Gracia Law - Process - The Criminal Justice System

DISCLAIMER
The following is NOT legal advice.
Do NOT rely upon any of the information that follows for the truth of its contents. It is merely a very brief and extremely general overview of the way the system works.

This page outlines what happens to your criminal charges from start to finish.

YOUTH Criminal Justice Process

Youth Criminal Justice Act (YCJA)
Youth Justice Courts have exclusive jurisdiction over crimes committed by young persons; however, the Criminal Code provisions generally apply equally to youths, with certain key differences s.140.
Background and Philosophy
- The Youth Criminal Justice Act (YCJA) was enacted in 2002 to be a little more lenient on kids. Too many kids were being locked up under the Young Offender’s Act, and it wasn’t really doing anyone any good.
- YCJA Philosophy (Preamble and s.3)
  - The main underlying philosophy acknowledges that teenagers do stupid things, but we shouldn’t throw the book at them because we remain optimistic that they will eventually grow out of it and become responsible law-abiding adults.
  - Besides attempting to deliver meaningful consequences for their actions, the primary goal of the YCJA is to rehabilitate and reintegrate young persons into society.
  - The prime focus is on trying to help them, instead of punishing them, because we want to fix what’s wrong with them now, before it’s too late.
  - No one wants to see kids rotting away in jail. They usually come out worse than they were before going in.
  - Jail is generally used only as a last resort, for the most serious crimes, or when nothing else seems to work.
- The YCJA is to be construed liberally to ensure that young persons are dealt with according to its underlying principles.
Arrest
- You may be arrested by any Peace Officer (s.2) who has reasonable grounds to believe that you broke, are breaking, or will break the law.
- You may also be arrested by any citizen who catches you in the act of the breaking the law (citizen’s arrest).
- You may be arrested with or without a warrant for arrest.
- Generally, a warrant is required to enter your home.
Rights
- The Canadian Charter of Rights and Freedoms applies equally to young persons.
- In addition, young persons have the added right to have their parents notified of their arrest or detention and involvement in the criminal justice system (s.26).
- Moreover, the court may order a parent to be present at any court proceedings (s.27).
- Canadian Charter of Rights & Freedoms
  - The Charter applies to protect you against abuses by the powers of the state. It only applies to authorities of the state, not to ordinary citizens.
  - You must have standing (be affected directly) in order to invoke the protections of the Charter.
  - Your rights and freedoms are limited by what can reasonably be justified (s.1)
  - Many of the protected rights and freedoms may form the basis of a valid defense against criminal charges.
  - Fundamental Freedoms
    
    Freedom of conscience and religion (s.2(a))
    
    Freedom of thought, belief, opinion and expression (s.2(b))
    
    Freedom of peaceful assembly (s.2(c))
    
    Freedom of association (s.2(d))
  - Legal and Procedural Rights
    
    Right to life, liberty and security (s.7)
    
    Right to be secure against unreasonable search and seizure (s.8)
    
    Right not to be arbitrarily detained or imprisoned (s.9)
    
    Right to be informed promptly, upon arrest or detention, of the reasons why (s.10(a))
    
    Right to retain and instruct counsel without delay, and to be informed of that right (s.10(b))
    
    Right to have a bail hearing (s.10(c))
    
    Right to be informed, without unreasonable delay, of the specific offence(s) you are being charged with (s.11(a))
    
    Right to a fair trial within a reasonable time (s.11(b))
    
    Right to remain silent (s.11(c))
    
    Right to be presumed innocent until proven guilty (s.11(d))
    
    Right not to be tried and punished twice for the same offence (s.11(h))
    
    Right not to be subjected to any cruel and unusual treatment (s.12)
    
    Right against self-incrimination (s.13)
    
    Right to have an interpreter in your language attend at all proceedings (s.14)
    
    Equality: Right not to be discriminated against on the basis of race, national or ethnic origin, colour, religion, gender, sexual orientation, age, or mental or physical disability (s.15)
  - Remedies (s.24)
    
    When your rights have been violated, you have a right to apply to the Court for any fair and appropriate remedy (s.24(a))
    
    To exclude any evidence obtained as a result of a violation of your rights (s.24(b)).
    
    For example: If, after being pulled over for speeding, the police decide to search your car for no good reason, or just because you look like a drug dealer, and they find drugs, then those drugs are evidence that might be excluded from the trial, leaving the Crown with nothing to prove the charges against you, resulting in a dismissal of the charges.
    
    This can become a very powerful defense against a number of criminal charges.
Detention/Bail
- The Criminal Code provisions respecting Judicial Interim Release also apply s.515. However, it is more difficult to justify detaining a young person than an adult.
- Detention is presumed to be unnecessary s.29(2).
- In order for a young person to be detained in custody, pending the resolution of their charges, the Crown must overcome numerous hurdles.
- First, the Crown must convince the Court that detention is justified under at least one of the following grounds s.515(6)(10)
  - Primary ground – Flight risk:
    
    History of failing to attend court;
    
    No intention to comply; or
    
    No ties to the community, homeless, jobless, etc., or ties to a different jurisdiction.
  - Secondary ground – Protection of the public:
    
    Likely to re-offend if released;
    
    Criminal record; or
    
    Protection of public or victim(s).
  - Tertiary ground: - Exceptional circumstances:
- Second, the “gateway to custody” must be open s.39(1).
  Essentially, this means that the young person must be facing the likely potential for a prison sentence, if found guilty. The gateway to custody is open only in the following circumstances:
  - Violent offence; or
  - Failed to comply with non-custodial sentences in the past (ex: probation orders); or
  - Serious indictable offence AND has a significant criminal record; or
  - Exceptional circumstances, where the youth has committed a very serious offence and is certainly facing a prison sentence.
    
