An Overview of the Criminal Law Process in Canada

October 14, 2018 By Michael A. Beckett

Introduction

If you’ve been charged with a criminal offence, you may be unfamiliar with the criminal justice process and you’re probably scared and uncertain about what you should do next. In this blog post, I hope to alleviate some of your uncertainty by providing you with a general overview of the criminal justice process in Canada; outlining some of the fundamental legal rights you have throughout that process; and explaining how a criminal defence lawyer can help you navigate the process, defend you against your criminal charges, and fight for the best possible outcome in your case. Keep in mind that what follows is general information and it should not be construed as legal advice. If you want legal advice about your criminal charges, please contact me for a free consultation.

How the Process Begins

In Canada, the criminal justice process normally begins when someone alleges that a crime has been committed. In Canada, crimes are defined under the Criminal Code. There are many kinds of crimes in the Criminal Code, and they range from relatively less serious offences, like minor thefts and assaults; to obscure offences, like fraudulently practicing witchcraft; to the most serious kinds of offences, like murder.

The Investigation & Police Questioning

When someone complains to the police and alleges that a crime has been committed, or when someone is found by police committing an act believed to be a crime, the police begin an investigation. The nature and complexity of a police investigation into a crime depends on the circumstances giving rise to the allegation. Sometimes an investigation is as straightforward as taking a statement from a single witness. Other times an investigation may involve an undercover police operation, surveillance, many witnesses, and expert forensic analysis of evidence. Some investigations may take between an hour and a day to complete, other investigations can take years to complete. Whether short and simple or prolonged and complex, the objective of the police investigation is the same: to gather evidence to determine whether a crime has been committed, and if so, by whom.

Sometimes, to gather evidence to determine whether a crime has been committed, the police will approach a suspect and attempt to question them. Under the Canadian Charter of Rights and Freedoms, everyone charged with a criminal offence has the right to be presumed innocent until proven guilty. Many suspects are not aware that they also have a right to silence—meaning they are not obligated to speak to the police and provide them with a single shred of information.

Let’s assume for example that, through their investigation, the police suspect that you have committed the crime of robbing the local convenience store, and they approach you about it and try to question you to get you to tell them “your side of the story.” You do not have to. This remains true regardless of how persistent the police are in their questioning. Remember, at this point you are presumed innocent!

It never ceases to amaze me how many people seem to forget this and wind up divulging information to the police that is ultimately used against them in the prosecution. This does not just happen to guilty people, either. Completely innocent people have gone into police questioning as suspects only to emerge after giving false confessions to crimes they did not even commit! Some of those people were convicted and spent many years in jail before being exonerated. Do not let this happen to you.

If you believe that you are or may be under investigation for a crime, or if the police ever try to question you about a crime they suspect you have committed, the best thing to do—even if you feel you are innocent—is to strongly assert your right to silence and ask to speak with a criminal defence lawyer immediately. There is nothing you can say to police that will benefit you except for the following words: “I would like to speak to a lawyer, please.” This is the only thing you should say to police in these circumstances, even if you have to say it a thousand times.

Arrest

Once the police have reasonable grounds to believe that someone has committed a crime, they can arrest and lay a charge against that person for that crime. Under the Canadian Charter of Rights and Freedoms, everyone has the right upon arrest to be informed promptly of the reasons for the arrest, and to retain and instruct a lawyer without delay and to be informed of that right.

Again, let’s assume that the police have reasonable grounds to believe that you have committed the crime of robbing the local convenience store, and they have arrested you. Upon arresting you, the police must promptly tell you that they are arresting you for the robbery of that convenience store, and the police must also promptly inform you that you have a right to speak with a lawyer without delay.

Take the police up on their offer! Remember, at this point you are presumed innocent!

Except for telling the police that you would like to speak to a criminal defence lawyer in private, remain silent, and get on the phone with a criminal defence lawyer as soon as possible. A criminal lawyer will be able to advise you of your rights, ensure you do not provide the police with any further evidence in their case against you, and defend you against the allegations as your case moves forward.

Search & Seizure

Upon your arrest the police may attempt to search you or the items you have in your possession, such as your pockets, your backpack, your cellphone, and even your vehicle or your house. Some searches require a warrant in order to be lawful, other searches do not. The police may also seize your property. Similar to searches, sometimes seizures are lawful, other times they not. What is important to note here is that under the Canadian Charter of Rights and Freedoms everyone has the right be secure against unreasonable search or seizure.

