Nov 20, 2020 in Law

Justice System in Canada

Justice System in Canada

Procedural law is comprised of a set of rules that are used to govern the court proceedings in civil, administrative and criminal proceedings. The court is required to conform to the standards laid down by procedural law during the proceedings. The standards make sure there is consistency and fair practice in due process. Substantive law is concerned with the legal relationship existing between the state and the people. It gives a definition of the rights and duties of individuals. Procedural law, on the other hand, lays down the procedure or the rules with the assistance of which they get enforced.


Substantive law is concerned with the substance of the case, the handling of the facts and charges. It has the power to give legal solutions. Procedural law gives a step by step plan on how the case should proceed so as to realize the desired goals. It gives information on execution of the legal process.

Substantive law also describes the types of crimes and their severity depending on various factors such as the criminal record of the offender. It also describes the rights and responsibilities or duties of the accused. Procedural law, however, provides the government with the machinery necessary to enforce the substantive laws on persons. It deals with the means and method through which substantive law is enacted and administered.

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According to Walter Kluwer, the offence of murder is committed when one kills another person unlawfully, either with premeditation and deliberation or by behavior indicating an irresponsible disregard for human life (Kluwer, pg 6). Actus Reus together with Mens rea is the most important element in proving the offence of murder. Mens rea means the intention to kill, while Actus Reus means the conduct of the accused that led him into committing the offence of murder (Card Cross and Jones, pg 32). The Actus Reus of murder, therefore, comprises of the unlawful killing of a human being in the Queen's peace. The Mens Rea required to prove murder is malice aforethought. The element of Mens Rea is about the state of mind of the defendant.

Corpus delicti, a Latin word meaning body of crime, is the principle that requires a crime to be proved to have taken place before one is convicted of committing a particular crime. It is taken as one of the major concepts in an investigation of a murder crime. Even without the presence of a physical body to prove that one has been murdered, circumstantial evidence can be availed to prove guilt beyond reasonable doubt.

Due process ensures that the criminal justice system protects the rights of any accused person. The accused person is, therefore, treated as innocent until enough evidence is presented to prove him guilty. It considers the police as essential in ensuring justice in the society. Crime control model, in contrast, is based on the absolute reliability of evidence presented by police and accused persons are treated like they were found guilty. It believes that arrested people are guilty, and the government should punish them. Police in Canada lean toward fighting against crime, while the courts are more inclined to due process. This results in tension between these two institutions.

The Judicial Process

Politicality means that the enactment of criminal law is basically a political process. In Canada, all criminal laws are made by the federal government but modified and enforced provincially by judges through case laws and precedents (Quinney, 1970).

Crime is considered a wrong against society as an entity. This, therefore, means that, in all criminal cases, the criminal prosecution is started by the state. In Canada, the Criminal Code, in conjunction with other federal laws, sets out criminal offences. These offences are divided into indictable and summary conviction offences. There are, however, other offences that are prosecutable either summarily or by indictment. They are thus, known as dual-procedure elective or hybrid offences.

An individual facing a criminal offence charge is called the accused. In criminal processes in Canada, innocence until proof of guilt is always the presumption. In summary conviction accused appears before a provincial court judge for a trial that will usually proceed without further procedures. The offence normally carries a maximum penalty of a fine $2,000, six months in prison, or both.

More serious offences face prosecution by indictment. The accused may, in most cases, opt for trial by a provincial court, a superior court with or without a jury. Indictable offences may have a preliminary hearing. During this hearing, the judge examines whether sufficient evidence is available for the case to proceed to trial. There will be a dismissal of the case if there is insufficient evidence. Otherwise, he will order a full.

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The accused may not always be arrested. He may only receive summons after a charge has been brought to court. In case the accused is arrested, certain procedures should be followed for the protection of their rights. They must be given knowledge of their right to consult a lawyer without delay, and the reasons for the arrest explained and the specific charge if any. If they are held in custody, they should be brought before a judge as soon as possible, usually within 24 hours if not released sooner. This is for a pre-trial release or bail determination. It is every accused person's right to stand trial within a reasonable time.

During trial, the prosecutor presents their case first. The accused may choose to defend his case or not. The prosecution should show the accused person's guilt beyond a reasonable doubt. This is because the accused person's liberty and the stigma of a conviction is at stake. Such protection is provided for by both the common law and the Charter. Violation of the accused person's Charter rights, like unreasonable search and seizure to obtain evidence may have the judge refuse admission of the evidence (Sharpe, 2000).

The court will, at the end of trial, make a decision. This is based on the prosecution's case and the accused's defense, if they made any. Causation should be established in all resulted crimes. Causation is the examination of whether an accused person's act caused the harm or damage. In most cases, factual causation is sufficient to establish causation where there are no complicating factors. In some instances, however, it is also essential to consider legal causation, in which there is no requirement that the defendant's act was the only cause. There must be no other act that breaks causation, and the defendant has to take his victim as they are. On a finding of not guilty, the accused will be acquitted and set free. If found guilty of the crime, it is the judge's job to decide the sentence that is appropriate. The judge must take into consideration certain factors when making this decision. These include the prospects for rehabilitation, the range of sentences in the Criminal Code or other statutes, the seriousness of the crime, deterring the offender or others from committing similar crimes.

The judge may impose different kinds of sentences or a combination of punishments such as; fines, restitution, probation, community service, or imprisonment. If the sentence is more than two years, the offender will be sent to a federal penitentiary, whereas a sentence of two years or less will get them to a provincial prison. In some cases, however, judges do not have to convict all the time, even when the accused pleads guilty or has been found guilty. Judges may discharge the offender absolute or conditionally. The offender, under a conditional discharge, must obey conditions imposed on them by the judge. If he fails to do this, he will face a more severe sentence. Discharge results in the offender not getting a criminal record for the offence.

Appeals on decisions given at one level of the court system can be made to a court of higher level. Where the right to appeal is not available, leave to appeal must be gotten from the court. The higher court may refuse leave to appeal, affirm or reverse the appealed decision. In other cases, it will order a new trial.

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Specificity means that the precise nature of acts that are prohibited and the punishment imposed should be clearly stipulated. Canadian criminal law is concerned with preservation of due process and crime control (Desroches, 2002)

On uniformity, it is required of the courts, police and correction facilities to apply the law equally to all regardless of their race, gender or social class among other things. Penal sanctions given as orders by the courts in Canada are reflective of the seriousness of the respective offence. This is the duty of the correction system ( Desroches, 2002)


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