jail	N / A
Espionage	342.1 (2)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	10 years jail	N/A
Treason	47(2)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	Life	N/A	Life	N/A

Controlled Substances Offences

Offence	CDSA Section	Election	Dispositions	Minimum	Maximum (Summary)	Maximum (Indictable)	Mandatory Orders	Discretionary Orders
Possession of Cocaine or Heroin	4(1)	Hybrid	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	$1,000 and 6 months jail (first); $2,000 and 1 year jail (second or more)	7 years jail
Possn. for Purpose of Trafficking in Marijuana / Trafficking in Marijuana	5(2) / 5(1)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	5 years less a day Life in jail (>30kg)
Possn. for Purpose of Trafficking in Cocaine or Heroin / Trafficking in Cocaine or Heroin	5(2) / 5(1)	Indictable	Dis / SS / F / F+Pb / Im / Im+Pb / F+Im / CSO	N/A	N/A	Life in jail

Key

Dispositions:

• AD = absolute discharge (s. 730)
• CD = conditional discharge with probation
• SS = suspended sentence (s. 731(1)(a))
• F = fine (s. 734)
• I = imprisonment (s. 718.3, 787)
• FP = fine and probation (s. 731(1)(b))
• IP = imprisonment and probation (s. 731(1)(b))

Orders:

• PDO = Primary Designated Offences (Mandatory DNA order)
• SDO = Secondary Designated Offences (discretionary DNA order)
• SOIRA = Sex Offender Registry Act
• 462.37 = forfeiture of proceeds
• 490.1 = forfeiture of property related to the offence
• 491 = mandatory firearms/weapons forfeiture order
• 486(4.1) = discretionary publication ban
• 738 = discretionary restitution order
• 739 = return of property

Motions Chart

This book is a reference for practitioners, police officers, and law students who need a convenient way to look up legislation, principles, and case law. The reader is assumed to already have a knowledge of criminal law.

There is no guarantee whatsoever as to the accuracy, completeness, or currency of the information provided in this or any other companion text. Nothing here should be taken as legal advice.

For recent developments on these series of books see News on Canadian Criminal Law series.

CAUTION: this wikibook ceased active development in 2012. A more up-to-date branch of this text can be found at http://criminalnotebook.ca. 

Contents

• Introduction

Police Investigation

• Arrest and Detention
  • Investigative Detention
  • Warrant Arrests
  • Warrantless Arrests
  • Arrest Procedure
    • Right to Counsel
  • Exclusion of Evidence
  • Waiver of Charter Rights
• Search and Seizure
  • Rights against Search and Seizure
  • Reasonable Expectation of Privacy
  • Warrantless Searches
    • Search by Consent
    • Search Incident to Detention
    • Search Incident to Arrest
    • Search for Abandoned Property
    • Search in Plain View
    • Exigent Circumstances
  • Warrant Searches
    • Execution of Warrants
  • Types of Search Warrants
    • Bodily Samples
    • Wiretaps
    • CDSA Warrants
    • Foreign Warrants
  • Seizure of Property
  • Exclusion of Evidence
  • Waiver of Charter Rights

Counsel

• Role of the Crown and Defence
• Disclosure
  • Third Party Records
  • Demand for Particulars
  • Production Orders

Court Proceedings

• Jurisdiction
• Types of Offences
  • Election
• Informations and Indictments
  • Charges
• Pleas
• Pre-Trial and Trial Motions
  • Case Management Hearings
  • Applications and Motions Procedure
  • Adjournments
  • Public and Media Restrictions
  • Change of Venue
  • Withdraw and Dismissal of Charges
  • Stay of Proceedings
    • Delay of Proceedings
  • Peace Bonds
  • Mandamus, Certiorari, and Prohibition
  • Habeas Corpus
  • Challenging Legislation
  • Costs
• Preliminary Inquiry
• Trials
  • Trial Process
  • Representation at Trial
  • Accused at Trial
  • Opening and Closing Submissions
  • Calling of Witnesses
  • Examinations
  • Role of Trial Judge
  • Juries
    • Selection
    • Instructions
  • Weighing Evidence
  • Verdicts
• Appeals
  • Indictable Offence Appeals
  • Summary Offence Appeals
  • Standard of Review
• Mental Illness
  • Fitness to Stand Trial
  • Not Criminally Responsible

Appendix

• Readings
• Cases
• Search Warrant Chart
• Motions Chart
• Re-Elections Table
• Model Examinations

Please add {{alphabetical}} only to book title pages.

Re-Election Chart

This book is a reference for practitioners, police officers, and law students who need a convenient way to look up legislation, principles, and case law. The reader is assumed to already have a knowledge of criminal law.

There is no guarantee whatsoever as to the accuracy, completeness, or currency of the information provided in this or any other companion text. Nothing here should be taken as legal advice.

For recent developments on these series of books see News on Canadian Criminal Law series.

CAUTION: this wikibook ceased active development in 2012. A more up-to-date branch of this text can be found at http://criminalnotebook.ca. 

Contents

• Introduction

Police Investigation

• Arrest and Detention
  • Investigative Detention
  • Warrant Arrests
  • Warrantless Arrests
  • Arrest Procedure
    • Right to Counsel
  • Exclusion of Evidence
  • Waiver of Charter Rights
• Search and Seizure
  • Rights against Search and Seizure
  • Reasonable Expectation of Privacy
  • Warrantless Searches
    • Search by Consent
    • Search Incident to Detention
    • Search Incident to Arrest
    • Search for Abandoned Property
    • Search in Plain View
    • Exigent Circumstances
  • Warrant Searches
    • Execution of Warrants
  • Types of Search Warrants
    • Bodily Samples
    • Wiretaps
    • CDSA Warrants
    • Foreign Warrants
  • Seizure of Property
  • Exclusion of Evidence
  • Waiver of Charter Rights

Counsel

• Role of the Crown and Defence
• Disclosure
  • Third Party Records
  • Demand for Particulars
  • Production Orders

Court Proceedings

• Jurisdiction
• Types of Offences
  • Election
• Informations and Indictments
  • Charges
• Pleas
• Pre-Trial and Trial Motions
  • Case Management Hearings
  • Applications and Motions Procedure
  • Adjournments
  • Public and Media Restrictions
  • Change of Venue
  • Withdraw and Dismissal of Charges
  • Stay of Proceedings
    • Delay of Proceedings
  • Peace Bonds
  • Mandamus, Certiorari, and Prohibition
  • Habeas Corpus
  • Challenging Legislation
  • Costs
• Preliminary Inquiry
• Trials
  • Trial Process
  • Representation at Trial
  • Accused at Trial
  • Opening and Closing Submissions
  • Calling of Witnesses
  • Examinations
  • Role of Trial Judge
  • Juries
    • Selection
    • Instructions
  • Weighing Evidence
  • Verdicts
• Appeals
  • Indictable Offence Appeals
  • Summary Offence Appeals
  • Standard of Review
• Mental Illness
  • Fitness to Stand Trial
  • Not Criminally Responsible

Appendix

• Readings
• Cases
• Search Warrant Chart
• Motions Chart
• Re-Elections Table
• Model Examinations

Please add {{alphabetical}} only to book title pages.