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What is a criminal offence in Canada?
When dealing with the criminal justice system, it's all too easy to take things for granted. The courts don't always move fast, but when they do pick up the pace, they can leave you in the dust. This is especially true when it comes to definitions. Legal rules and terms have lasting impacts, but their meaning isn't always obvious. Criminal offenses are a great example. Just what is a criminal offense in Canada, and what counts as one? Here are the fundamentals and tips on where the lines get drawn.
How Are Canadian Criminal Laws Defined?
In Canada, the Parliament has the right to define and enact criminal laws. Things have been this way since the passage of the Constitution Act of 1867, section 91(27).
The authority to define criminal law covers a pretty broad scope, and experts have long debated the meaning of crime and the rules that surround it. But most modern observers agree that criminal laws include:
- Explicit, well-defined prohibitions or restrictions on certain acts
- Penalties for breaking the prohibitions
- Public-interest purposes, which may be defined in other laws, and include goals like upholding the common peace, observing morality, or protecting public health
Despite these ideas, criminal laws aren't ironclad. Courts have the power to strike down federal legislation for various reasons. In some cases, these changes apply retroactively, which can have an impact on people who were previously convicted. For instance, imagine you were charged with breaking a law that was later revoked because it didn't serve a valid public interest. You might be eligible for a record suspension — formerly known as a pardon.
Provinces can also enact criminal penalties for those who violate provincial statutes. For this to work, the provincial law can't conflict with or intrude on federal laws, although there are some exceptions. Because provincial law judgments happen on a case-by-case basis, it's critical to talk to a legal expert if you've been accused or want to know whether you have grounds to apply for a suspension.
Guilty Acts and Mental States
Criminal laws also typically include the idea of mens rea, which translates to “guilty mind”. This is a legal term that refers to a person's mental state at the time they were accused of committing a crime — also known as criminal intent.
Performing a guilty act, or actus reus, isn't always enough by itself. For a charge to stick, a defendant also has to meet the minimum mens rea requirement.
This distinction may seem like nitpicking, but it makes a huge difference in what kinds of crimes people get convicted of and how their criminal records look. For example, someone who takes an action that leads to another's death might not be found guilty of murder if they had no way of knowing the victim could die.
What Are Criminal Offenses in Canadian Law?
Criminal offenses are acts that meet the standards we've discussed thus far. In other words, they're violations of criminal laws that carry potential penalties.
There are three categories of criminal offenses you ought to know: summary conviction, indictable, and hybrid. Indictable offenses are more serious than the summary variety.
Summary Conviction Offenses
These offenses generally don't involve arrests — unless the authorities catch someone in the act. Either way, the accused will receive a notice commanding them to present themselves in court on a specified date and time. There, a provincial judge will handle their case.
With that said, making a court appearance isn't necessarily mandatory for summary charges. Accused individuals often choose to have their lawyer or agent represent them instead. The exception to this rule is if the judge specifically requests the accused's presence.
Indictable Offenses
Because these offenses are more serious, they follow different procedures. The severity of the crime and the choices made by the prosecutor and the accused determine how things play out.
If the police have reasonable grounds to suspect involvement in an indictable offense, they'll try to arrest the accused. The defendant must then appear in court, where they can choose to self-represent or hire a lawyer.
Hybrid Offenses
As the name implies, hybrid offenses mix the two previous types. A prosecutor can opt for summary conviction or indictable proceedings at their discretion.
Prosecutors typically decide what to do by considering factors like the severity of a crime and any resulting harm. Once they've made their choice, they'll proceed as they would for a normal summary conviction or indictable offense.
How Do Criminal Offenses Impact a Criminal Record?
The legal definitions around criminal offenses don't just affect people who face charges or end up incarcerated. They also play a role in their criminal records long after cases wrap up.
What Is a Criminal Record?
A criminal record serves as an official summary of someone's interactions with the criminal justice system. The entries on a record start when someone encounters law enforcement. This means that records include events like arrests.
Criminal records also detail criminal offenses. In most cases, this means charges or convictions you picked up from the age of 12 onward. Youth records are subject to distinct procedures and regulations.
A comprehensive criminal record can, but doesn't always, cover:
- Unresolved or pending charges
- Agreements where an offender or accused promised to follow specific regulations or activities
- Information about release from custody.
In general, it's best to assume that criminal records can include anything related to summary conviction or indictable offenses. Your trial or experience with law enforcement determines the exact contents.
Who Can Access Criminal Records?
Different federal and provincial law enforcement bodies can access criminal records via the Canadian Police Information Centre (CPIC). For instance, CPIC works with Citizenship and Immigration, Parks Canada, and Canada Customs.
Canadian criminal records may also wind up in the hands of foreign agencies. For example, the United States Customs and Immigration Agency routinely uses criminal histories to screen travelers.
Most provincial police agencies can also access a system specific to British Columbia, known as PRIME. With all that in mind, criminal records aren't universal. Individual provinces and municipalities have their own standards for how they maintain and share info.
