The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.
In all Canadian provinces and territories, criminal prosecutions are brought in the name of the “Queen in Right of Canada”.
A person may be prosecuted criminally for any offences found in the Criminal Code or any other federal statute containing criminal offences.
There are two basic types of offences. The most minor offences are summary conviction offences. They are defined as “summary” within the Act and, unless otherwise stated, are punishable by a fine of no more than $5,000 and/or 6 months in jail. Examples of offences which are always summary offences include trespassing at night (section 177), causing a disturbance (section 175) and taking a motor vehicle without the owner’s consent (section 335) (an equivalent to the British TWOC).
All non-summary offences are indictable: the available penalties are greater for indictable offences than for summary offences. These in turn may be divided into three categories.
- Indictable-only offences include treason and murder (section 235), and are listed in section 469 of the Criminal Code. These can only be tried by the higher court of the province with a jury, unless both the accused person and the Attorney General consent to trial by a higher court judge alone: section 473.
- Offences of absolute jurisdiction include theft and fraud up to the value of $5,000 and certain nuisance offences. These are listed in section 553 of the Criminal Code: the accused person does not have an election and must be tried by a judge of the provincial court without a jury.
- Most other offences defined by the Criminal Code are triable either way, and are sometimes known as hybrid offences. In these offences the accused person can elect whether to be tried by:
- a provincial court judge,
- a judge of the higher court of the province without a jury or
- a judge of the higher court with a jury.
However, if the accused elects trial by a provincial court judge, that judge can decline jurisdiction and refer the case to the higher court: section 554. The Attorney General can also require a case to be tried by the higher court with a jury: section 568.