Whether the search or seizure is reasonable or not is often a complex, factually-driven, legal question that needs to be argued at trial and determined by a judge. A criminal defence lawyer can analyze your case and assess whether the search or seizure you were subjected was reasonable or not. If your lawyer determines that the search or seizure you were subjected to was unreasonable, he can argue to a judge that your right to be secure against unreasonable search or seizure was violated, and therefore that the evidence gathered as a result of that unreasonable search or seizure should not be admitted into evidence against you at trial. If successful in this argument, the Crown will be unable to use that evidence in their prosecution, making it very difficult and sometimes impossible for the Crown to prove the case against you beyond a reasonable doubt. A criminal defence lawyer can also assist you in getting back your property from police.

Bail

After arresting someone for a criminal offence, the police sometimes simply release that person with a document called a Promise to Appear, which has a court date upon which that person must attend court to answer to their charges. Other times, the police hold the person in custody until they can be brought before a judge for a bail hearing so that the judge can decide whether to release them from custody. The police should ensure that this is done no later than 24-hours after the time of arrest.

Under the Canadian Charter of Rights and Freedoms, everyone charged with a criminal offence has the right not to be denied bail without just cause. And remember, at this point an accused person is still presumed innocent. Accordingly, the law of bail in Canada is structured to favour the release of accused persons at the earliest possible opportunity and on the least restrictive conditions. Unfortunately, this is not as straightforward as it seems and it does not mean that everyone will be granted release on bail. The reality is that many people are denied bail, and this is especially true for people who try to represent themselves at their bail hearing.

What determines whether someone will be released or denied bail? There are three things. If the Crown can satisfy a judge that an accused person will not attend court, is substantially likely to commit further offences if released, or that the person’s detention is necessary to maintain reasonable confidence in the justice system—then that person will probably be held in jail either until trial or until they enter a guilty plea and complete any jail sentence imposed. This could result in spending many months or even years in jail while awaiting trial, despite being presumed innocent.

A criminal defence lawyer can greatly increase your chances of getting released on bail. A criminal lawyer can help you come up with a bail plan to satisfy the Crown or the judge that you will attend court, that you are not substantially likely to commit further offences, or that your detention is not necessary to maintain reasonable confidence in the justice system. A defence lawyer can either negotiate your release with the Crown or argue your release to a judge. A criminal defence lawyer can seek a publication ban of the proceedings to keep anyone from publishing any evidence led during the proceedings. If you are detained at your first bail hearing, a criminal defence lawyer can seek review of the decision to detain you and further advocate for your release. If you are released on conditions that turn out to be too harsh or impractical, a criminal lawyer can assist you in applying to change your bail conditions, and in some cases may even be able to have certain conditions removed entirely.

Beyond Bail – What Happens Next?

Once a person’s bail status has been determined, the next major step is to determine how to deal with the charge. Essentially, there are two options: the person can either plead guilty and be sentenced, or plead not-guilty and have a trial. Under the Canadian Charter of Rights and Freedoms, everyone charged with a criminal offence in Canada has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The Crown bears the onus of proving an accused person’s guilt beyond a reasonable doubt, which is a very high and difficult standard of proof, closer to absolute certainty than not.

There are many tough decisions to make on the way to trial or a guilty plea, and there are many factors that can influence whether someone chooses one option over the other. A criminal defence lawyer can analyze your case, explain your options to you, help you navigate the complex criminal law court process, defend you against your charges, and fight to achieve the best possible outcome in your case—even if you decide to plead (or are found) guilty.

The First Appearance & The Accused’s Right to Disclosure

Sometime after being charged and released, either by the police or on bail by a judge, an accused person is obligated to attend court at what is commonly referred to as the “first appearance.” The first appearance is a good opportunity to request or obtain from the Crown the “disclosure.” Obtaining the disclosure is the accused’s right, and accordingly the Crown is under an obligation to provide it to the accused.

The accused’s right to disclosure is one of the most important rights that arise in the criminal law process. This is because the disclosure is all the relevant information that the Crown intends to introduce into evidence against the accused, including any and all witness statements, police notes, expert reports or certificates, video surveillance, and so on. The Crown must provide the accused with the disclosure so that the accused can know the case against them, so that they can make full answer and defence to the allegations. The Crown should provide the accused with disclosure before the accused pleads guilty or not-guilty.

A criminal defence lawyer can ensure that you request and receive all of your disclosure in a timely fashion. Once your criminal lawyer has your disclosure, they can carefully review it to determine the strength of the Crown’s case against you; whether any of your legal rights were breached during the process of investigation, arrest, and search and seizure; and advise you of any available defences.

Arraignment

The next step in the process is the arraignment hearing, when the accused advises the court of whether they will be pleading guilty nor not-guilty. If the accused pleads guilty, then the matter proceeds to sentencing, where the accused is sentenced by a judge for the offence. If the accused pleads not-guilty, then the matter is set for trial.