    This factor alone is not a valid reason to justify detention s.29(2).
- Third, all reasonable alternatives to incarceration must have been considered and found to be inappropriate s.39(2)&(3)
- Fourth, the young person cannot be detained as a substitute for appropriate child protection, mental health or other social measures s.29(1).
  - Ex: The youth is homeless, has no where else to go right now, is a drug addict, prostitute or a gang member. There are other legal avenues of intervention in such cases.
  - However, at any stage, a judge may delay a hearing for a period of up to thirty days, in order to have a medical or psychological assessment completed, if necessary s.34.
  - In cases involving allegations of child abuse/neglect, a brief adjournment may be granted in order to refer the matter to a Child Welfare agency so that they may conduct a preliminary investigation s.35.
- Fifth, even if ordered detained, a responsible adult may apply to be held personally responsible for ensuring the young person complies with any release conditions s.31.
- Sixth, if the young person was ordered detained by a Justice of the Peace, the young person is entitled to have a youth court judge reconsider his/her release and have a new bail hearing s.33.
  - In considering release, a judge may delay the hearing for a period of up to thirty days in order to have a medical or psychological assessment completed, if necessary s.34.
- The Court may release a young person on either:
  - From: 5.8: With Surety
    - This is the most common form of release.
    - Usually the young person’s parent of guardian signs as surety to ensure compliance with release conditions.
  - Form 5.6: Own recognizance
    - This form of release is only used when there is no one who will sign as a surety.
    - In these cases, the young person is on his or her own, and may be required to reside at a shelter.
- Common Release Conditions
  - Keep the peace and be of good behaviour
  - Attend court when required to do so
  - Report any change of address to the Court
  - Report as directed to a Probation Officer
  - Remain within the jurisdiction
  - Reside where directed
  - Attend school or seek and maintain suitable employment
  - Abide by a curfew or follow certain house rules
  - Do not attend within a given radius of certain areas
  - Do not loiter on certain property
  - Do not possess any weapons or items capable of being used as weapons
  - Do not communicate directly or indirectly with certain named persons
  - Attend for assessment and counseling or treatment as directed
  - Do not purchase, possess or consume any intoxicants (such as alcohol and drugs) that are not prescribed to you by a licensed physician and taken in accordance with that prescription
  - Do not possess any mobile communication devices (cell phone, pager, etc.)
  - Any condition the Court deems appropriate in the circumstances.
- Generally, if a young person re-offends while on bail, the onus reverses, and s/he must satisfy the Court that there are compelling reasons why s/he should be released again (s.524)
Extra-Judicial Measures (ss.4-12)
- These measures were developed to divert young persons out of the criminal justice system and address their offending behaviour through alternative measures, resulting in no criminal record.
- They were essentially designed to give kids a second chance.
- The measures consist of: police cautions or referrals, crown cautions, and the Extrajudicial Sanctions program.
- Police cautions:
  - Arresting police officers may exercise their discretion to simply warn the young person about their offending behaviour and not formally charge them for their crime.
  - Police may also refer the young person to a community program or agency, such as the Youth Justice Committee or Calgary Community Conferencing.
- Crown cautions:
  - Even when the arresting officer has proceeded to lay charges against the young person, Crown Prosecutors may exercise their discretion to issue a caution letter to the young person and their parent(s) and withdraw the charge.
- Extrajudicial Sanctions Program (EJS):
  - When both the police and the Crown have opted not to caution a young person, he/she may still be referred by the Crown prosecutor to the EJS program.
  - This program was instituted to address the young person’s offending behaviour outside of the court process, resulting in no criminal record.
  - The EJS program is structured and requires a higher degree of accountability and responsibility than a simple caution letter.
  - Generally, young persons are required to attend for an intake interview, and then attend for a prescribed program of classes, workshops, community service, counseling, etc.
  - Examples of actual programs include:
    - Stop shoplifting (5 hours on weekend)
    - Re-Start (re-entering society through active responsible thinking) McMan Youth Services, 20 hours (10, 2 hour sessions)
    - Substance Abuse/Addictions counseling (Tuesday evenings).
    - Youth Justice Committees
    - Supervised work crew / community service hours (Sundays)
    - Conflict resolution/positive communication skills training (2 hours)
    - Positive self-concept workshop
    - Bullying or cultural diversity sensitivity training
    - Driving under the influence of alcohol or drugs
    - About Face police program
    - John Howard Society (victim-offender reconciliation)
  - It generally takes about 3 months to complete.
  - If the young person successfully the program requirements, the charges are withdrawn.
  - The EJS program is generally limited to offenders that have not committed a violent crime, are not involved with hard drugs, have no criminal convictions, and have not been through the program before.
  - You may contact the Calgary Youth Attendance Center for more information about the EJS program at 297-8659.
Docket Court
- Purpose:
  - To receive disclosure from the Crown
    Disclosure is the sum of the police investigation to date; all of the evidence to support the charges; basically, it is the Crown’s case against you.
    
