# Criminal Code — classification, general principles, defences, procedure, sentencing

Quoted from the official consolidated text (laws-lois.justice.gc.ca, current to 2026-05-26). Retrieved 2026-07. **Case-law references below are general knowledge, not from the statute — they are flagged and are the least-verified claims here.**

## Classification — the load-bearing concept

**"Hybrid" appears zero times in the Code.** Verified: 0 matches. It's a practitioners' term. What the statute does is write the penalty **in the alternative** — e.g. **s. 348(1)(e)**: "…of an indictable offence and liable to imprisonment for a term not exceeding ten years **or of an offence punishable on summary conviction**." That construction *is* the hybrid offence. The phrase **"punishable on summary conviction" appears 345 times** — it is the hinge of the whole system.

| Class | Consequence |
|---|---|
| **Straight indictable** | Most serious (murder 235, robbery 343, B&E into a dwelling 348(1)(d)). Parts XIV–XXI. **No limitation period.** |
| **Straight summary** | Least serious. Part XXVII. Provincial court, no jury, no prelim. |
| **Hybrid / dual** | **The Crown elects.** The largest category in the modern Code. |

**s. 787(1)** — the default summary penalty:
> "Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than **$5,000** or to a term of imprisonment of not more than **two years less a day**, or to both."

"Two years less a day" is the constitutional line: **two years or more = federal penitentiary; less = provincial jail.** *(Bill C-75 (2019) raised the old six-month default to two years less a day and hybridized many formerly indictable offences.)*

**s. 786(2)** — the limitation, and it is **not** a flat rule:
> "No proceedings shall be instituted more than **12 months** after the time when the subject matter of the proceedings arose, **unless the prosecutor and the defendant so agree**."

It sits in **Part XXVII**, so it binds **summary proceedings only**; the parties can **contract out**; and C-75 extended it from 6 to 12 months. **Indictable offences have no limitation period at all** — which is why the Crown's election matters so much.

> ⚠️ **The deeming rule is not in the Criminal Code.** The rule that a dual-procedure offence is **indictable until the Crown elects summary** lives in **s. 34(1)(a) of the federal *Interpretation Act***. *(Flagged: not verified against source here — confirm before relying.)*

## General principles (Part I)

**s. 8(3) — the hinge of the defence structure:**
> "Every rule and principle of the **common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force**… except in so far as they are altered by or are inconsistent with this Act…"

Read with **s. 9** (no conviction for a common-law offence): **offences are codified; defences are not exhaustively codified.** That asymmetry is deliberate — it's why necessity, common-law duress, officially induced error and entrapment exist without appearing in the Code.

- **s. 21 — parties.** (1) commits / **aids** / **abets**. (2) common intention: each who **"knew or ought to have known"** the offence was a **probable consequence** is a party. *Abolishes the principal/accessory distinction — an aider is guilty of the offence itself.* (Read down for murder, where subjective foresight is constitutionally required — *Logan*.)
- **s. 22 — counselling** an offence that **is** committed, "notwithstanding that the offence was committed in a way different from that which was counselled." **22(3)**: "counsel" includes **procure, solicit or incite**. *(Counselling an offence **not** committed = **s. 464**.)*
- **s. 23 — accessory after the fact.** Knowing someone was a party, "**receives, comforts or assists**" them "for the **purpose of enabling** that person to escape." Punished at **s. 463**; **s. 23.1** — convictable even where the principal isn't.
- **s. 24 — attempts.** Intent + any act "for the purpose of carrying out the intention", "**whether or not it was possible** under the circumstances" — **factual impossibility is no defence**. **24(2)**: whether an act is "mere preparation" is a **question of law** — the judge decides, reviewable for correctness, **not** left to the jury. Punished at **s. 463**.
- **s. 19** — "**Ignorance of the law … is not an excuse.**"

