Winterdyk | Canadian Criminology
Winterdyk | Canadian Criminology
Crime & Criminal Law Criminal Law Discussion Common Law Principles References Footnotes PowerPoint Presentations
Common Law Principles
1 A man is innocent until proven guilty. (C.C. sec. 11(d)). (France takes the opposite view).
2 A man's home is his castle. (Entry can only be obtained against the will of the owner by due process of law).
3 A man cannot be convicted twice for the same offence - once he has stood trial. This applies when the offence is under the same statute. (C.C. sec. 12 & Charter s. 11(h)).
4 A person under twelve years of age cannot be prosecuted. (C.C. sec. 13).
5 A man can only be charged and convicted with a crime known to law. (sec. 9 of the C.C. - exception is the charge of contempt of court).
6 A man can only be punished after conviction, and then only within the limits authorized by law. (C.C. sec. 6).
7 A man is entitled to be tried by his peers. In Canadian law, this is only true for certain indictable offences for which the C.C. so provides.
8 The accused must be given the benefit of a reasonable doubt. Therefore, circumstantial evidence must be overwhelming.
9 The Crown must prove its case beyond a reasonable doubt.
10 No charge can be laid against a person for a common law offence - except for contempt of court. See sec. 9 of the C.C.
11 A person can only be arrested by due authority of the law. (C.C.sec. 494-495).
12 Ignorance of the law is not an excuse (C.C. sec. 19). However, in some cases there may be exceptions - see main text.
13 The accused is entitled to make a full answer in defence of a charge. In other words, a person cannot be tried while under the influence of alcohol or drugs and an insane person cannot be tried - see main text.
14 The accused is entitled to have counsel without delay and to be informed of the right. (Charter of Rights and Freedoms - sec. 10b).
15 The accused cannot be compelled to incriminate him or herself. (Charter sec. 11(c)).
16 Generally speaking the accused's character or general reputation is not at stake. Exceptions are if such information is essential to the crime such as with Clifford Olson and Paul Bernardo.
17 With the exception of a few crimes, neither the husband or wife are compellable witnesses for the prosecution. (see Canada Evidence Act, sec. 4(2), 4(4) and 4(5) for exceptions.
18 Corroboration is required by law in certain cases.
19 In most crimes, guilty mind (mens rea) has to be established.
20 In some cases compulsion will be a defence (C.C. sec. 17 - see main text).
21 In many cases where stark necessity compels a person to commit an offence, that may be a defence.
22 Insanity is a defence if pleaded at the time of the trial (C.C. sec. 16 - see main text).
23 People who become insane before they are brought to trial cannot be tried (see 14 above).
24 People who become insane during the term of imprisonment must be placed in an institution until they recover.
25 Provocation may form a defence - this does not include impulsive insanity. Provocation must be instantaneous - not over a period of time (see main text).

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