Pre-Trial Procedures

Procedures After Arrest

CLU3M

Laying a charge

1. Arrest - Formally charged with a criminal offence, taken to the station to be booked

Or

2. Appearance Notice - Ordered to appear at court on a specific date to answer to a charge

How long do police have to lay a charge? Indictable offences no statute of limitations for

as long as the accused lives Summary conviction offences 6 months

The Arraignment

First appearance in court Charge formally read in front of a Justice of

the Peace Test the validity of the arrest

Accused is advised to obtain counsel Duty counsel could assist in this regard

Crown might request a show-cause hearing (A.K.A. Bail Hearing) Either released on own recognizance or

remanded in custody

Pretrial Release

Bail – a temporary release of an accused who posts money or some other security to guarantee his or her appearance in court Must be held before a

Justice of the Peace within 24 hours of an arrest

Surety – a person who agrees to make a payment if the accused does not appear at trial

Case Remanded

This means the case is put off until a later date if hybrid - charge is classified crown elects - either summary conviction or

indictable Crown could drop the charges if not enough

evidence (case ends at this point)

Plea Bargaining

Benefits shorter trials saves money provides police with valuable

information Certainty of accused at least

being guilty of something

Criticisms Criminal gets off easy

public loses confidence public becomes cynical

Equity Is it fair to others who

aren’t offered a plea bargain

Victims are not consulted Court system seen as easily

manipulated Police tend to overcharge

Accused agrees to plead guilty to a less serious charge if the crown drops the more serious charge e.g. Murder to Manslaughter

Second Appearance

1. Enter Plea either guilty, not guilty or

a special plea2. Elect court and type of

trial - (if given a choice)A. No choice Most Serious (e.g.

murder) Must be in

superior court Must be a jury

trial Least serious (s. c. and

indictable< five years) must be in

provincial court (judge alone)

If maximum in the criminal code is 5 years or more

1. Superior court - judge and jury

2. Superior court - judge alone3. Provincial court – judge

(Case will be dealt with sooner)

Crimes for which the accused does have a choice of type of trial:

Advantages of Jury Trial

1. Juries more easily manipulated than a judge by a good lawyer

2. Time delays Prepare case More time to reform witnesses become

less reliable

3. Chance of 1 of 12 rather than all or nothing

Advantages of Judge Alone Trial

1. Judges are more predictable not swayed by

emotions not influenced as

easily by lawyers

2. Many cases too technical for juries

3. Judges must give a reason for their verdict

Preliminary Hearing

Provincial Court, Criminal Division To determine if there is enough evidence for

a trial to be held in a higher court Procedure: charge read, plea entered,

witness examined, cross-examined and reexamined, defence could call witnesses (e.g. to establish an alibi), lawyers sum up, Judge rules.

Outcome: Preliminary Hearing

Judge rules:

a) stay of proceedings Or

b) committal for trial defence learns strengths and weaknesses of crown’s

case can enter a new round of plea bargaining

Direct Indictment Crown applies for this. Skip the Preliminary Hearing

and proceed directly to trial Note: Accused could waive right to a preliminary

hearing

Jury Selection

Regulations: must be: 18 years old,

Canadian citizen, never convicted of an indictable offence

can’t be: a lawyer, judge, police officer, prison guard, coroner, student at law, spouse of a lawyer or a police officer, medical doctor, Veterinarian, firefighter, MP, MPP, senator, member of the armed forces, suffering from a mental disorder

Exemptions: recent duty over 70 physical disability interfering

with capacity to act as a juror

Jury Selection Procedures

Names taken from municipal voting lists

100 to 150 people summoned to court

Court clerk spins revolving drum

Names called lawyers say either

challenge (not accepted) or content (accepted)

Jury Selection Procedures (cont…)

responsible for verdict supreme on facts (their

interpretation of the facts overrides all others)

12 members Must be unanimous

(otherwise dismissed as a hung jury)

Can function as 11 or 10 if jurors can’t continue

Sequestered - isolated - all juries when deliberating- some juries throughout the trial - in high publicity cases

Juror’s duty

Jurors Oath:

1. to base verdict solely on the evidence advised not to read

papers or watch TV news

2. Will come to a verdict in good conscience