Obtaining a Record Suspension for a Criminal Offense In Canada
Criminal records can make it harder to get jobs, find places to live, and move forward in life. If your offense meets one of the categories we mentioned earlier, like pertaining to a revoked law, seeking a record suspension could help.
A record suspension is a lawful procedure designed to wipe your criminal record of specific offenses. This isn't a totally clean slate: the original record remains intact. However, the suspension removes the entry from the Canadian Police Information Centre (CPIC) database.
How to Get a Record Suspension
Record suspensions aren't available to everyone. Your eligibility hinges on showing you've turned over a new leaf.
The Parole Board of Canada processes record suspension applications. So what does it look for? At a bare minimum, you'll need to:
- Have successfully completed your sentence in its entirety, including imprisonment, repaying any financial damages, serving probation, and following parole conditions, with the exception of driving restrictions and weapons prohibitions
- Fulfilled a variable waiting period after completing your sentence
- Have been convicted as an adult
- Have been transferred to Canada as a prisoner for convictions that happened abroad
- Not have committed a Schedule 1 offense, which covers most sexual crimes involving children
One of the most confusing aspects is the waiting period. The rules haven't always been the same, and the changes aren't retroactive. To sum up, there are currently three sets of rules to know depending on when your first offense happened:
- For a first offense that occurred before June 29, 2010, the severity of the crime makes all the difference. You must wait 5 years for an indictable offense or 3 years for a summary conviction.
- For an initial offense that happened between June 29, 2010, and March 12, 2012, there are three different waiting periods to consider. Indictable Schedule 1 offenses, serious personal injury crimes, and crimes with prison terms of at least 2 years incur a 10-year waiting period. Most indictable offenses and summary convictions related to Schedule 1 crimes have a 5-year waiting period. All other summary convictions come with a 3-year waiting period.
- For a first offense that took place after March 13, 2012, things are a bit simpler. You have to wait 10 years for indictable offenses and 5 years for summary convictions. Again, Schedule 1 crimes aren't eligible.
Remember how we mentioned that what counts as a criminal offense can change with evolving laws? One big example has to do with cannabis. If you've received a conviction on a simple possession charge — and no other offenses for that incident — you can apply for a fast-tracked record suspension.
Conclusion
Criminal offenses in Canada vary widely. There's a patchwork of different rules in play, and the legal landscape never stops changing. One constant, however, is that criminal records don't quite keep up. If you want to move on, it's up to you to seek a record suspension.
It is a very broad question to ask "What is a Criminal Offence in Canada?" simply because there are so many different types. However, if it is indeed a criminal offence, then you will be able to find it codified in Canadian law. There are several pieces of federal legislation that outline what constitutes a criminal offence in Canada, but we will focus only on the most common. Be aware that complete and searchable versions of these Acts are freely available on the government of Canada’s website, and several links have been provided below.
Many Canadians may not be sure if they have committed a criminal offence in Canada that would leave them with a federal criminal record. Fortunately, Canada has clear legislation that outlines exactly what is a criminal offence in Canada. One important thing to remember is the difference between a federal offence and a provincial offence. While a federal offence will leave you with an official criminal record, a provincial offence generally will not (although a record of the criminal offence will still be left with the Local Police). To find out if your criminal offence in Canada was provincial or federal, you will want to look to the legislation.
The Criminal Code of Canada
The vast majority of criminal offences in Canada fall under the Criminal Code. If you are ever have to ask yourself "What is a Criminal Offence?", then this legislation should be the first place to look. This piece of legislation covers nearly every federal offence in Canada including Theft, Manslaughter, Driving While Ability Impaired, Fraud, etc. It includes the definitions for these offences, as well as outlining the maximum penalties for these offences.
The Controlled Drugs and Substances Act
If you have a criminal offence in Canada that has in any way to do with drugs or narcotics, it will likely be covered by this piece of legislation. Replacing the Narcotics Control Act in 1996, this Act contains a list of all illicit substances in Canada and ranks them into “schedules” based on their seriousness. The most common criminal offences covered by this act are Possession of a Scheduled Substance, Possession of a Scheduled Substance for the Purpose of Trafficking, and Production of a Scheduled Substance.
The Youth Criminal Justice Act
While the Youth Criminal Justice Act does not outline specific criminal offences, it does codify special sentencing options for youth as well as the circumstances upon which youth records may be kept. If you have a criminal offence in Canada that you committed as a youth, you may or may not still have a criminal record.
Other Provincial Legislation
Provincial legislation naturally varies from province to province, but all pieces of provincial legislation are similar in that a criminal offence in Canada that falls under provincial legislation will not leave a federal criminal record. The majority of provincial offences are usually relatively minor, and often consist of traffic offences such as under the British Columbia Motor Vehicles Act, or the Ontario Highway Traffic Act. These offences do not affect your eligibility for a Record Suspension (formerly referred to as a Pardon), although they may show to the Parole Board of Canada that you have not maintained "Good Conduct".
If you have committed a criminal offence in Canada you likely have a federal criminal record, and the only way to remove your record is by obtaining a Record Suspension. If you have a criminal offence in Canada and wish to have it removed from your record, we encourage you to contact our offices today for a free consultation.
