Criminal Code — Jurisdiction and Classification of Offences
Criminal law is federal jurisdiction under s.91(27) of the Constitution Act 1867. The Criminal Code RSC 1985 c C-46 (the Code) is the primary federal statute governing criminal offences and procedure. Ontario criminal courts apply the Code in provincial proceedings. Provincial offences (Highway Traffic Act, Liquor Licence Act, etc.) are quasi-criminal matters governed by the Provincial Offences ActRSO 1990 c P.33.
Criminal offences are classified as:
- Summary conviction offences: Less serious; tried in provincial court (Ontario Court of Justice); limitation period 12 months from commission of the offence (Code s.786(2)); maximum penalty 2 years less a day (increased from 6 months by Bill C-75 2019)
- Indictable offences: More serious; no limitation period; may be tried in provincial court, Superior Court of Justice, or (for absolute jurisdiction offences) provincial court only
- Hybrid offences (dual procedure): Crown elects to proceed by summary conviction or indictment; most common — environmental offences, assault, impaired driving
Election and Mode of Trial
For non-absolute jurisdiction indictable offences, the accused has the right to elect the mode of trial (Code s.536):
- Provincial court judge (no jury, no preliminary inquiry)
- Judge alone — Superior Court of Justice (no jury, preliminary inquiry available)
- Judge and jury — Superior Court of Justice (jury trial, preliminary inquiry available)
Absolute jurisdiction offences (Code s.553 — fraud under $5,000, theft under $5,000, mischief under $5,000, etc.) must be tried by a provincial court judge.Exclusive jurisdiction offences (Code s.469 — murder, treason, piracy) must be tried by a Superior Court judge and jury.
Re-election: An accused who has elected may generally re-elect before trial with the consent of the Crown or after the preliminary inquiry.
Crown Disclosure — Stinchcombe Obligations
The Crown's constitutional obligation to disclose all relevant material to the defence is grounded in ss.7 and 11(d) of the Canadian Charter of Rights and Freedoms: R v Stinchcombe [1991] 3 SCR 326.
Key Stinchcombe principles:
- The duty to disclose is triggered on request
- All material in the Crown's possession that is not clearly irrelevant must be disclosed
- The duty extends to material in the possession of police and other investigative agencies, not just material in the Crown's file
- The duty includes material helpful to the accused and material that is only arguably relevant
- The Crown may withhold material protected by privilege (informer privilege, public interest immunity) — but must seek judicial authorization to withhold
- Timing: disclosure should be made before the accused is required to elect the mode of trial
R v McNeil 2009 SCC 3 extended Stinchcombe to require the Crown to produce "third party records" in police possession (officer misconduct records, etc.) as part of the first party disclosure obligation. Additional third party records (e.g., medical records, private records) require an application under ss.278.1-278.9 (the Mills regime for private records of complainants in sexual offence cases).
Trial Delay — the Jordan Framework
Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. R v Jordan 2016 SCC 27 replaced the Morin (1992) balancing framework with presumptive ceilings:
- 18 months: Provincial court (summary or indictable) — from charge to anticipated end of trial
- 30 months: Superior Court (or provincial court after preliminary inquiry)
Delay exceeding the ceiling is presumptively unreasonable. The Crown may rebut the presumption only by showing exceptional circumstances (e.g., discrete events reasonably unforeseen — pandemic, judiciary illness). The accused must also not have caused excessive delay. Delay attributable to the accused (adjournments requested by defence, waiver of rights) is deducted from the calculation.
Below the ceiling, the defence must show that the delay was unreasonable based on the circumstances and that the accused took meaningful steps to expedite the proceedings.
The remedy for a s.11(b) violation is a stay of proceedings under s.24(1) — Jordan confirmed stays should be the remedy for all ceiling violations absent exceptional circumstances.
Charter Rights — Investigation and Arrest
Section 8 — Unreasonable Search and Seizure
A warrantless search is presumptively unreasonable: R v Collins [1987] 1 SCR 265. To obtain a search warrant under Code s.487, police must establish reasonable and probable grounds to believe a criminal offence has been committed and that evidence will be found at the place to be searched. The search must be authorized by law and conducted reasonably: R v Kokesch [1990] 3 SCR 3.
