Canada’s Criminal Code is a federal statute. It was enacted by Parliament in accordance with section 91(27) of the Constitution Act, 1867, which gives the federal government exclusive jurisdiction to legislate criminal offences in Canada. The Criminal Code contains most of the criminal offences that have been created by Parliament. Other criminal offences have been incorporated into other federal statutes. The Code defines the types of conduct that constitute criminal offences. It establishes the kind and degree of punishment that may be imposed for an offence, as well as the procedures to be followed for prosecution.
Consolidations and Amendments
The Criminal Code of Canada was originally enacted in 1892. It has never been fundamentally revised; though there were consolidations in 1906, 1927 and 1953. The 1953 consolidation was an attempt to reorganize, clarify and reconcile inconsistencies. More significantly, this consolidation abolished all common law offences (those created by case law rather than by a statute). It also preserved common law defences, justifications and excuses.
Amendments to the Code have been made almost yearly to keep up with technological, social and economic changes in society. New offences have been created (e.g., theft of telecommunications; use of credit cards; hijacking of aircraft, etc.). Changes have also been made to existing offences, such as those that have recently occurred concerning sexual assaults and impaired driving offences.
Enactments and Procedures
The first portion of the Code consists of enactments of general principles followed by parts (several sections each) creating offences. These are grouped under different categories, such as offences against the person; offences against property; offences against the administration of law and justice; sexual offences; currency offences; and conspiracies.
The rest of the Code is concerned with procedure and sentencing. It is estimated that 40 per cent of the Criminal Code deals with criminal law procedure. The remaining 60 per cent deals with the definition of criminal law offences; the codification of some of the defences that are available to criminal charges; and finally sentencing options available to judges.
The Code has been severely criticized for failing to reflect the attitudes of the majority of Canadians. Though the Canadian Law Reform Commission was dismantled in 1993, a bill was proclaimed law in 1996; it significantly amended the Criminal Code regarding sentencing.
Historically, criminal law has treated a crime as a wrong against the community, rather than against the individual victim. As a result, individual victims of crime have often felt outside the criminal justice process. The 1996 legislation amended the sentencing provisions of the Criminal Code. The courts are now required, when deciding an offender’s sentence, to consider written statements of victims that describe the harm done to them or the losses they have suffered. The courts enjoy a wider discretion to order restitution or compensation from an offender to the victims of a crime. These orders are enforceable through the process of civil execution.
The changes to the Code also allow the courts to play a more active role in the rehabilitation of an individual offender. Alternatives to incarceration are more readily enforced. For instance, the new “Conditional Sentence” allows a judge to impose a term of imprisonment. But it allows the convicted offender to serve this sentence in the community on conditions that permit supervision of the offender within the community. This increases the likelihood of his or her rehabilitation. If the offender fails to live up to the conditions imposed, he or she can be made to serve the outstanding portion of the jail sentence. Also provided for under the 1996 provisions are “Alternative Measures” for adult offenders. These allow an offender to bypass criminal prosecution and go directly into rehabilitative programs or community service.
The new sentencing provisions are designed to respond to a growing attitude in society that the interests of victims of crime should have a more prominent place when an offender's sentence is decided. It is also recognized that prison should be something of a last resort, justifiable only when necessary in the public interest; or as a means by which to denounce serious offences.