## Defences

| Defence | Where | Note |
|---|---|---|
| **Self-defence** | **s. 34** | 2012 rewrite. Three elements: reasonable belief in force/threat · **defensive purpose** · "**reasonable in the circumstances**". **34(2)** lists **nine non-exhaustive factors** — incl. imminence, weapons, size/age/gender, and **(f)/(f.1) the history of the relationship** (how battered-spouse evidence enters the codified test). **34(3)** removes it against lawful law enforcement. |
| **Defence of property** | **s. 35** | Four cumulative elements incl. **peaceable possession** and reasonableness. **35(2)** removes it where the defender has **no claim of right** and the other is **entitled to possession by law**. |
| **Duress** | **s. 17** | ⚠️ **The printed section is not the law.** It requires threats of "**immediate**" death/bodily harm from someone "**present**" — but *R. v. Ruzic* (2001) **struck both words** under Charter s. 7 and Parliament never amended the text. s. 17 also applies only to **principals**; the **common-law duress** defence (via s. 8(3)) covers parties under s. 21 (*R. v. Ryan*, 2013). Long **exclusion list** (murder, sexual assault, robbery, arson…). |
| **Necessity** | **not in the Code** | Pure common law via s. 8(3). *Perka*/*Latimer*: imminent peril · no reasonable legal alternative · proportionality. |
| **Provocation** | **s. 232** (Part VIII) | A **partial** defence — reduces **murder to manslaughter**, doesn't acquit (hence its home in the homicide Part). **Narrowed in 2015**: the triggering conduct must now be **an indictable offence punishable by 5+ years** (formerly any "wrongful act or insult"). |
| **Mental disorder** | **s. 16** | Codified M'Naghten: incapable of "**appreciating the nature and quality of the act… or of knowing that it was wrong**." Not an acquittal — yields **NCRMD**, routing into **Part XX.1** (review boards). **16(3)**: burden on **whichever party raises it** — a rare reverse onus. |
| **Extreme intoxication** | **s. 33.1** | Rewritten weeks after *R. v. Brown* (2022) struck the original. Now **negligence-based**: liability if, before the extreme intoxication, the person "**departed markedly from the standard of care**" re consumption. **33.1(4)**: "extreme intoxication" = unaware of or incapable of consciously controlling behaviour. Applies only to offences involving interference with **bodily integrity**. |
| **Mistake of fact** | not codified generally | Operates by **negating mens rea**. Targeted provisions: **s. 265(4)** (belief in consent to assault) and **s. 273.2** (limits for sexual assault — unavailable where the belief came from intoxication/recklessness/wilful blindness or where **no reasonable steps** were taken). |

Also Part I: **ss. 25–31** (police use of force, incl. **25(4)** lethal force in flight) · **s. 27** (force to prevent an offence) · **s. 43** (correction of a child — read down substantially in *Canadian Foundation for Children*, 2004).

## Procedure

**s. 493.1 — the release principle** (2019), which now governs Part XVI:
> "…shall give **primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions** that are appropriate… including conditions that are **reasonably practicable for the accused to comply with**…"

**s. 493.2** directs particular attention to **Aboriginal accused** and accused from **vulnerable, over-represented populations**.

**Bail — s. 515.** The default is **release**; the Crown must show cause. **s. 515(10)** sets the **only** grounds for detention:
> "(a) … to **ensure attendance in court**; (b) … for the **protection or safety of the public**…; (c) … to **maintain confidence in the administration of justice**, having regard to (i) the apparent strength of the prosecution's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission…"

— the **primary, secondary, tertiary** grounds. **s. 515(6)** creates **reverse-onus** categories. **s. 469** offences (murder, treason…) go to a superior court judge under **s. 522**.

**Preliminary inquiry — s. 535**, dramatically narrowed by C-75 (2019): available only where the offence is **punishable by 14 years or more** *and* **a party requests it** (s. 536(4)). Before 2019 it was available on any indictable election.

**The election — s. 536.** For indictable offences of 14+ years (other than s. 469): provincial court judge alone · judge alone · **judge and jury** — and "**If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury.**"

**Jury architecture:**
- **s. 471** — the baseline: "every accused who is charged with an indictable offence **shall be tried by a court composed of a judge and jury**." Jury is the **default**.
- **s. 469** — the top: treason, **murder**, piracy, etc. → superior court **with a jury**; **s. 473** allows judge-alone **only with the consent of both the accused and the Attorney General**. You cannot unilaterally waive a jury on murder.
- **s. 553** — the bottom: **absolute** provincial-court jurisdiction ("does not depend on the consent of the accused") — theft, false pretences, possession of proceeds, **fraud**, and **mischief under 430(4)** — but **only where the value is ≤ $5,000** and not a testamentary instrument.
- **s. 554** — otherwise, provincial court **if the accused elects**.

**Part XVII (530–534)** guarantees trial in the accused's **official language**. Appeals: Part XXI (indictable), Part XXVII ss. 812–839 (summary).

## Sentencing (Part XXIII)

**s. 718 — the fundamental *purpose*:** protect society and contribute to a just, peaceful and safe society "**by imposing just sanctions**" with **one or more** objectives: **(a) denounce · (b) deter · (c) separate · (d) rehabilitate · (e) reparations · (f) responsibility**. They're **unranked** — weighting is the judge's discretion, which is why sentencing appeals are deferential.

**s. 718.1 — the fundamental *principle*:**
> "A sentence **must be proportionate to the gravity of the offence and the degree of responsibility of the offender**."

Proportionality is the constraint within which the s. 718 objectives operate — and the doctrinal basis on which mandatory minimums get struck.