Common s.8 issues: general warrant s.487.01; production orders s.487.012; telewarrant s.487.1; warrantless searches incident to arrest (limited to person and immediate surroundings: R v Cloutier [1990]); digital devices incident to arrest require a separate warrant (R v Fearon 2014 SCC 77 — minimal steps to preserve evidence allowed, full search requires warrant).
Section 9 — Arbitrary Detention
Section 9 protects against arbitrary detention. A detention is arbitrary if it is not authorized by law or if it is authorized but the law is arbitrary. Investigative detention is permitted where the officer has reasonable grounds to suspect (not believe) the person is connected to a criminal offence:R v Mann 2004 SCC 52. The detention must be brief — not an occasion for full investigation.
Section 10 — Rights on Arrest or Detention
On arrest or detention, the accused must be informed promptly (s.10(a)) of the reason for the detention and have the right to retain and instruct counsel without delay and to be informed of that right (s.10(b)). The right to counsel is not fulfilled by a mere opportunity to call — police must provide a reasonable opportunity and must stop questioning until counsel is contacted or the accused unequivocally waives the right:R v Manninen [1987] 1 SCR 1233.
R v Sinclair 2010 SCC 35: the right to consult counsel once is generally satisfied — a secondary consultation is required only where there is a fundamental change in the jeopardy faced (e.g., new charges) or special circumstances.
Preliminary Inquiry
An accused who elects for Superior Court trial has the right to a preliminary inquiry (Code s.535). Bill C-75 (2019) restricted preliminary inquiries to offences punishable by 14 years or life imprisonment. At the preliminary inquiry, the Crown calls evidence to demonstrate a prima facie case — sufficient evidence that a properly instructed jury could reasonably convict. The accused may also call evidence.
If a prima facie case is not established, the accused is discharged (s.548). If the case is established, the accused is committed to stand trial in Superior Court (s.548(1)(b)).
Fitness to Stand Trial
An accused is unfit to stand trial if they are unable by reason of mental disorder to conduct a defence at trial (Code s.2 definition). The fitness standard — whether the accused can understand the nature and object of the proceedings, understand the possible consequences of the proceedings, and communicate with counsel — is set out in R v Taylor (1992) ONCA. Fitness is a limited cognitive standard, not a high bar: R v Whittle [1994] 2 SCR 914.
The issue of fitness may be raised by the Crown, defence, or court at any time. The burden of proof is on the party raising the issue on a balance of probabilities. If found unfit, the accused is subject to a Review Board process under Part XX.1 of the Code.
Sentencing Principles — Criminal Code s.718
Section 718 of the Criminal Code sets out the fundamental purposes and principles of sentencing:
Purpose (s.718): The fundamental purpose of sentencing is the protection of society and the maintenance of a just, peaceful, and safe society through the imposition of just sanctions that have one or more of the following objectives: denunciation; deterrence (specific and general); separation of offenders from society; rehabilitation; reparation to victims; and promotion of a sense of responsibility in offenders.
Proportionality (s.718.1): A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is the fundamental principle of sentencing.
Aggravating and mitigating factors (s.718.2): Courts must consider relevant aggravating factors (abuse of position of trust, hate motivation, domestic violence, weapon, serious harm to vulnerable persons) and mitigating factors (no prior record, guilty plea, remorse, rehabilitation steps). Parity: similar offenders should receive similar sentences. Totality: where multiple offences are sentenced, the total sentence must not be unduly harsh. Restraint: least restrictive sanction appropriate should be imposed (s.718.2(d), (e)).
Gladue principles: Sentencing judges must consider the unique circumstances of Indigenous offenders — systemic factors that may have contributed to their criminality, Indigenous concepts of justice, and alternatives to imprisonment:R v Gladue [1999] 1 SCR 688. Gladue reports are often ordered to assist sentencing judges. R v Ipeelee 2012 SCC 13 confirmed Gladue applies at all sentencing hearings.