Criminal Law - General

---

Disclaimer

The following is no substitute for advice provided by a lawyer specifically for you. It is intended only to help you understand that advice. No responsibility is taken for any problems arising except due to paid legal advice.

©1996 Jaques Law Office. All Rights Reserved.

The Basics

Since 2005, we focus on Real Estate, Wills and Estates, and Small Business. We have left this web page in place as a public service.

The purpose of the criminal law is to control the government. In order to use its force against a citizen, it must follow its own law in all respects.

The government must pass a law making an offence to do or to fail to do something. This must be published in some form. Every citizen is expected to keep track, so ignorance of the law is no excuse.

The government must give you a chance to defend yourself of an accusation that you committed an offence. So, you must get notice, have a chance to use a lawyer, etc.

The government must prove its case with legitimate evidence to an impartial judge.

An offence may not be criminal. In fact, most are not. The main laws generally considered to be criminal are the Criminal Code, the Combines Investigation Act, the Controlled Substances Act (formerly the Narcotics Control Act and the Food and Drug Act).

The Procedure

Bringing you to Court

First, you must be brought to court. The police are supposed to use the least intrusive way of doing so. Usually that will be a Promise To Appear, or an Appearance Notice. Sometimes, they will feel obliged to take you into custody by placing you under arrest.

If you are arrested, there are several things the police must do, the most important of which is to let you talk to a lawyer. You must still be released, if possible, by either the arresting officer or the Officer in Charge. If they do not, they must bring you before a justice of the peace ("JP"), as soon as possible. Then the JP must release you, if possible. They can make you sign an Undertaking (a promise to do various things, including coming to court), or a Recognizance (like an Undertaking but in which you promise to pay if you break the conditions). They can require a Surety (a guarantee by another person) or Cash Bail (where you pay money which will be forfeited if you break your promise).

If the JP does not release you, then you must be brought in front of a provincial court judge as soon as possible, who must release you if possible. He or she will have the same options as the JP. If you are not released at this point, you must apply for a review, which requires you to show an error was made.

The hearing on whether to release you, is called a 'show cause' or 'bail' hearing. Normally, evidence is not called, but if either party disputes what the other has said, then the judge must order a hearing, for witnesses to be heard so the judge can decide who to believe.

If you are charged with certain very serious offences (e.g. murder, drug trafficking), or are already released on prior charges, the above will not necessarily apply.

Charging You

Once you are brought to court, the judge must charge you, by reading the charge to you. Sometimes there are technical problems with the charge which your lawyer can use to quash the charge. This is not always useful, since the Crown can normally just charge you again, but your lawyer can advise you.

Picking a Court

Some offences are summary, in which case, only the provincial court may try you. Others are indictable, which means you can choose whether to be tried by the provincial court, the superior court (Queen's Bench Court, in Saskatchewan), or the superior court with a jury. However, some offences are hybrid, which means the Crown (the prosecutor) chooses whether to follow an indictable or a summary procedure. Some others are called Absolute Jurisdiction offences, which is where the government has chosen which court must be used.

If you have a choice, it is an important tactical decision. Be sure you are fully advised by your lawyer. If you refuse to choose, the judge will choose a superior court with jury.

Being Committed for Trial

If the offence is indictable, and you chose the superior court, then the provincial court must first decide whether there is enough evidence to justify a trial. To do so, it holds a Preliminary Hearing. A date will be chosen convenient to all the parties, if possible. At the hearing, the Crown must prove that there is some evidence on each essential ingredient of the offence. Actually, the correct test is "whether a reasonable jury, properly instructed, could convict on the evidence." The Crown is expected however, to present their whole case.

Disclosure

The Crown has a legal obligation to 'disclose' to you what evidence it has against you. Determining whether this has been done, and ensuring that it is done, requires all the experience, judgment, and good relations which your lawyer can offer.

The Plea

Once you are in the proper court, you must enter a plea. If you refuse, the judge will enter a not guilty plea. Many people try to enter a guilty plea just to get it over with although they feel they are innocent. This is improper and a lawyer will not knowingly assist you to do that, and a judge will not knowingly accept such a plea. If you enter a plea of Guilty, the judge is entitled to convict you of the offence, and then to sentence you.

A plea of Not Guilty should be entered if you are not guilty or if the Crown cannot prove you are guilty. Your lawyer is best qualified to decide both questions.

There are other, more rare pleas, such as the autre fois types. Consult your lawyer.

The Trial

Once a plea of Not Guilty is entered, a trial date must be set. It must be soon enough that you don't unnecessarily suffer from the delay, but late enough that you can properly defend yourself.

The Crown calls its evidence first. Your lawyer can object to evidence, or to questions. The judge will decide. Your lawyer can cross-examine the Crown's witnesses. If the Crown's case is not enough to justify an answer, your lawyer can ask for an Order dismissing the charges. If it is, your lawyer can, if it is wise in your case, present your evidence. Then the Crown can object and cross-examine.

The Verdict

After a plea of guilty, or after the Crown proves all the ingredients of the offence beyond a reasonable doubt at trial, the judge may convict you. If the Crown fails to so prove, the judge must acquit you. If you are acquited, then the government has no further power over you under those charges and your record is clear.

Sentence

If you are convicted, then the judge will have certain specific powers over you. The Crown will have an opportunity to tell the judge things about you and the crime, and then your lawyer will have an opportunity to do the same. Normally, evidence is not called, but if either party disputes what the other has said, then the judge must order a hearing, for witnesses to be heard so the judge can decide who to believe.

The judge must consider several goals in sentencing.

• Rehabilitation - This is where something is done to make you a better person, so you won't commit any more crimes. This might include drug or alcohol treatment, counselling, probation, a discharge, etc. This is normally the most important goal for a first offender
• Specific Deterrence - This is a type of rehabilitation, where the judge harms you so much you won't dare to commit any more crimes. It is considered to be a last resort of rehabilitation
• General Deterrence - This is where you are made an example for the community, to frighten them into not doing the same thing. This is normally a lower priority than rehabilitation, except when a particular crime becomes a problem to the community. For instance, even first time, minor drug traffickers, may expect a prison term.
• Public Confidence - This is the opposite of General Deterrence. In this case, the court is obliged to impose a sentence harsh enough to calm the community which has been outraged by the offence.
• Denunciation - This is generally in an area where the court or the government is trying to lead the people into a new morality. Harsh sentences will be imposed to show revulsion over the offence. Sexual Harassment and drunken driving offences often involve this consideration.
• Restitution - This is a comparatively new concept in which the sentence attempts to force the offender to repair the damage of the crime or the damage which caused the crime. Concepts such as mediation, community service, personal service are available to pursue this. Unfortunately, the courts appear to see this as something which may sometimes be desirable along with the above traditional approaches.

Pardon

If you are convicted, you still have a chance to clear your record by seeking a pardon.

Statistics

"The Crime Bill: Who Pays and How Much", a Fraser Institute Study, reports the following about crime in Canada:

• Ratio of Violent Crime to Property crime = 1:5
• Costs of Property Crime in Billions of Dollars

  • To victims	4.7
    Cost of policing and private security	8.5
    Court and legal fees	1.0
    Corrections	2.4

• It appears that the cost of fighting property crime is more than double the actual cost of the crime. And of that, the lawyers are a tiny fraction.

Please see the map of all our pages