    The contents of the disclosure package include:
    
    The Information (charges against you) (ss.788-794)
    
    Synopsis of the evidence of all witnesses
    
    List of all witnesses interviewed
    
    Any written or oral statements made
    
    Notes of police officers and other officials
    
    Any statements (written or oral) made by you (the accused)
    
    Criminal record of accused
    
    Criminal record of witnesses
    
    All documents, photographs, reports, business records, video and audio recordings
    
    Any other information that might be pertinent to your case
    
    In order to proceed on any charges, the Crown must be satisfied of 2 criteria:
    
    That there is a “reasonable likelihood of a conviction” (this is where the strength of the Crown’s case is crucial); and
    
    That it is in the “public interest” to prosecute (this is where Crown discretion comes into play).
  - To have time to seek and retain counsel
    You are always free to represent yourself – although that is highly not recommended.
    
    If you cannot afford to hire a lawyer on your own, and if you qualify for Legal Aid, a lawyer will be appointed to represent you free of charge (although you will be expected to reimburse what you can to Legal Aid).
  - To enter elections
    On hybrid offences, the Crown may elect to proceed either by way of Indictment or Summary Conviction.
    
    Summary Offences (Part XXVII – ss.785-787)
    
    6 month limitation period within which charges may be laid.
    
    Maximum penalty of 6 months imprisonment or $2000 fine or both.
    
    Procedures in Provincial Court.
    
    Indictment is the more serious of the two and carries the potential for more severe penalties.
    
    When the Crown elects to proceed by Indictment, and you wish to plead Not Guilty, then you have a choice of whether to be tried by (s.536)
    
    Provincial Court Judge alone;
    
    Queen’s Bench Judge alone; or
    
    Queen’s Bench Judge and Jury
  - To gain time for plea bargaining
  - To enter a Plea
  - To set dates for trial or sentencing
    Trial dates may not be obtained until up to one year away;
    
    Sentencing dates may not be obtained until up to several months away, depending on whether or not Pre-Sentence Reports are required.
- What if you fail to attend?
  - You may receive an additional criminal charge for failing to attend, and
  - A warrant for your arrest may be ordered.
  - However, if I file a “designation of counsel” with the court, then you do not need to be there. In that case, I would make the docket appearances on your behalf, and you would not have to take precious time off work or school for every court date.
Plea Bargaining
- This is where my personal relationships with the Crown Prosecutors will help you.
- I can meet with the Prosecutor assigned to your file, and negotiate a favourable “deal” for you.
- Sometimes a “deal” consists of you entering a guilty plea to only a few of the numerous charges against you, or entering a plea to a less serious charge than what you are charged with.
- I can also negotiate, on your behalf, the best sentence possible.
- Sometimes my plea negotiations result in the Crown dropping the charges completely; sometimes they result in you having no criminal record at all!
- Usually, you will have a good idea of what you can expect by way of a potential sentence. This can provide you with some peace of mind.
Pleas
- Guilty(s.606(1.1))
  - You are required to freely accept the facts alleged to support the charges against you, and be prepared to accept whatever penalty the Judge decides to impose.
  - An “agreed statement of facts” can be negotiated when you disagree with certain facts being alleged.
  - Once you enter a plea of “Guilty”, then we set a later return date for your sentencing.
  - Sentencing dates may also not be obtained until several months away, depending on whether or not Pre-Sentence Reports are required.
- Not Guilty
  - Once you plead “Not Guilty,” a date is set for your trial.
  - Trial dates are obtained more quickly than for adults; however, they generally are set several months into the future.
  - Trial dates are fast-tracked for domestic violence, or for offenders in custody.
  - The purpose of the trial is to listen to all of the evidence to determine whether you are guilty or not guilty.
  - You may still change your plea to guilty at any time, even on the day of trial.
  - See election above, for modes of trial.
- Other
  - Extrajudicial Measures (see above)
  - Alternative Measures (s.717)
    This program is available for certain, less serious, offences, and for 1st or 2nd time offenders only.
    
    You are not admitting guilt; however, you do have to accept responsibility for your involvement in the crime.
    
    If your referral is accepted, you will be required to complete some programs, such as community service hours, or counseling.
    
    If you are successful, then you return to court approximately 4 months down the road, and the charge against you will be dropped.
    
    The result is you get no criminal record!
    
    Failure to complete the program successfully means that you still have to face the original charges.
  - Mental Health Diversion Program
    This program was introduced to assist persons with certain mental illnesses to get them the support they need to avoid further incidents with the law.
    
    Not all offences or offenders qualify.
    
    First, you require an assessment, to see whether you qualify for the program.
    
    Second, you get an adjournment of just over 3 months in order for you to attend for treatment and counseling.
    
    You will be required to comply with the recommendations, such as taking prescribed medication.
    
    The result is you get no criminal record!
    
    Failure to complete the program successfully means that you still have to face the original charges.
  - Peace Bond (s.810)
    A peace bond is available in circumstances where the complainant has an ongoing fear for his/her safety and where the Crown feels it would be appropriate.
    
    Once you enter into a peace Bond, the criminal charges against you are withdrawn immediately, and you enter into a recognizance.
    
    The recognizance lasts for a certain number of months and has certain conditions, such as: stay away from the complainant and go to anger management counseling.
    
    The result is no criminal record!
    
