Criminal Law

Most people's knowledge of law comes from television and movies, which focus on the most dramatic part of the profession: criminal law. To many minds, therefore, the law equals crime. That is far from the case.

Only about eight per cent of lawyers practise criminal law. Also, while movies give the impression violent crimes such as murder, attempted murder and sexual assault are common, they are not. Homicide and attempted murder make up 0.2 per cent and sexual offences less than 2 per cent of crimes in Canada. Property crimes-theft and break and enter-make up the vast majority of criminal offences. Two other categories of crimes fall under prostitution, pornography, drug trafficking and illegal gambling, and crimes of treason and terrorism.

However, only 34 per cent of crimes are reported by victims.

Criminal law falls under public law, which concerns a dispute between the state and an individual. Private law (better known as civil law) concerns a dispute between two people. When someone commits a criminal offence, the law considers that an offence against society as a whole, not just the victim. A crime is a breakdown in the social order and security of all Canadians. Accordingly, it is not the victim of crime who instigates a criminal case, it is the state.

The state is called the Crown in Canada because the Queen is our head of state. The Crown represents the government of Canada, and by extension, the people of Canada. The Crown-also called the prosecution-is one party in a criminal matter. The accused is the other party. The victim is merely a voluntary witness for the prosecution.

Prosecutors are government lawyers who prosecute criminal cases, meaning lay a charge in a criminal matter, and prepare and conduct legal proceedings against a person charged with a crime.

A defence lawyer represents a person charged with a criminal offence, and does so by ensuring the rights of the accused are protected throughout the criminal process. At trial, a defence lawyer must:

• question the evidence put forward by the prosecution;
• examine the importance or relevance of that evidence; and
• explore other possible interpretations.

The purpose of criminal law is to denounce and punish an accused's offence on behalf of society as a whole, not solely the victim. Most accused plead guilty to a charge, so there is no need for a trial, only sentencing. If there is a trial the majority of accused (65 per cent) are found guilty. Less than 4 per cent are acquitted (found not guilty). The remaining cases are stayed (meaning the trial will not go forward for various reasons) or withdrawn meaning the charges have been dropped.

When there is a trial, the Crown has the burden of proving "beyond a reasonable doubt" that the accused is guilty of a crime. That phrase means a judge or jury must be about 90-95 per cent sure that the Crown has proved its case. If the Crown does not meet that high threshold, the accused is free to go. In other words, the accused is innocent until proven guilty, and has no legal responsibility to prove himself or herself innocent or take the witness stand.

The Crown must prove the two elements of a crime: the actus reus and the mens rea.

Actus reus refers to the "criminal act" itself such as robbery, property damage and so forth.

Mens rea refers to the "guilty mind" meaning the mental element of a crime. The most common form of mens rea is the intention to commit a crime. The intent must occur at the same time as commitment of a crime. Mens rea has other categories such as wilful blindness and recklessness. With murder, for instance, the Crown must prove the accused committed the act, and intended the act i.e. knew the victim's death was likely to occur.

Most criminal trials are contested on the basis of mens rea not actus reus.

Of course, the accused is entitled to put forward a defence to try and avoid being sent to prison. The Crown must also prove the accused did not have a defence. For instance, an accused may be acquitted of murder if the Crown fails to prove he acted in self-defence. Defences are constantly evolving so the following list of defences is not exhaustive:

Here are common defences:

• Self-defence
• Provocation
• Mental disorder
• Duress
• Automatism
• Necessity
• Intoxication
• Entrapment

Mentor Law is hopeful readers found that brief overview of Criminal Law helpful and inspired you to seek further help. If so, please logon and all the mysteries of this fascinating area of law will be revealed.

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