Criminal Law in Canada | Complete Guide | Boudreau avocats inc.
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Legal Guide

Criminal Law in Canada

Understanding the Canadian criminal justice system: its sources, jurisdiction, types of offences, trial stages, and the courts that apply it. An overview written by Me Boudreau, criminal defence lawyer.

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Guide Contents

Sources of Criminal Law Federal Jurisdiction Types of Offences Fundamental Principles Stages of a Case Competent Courts Provincial Penal Law Quebec Particularities
01 — Foundations

Sources of Canadian Criminal Law

Canadian criminal law rests on three main sources. The first, and most important, is the Criminal Code of Canada (R.S.C. 1985, c. C-46). Enacted in 1892, it codifies virtually all criminal offences applicable from coast to coast. It is regularly amended by the federal Parliament to keep pace with the evolution of society.

The second source is the Canadian Charter of Rights and Freedoms, entrenched in the Constitution Act, 1982. It establishes the fundamental rights of every accused person: presumption of innocence, right to silence, right to counsel, protection against unreasonable search and seizure, and the right to trial within a reasonable time. The Charter is the cornerstone of every modern criminal defence.

The third source encompasses related federal statutes: the Controlled Drugs and Substances Act (CDSA), the Cannabis Act, the Youth Criminal Justice Act (YCJA), the Firearms Act, and others. Case law — in particular decisions of the Supreme Court of Canada — supplements these texts and fixes their interpretation.

"In criminal matters, the legislation is only half the answer. The case law that interprets and applies it is the other half."
02 — Division of Powers

Federal Jurisdiction over Criminal Law

Unlike the United States, where each state has its own criminal code, Canada has centralized this power at the federal level. Section 91(27) of the Constitution Act, 1867 grants Parliament exclusive jurisdiction over "The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters."

The provinces, for their part, are responsible for the administration of justice (s. 92(14)): they appoint judges to provincial courts, conduct prosecutions through the Director of Criminal and Penal Prosecutions (DCPP) in Quebec, and operate the courthouses. This division means that the same offence is prosecuted under the same substantive rules across Canada, but before provincial courts.

Federal

Criminal Code and Related Statutes

Parliament enacts the Criminal Code, the CDSA, the Cannabis Act, and other federal legislation. These laws apply throughout the country.

Provincial

Administration of Justice

The provinces prosecute offences through the DCPP (Quebec), appoint judges to provincial courts, and operate the courthouse system.

03 — Classification

The Three Categories of Criminal Offences

The Criminal Code classifies offences into three categories, which determine the procedure, the competent court, and the maximum penalty available.

Summary

Summary Conviction Offences

The least serious. Maximum penalty is generally two years less a day of imprisonment and a $5,000 fine (s. 787 C.C.). No right to a jury trial. Limitation period of 12 months.

Hybrid

Hybrid Offences (Dual Procedure)

The majority of offences in the Code. The Crown elects to proceed by summary conviction or by indictment based on the seriousness of the facts. This election affects the maximum penalty and procedural rights.

Indictable

Indictable Offences

The most serious. Penalties may include life imprisonment. Right to a jury trial for offences carrying at least five years' imprisonment. No limitation period.

This distinction is crucial: it determines, for example, whether the accused is entitled to a preliminary inquiry, whether they may choose their mode of trial (judge alone, judge and jury, Court of Quebec judge, Superior Court judge), and which procedural remedies are available.

04 — Fundamentals

Fundamental Principles of Criminal Law

Several principles structure the whole of Canadian criminal law. They are guaranteed by the Charter and applied by the courts in every case.

  • Presumption of innocence — every accused person is presumed innocent until guilt is proven beyond a reasonable doubt (s. 11(d) of the Charter).
  • Burden of proof — it is the Crown's responsibility to prove each essential element of the offence beyond a reasonable doubt. The accused need not prove anything.
  • Right to silence — the accused has no obligation to testify or answer questions from the police (ss. 7 and 11(c)).
  • Right to counsel — every person who is detained or arrested has the right to retain and instruct counsel without delay (s. 10(b)).
  • Full answer and defence — the accused has the right to know the case against them (Stinchcombe), to challenge every element, and to present their own evidence.
  • Protection against unreasonable search and seizure — any search or seizure must be grounded in reasonable grounds (s. 8).
  • Trial within a reasonable time — Jordan (2016) and Cody (2017) set ceilings: 18 months in provincial court, 30 months in Superior Court.

A violation of any of these rights may result in exclusion of unlawfully obtained evidence (s. 24(2)) or a stay of proceedings (s. 24(1)).

