RSC 1985, c C-46
Parliament of Canada
First enacted: SC 1892, c 29; carried forward in statute revisions, RSC 1906, c 146 and RSC 1927, c 36; substantially revised and re-enacted, SC 1953-54, c 51; carried forward in statute revisions, RSC 1970, c C-34 and RSC 1985, c C-46
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law" (R.S.C. 1985, c. C-46, as amended). Section 91(27) of the Constitution Act, 1867 establishes the sole jurisdiction of Parliament over criminal law in Canada.
The Criminal Code contains some defences, but most are part of the common law rather than statute. Important Canadian criminal laws not forming part of the code include the Firearms Act, the Controlled Drugs and Substances Act, the Canada Evidence Act, the Food and Drugs Act, the Youth Criminal Justice Act and the Contraventions Act.
One of the conveniences of the criminal code was that it constituted the principle that no person would be able to be convicted of a crime unless otherwise specifically outlined and stated in a statute. This legal document has played a major part in Canada's history and has also helped form other legal acts and laws, For example the Controlled Drugs and Substances Act.
The Criminal Code was first enacted in July 1892 after being a pet project of the Minister of Justice of the time, Sir John Sparrow David Thompson. It was based on a drafted code called "the Stephen Code", written by Sir James Fitzjames Stephen as part of a Royal Commission in England in 1879, and influenced by the writings of Canadian Jurist George Burbidge. Canada's criminal code followed much of England's 1878 bill. However Canada wanted to have a more precise legal document that outlined all criminal laws.
The main body of the Criminal Code is divided into the following major components:
The main body is followed by schedules (i.e. appendices) relating to some of the above-mentioned Parts and a series of prescribed legal forms, such as Form 5 which sets out the proper legal wording for a search warrant.
The Criminal Code has been revised numerous times, including the consolidation of federal statutes that occurred during 1955 and 1985. One of the major revisions of the code occurred with the passage of the Criminal Law Amendment Act, 1968-69, whose provisions included, among other things, the decriminalization of homosexual acts between consenting adults, the legalization of abortion, contraception and lotteries, new gun ownership restrictions as well as the authorization of breathalyzer tests on suspected drunk drivers.
The criminal code has changed as society has advanced. The introduction of technology has pushed for new laws to be passed. For example laws against the use of cellphones while driving as well as cyber crimes. The Criminal Code, in its present form, is part of the 1985 consolidated statutes with further major amendments since that year.
By means of legal challenges under the Canadian Charter of Rights and Freedoms, numerous sections of the Criminal Code have been struck down by the Supreme Court of Canada as infringing on a constitutional right as defined in this 1982 constitutional document. The offending sections are usually removed altogether, or heavily qualified, when new laws are passed. In other instances, such as Section 287 regarding qualified abortions, the Canadian Parliament does not repeal (i.e. erase) the infringing section from the text of the Criminal Code and so the remaining text is simply null, void and unenforceable by the police and the criminal justice system.
Before the terrorist attack against the World Trade Center on September 11, 2001, the Criminal Code contained almost no specific reference to terrorism. After that event, the Canadian Parliament passed Bill C-36, the Anti-terrorism Act (S.C. 2001, c.41) which received royal assent on December 18, 2001. This statute added an entire new component to the Criminal Code. Falling between Part II and Part III is now Part II.1 - Terrorism, which contains numerous provisions regarding the financing of terrorism, the establishment of a list of terrorist entities, the freezing of property, the forfeiture of property, and participating, facilitating, instructing and harboring of terrorism.
Young persons, ages 12 to 17, may be charged with offences under the Criminal Code, are prosecuted in much the same way as adults under the Criminal Code, and are subject to the same laws of evidence. However, sentencing, procedure and evidence law are modified to some extent by the Youth Criminal Justice Act. Depending on the severity of the crime, the Crown Prosecutor may argue for a youth to receive an adult sentence after the age of 14. In this case, the judge will make the decision. Under the Young Offenders Act, the youth would be transferred to adult court in order to receive an adult sentence. This is no longer the case. Under the Youth Criminal Justice Act (YCJA) the young person would receive the adult sentence in youth court.
If the young person is given an adult custody sentence, he/she will attend a youth facility until becoming an adult at the age of 18. At this time it will be decided if the youth is transferred to an adult facility, or if he/she is to remain at the youth facility until the age of 20. If an adult sentence is given, the young person's name will be published and he/she will receive a permanent adult criminal record.
In 2012, Bill C-10 made amendments to the Youth Criminal Justice Act regarding youth and adult sentences.