    Failure to comply with the terms of the recognizance may result in further criminal charges against you (s.811).
Preliminary Inquiries (Part XVIII – ss.535-551)
- When you elect to be tried for an indictable offence by judge alone or by judge and jury, then you are entitled to having a preliminary inquiry before the trial.
- Not available for Provincial Court trials.
- The purpose of the prelim is to assess the strength of the Crown’s case against you. The Crown will call on some of its key witnesses to establish a basis for the charges against you.
- Those witnesses may be cross-examined.
- You (the accused) is never obliged to call any evidence.
- Everything that is said is recorded, and may be used against those witnesses later at the trial to highlight any inconsistencies or contradictions (very useful for creating reasonable doubt).
- The burden of proof on the Crown is merely to establish that there is some evidence on which a reasonable jury, properly instructed, could convict.
- If the Crown has failed to meet its burden, the charges against you may be dismissed. If the Crown has met its burden, you will be ordered to stand trial.
Trials
- In any trial, the onus is on the Crown to prove its case against you. At minimum, the Crown must establish a prima facie case – i.e. every element of every charge.
- Right to silence – You never have to say anything if you don’t want to, and no one can hold it against you.
- The persuasive burden is on the Crown throughout to prove that you are guilty of each charge beyond a reasonable doubt.
- The judge or jury decide whether you are guilty or innocent.
- If you are found not guilty, then you are free to go and the charges will disappear.
- If you are found guilty, then you must be sentenced. Sentencing is usually set to a later date, so that I can prepare adequately to make submissions on your behalf and to obtain for you the best possible result. Sometimes I request that certain pre-sentence reports be prepared on your behalf.
Pre-Sentence Reports
- PSR by Probation Officer (s.721)
  - A Probation Officer meets with you to look into your personal, social and family circumstances, and to learn more about you as a unique individual. They try to understand what may have caused you to offend in the first place.
  - They make recommendations to the Court for an appropriate sentence, in your circumstances.
- Psychological Report
- Risk Assessment
- Psychiatric Report
- Calgary Community Conferencing
  www.calgarycommunityconferencing.com
- Conferences s.19
- Victim Impact Statement (s.722)
Sentencing
- This is where the Youth system differs most considerably from the adult system.
- Young persons receive far more lenient sentences than adults.
- At sentencing, the Crown makes recommendations for an appropriate sentence (usually as heavy as possible).
- Your lawyer also makes recommendations for an appropriate sentence (usually as light as possible).
- Occasionally, the Crown and your lawyer have agreed on an appropriate sentence, and this is recommended to the Judge by way of a “joint submission.” However, the Judge is not bound by any agreement between counsel.
- The Judge will want to hear from you or anyone else who might have any useful information to assist in making the final determination.
- The Judge is obligated to take into consideration all of the sentencing purpose and principles s.38
  - The purpose of sentencing is to hold the young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration in too society, thereby contributing to the long-term protection of society.
  - The sentence must not be harsher than what an adult would receive in similar circumstances.
  - The sentence must be similar to sentences imposed on similar offenders for similar offences;
  - The sentence must be proportionate to the seriousness of the crime and the degree of responsibility of the young person for that crime.
  - All available sanctions, other than custody, that are reasonable in the circumstances should be considered – especially in the case of Aboriginal offenders.
  - The sentence must:
    
    Be the least restrictive sentence;
    
    Be the most likely to rehabilitate the young person and reintegrate him or her into society; and
    
    Promote a sense of responsibility in the young person and an acknowledgment of the harm done to victims and the community.
- For multiple charges, each charge may receive its own penalty, or all charges may be sentenced globally.
  - Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
- The Judge will consider all aggravating and mitigating factors:
  - Aggravating factors make the sentence heavier:
    
    Prior relevant criminal convictions;
    
    Hate crimes motivated by prejudice regarding race, language, age, disability, gender, sexual orientation, etc.
    
    Crimes against vulnerable persons, such as children, the elderly and the handicapped;
    
    Abuse toward victim’s partner;
    
    Abuse of a position of trust or authority (doctor, priest, teacher, boss, parent, etc.);
    
    Organized crime;
    
    Terrorism;
    
    Extreme violence or lasting harm;
    
    Level of planning;
    
    High risk to re-offend;
    
    Etc.
  - Mitigating factors make the sentence lighter:
    
    Early guilty plea;
    
    Remorse;
    
    Efforts at rehabilitation;
    
    Efforts to compensate victims;
    
    Low chance of re-offending;
    
    Etc.
- Youth sentence options s.41(2)
  - (a) Reprimand
  - (b) Absolute discharge
  - (c) Conditional discharge
  - (d) Fine (maximum $1000)
  - (e) Compensation
  - (f) Restitution
  - (g) Reimbursement
  - (h) Compensation in kind
  - (i) Community service
  - (j) Prohibition or forfeiture order
  - (k) Probation (maximum 2 years)
  - (l) Intensive support & supervision order (ISSO)
  - (m) Non-residential program
  - (n) Custody and supervision (2/3 in, 1/3 out)
  - (o) Custody - maximum 3 years
  - (p) Deferred custody and supervision (maximum 6 months)
  - (q) Sentences for murder are higher:
    
    1st degree murder – max. 10 years (6 in, 4 out)
    
    2nd degree murder – max. 7 years (4 in, 3 out)
  - (r) Intensive rehabilitative custody and supervision order (maximum 3 years)
  - (s) Any other conditions the judge deems appropriate
- s.89: When a young person is 20 years of age or older at the time of sentencing, he or she will be committed to serve a custodial sentence at an adult correctional facility.
- S.92: When a young person, who is serving a custodial sentence, reaches 18 years of age, he or she may be transferred to an adult correctional facility to serve the remainder of his or her sentence. They are automatically transferred once they reach 20 years of age.
- Some additional possible Orders:
  - Serious Violent Offender Designation s.42(9)
  - DNA Orders (ss.487.04-487.09); also refer to the DNA Identification Act
    Mandatory for certain offences, discretionary for others.
    