Where the accused pleads not-guilty, depending on the type of charge the accused is facing, the accused may have the option of electing to have their trial in Provincial Court or Supreme Court. Generally speaking, if the accused is charged with a summary offence (i.e., a less serious offence) and wishes to have a trial, then their only option will be to have their trial in Provincial Court. If the accused is charged with an indictable offence (i.e., a more serious offence) and wishes to have a trial, then they may have the option of having their trial in either Provincial Court or Supreme Court.

If the accused elects to have their trial in Supreme Court, they may choose to have a Supreme Court trial either with a Supreme Court judge alone or a Supreme Court judge and a jury. If the accused is charged with an indictable offence and wishes to have a trial, then they may also have the option of requesting a preliminary inquiry in Provincial Court before their Supreme Court trial, to test the Crown’s case and have a judge determine whether there is sufficient evidence to commit the matter to trial.

A criminal trial lawyer can analyze your case, explain your options to you, and effectively navigate and defend you through this complex process.

Trial: Acquittal, Conviction and Sentencing & Appeals

The purpose of a criminal trial is to decide the accused’s guilt. A criminal trial often begins with the Crown presenting their case, and the evidence supporting it, to the court. This is often followed by the defence’s case, where the defence presents evidence in attempt to refute the Crown’s evidence or raise a reasonable doubt or any available defences.

After the parties have finished presenting their cases, the jury decides the facts, the judge determines the law (in a judge-alone trial, the judge decides the facts and the law), and the lawyers argue to the court how the law as applied to the evidence should determine the outcome in the case, particularly on the issue of whether the accused should be found guilty or acquitted.

If the jury or judge (upon applying the law to the facts) is left with a reasonable doubt as to the accused’s guilt, or finds that the Crown has not proven its case against the accused beyond a reasonable doubt, then the accused is acquitted and the proceedings come to an end. If the jury or judge finds that an accused is guilty beyond a reasonable doubt, then the accused is convicted and the matter proceeds to sentencing.

A criminal trial lawyer can fiercely defend you at trial and advocate on your behalf for an acquittal. Even if you are convicted, a criminal trial lawyer can vigorously advocate on your behalf for the most lenient sentence possible. Depending on the kind of offence, jail may or may not be mandatory. Where imprisonment is not mandatory a criminal defence lawyer can help you avoid jail or other harsh sentences. A criminal lawyer can even appeal your conviction or sentence, and fight to have your conviction overturned or your sentence reduced.

What to do Next?

If you are under police investigation or are facing a criminal or quasi-criminal charge in British Columbia, Alberta, or Saskatchewan—contact criminal defence lawyer Mr. Michael A. Beckett immediately for a free and confidential consultation about your case. Mr. Beckett is a criminal defence and criminal trial lawyer who defends individuals from all walks of life from a wide variety of criminal and quasi-criminal charges.

As an associate at one of the top criminal law firms in British Columbia, Stern Shapray Criminal Lawyers, Mr. Beckett has access to many valuable resources, including a well-respected team of highly-skilled lawyers with over a century of collective experience in defending criminal and quasi-criminal cases. Regardless of how simple or complex your case, Mr. Beckett uses all the resources at his disposal to provide you with prompt and attentive service and a full and forceful defence that leaves no stone unturned in his relentless pursuit to achieve the best possible outcome. When you hire Mr. Beckett, he will:

• Fiercely defend you against all of the allegations you deny
• Get to know you and your side of the story at the outset
• Conduct a detailed and comprehensive analysis of your case
• Ensure you understand the law that applies to your case, including all of your available legal options and defences
• Keep you promptly informed of any new developments in your case as it progresses through each stage of the legal process
• Answer any questions you may have that relate to your case
• Work tirelessly for you every step of the way and leave no stone unturned until he has achieved the best possible result for you

Facing a criminal charge can be a traumatic, life-shattering experience. The mere laying of a criminal charge can destroy your reputation and lead to the loss of current or future employment opportunities. A criminal charge or conviction may also result in a criminal record and the loss of your ability to travel, live, and work in other parts of the world like the United States. A criminal charge may even cost you your freedom. Though less serious than criminal charges, facing quasi-criminal charges under the BC Motor Vehicle Act or Alberta Traffic Safety Act can also be terrifying because they may result in hardships like losing your driver’s license and ability to drive for long periods of time.

Because of the significant consequences that can follow a criminal or quasi-criminal charge it is vital that you retain a lawyer at the earliest possible opportunity. Mr. Beckett is often retained at the investigatory stages, where he can advocate for his clients before their charges have been approved by the Crown. In many of these cases, Mr. Beckett has been able to persuade the police and the Crown to completely withdraw his clients’ charges and not proceed with the prosecution.

The sooner you retain Mr. Beckett—the more he may be able to do for you.

Do not delay! Your daily life, reputation, and freedom are on the line and are too important to you for you to waste any time. Take action today and contact Mr. Beckett NOW for a FREE and confidential consultation about your case!