What to know about criminal law in Canada
The Canadian legal system is governed by a set of laws that seek to control the behaviour of citizens and their interactions with each other and with the state. Unlike in many other non-commonwealth countries, Canadian law is based on English Common Law, and these use precedents and traditional common law from the English system as well as the established Canadian statutes. Just like civil Law, which is a branch of law governing non-criminal (Civil) matters, the criminal law in Canada is mostly designed and legislated by the federal government, with some local government considerations.
The premise of Canadian law, just like any English criminal law is simple, for an act to be considered a crime, then there must be actus reus and mens rea. These refer to the action and the state of mind of the individual suspected of committing a crime. When a criminal act is perpetrated, the criminal's action and intent must be considered. The action of the crime is observed while considering the intent or motive of the crime. If criminal activity is done accidentally, then the intent of the crime needs to be known to consider whether there was a predetermined outcome in the mind of the criminal. If both the action and the intent are not present, then no criminal activity has taken place.
The Canadian Criminal Code constitutes a list of criminal offenses and the degree of punishment accorded to each offense. It also highlights the prosecution procedures required for every offense. These offences are listed in the country’s Criminal Code, also referred to as the Penal code, but it is not exhaustive as other crimes arise from international statutes or conventions.
Similarities and comparisons of the system
Canadian criminal law constitutes differences from other criminal legal systems in the world.
The differences between the American criminal system vary in different matters. For instance, capital punishment by death is very much possible in the United States, as opposed to Canada, which abolished it in 1976. The Canadian legal system also dictates that extradited citizens should not have the death penalty given to them regardless of their criminal offense.
The criminal codes of various offenses vary from state to state in America. This makes lawyers specialize in the different criminal law codes of particular states. In Canada, the penal code defines criminal conduct. Criminal conduct also exist in other laws and statutes, and these set a precedence of all criminal statutes locally. Another critical difference is the lack of the jury system in Canada unlike in the United States and other non-commonwealth jurisdictions.
The Canadian system operates in both English and French, with the present members understanding the court proceedings in the language they prefer, which is normally at the court's expense. The American court system only operates in English.
The Canadian criminal system borrows from international law when need be. This proves its capability to sieve beneficial codes from universal legal systems. The American system is very closed off and does not seek to borrow from external legal systems.
Characteristics of Canadian criminal law
In criminal cases, all information and materials found during the investigation process, whether the evidence is admissive in court, and whether the state will introduce it to court on not, needs to be disclosed.
With individuals who commit felonies, which lead to an indictment, enough evidence needs to be gathered to ascertain the accused is put on trial. Criminal court proceedings in Canada are normally open to the public unless special considerations are required for national security.
Court proceedings in a Canadian criminal law
Before a trial in Canada, a publication ban can be put into place until the case is over. The accused is discharged to protect the accused right to a free and fair trial by ensuring the jury remains untainted in their judgment. Normally, the court systems frown against any publication of the case before it is over.
Articles relating to the trial can be delayed, detained, or prohibited from publication, especially in the case of sexual offenses or identifying the witness or complainant somehow. This seeks to protect both the complainant and the witness from further rebuff that may arise if the publication goes public. The court system also prohibits the publication of a case that did not have the jury present. The Criminal Code act can ensures that the publications are not published, even after the trial.
The use of a jury in the Canadian criminal court is dependent on the type and extent of the crime committed. For instance, less serious offenses rarely elicit the presence of a jury (Section 553). The more serious cases such as murder always have a jury, not unless a special request is made from the Attorney General to have the judge sit alone. For other cases, the presence of a jury or lack of is elected by the accused, under certain Criminal Code provisions.
The presiding judge in a criminal proceeding is usually not the judge appointed for the trial. If the accused feels unsure about the trial judge, they may apply for the judge to recuse himself from the case.
The Canadian court systems dictates accusers who are not found guilty be released and acquitted immediately. When found guilty, the accused is convicted and sentenced to either community service, probation, given a fine, restitution, or imprisonment, depending on the penalty of the level and extent of the crime committed.
Practicing criminal law in Canada
There are basic requirements for aspiring lawyers in Canada, as follows:
- A Bachelor of Laws degree (LL.B) four-year undergraduate degree accredited by the NCA.
- Professional ethics certification
- Juris Doctor (J.D) degree
- Pass bar exam
- Complete a minimum of an eight-month Law Practice program
The competitive landscape for lawyers practicing in Canada is at an all time high, with only a few students joining the bar and practice. The above requirements vary from province to province.
The need for lawyers to constantly keep up with practical skills and experiences through volunteering or registering in developmental programs and pro-bono cases is vital in ensuring they stay in course and keep up with the constitutional terms and codes.
Foreign lawyers from other states must demonstrate to the National Committee on Accreditation (NCA) their ability to practice Canadian law by evaluating their education and training experiences, which should be equivalent to the Canadian law degrees. The NCA evaluates the training of foreign lawyers who seek to join the bar in Canada. Foreign lawyers also require complete license issuance and a visit to the bar in the province they choose to practice.