    If ordered, you will be required to provide a sample of your DNA (mouth swab) within a couple of weeks or so.
    
    Your DNA will remain in a government databank indefinitely.
    
    It will be used to help solve other crimes by either including or excluding you as a possible suspect.
  - Weapons Prohibition Orders (ss.109-110)
    Mandatory for certain offences, discretionary for others.
    
    If ordered, you will be required to not possess any weapons for a period of time (usually from 2 to 10 years).
  - SOIRA Orders (s.490.011-490.032)
    With respect to certain sexual offences, you may be ordered to register as a sex offender.
  - Forfeiture of Offence-Related Property Orders (s.490.1-492.2)
    If you are convicted, the Judge may order the destruction of certain property (drugs, cash, weapons, documents…).
    
    If you are acquitted, may apply to have certain types of seized property returned to you.
    
    A lawful owner, who is not involved in the crime, may apply to have certain seized property returned.
  - Driving Prohibition (applies to certain offences involving motor vehicles).
- Breaching any Court Order may result in additional criminal charges against you.
Appeals (ss.812-840)
- You have only 20 days, from the date the Order is signed, within which to file a Notice of Appeal (Rules of Court, s.506).
- This can be a lengthy and costly process!
- When there has been an error of law (where the judge made a big mistake), then either you or the Crown may appeal the verdict or the sentence.
- The conviction and the sentence are suspended until the appeal is heard and concluded. However, You may or may not be released form custody pending the appeal.
- The Appellant (party appealing) is liable to pay for the costs associated with ordering and providing copies of the transcript of proceedings to the Court and to the Respondent (party replying to the appeal).
- The loser may be ordered to pay the legal costs of the winner.
Criminal Records
- Consequences:
  - Restrictions on travel to certain countries
  - Limitations on employment options
  - Prevention from volunteering with certain organizations
- Duration
  - A youth record is normally expunged three years after the date of your last youth conviction for a summary offence, and 5 years for an indictable offence.
  - If you re-offend as an adult, during that time period, your youth record will form part of your permanent adult record.
- Pardons and Remissions (s.748-749)
  - Visit: www.pardonservicescanada.com, for more information.

Arrest (ss.494-495)
- You may be arrested by any Peace Officer (s.2) who has reasonable grounds to believe that you broke, are breaking, or will break the law.
- You may also be arrested by any citizen who catches you in the act of the breaking the law (citizen’s arrest).
- You may be arrested with or without a warrant for arrest.
- Generally, a warrant is required to enter your home.
- Canadian Charter of Rights & Freedoms
  - The Charter applies to protect you against abuses by the powers of the state. It only applies to authorities of the state, not to ordinary citizens.
  - You must have standing (be affected directly) in order to invoke the protections of the Charter.
  - Your rights and freedoms are limited by what can reasonably be justified (s.1)
  - Many of the protected rights and freedoms may form the basis of a valid defense against criminal charges.
  - Fundamental Freedoms
    
    Freedom of conscience and religion (s.2(a))
    
    Freedom of thought, belief, opinion and expression (s.2(b))
    
    Freedom of peaceful assembly (s.2(c))
    
    Freedom of association (s.2(d))
  - Legal and Procedural Rights
    
    Right to life, liberty and security (s.7)
    
    Right to be secure against unreasonable search and seizure (s.8)
    
    Right not to be arbitrarily detained or imprisoned (s.9)
    
    Right to be informed promptly, upon arrest or detention, of the reasons why (s.10(a))
    
    Right to retain and instruct counsel without delay, and to be informed of that right (s.10(b))
    
    Right to have a bail hearing (s.10(c))
    
    Right to be informed, without unreasonable delay, of the specific offence(s) you are being charged with (s.11(a))
    
    Right to a fair trial within a reasonable time (s.11(b))
    
    Right to remain silent (s.11(c))
    
    Right to be presumed innocent until proven guilty (s.11(d))
    
    Right not to be tried and punished twice for the same offence (s.11(h))
    
    Right not to be subjected to any cruel and unusual treatment (s.12)
    
    Right against self-incrimination (s.13)
    
    Right to have an interpreter in your language attend at all proceedings (s.14)
    
    Equality: Right not to be discriminated against on the basis of race, national or ethnic origin, colour, religion, gender, sexual orientation, age, or mental or physical disability (s.15)
  - Remedies (s.24)
    
    When your rights have been violated, you have a right to apply to the Court for any fair and appropriate remedy (s.24(a))
    
    To exclude any evidence obtained as a result of a violation of your rights (s.24(b)).
    
    For example: If, after being pulled over for speeding, the police decide to search your car for no good reason, or just because you look like a drug dealer, and they find drugs, then those drugs are evidence that might be excluded from the trial, leaving the Crown with nothing to prove the charges against you, resulting in a dismissal of the charges.
    
