Detailed & Comprehensive Study & Exam Notes
The ONLY material I used for NCA Criminal Law Exam 2020 Aug
Created entirely by self based on NCA syllabus
Table of contents
*updated glossary as follows ( 14 Nov 2021)
PFJ (Principles of Fundamental Justice) SCC (Supreme Court of CA), the Charter...
200821 CA Criminal Law 0822 09:00am
TABLE OF CONTENTS
GENERAL OVERVIEW AND PRELIMINARY MATTERS 2
1. The Sources of Criminal Law
2. The Power to Create Criminal Offences and Rules of Criminal Procedure 4
3. The Procedural Classification of Offences 7
4. Interpreting Criminal Provisions 9
THE ELEMENTS OF A CRIMINAL OR REGULATORY OFFENCE 11
5. The AR 12
6. Subjective MR 16
7. Objective MR and True Crimes 22
8. Regulatory offences 24
EXTENSIONS OF CRIMINAL LIABILITY 27
9. Aiding and Abetting
10. Counseling 28
11. Attempts 29
SELECT CRIMINAL DEFENCES 30
13. Mental Disorder
14. Automatism and Involuntary Acts “Negativing” the AR 32
15. Simple Intoxication and Specific Intent Crimes 34
16. Extreme Intoxication and General Intent Crimes 35
17. Defence of the person 37
18. Necessity 38
19. Duress 39
20. Provocation 40
21. Entrapment 41
22. Error of Law 42
THE ADVERSARIAL PROCEEDING 43
23. The Adversarial Process
GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION 50
24. Police Powers
GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED 53
25. Securing Jurisdiction over the Accused and Interim Release
GETTING READY FOR TRIAL 55
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26. Disclosure and Production
27. Preliminary Inquiries 57
28. The Jury Trial 58
29. Pre-Trial Motions 60
30. Trial Within a Reasonable Time Applications 61
SENTENCING 62
31. General Principles of Sentencing
APPEALS AND REVIEW 65
32. Appeals of Final Decisions and JR of Interim Decisions
Glossary: PFJ (Principles of Fundamental Justice) SCC (Supreme Court of CA), the Charter (the CA Charter), CC (Criminal Code), ON (Ontario), LSUC/LSO
(The LS of Upper CA / ON), LS (Law Society), CA (The CA), POGG (Peace, Order and Good gov'), ADM (Administrative Decision Maker), gov' (gov'),
CDSA (Control of Drugs and Substances Act), D (D / the accused), NCRMD (Verdict of not criminally responsible on account of mental disorder), AG
(Attorney General), AL (Administrative Law), HC (House of Commons), GG (Governor General), PM (Prime Minister), BaRD (BaRD), BoP (BoP), W (W),
CL (Common Law), ToF (ToF), TJ (TJ), ADMer (Administrative Decision Maker), ADMing (Administrative Decision Making), Matrimonial Home (MH),
Children's Law Reform Act (CLRA), S (S), Federal Child Support Guidelines (FCSG), Respondent (R), 人 (person), IL (International Law), 有 (have), 無 (not have),
女 (girl), 男 (boy / man), 家 (house) * May include other very simple words in Chinese characters for space saving purposes. You can easily google them.
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GENERAL OVERVIEW AND PRELIMINARY MATTERS
1. The Sources of Criminal Law
● With the exception of contempt of court, criminal offences are created in Canada by statute. Most criminal
offences are created by CC but it is not the only statutory source. Drug trafficking, for example, is made a
criminal offence by the CDSA. The common law cannot be used to create offences in Canada because of
concerns related to the principle of legality, and the notion that criminal offences should be clear, certain,
and should pre-exist the act being prosecuted. As will be seen below, many rules of criminal procedure are
created in CC, and many other rules of procedure are common law based.
● Const' Act 1867 s91(27) grants CA Parl' authority to legislate on: The Criminal Law, except the Const' of
Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
● Charter 11(g) also provides that no person can be found guilty of an offence other than those that constitute
an offence under CA law or IL.
● With exception of contempt of court, criminal offences are created by statute. Most criminal offences are
created by CC but it is not the only statutory source - e.g. drug trafficking made criminal offence by CDSA
(CDSA).
● Frey v. Fedoruk & CC 9: CL cannot be used to create offences in CA because of concerns related to principle
of legality, and notion that criminal offences should be clear, certain, and should pre-exist the act being
prosecuted -
● CC 9: Criminal offences to be under law of CA, not CL / not British law / not provincial or territorial law
● In terms of criminal procedure, many are created in CC, and many others are common-law based.
● What is criminal law? Const'ally and simply put, criminal law is "prohibited" act with "penal consequences".
(Reference re Firearms Act)
● Requirements of criminal laws
● Existence of criminal "public purpose" i.e. public peace, order, security, health, "morality" (Margarine
Reference).
● To only apply to conduct "so inconsistent with shared morality of society so as to warrant public
condemnation and punishment". Acts considered "innocent or morally neutral" should not be included
(R v Greenwood).
● Not necessary that laws be for purpose of harm prevention (R v Malmo-Levine).
● Purpose is to preserve well-being and general order of society (R v Chisholm).
● Law Must Comply with Charter Rights. Offences / criminal procedures in violation of Charter cannot be
enforced.
● Criminal courts must apply CEA and enact court rules per CC.
● Some essential requirements of properly-functioning judicial system:
● "Innocent must not be convicted" (R v Mills)
● Must have public confidence, key for integrity of rule of law (R v Hall).
● Everyone, including all public officers, subject to ordinary laws (R v Campbell).
● While common law offences are not allowed, common law defences are available under Canadian criminal
law and can still be created by the courts. As will be seen below, SCCnada recognized a common law
defence in Levis (City) v. Tetrault, [2006] 1 S.C.R. 420 (officially induced error) and R. v. Mack, [1988] 2 S.C.R.
903 (entrapment). Moreover, the common law can deeply influence the way that statutory criminal offences
are interpreted, particularly the mental elements.
● Source of Criminal Law
● Equity: No relevance to criminal law
● Criminal Legislation: All offences created by statute. CC + CSDA, etc.
● Law Must Comply with Charter Rights
● Relevance of CL
● CL defences available under CC and can be created by courts. CL rules and principles can be used to
explain outlines and boundaries of a defence. (R v Jobidon)
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● SCC recognized CL defence in Levis (City) v. Tetrault (officially induced error) and R. v. Mack
(entrapment).
● *Entrapment: The law of entrapment in Canada is intended to prevent the police from attracting
someone who is not already involved in criminal activity into committing a crime by offering an
opportunity to commit a criminal act. This is known as random virtue-testing. When determining whether
the police engaged in random virtue-testing, the police conduct must be assessed for its reasonableness.
● Also, CL can deeply influence the way statutory criminal offences are interpreted, particularly the mental
elements.
● CC 8(2) provides that English criminal law as it existed immediately before April 1, 1955, are still
applicable to CA - does not include criminal offences.
● If penal provision is ambiguous rendering two possible interpretations, one more favourable to accused
must be adopted (R v Goulis)
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