**s. 718.2(a) — deemed aggravating circumstances**, incl. **(i)** motivation by "**bias, prejudice or hate** based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, **or gender identity or expression, or on any other similar factor**" (open-ended); **(ii)** abuse of an **intimate partner**; **(iii)** abuse of a **position of trust**; **(iv)** criminal organization; **(v)** terrorism; **(vii)** impeding access to **health services**.

Then **(b) parity · (c) totality · (d) restraint · (e)** — the ***Gladue*** provision:
> "all available sanctions, **other than imprisonment**, that are reasonable in the circumstances… should be considered for all offenders, **with particular attention to the circumstances of Aboriginal offenders**."

**Discharges — s. 730.** Two gates: **no mandatory minimum**, and **not** an offence punishable by **14 years or life**. Test: "**in the best interests of the accused and not contrary to the public interest**." Payoff — **s. 730(3)**: "the offender **shall be deemed not to have been convicted**." *(A discharge leaves CPIC automatically — 1 year absolute / 3 years conditional — no application needed.)*

**Conditional sentence — s. 742.1.** A **sentence of imprisonment served in the community** (not probation). Requires a sentence **under two years**, no danger to the community, consistency with ss. 718–718.2, and **no mandatory minimum** (742.1(b)). Excluded: attempted murder sentenced under 239(1)(b), **torture** (269.1), **advocating genocide** (318), and indictable terrorism/criminal-organization offences with a 10+ year max. *(Paragraphs (e) and (f) were **repealed by Bill C-5 in 2022**, substantially re-expanding availability.)*

**Mandatory minimums** aren't centralized — they sit in the offence provisions. Their real reach is structural: a minimum **blocks a discharge** (730(1)) and **blocks a conditional sentence** (742.1(b)).

**Victim surcharge — s. 737.** **30% of any fine**, or **$100 summary / $200 indictable**; applies even on a **discharge**. But **737(2.1)** (2019) lets the court order **none or less** for **undue hardship** — added because *R. v. Boudreault* (2018) struck the truly mandatory version under Charter s. 12.

**DNA (ss. 487.04–487.0911) and SOIRA (ss. 490.011–490.032) orders live in Part XV, not Part XXIII.** *(SOIRA was rebuilt around judicial discretion by Bill S-12 (2023) after *R. v. Ndhlovu* (2022).)*

**Records:** the **record suspension** regime is **not in the Criminal Code** — it's the ***Criminal Records Act***, administered by the Parole Board.

**Part XXIV (752–761)** — dangerous offender (indeterminate) and long-term offender (up to 10 years' supervision).

## The Charter overlay — why the printed Code misleads

**The Charter is not in the Criminal Code** — it appears **5 times** by name, as cross-references. It's **Part I of the Constitution Act, 1982**, and by **s. 52(1)** of that Act any Code provision inconsistent with it is **of no force or effect**.

- **s. 7** — fundamental justice; requires a voluntary act and minimum fault (*Brown*), struck "immediate"/"present" in s. 17 (*Ruzic*), grounds *Stinchcombe* **disclosure**.
- **s. 8** — unreasonable search/seizure; *Hunter v. Southam* (prior authorization by a neutral arbiter on reasonable and probable grounds) is the engine behind Part XV warrants and Part VI wiretaps.
- **s. 9** — arbitrary detention. **s. 10(b)** — counsel without delay.
- **s. 11(b)** — trial within a reasonable time — the ***Jordan*** ceilings (**18 months** provincial / **30 months** superior or after a prelim), which is precisely **why C-75 restricted preliminary inquiries**. **11(d)** presumption of innocence (*Oakes*; every reverse-onus challenge). **11(e)** reasonable bail — the anchor of s. 515 and s. 493.1. **11(f)** jury where the max is **5 years or more** — which is why s. 471 and the s. 536 election read as they do.
- **s. 12** — cruel and unusual punishment: the **mandatory-minimum battleground** (*Nur*, *Lloyd*, *Boudreault*, *Bissonnette*).
- **s. 24(2)** — exclusion of evidence: **discretionary and reputational** (the *Grant* three factors), **not** an automatic US-style exclusionary rule.

**Division of powers:** criminal law and procedure are **exclusively federal** (Constitution Act, 1867, **s. 91(27)**) — hence one Code nationwide — but the **administration of justice is provincial** (**s. 92(14)**), so provinces run the police, most prosecutions, and the courts.

> **The single most important orientation point:** **the printed Code is not self-sufficient.** s. 17 still prints words struck in 2001. Mandatory minimums remain on the page after being declared of no force. Always pair a provision with (a) the Charter jurisprudence and (b) the s. 8(3) common-law defences.