    This can become a very powerful defense against a number of criminal charges.
Release / Bail
- You are entitled to be released from custody when there is no compelling reason to keep you locked up.
- Appearance Notice or Summons Issued by a Peace Officer (ss.496-514)
  - You may be released by a police officer or a Justice of the Peace on certain conditions, including that you appear in court when ordered.
- Judicial Interim Release (ss.515-526)
  - Detention is presumed to be unnecessary.
  - To be detained in custody the Crown must satisfy the Court that your detention is justified under one of 3 grounds (s.515(6)(10)):
    
    You are a flight risk;
    
    You are likely to re-offend; or
    
    Other compelling reasons, such as very serious offences; a strong case against you; or to satisfy public confidence in the justice system.
  - Release may be granted with or without cash bail.
  - Generally, if you re-offend while on bail, the onus reverses, and it is you who must satisfy the Court that there are compelling reasons why you should be released again (s.524)
- Common Release Conditions
  - Keep the peace and be of good behaviour
  - Attend court when required to do so
  - Report any change of address to the Court
  - Report as directed to a Probation Officer
  - Remain within the jurisdiction
  - Reside where directed
  - Attend school or seek and maintain suitable employment
  - Abide by a curfew or follow certain house rules
  - Do not attend within a given radius of certain areas
  - Do not loiter on certain property
  - Do not possess any weapons or items capable of being used as weapons
  - Do not communicate directly or indirectly with certain named persons
  - Attend for assessment and counseling or treatment as directed
  - Do not purchase, possess or consume any intoxicants (such as alcohol and drugs) that are not prescribed to you by a licensed physician and taken in accordance with that prescription
  - Do not possess any mobile communication devices (cell phone, pager, etc.)
  - Any condition the Court deems appropriate in the circumstances.
Docket Court
- Purpose:
  - To receive disclosure from the Crown
    Disclosure is the sum of the police investigation to date; all of the evidence to support the charges; basically, it is the Crown’s case against you.
    
    The contents of the disclosure package include:
    
    The Information (charges against you) (ss.788-794)
    
    Synopsis of the evidence of all witnesses
    
    List of all witnesses interviewed
    
    Any written or oral statements made
    
    Notes of police officers and other officials
    
    Any statements (written or oral) made by you (the accused)
    
    Criminal record of accused
    
    Criminal record of witnesses
    
    All documents, photographs, reports, business records, video and audio recordings
    
    Any other information that might be pertinent to your case
    
    In order to proceed on any charges, the Crown must be satisfied of 2 criteria:
    
    That there is a “reasonable likelihood of a conviction” (this is where the strength of the Crown’s case is crucial); and
    
    That it is in the “public interest” to prosecute (this is where Crown discretion comes into play).
  - To have time to seek and retain counsel
    You are always free to represent yourself – although that is highly not recommended.
    
    If you cannot afford to hire a lawyer on your own, and if you qualify for Legal Aid, a lawyer will be appointed to represent you free of charge (although you will be expected to reimburse what you can to Legal Aid).
  - To enter elections
    On hybrid offences, the Crown may elect to proceed either by way of Indictment or Summary Conviction.
    
    Summary Offences (Part XXVII – ss.785-787)
    
    6 month limitation period within which charges may be laid.
    
    Maximum penalty of 6 months imprisonment or $2000 fine or both.
    
    Procedures in Provincial Court.
    
    Indictment is the more serious of the two and carries the potential for more severe penalties.
    
    When the Crown elects to proceed by Indictment, and you wish to plead Not Guilty, then you have a choice of whether to be tried by (s.536):
    
    Provincial Court Judge alone;
    
    Queen’s Bench Judge alone; or
    
    Queen’s Bench Judge and Jury
  - To gain time for plea bargaining
  - To enter a Plea
  - To set dates for trial or sentencing
    Trial dates may not be obtained until up to one year away;
    
