NCA Criminal Law 2 — Questions and Answers
Question 1: What is the principle of 'proportionality' in Canadian criminal sentencing?
- All offenders convicted of the same offence receive the same sentence
- The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as stated in section 718.1 of the Criminal Code (Correct answer)
- The sentence must always include imprisonment
- Proportionality only applies to violent offences
Correct answer: The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as stated in section 718.1 of the Criminal Code
Section 718.1 establishes proportionality as the fundamental principle of sentencing: 'A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.' This ensures sentences are neither excessively harsh nor inappropriately lenient, considering both the objective seriousness of the crime and the individual circumstances of the offender.
Question 2: What are 'Gladue principles' and how do they affect sentencing in Canada?
- They require mandatory minimum sentences for all offences
- They require courts to consider the unique systemic and background factors affecting Aboriginal offenders, with particular attention to restorative justice alternatives, as required by section 718.2(e) of the Criminal Code (Correct answer)
- They apply only to offences committed on reserves
- They prohibit incarceration of Aboriginal offenders
Correct answer: They require courts to consider the unique systemic and background factors affecting Aboriginal offenders, with particular attention to restorative justice alternatives, as required by section 718.2(e) of the Criminal Code
Gladue principles (from R v Gladue, 1999) require courts to consider: (1) the unique systemic and background factors that may have brought the Aboriginal offender before the court (colonialism, residential schools, displacement, substance abuse in communities), and (2) the types of sentencing procedures and sanctions that may be appropriate because of the offender's Aboriginal heritage (restorative justice, community-based alternatives). This applies to all Aboriginal offenders, regardless of where they live.
Question 3: What is the 'right to counsel' under section 10(b) of the Charter and what are its informational and implementational components?
- It only applies after formal charges are laid
- Upon arrest or detention, the person must be informed of their right to counsel without delay (informational), and the police must provide a reasonable opportunity to contact counsel and must refrain from eliciting evidence until the person has done so (implementational) (Correct answer)
- It means the government must provide a free lawyer in all cases
- It only applies in criminal trials, not at the point of arrest
Correct answer: Upon arrest or detention, the person must be informed of their right to counsel without delay (informational), and the police must provide a reasonable opportunity to contact counsel and must refrain from eliciting evidence until the person has done so (implementational)
Section 10(b) has two components: (1) Informational — the detainee must be promptly informed of the right to retain and instruct counsel, including the availability of Legal Aid and duty counsel; (2) Implementational — police must provide a reasonable opportunity to contact counsel, refrain from questioning or eliciting evidence until the right is exercised, and cease questioning if the detainee exercises their right. Violations may lead to exclusion of evidence under s.24(2).
Question 4: What is 'joint liability' for parties to an offence under sections 21 and 22 of the Criminal Code?
- Only the person who physically commits the offence is liable
- A person is a party to an offence if they actually commit it, aid or abet its commission, or form a common intention to carry out an unlawful purpose with another person — parties are equally liable (Correct answer)
- Joint liability only applies to organized crime offences
- Only the leader of a criminal enterprise is liable
Correct answer: A person is a party to an offence if they actually commit it, aid or abet its commission, or form a common intention to carry out an unlawful purpose with another person — parties are equally liable
Section 21 provides three modes of party liability: (1) actually committing the offence, (2) aiding (assisting) its commission, or (3) abetting (encouraging) its commission. Section 21(2) extends liability to common intention — where two or more persons form an intention to carry out an unlawful purpose and an offence is committed in its carrying out, each is a party if the offence was foreseeable. Section 22 covers counselling an offence.
Question 5: What is the 'right to be tried within a reasonable time' under section 11(b) of the Charter, as reframed by R v Jordan (2016)?
- Trials must be completed within 6 months of arrest
- The SCC established presumptive ceilings of 18 months for provincial court cases and 30 months for superior court cases; delays exceeding these are presumptively unreasonable unless the Crown demonstrates exceptional circumstances (Correct answer)
- There is no specific time limit — it depends on the complexity of the case
- The right only applies to summary conviction offences
Correct answer: The SCC established presumptive ceilings of 18 months for provincial court cases and 30 months for superior court cases; delays exceeding these are presumptively unreasonable unless the Crown demonstrates exceptional circumstances
R v Jordan (2016) fundamentally changed the s.11(b) framework. The SCC established presumptive ceilings: 18 months for cases in provincial court and 30 months for cases in superior court (or cases in provincial court after a preliminary inquiry). If delay exceeds the ceiling, it is presumptively unreasonable unless the Crown proves exceptional circumstances. Below the ceiling, the defence must show the delay is markedly departed from reasonable.
Question 6: What is the legal test for establishing the defence of 'not criminally responsible on account of mental disorder' (NCRMD) under section 16 of the Criminal Code?
- The accused must prove they have any mental health diagnosis
- The accused must prove, on a balance of probabilities, that at the time of the offence they were suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act, or of knowing that it was wrong (Correct answer)
- The defence only applies to psychotic disorders
- The judge makes the determination without any medical evidence
Correct answer: The accused must prove, on a balance of probabilities, that at the time of the offence they were suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act, or of knowing that it was wrong
Section 16 provides that a person is NCRMD if, at the time of the offence, they suffered from a mental disorder that rendered them incapable of either: (1) appreciating the nature and quality of the act or omission, OR (2) knowing that the act or omission was wrong. The burden is on the party raising the defence (balance of probabilities). If successful, the accused is not acquitted but found NCRMD and subject to a disposition hearing by the Review Board.
NCA Criminal Law 2
What is the principle of 'proportionality' in Canadian criminal sentencing?