Penal law is a very broad term. It refers to the whole sphere of law (including criminal law) that prohibits certain offences and sets out penalties for violations. Specific rules of procedure and evidence apply in penal proceedings. For example, the accused is prosecuted by the state rather than the victim of the offence. The state is represented by lawyers known as “Crown Prosecutors”. The victim is simply a witness to the offence. In fact, it is not even necessary that there be a victim for an offence to occur. For example, there is no specific victim of offences like drug possession or the operation of a business without a licence.

As for criminal law, it is the area of law that deals with the most serious offences, such as murder, sexual assault, and robbery. In Canada, it is set out in the Criminal Code, which applies to everyone over 12 years of age. The Criminal Code establishes the rules of procedure and sentencing for criminal prosecutions. These procedural rules can also apply to proceedings taking place under other criminal laws, such as the Youth Criminal Justice Act and the Controlled Drugs and Substances Act. It should also be noted that a good part of the rules in criminal law come from previous judgments, rendered by judges throughout the years. These rules are called the "common law".

Several other statutes and regulations create offences at the federal, provincial and municipal levels. In certain cases, professional orders, such as the Barreau du Québec or the Corporation des maîtres électriciens du Québec, have internal rules that punish offences specific to their members’ professional activities.

Only the federal Parliament can adopt a law creating a “criminal” offence. The other levels of government, and even the federal government in certain spheres of activity, create “penal” or “statutory” offences. Generally, penal offences are created in connection with a power attributed to a certain level of government by the Constitution.

Here's an example: The province of Quebec has the power to enact laws regarding motor vehicle operation. In addition to establishing rules on obtaining licences, registration of vehicles, and highway signs, the Highway Safety Code creates a variety of offences. Examples include the offence of driving without a valid license and the offence of running a stop sign.

An offence is an act that is prohibited by law, either because it is dangerous to others or incompatible with certain societal values. Offences can be classified as indictable offences, summary conviction offences, and offences created by regulation or statute.

Indictable and summary offences fall under the broad category of “criminal offences”. The Criminal Code treats these two types of offences differently when it comes to procedure and sentencing. For indictable offences, the procedure is more complex and the potential sentences much more significant. Examples of indictable offences are murder, aggravated assault, and sexual assault with a weapon.

Yes. Indictable offences can be tried in one of the following three ways, and the accused can sometimes choose the type of trial:

• a trial in the Superior Court before a judge and a jury composed of 12 citizens, preceded by a preliminary inquiry;
  
• a trial before a judge without a jury, preceded by a preliminary inquiry;
  
• a trial before a single judge of the Court of Quebec, without a jury, and without preliminary inquiry.

As for summary conviction offences, the accused does not get to choose the type of trial. The procedure for this kind of offence is designed to be simple and less time-consuming. For example, there is neither a jury nor a preliminary inquiry. Sentences are also less severe: a convicted person faces a maximum fine of $2,000, a maximum imprisonment of 6 months (18 months in exceptional cases), or one of these two sentences.

There are few offences which are purely summary conviction. The majority of offences are “hybrid” or “dual” offences, which means that the Crown Prosecutor has the choice of whether to proceed by way of indictment or by way of summary conviction. For example, the offence of driving while impaired and that of failing to provide a breathalyzer sample can proceed either by indictment or summary conviction.

It is possible to seek a more severe sentence for an indictable offence, a fact that may influence the Crown Prosecutor when she chooses the mode of prosecution.

Here's an example: Paul is facing his eighth charge of driving while impaired. For this type of offence, the maximum prison time the Crown Prosecutor can ask for is 18 months, if she proceeds by summary conviction. Following his last conviction, Paul was sentenced to 1 year of imprisonment. This time, the Crown Prosecutor in charge of the file hopes to have Paul sentenced to more than 18 months of prison time. So the charge will be laid by way of indictment, in order to avoid the 18 months maximum under the summary procedure.

Yes. The Latin maxim “Nullum crimen nulla poena sine lege” means that no one can be prosecuted in court unless the law states that the alleged act constitutes an offence. A person cannot be convicted for an act if it was not classified in the law as an offence at the time it was committed. Also, the law must describe the offence in a precise fashion.

In addition, in order for a person to be formally accused and for judicial proceedings to begin, a “justice of the peace” (a judge with limited functions) must decide that the evidence is sufficient. If it is, a document called an “information” is prepared, stating the exact charge laid against the accused. It is possible to accuse a person of more than one offence in a single information (ex.: sexual assault and incest). Each offence is described in a separate “charge”.

Here is a fictional example of a charge:

Matthew G., born April 12th, 1970

On or near May 8th, 2002 in Montreal, district of Montreal, you operated a motor vehicle while your ability to drive was impaired by alcohol or drugs, thereby committing an offence under section 253 (b) and 255 (b) ii) of the Criminal Code.

The charge forms the basis of the entire proceedings. Throughout the trial, legal arguments will relate only to the offence(s) described in the information.

In Canada, ignorance of the law is neither a defence nor a justification of an offence. In general, a person cannot avoid responsibility by pleading ignorance of a law or regulation, whether at the federal, provincial, or municipal level.

However, in some circumstances, a person can defend herself by saying she was “induced in error by a person in authority”. For example, Janet wants to build a fence. She calls her municipality to find out the height limit for the fence. By accident, the city clerk gives her incorrect information. Janet builds her fence on the basis of the incorrect information obtained from the clerk. Several weeks later, she receives a ticket from the city for having built her fence higher than is permitted by the by-law. Janet can invoke the incorrect information she received as a defence.

It is a fundamental principle of our criminal justice system. Basically, it means that an accused is innocent until proven guilty. This is the reason why a judge cannot convict a person unless he pleads guilty to the offence or the evidence admitted at trial establishes guilt beyond any reasonable doubt.

The Crown Prosecutor must prove, beyond a reasonable doubt, all of the constituent elements of the alleged offence. For example, in a case of driving while impaired, she must prove each of the following elements:

• the identity of the accused;
  
• the time and date of the offence;
  
• the fact that the accused was driving...
  
• ...a motor vehicle
  
• ...under the influence
  
• ...of alcohol or a drug.

In addition, she must prove that the offence was committed intentionally or was the product of the accused’s negligence. This step is called proof of the “mens rea”. In effect, we do not punish behaviour that is not the result of a person’s will. For example, let's say that Henry is an actor who must appear in a scene in which he kills another character. He is given a pistol, which the director tells him is not loaded. During the play, Henry pulls the trigger and kills the actor, the gun having been loaded without Henry’s knowledge. We cannot say that he had the intention of causing the death of the other actor. Because of the absence of any intention to cause death, the evidence cannot lead to a charge of murder.