Canada and the United States are similar in many ways. One such similarity can be found within our criminal justice systems, which both have their roots in the English common law system. However, there are many notable differences.
In Canada, the criminal law is controlled by the federal government in Ottawa. The Canadian Criminal Code is a federal statute that applies in all provinces and territories. Individual provinces cannot introduce legislation that infringes upon the federal government’s constitutional authority over criminal justice. The purpose of this federal control is to ensure that the criminal law is consistent throughout the country. This is not the case in the United States, where each individual state has its own criminal code. As a result, a crime in one state may be subtly different in another state, which can create some issues given that there are 50 different criminal codes. There is some federal criminal jurisdiction in the United States, but the criminal justice system is largely under the control of the individual states. Comparing the Canadian criminal justice system with that of the United States is more of a comparison with a typical American state, but there will be variations amongst the individual states.
Many American states have rigid sentencing structures that are defined in their criminal codes, creating a set penalty for each criminal offence depending on the severity (first-, second-, or third-degree manslaughter, would each attract a different set penalty, as an example). If someone is convicted of a particular offence, they will receive the defined penalty. However, sentencing an offender in Canada is a much more fluid process. There are some offences in Canada that have a defined minimum – and all have a defined maximum penalty – but judges are given the discretion to craft an appropriate sentence that fits within the limits of these ranges. Many minimum sentences defined in the Criminal Code have been deemed unconstitutional subsequent to passage. If you are facing a charge that includes a minimum punishment, consult with a lawyer to determine if it is still in force or in the process of being challenged.
The death penalty is another notable difference between Canada and the United States. The death penalty was officially removed from the Canadian Criminal Code in 1976 and the National Defence Act in 1999. The last execution in Canada occurred in 1962. The status of the death penalty south of the border is much more complex. The death penalty is used at the federal level, but each state, with its individual criminal codes, decides whether to impose the death penalty. Many states have abolished the death penalty, some long before Canada did. Michigan has notably incorporated the banning of the death penalty into its constitution. Other states still have the death penalty within their criminal code, but don’t impose it, while 14 states continue to actively use the death penalty. Although not explicitly stated, Canada – like Michigan – added constitutional protection against any future attempt to introduce the death penalty in 1982 when the Charter of Rights and Freedoms was added to the constitution. Among other rights, the Charter provides everyone protection to life, liberty and security of the person, as well as protection against cruel and unusual punishment.
Another interesting difference between the Canadian and American criminal justice systems is whether someone giving testimony is required to answer a question. The American constitution includes the fifth amendment that permits an individual to refuse to provide testimony to avoid incriminating themselves. This refusal is commonly referred to as “pleading the fifth”. You cannot “plead the fifth” in Canada. If subpoenaed, a witness is required to attend court and provide testimony. While giving testimony a witness must respond to all the questions put to them and cannot refuse to provide an answer. In fact, a witness who refuses to provide an answer can be held in custody until they are willing to answer the question. As the witness is being legally compelled to provide an answer, the response cannot be used against them later. By contrast, an accused is not required to provide testimony at their own trial but can testify as part of their defence. Since an accused is not being compelled to testify, the responses can be used to incriminate them. This said, the questions put to an accused can be restricted to certain areas related to the specific allegations against them, but in general, once an accused takes the stand, they must provide answers to all the questions. Whether or not to testify is one of the most important decisions an accused will make during the criminal trial process. It should not be taken lightly. If you have an upcoming trial, consulting with a lawyer is highly recommended in order to fully understand the consequences of this decision