    Sentencing dates may not be obtained until up to several months away, depending on whether or not Pre-Sentence Reports are required.
- What if you fail to attend?
  - You may receive an additional criminal charge for failing to attend, and
  - A warrant for your arrest may be ordered.
  - However, if I file a “designation of counsel” with the court, then you do not need to be there. In that case, I would make the docket appearances on your behalf, and you would not have to take precious time off work or school for every court date.
Plea Bargaining
- This is where my personal relationships with the Crown Prosecutors will help you.
- I can meet with the Prosecutor assigned to your file, and negotiate a favourable “deal” for you.
- Sometimes a “deal” consists of you entering a guilty plea to only a few of the numerous charges against you, or entering a plea to a less serious charge than what you are charged with.
- I can also negotiate, on your behalf, the best sentence possible.
- Sometimes my plea negotiations result in the Crown dropping the charges completely; sometimes they result in you having no criminal record at all!
Pleas
- Guilty(s.606(1.1))
  - You are required to freely accept the facts alleged to support the charges against you, and be prepared to accept whatever penalty the Judge decides to impose.
  - An “agreed statement of facts” can be negotiated when you disagree with certain facts being alleged.
  - Once you enter a plea of “Guilty”, then we set a later return date for your sentencing.
- Not Guilty
  - Once you plead “Not Guilty,” a date is set for your trial.
  - Trial dates are currently being set for up to one year down the road.
  - The purpose of the trial is to listen to all of the evidence to determine whether you are guilty or not guilty.
  - You may still change your plea to guilty at any time, even on the day of trial.
  - See election above, for modes of trial.
- Other
  - Alternative Measures (s.717)
    - This program is available for certain, less serious, offences, and for 1st or 2nd time offenders only.
    - You are not admitting guilt; however, you do have to accept responsibility for your involvement in the crime.
    - If your referral is accepted, you will be required to complete some programs, such as community service hours, or counseling.
    - If you are successful, then you return to court approximately 4 months down the road, and the charge against you will be dropped.
    - The result is you get no criminal record!
    - Failure to complete the program successfully means that you still have to face the original charges.
  - Mental Health Diversion Program
    - This program was introduced to assist persons with certain mental illnesses to get them the support they need to avoid further incidents with the law.
    - First, you require an assessment, to see whether you qualify for the program.
    - Second, you get an adjournment of just over 3 months in order for you to attend for treatment and counseling.
    - You will be required to comply with the recommendations, such as taking prescribed medication.
    - The result is you get no criminal record!
    - Failure to complete the program successfully means that you still have to face the original charges.
  - Peace Bond (s.810)
    - A peace bond is available in circumstances where the complainant has an ongoing fear for his/her safety and where the Crown feels it would be appropriate.
    - Once you enter into a peace Bond, the criminal charges against you are withdrawn immediately, and you enter into a recognizance.
    - The recognizance lasts for a certain number of months and has certain conditions, such as: stay away from the complainant and go to anger management counseling.
    - The result is no criminal record!
    - Failure to comply with the terms of the recognizance may result in further criminal charges against you (s.811).
Preliminary Inquiries (Part XVIII – ss.535-551)
- When you elect to be tried for an indictable offence by judge alone or by judge and jury, then you are entitled to having a preliminary inquiry before the trial.
- Not available for Provincial Court trials.
- The purpose of the prelim is to assess the strength of the Crown’s case against you. The Crown will call on some of its key witnesses to establish a basis for the charges against you.
- Those witnesses may be cross-examined.
- You (the accused) is never obliged to call any evidence.
- Everything that is said is recorded, and may be used against those witnesses later at the trial to highlight any inconsistencies or contradictions (very useful for creating reasonable doubt).
- The burden of proof on the Crown is merely to establish that there is some evidence on which a reasonable jury, properly instructed, could convict.
- If the Crown has failed to meet its burden, the charges against you may be dismissed. If the Crown has met its burden, you will be ordered to stand trial.
Trials
- In any trial, the onus is on the Crown to prove its case against you. At minimum, the Crown must establish a prima facie case – i.e. every element of every charge.
- Right to silence – You never have to say anything if you don’t want to, and no one can hold it against you.
- The persuasive burden is on the Crown throughout to prove that you are guilty of each charge beyond a reasonable doubt.
- The judge or jury decide whether you are guilty or innocent.
- If you are found not guilty, then you are free to go and the charges will disappear.
- If you are found guilty, then you must be sentenced. Sentencing is usually set to a later date, so that I can prepare adequately to make submissions on your behalf and to obtain for you the best possible result. Sometimes I request that certain pre-sentence reports be prepared on your behalf.
- Summary Offence Trials (ss.798-809).
- Indictable Offence Trials by Judge Alone (Part XIX – ss.552-572)
- Indictable Offence Trials by Judge and Jury (Part XX – ss.574-672)
Pre-Sentence Reports
- PSR by Probation Officer (s.721)
  - A Probation Officer meets with you to look into your personal, social and family circumstances, and to learn more about you as a unique individual. They try to understand what may have caused you to offend in the first place.
  - They make recommendations to the Court for an appropriate sentence, in your circumstances.
- Psychological Report
- Risk Assessment
- Psychiatric Report
- Community Conference or Sentencing Circle
- Victim Impact Statement (s.722)
Sentencing
- The sections of the Criminal Code pertaining to adult sentences are covered in Part XXIII (sections 716 to 751).
- The Crown makes recommendations for an appropriate sentence (usually as heavy as possible).
- Your lawyer also makes recommendations for an appropriate sentence (usually as light as possible).
- Occasionally, the Crown and your lawyer have agreed on an appropriate sentence, and this is recommended to the Judge by way of a “joint submission.” However, the Judge is not bound by any agreement between counsel.
- The Judge will want to hear from you or anyone else who might have any useful information to assist in making the final determination.
- The Judge is obligated to take into consideration all of the Sentencing Principles (s.718)
  - Denunciation: To denounce unlawful conduct;
  - Deterrence: To deter the offender (specific) and other persons (general) from committing offences;
  - Segregation: To separate offenders from society, where necessary;
  - Rehabilitation: To assist in rehabilitating offenders;
  - Reparation: To provide for reparations for harm done to victims or to the community;
  - Responsibility: To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community;
  - Fundamental Principle: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender;
  - Other Principles:
    
    Aggravating and mitigating factors;
    
    Parity: A sentence should be similar to sentences imposed on similar offenders for similar offences;
    
    Totality: Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
    
    Least Restrictive Sanction: Jail should not be imposed, if other less restrictive sanctions are appropriate (especially when it comes to Aboriginal offenders).
- Each offence may receive its own penalty, or all offences may be sentenced globally.
- The Judge will consider all aggravating and mitigating factors:
  - Aggravating factors make the sentence heavier:
    
    Prior relevant criminal convictions;
    
    Hate crimes motivated by prejudice regarding race, language, age, disability, gender, sexual orientation, etc.
    
