NCA Criminal Law — Questions and Answers
Question 1: Under the Canadian Criminal Code, what are the two essential elements (actus reus and mens rea) required for most criminal offences?
- A confession and physical evidence
- The actus reus (guilty act — the prohibited conduct or omission) and the mens rea (guilty mind — the required mental state, such as intent, knowledge, recklessness, or wilful blindness) (Correct answer)
- A victim's complaint and a police investigation
- A motive and an opportunity
Correct answer: The actus reus (guilty act — the prohibited conduct or omission) and the mens rea (guilty mind — the required mental state, such as intent, knowledge, recklessness, or wilful blindness)
Canadian criminal law generally requires both actus reus (the prohibited act, conduct, or omission plus any required circumstances and consequences) and mens rea (the mental element — which may be subjective intent, knowledge, recklessness, or wilful blindness depending on the offence). Some regulatory offences use strict or absolute liability, requiring no mens rea or limited mens rea.
Question 2: What is the presumption of innocence in Canadian criminal law and where is it found?
- It is a common law principle with no constitutional protection
- It is guaranteed by section 11(d) of the Charter, requiring the prosecution to prove all elements of the offence beyond a reasonable doubt before an accused can be convicted (Correct answer)
- It only applies to summary conviction offences
- It applies only in jury trials, not judge-alone trials
Correct answer: It is guaranteed by section 11(d) of the Charter, requiring the prosecution to prove all elements of the offence beyond a reasonable doubt before an accused can be convicted
Section 11(d) of the Charter guarantees that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing. The prosecution bears the burden of proving all elements beyond a reasonable doubt (the highest standard in Canadian law). This is considered a fundamental right and applies to all criminal proceedings.
Question 3: What are the main categories of criminal offences in the Canadian Criminal Code?
- Felonies and misdemeanours
- Summary conviction offences (less serious, maximum 2 years less a day), indictable offences (more serious, varying maximums including life imprisonment), and hybrid/dual procedure offences (Crown elects the procedure) (Correct answer)
- Civil offences and criminal offences
- Provincial offences and federal offences only
Correct answer: Summary conviction offences (less serious, maximum 2 years less a day), indictable offences (more serious, varying maximums including life imprisonment), and hybrid/dual procedure offences (Crown elects the procedure)
Canada classifies criminal offences as: (1) Summary conviction — less serious, tried in provincial court, maximum penalty 2 years less a day and/or $5,000 fine; (2) Indictable — more serious, may be tried by judge alone or judge and jury, penalties up to life imprisonment; (3) Hybrid (dual procedure) — the Crown elects to proceed summarily or by indictment. Canada does not use the terms 'felony' or 'misdemeanour.'
Question 4: What is the test for criminal negligence in Canada as distinct from civil negligence?
- They are the same test
- Criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances, showing wanton or reckless disregard for the lives or safety of others (Correct answer)
- Criminal negligence requires intent to cause harm
- Criminal negligence only applies to motor vehicle offences
Correct answer: Criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances, showing wanton or reckless disregard for the lives or safety of others
Criminal negligence (s.219 Criminal Code) requires a 'marked and substantial departure' from the standard of a reasonable person, demonstrating 'wanton or reckless disregard' for lives or safety. This is a higher threshold than civil negligence (simple departure from reasonable care) or penal negligence (marked departure). It can ground charges of criminal negligence causing death (s.220) or bodily harm (s.221).
Question 5: What are the defences of 'self-defence' under section 34 of the Criminal Code as amended in 2013?
- Any amount of force is justified if the accused felt threatened
- The accused must reasonably believe force is being used or threatened against them or another, the act must be committed for the purpose of defending themselves or another, and the act must be reasonable in the circumstances (Correct answer)
- Self-defence only applies to physical attacks, not verbal threats
- Self-defence is not available if the accused initiated the confrontation
Correct answer: The accused must reasonably believe force is being used or threatened against them or another, the act must be committed for the purpose of defending themselves or another, and the act must be reasonable in the circumstances
Section 34 (as amended in 2013) provides a unified self-defence framework with three elements: (1) reasonable belief that force is being used or threatened against them or another; (2) the act was committed for the purpose of defending or protecting themselves or another; (3) the act was reasonable in the circumstances. Factors considered include the nature of the threat, proportionality, the accused's role in the incident, and whether alternatives existed.
Question 6: What is the 'Charter voir dire' and how does it relate to the exclusion of evidence under section 24(2)?
- A French-language court proceeding
- A hearing within a trial where the accused argues that evidence was obtained in violation of their Charter rights and should be excluded if its admission would bring the administration of justice into disrepute (Correct answer)
- A procedure for selecting jury members
- A hearing about the accused's mental fitness to stand trial
Correct answer: A hearing within a trial where the accused argues that evidence was obtained in violation of their Charter rights and should be excluded if its admission would bring the administration of justice into disrepute
A Charter voir dire is a hearing (trial within a trial) where the accused argues evidence should be excluded under s.24(2) because it was obtained in a manner that infringed a Charter right. The court applies the Grant framework (R v Grant, 2009): (1) seriousness of the Charter-infringing conduct, (2) impact on the accused's Charter-protected interests, and (3) society's interest in adjudication on the merits.
NCA Criminal Law
Under the Canadian Criminal Code, what are the two essential elements (actus reus and mens rea) required for most criminal offences?