This is an overview of what happens when you are arrested and charged with a crime in Canada.
Arrest: an arrest is when you are formally taken into custody for the purpose of holding or detaining you in relation to a service offence or a criminal matter.
At this time you have not necessarily been charged with a crime.
This is a depravation of your liberty and you have certain rights when you are arrested:
- You have the right to be informed without delay:
- That you are under arrest
- The reason for your arrest
- That you have the right to get and instruct a lawyer
- That you have the right to free and immediate advice from duty counsel and how to get ahold of them
- You have no obligation to talk to the police. (DO NOT SAY ANYTHING)
Charged with an offence: After you are arrested you will either be charged with an offence or you will be released.
Released on a promise to appear: For many less serious crimes after you are charged with an offence you will be asked to sign a document promising to appear in Court. This may or may not include conditions such as: you cannot be in possession of any weapons, you cannot contact a particular person, or you cannot attend a particular location. You will have your photographs and finger prints taken and then once you sign a promise to appear you will be allowed to leave. At this time you will have pending criminal charges and a date for your first court appearance. Between your release and your first court appearance it is important to abide by all of the conditions set out in your promise to appear. If there are extenuating circumstances that require you to breach these conditions reach out to the Crown and they can often be amended if there is a good reason and this is much better than breaching your conditions.
While you are waiting for your first appearance you can begin seeking out legal counsel and have your lawyer reach out to the Crown for your disclosure.
Disclosure is all of the evidence that police have that they will use in your trial. You have right to have everything that the police have whether it would help your case or hurt your case. This will help you to know how good the case against you is and allow you to have the best defence possible if you go to trial.
Detained on Remand: If your are charged with a more serious crime you will be kept in custody while your matter is being resolved. This doesn’t mean that you will stay in jail until you are found guilty or not guilty but it means that you will have to have a bail hearing to determine whether or not you can be released while you await trial.
Bail Hearing: The purpose of bail hearing is to determine whether or not you can await your trial in the community or if you need to remain in custody. You have the right to have a lawyer at your bail hearing.
At a bail hearing the Judge will determine whether denying bail is necessary to:
- Ensure your attendance in Court
- For the protection or safety of the public
- Maintain confidence in the administration of justice
Court Appearance: This begins the Court Process and there will be a process whereby you or your lawyer appear in Court every few weeks to inform the Court of the progress. During this procedure you or your lawyer will discuss the case with the Crown, the Crown will make decisions about what charges they intend to proceed with, and you will sometimes make decisions about things like whether you want your case to be heard by Judge alone or a Judge and Jury.
As this process moves forward there will likely be attempts to settle your matter without going to trial this may involve your lawyer discussing the case with the Crown and the Crown deciding there is insufficient evidence to proceed or making you an offer to plead guilty to a lesser offence or a lesser sentence.
If the Crown does not proceed the charges are stayed and the process is over. If you plead guilty you will go before the Court and plead guilty. There will then be a sentencing hearing, if the Crown has offered you a deal on sentencing it is important to remember that they are only making a recommendation to the Judge. If the Crown and your Counsel both ask for the same sentence the Judge will usually comply but this is not a guarantee.
Pleading: Once you and your Counsel have had a chance to review the disclosure and talk to the Crown you will go before a Judge and plead guilty or not-guilty. If you plead guilty you will skip ahead to sentencing. If you plead not-guilty the Court process will continue.
Election: If you plead not guilty you will have some choices to make. If you are charged with a summary offence, or less serious offence you will automatically go to trial and provincial court and then to sentencing if found guilty. If you are charged with an indictable, or more serious offence then you can choose if you want to go to provincial court with a Judge alone, Queen’s Bench with a Judge alone, or Queen’s Bench with a Judge and Jury. And lastly if you are charged with an indictable offence and you want to go to Queen’s Bench you can choose to have a preliminary hearing or not.
Preliminary Hearing: If you are charged with an indictable offence, or offences that are considered the most serious, you are entitled to a preliminary hearing. The purpose of a preliminary hearing is for the Crown to test their evidence and determine if there is “some evidence” that could lead to conviction at trial. If the Judge finds there is “some evidence” you will be committed to stand trial. If there is not “some evidence” you will be discharged.
If you are charged with an indictable offence you get to choose whether you would like to have a preliminary inquiry. There maybe many strategic reasons to have or not have a preliminary hearing and it is best to make this decision with your legal counsel.
Provincial Court: If you are charged with a summary offence (a less serious offence) your trial will be before a Judge at the Provincial Court. There will be no preliminary hearing, but you are still entitled to all of the evidence that the Crown has and you or your lawyer will have a chance to discuss the case with the Crown before the trial.
Court of Queens Bench: If you are charged with an indictable offence, you will get to choose whether you would like to proceed in provincial Court with a Judge alone, at the Court of Queen’s Bench with Judge alone, or the Court of Queen’s Bench with a Judge and Jury.
The Court of Queen’s Bench also hears appeals from the Provincial Court.
Sentencing: If you are convicted with a crime there will be a separate hearing held after to determine your sentence. There are some sentences that have a mandatory minimum sentence and others have a typical range. There are a number of factors that the Court will look at only at the sentencing stage. These are typically called aggravating and mitigating factors:
Mitigating factors are things like no criminal record, remorse, strong community supports, age, and life circumstances.
Aggravating factors are things like a criminal record, a lack of remorse, vulnerability of the victim. These will not make your sentence longer but they will cancel out mitigating factors.
For Indigenous offenders the Court’s will also look at the impacts of systemic circumstances and they will be treated as a mitigating factor in sentencing, this is known as Gladue Factors, and there maybe a Gladue report done up addressing these factors.