    Crimes against vulnerable persons, such as children, the elderly and the handicapped;
    
    Abuse toward victim’s partner;
    
    Abuse of a position of trust or authority (doctor, priest, teacher, boss, parent, etc.);
    
    Organized crime;
    
    Terrorism;
    
    Extreme violence or lasting harm;
    
    Level of planning;
    
    High risk to re-offend;
    
    Etc.
  - Mitigating factors make the sentence lighter:
    
    Early guilty plea;
    
    Remorse;
    
    Efforts at rehabilitation;
    
    Efforts to compensate victims;
    
    Low chance of re-offending;
    
    Etc.
- Some possible sentences:
  - Discharges (s.730)
    Discharges are not common, and are only available in special circumstances. There are 2 types of discharges.
    
    Conditional Discharge:
    
    You will be required to abide by a number of conditions (like probation) for a period of time.
    
    If you are successful, and do not breach any of the conditions, you’re charges will be dismissed and you will have no record.
    
    If you are not successful, you will be convicted and have a record.
    
    Absolute Discharge:
    
    You are granted a discharge immediately, without having to abide by any conditions.
    
    Your charges are dismissed and you will have no record.
  - Probation (s.731)
    The Court imposes a number of conditions which must be obeyed for a period of time.
    
    Periods usually range from 6 months to 2 years; 3 is the maximum.
    
    See s.732 for a list of mandatory and optional conditions.
    
    Failure to comply with any conditions may result in additional criminal charges (s.733).
  - Fines (ss.734-737)
    With or without Victim Fine Surcharge (15%)
    
    You may request a reasonable amount of time to pay the fine.
    
    If you do not pay the fine, you may be ordered to serve the equivalent of time in jail.
    
    In some cases, you may enroll in the Fine Option Program, which permits you to work off a fine by performing community service hours (s.736).
  - Restitution to Victims (ss.738-741)
  - Conditional Sentence of Imprisonment (742)
    For certain offences, you may be permitted to serve your jail sentence in the community, providing you obey certain conditions, over a period of time (up to 2 years).
    
    Failure to abide any of the conditions may result in you serving the remainder of your sentence in jail (s.742.6(9)).
  - Imprisonment (ss.743-746)
    Can range from 1 day to life imprisonment, depending on the offence.
    
    Some sentences may be served intermittently (s.732). That is, you serve weekends only until the term is complete.
    
    Any time spent in pre-trial custody is usually credited at a 2 for 1 ratio. That is, every day you spend at the Calgary Remand Centre, counts for 2 days off your jail sentence.
    
    Sentences under 2 years are served at a provincial correctional facility.
    
    Sentences over 2 years are served at a federal penitentiary.
    
    Parole is governed by ss.743-745 and by the Corrections and Conditional Release Act.
    
    Generally, you might serve only a portion of your sentence in custody, and the remaining portion in the community, under close supervision.
- Some additional possible Orders:
  - Dangerous Offender and Long-Term Offender Designations (ss.752-761)
  - DNA Orders (ss.487.04-487.09); also refer to the DNA Identification Act
    Mandatory for certain offences, discretionary for others.
    
    If ordered, you will be required to provide a sample of your DNA (mouth swab) within a couple of weeks or so.
    
    Your DNA will remain in a government databank indefinitely.
    
    It will be used to help solve other crimes by either including or excluding you as a possible suspect.
  - Weapons Prohibition Orders (ss.109-110)
    Mandatory for certain offences, discretionary for others.
    
    If ordered, you will be required to not possess any weapons for a period of time (usually from 2 to 10 years).
  - SOIRA Orders (s.490.011-490.032)
    With respect to certain sexual offences, you may be ordered to register as a sex offender.
  - Forfeiture of Offence-Related Property Orders (s.490.1-492.2)
    If you are convicted, the Judge may order the destruction of certain property (drugs, cash, weapons, documents…).
    
    If you are acquitted, may apply to have certain types of seized property returned to you.
    
    A lawful owner, who is not involved in the crime, may apply to have certain seized property returned.
  - Driving Prohibition (applies to certain offences involving motor vehicles).
- Breaching any Court Order may result in additional criminal charges against you.
Appeals (ss.812-840)
- You have only 20 days, from the date the Order is signed, within which to file a Notice of Appeal (Rules of Court, s.506).
- This can be a lengthy and costly process!
- When there has been an error of law (where the judge made a big mistake), then either you or the Crown may appeal the verdict or the sentence.
- The conviction and the sentence are suspended until the appeal is heard and concluded. However, You may or may not be released form custody pending the appeal.
- The Appellant (party appealing) is liable to pay for the costs associated with ordering and providing copies of the transcript of proceedings to the Court and to the Respondent (party replying to the appeal).
- The loser may be ordered to pay the legal costs of the winner.
Criminal Records
- Consequences:
  - Restrictions on travel to certain countries
  - Limitations on employment options
  - Prevention from volunteering with certain organizations
- Duration
  - Youth Record:
    - A youth record is normally expunged three years after the date of your last youth conviction for a summary offence, and 5 years for an indictable offence.
    - If you re-offend as an adult, during that time period, your youth record will form part of your permanent adult record.
  - Adult Record:
    - This is a permanent record; however, you may be eligible to apply for a “Pardon”.
- Pardons and Remissions (s.748-749)
  - Visit: www.pardonservicescanada.com, for more information.