05 — Court Process

Stages of a Criminal Case

A criminal case follows a sequence of stages, each governed by precise rules and distinct defence strategies.

Arrest

The police arrest the person or issue an appearance notice or promise to appear. Charter rights apply immediately — including the right to silence and the right to counsel.

First Appearance

First appearance before the court. Reading of the charge and, where applicable, a bail hearing (show cause hearing) on interim release.

Disclosure

The Crown must disclose to the accused all evidence in its possession (Stinchcombe). This stage is critical for preparing the defence.

Case Management and Preliminary Motions

Filing of motions (exclusion of evidence, Jordan, etc.), plea discussions, and election of mode of trial.

Preliminary Inquiry (if applicable)

Available for offences carrying at least 14 years' imprisonment (since 2019). Allows testing of the Crown's evidence before trial.

Trial

Presentation of the Crown's evidence, cross-examinations, defence case, and closing arguments. Verdict rendered by judge alone or a jury of 12.

Sentencing

Upon a finding of guilt, a separate hearing at which the court imposes a sentence in accordance with the principles set out in ss. 718 to 718.2 of the Criminal Code.

Appeal

The accused may appeal the verdict or sentence to the Quebec Court of Appeal, and potentially to the Supreme Court of Canada by leave.

06 — Hierarchy

Courts with Criminal Jurisdiction

In Quebec, four levels of courts deal with criminal matters, depending on the seriousness of the offence and the accused's procedural choices.

1

Municipal Court

Summary conviction offences, certain hybrid offences, and municipal bylaw infractions. Present in Montreal, Quebec City, Laval, Gatineau, and others.

2

Court of Quebec, Criminal and Penal Division

Court of first instance for the vast majority of criminal cases (summary and hybrid offences, certain indictable offences). Judge alone, no jury.

3

Superior Court of Quebec

Most serious offences (murder, conspiracy to murder, etc.) or at the accused's election. Trial before judge alone or judge and jury.

4

Quebec Court of Appeal

Appellate court for verdicts and sentences. Panel of three judges. Its decisions are binding on all lower courts in Quebec.

5

Supreme Court of Canada

Court of last resort. Hears appeals by leave (approximately 10% of applications). Its decisions bind all courts across Canada.

YCJA

Youth Division

Specialized division of the Court of Quebec for young persons (ages 12 to 17) under the Youth Criminal Justice Act.

07 — Distinction

Criminal Law and Penal Law: Two Distinct Regimes

The term "criminal" technically refers to offences under the federal Criminal Code and related federal statutes. The term "penal" refers to offences under provincial legislation and municipal bylaws (Quebec's Highway Safety Code, Act respecting liquor permits, zoning bylaws, etc.).

The difference is far from cosmetic:

  • In criminal law, the standard of proof is beyond a reasonable doubt, penalties may include imprisonment, and the accused is entitled to all Charter guarantees.
  • In penal law, the standard of proof remains beyond a reasonable doubt, but some offences are ones of strict or absolute liability — the mere commission suffices, without the need to prove a guilty mind (mens rea).

Our firm practises in both regimes. Many cases involve both a criminal AND a penal dimension simultaneously (e.g., impaired driving, where the Criminal Code and the Highway Safety Code apply in parallel).

08 — Particularities

What Sets Quebec Apart in the Application of Criminal Law

Even though criminal law is uniform across Canada, the administration of justice varies from province to province. In Quebec, a few particularities are worth noting.

  • French language — the accused has a constitutional right to have their trial conducted in French (s. 530 C.C.). All proceedings, testimony, and the judgment may take place in the French language.
  • DCPP — prosecutions are conducted by the Director of Criminal and Penal Prosecutions, an independent administrative authority created in 2007.
  • Legal aid — the Commission des services juridiques administers a unique legal aid plan in Quebec, with specific eligibility thresholds. Boudreau avocats inc. accepts legal aid mandates.
  • Circuit courts — in Northern Quebec (Eeyou Istchee, Nunavik), courts travel by plane to Cree and Inuit communities. These hearings follow specific procedural and cultural rules.
  • Gladue principle — courts must take into account the particular circumstances of Indigenous persons at sentencing (s. 718.2(e) C.C., Supreme Court's Gladue decision).

Key takeaway. Canadian criminal law is complex, technical, and constantly evolving through case law. Every case deserves careful analysis by an experienced lawyer. A well-prepared defence begins in the first hours after arrest — well before trial. To discuss your situation, contact our firm at 514 903-9922.

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