The Judicial Process
It is important for a person charged with a criminal offense to understand the judicial process and its various stages in order to be better prepared for what’s ahead.
Moreover, it is the duty of the criminal lawyer to ensure that each client understands the process. It is therefore very important to consult us quickly following an arrest.
1. STAGES of THE JUDICIAL PROCESS
a) The Arrest
There are two types of arrest in criminal law, arrest with or without warrant.
The police officer may arrest without warrant
- a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
- a person whom he finds committing a criminal offence; or
- a person in respect of whom he has reasonable grounds to believe that a warrant of arrest is in force
For example, with regards to a drinking and driving offence, the police officer has the power to arrest an individual when he has reasonable grounds to believe their ability to drive was impaired by the effect of alcohol or drugs
It is the criminal lawyer’s responsibility to examine the legality of the arrest. If the arrest is illegal, there are ways to challenge it during a trial.
The police then submit a report on their investigation to the criminal and penal prosecuting attorney, who will decide if there is enough evidence to charge the individual / the person.
b) The Detention
Following an arrest, the officer has the power (mostly discretionary, subject to exceptions) to release a person from custody or keep them detained.
When the police officer decides to release an individual from custody, he may do so in the following matter :
- give the person / them an appearance notice;
- have the person / them sign a promise to appear, and then give you a copy; or
- ask the person / them to enter into a recognizance.
If the police officer chooses not to release the person in the custody , that person will remain detained and appear before a judge in a courthouse or a municipal Court within 24 hour or as soon as possible if the judge is not available. It will then be at the discretion of the Crown prosecutor to decide whether or not he objects to the release of the individual
If the Crown prosecutor objects, it is the duty of the defense lawyer to bring forth all the necessary arguments in front of a judge in what is known as a bail hearing .
2. THE JUDICIAL PROCESS
a) The appearance
The appearance is the first step of the judicial process. During this stage, the person represented by a lawyer does not generally need to be present.
This step is crucial, as it is the moment when the lawyer will get a copy of the evidence, containing the police report of the alleged infraction.
In the vast majority of cases and as commonly recommended, a plea of non-guilty will be entered and the case will be postponed to a later date. The case is postponed to allow the lawyer to meet with the client, hear their side of the story, and further study the file in order to provide the best legal advice.
The initial meeting between a client and their criminal lawyer is essential to determine whether a defence can be invoked, in which case a trial date will be set, or if there is a possibility of avoiding a criminal record. If this is not the case, the defense lawyer has a duty to mitigate the consequences of a guilty plea or conviction.
b) The trial and the sentence
If a trial is held, both the crown and the defence will submit the evidence and favorable arguments submit evidence, after which a judge will determine whether the accused is guilty or not of the crime. The trial thus serves to bring to light the circumstances surrounding the alleged offence.
The burden of proof is on the prosecution. In other words, it is up to the Crown prosecutor to prove beyond a reasonable doubt that the accused is guilty.
It is important to note that many types of defences are possible, for example the violation of a right protected by the Canadian Charter of Rights or the absence of essential element(s) constituting the offence, such as the lack of intent to commit the crime.
Oral arguments are presented at the very end of the trial. It is during this step that the parties put forward their arguments supporting their respective positions.
Following these closing arguments , the judge will render a verdict. The judge will pronounce either an acquittal, a conviction of guilt or a verdict of not criminally responsible due to a mental disorder at the time of the offence.
If a guilty verdict is rendered, a sentence will be imposed. The lawyer representing the accused will then have the task of minimizing the consequences of this sentence on their client.
c) Settlement: a Guilty Please and the sentence
When a trial is not possible under the circumstances, the accused will eventually enter a guilty plea in their case. Once the plea is entered, a sentence will be imposed.
At this stage, the work of a criminal lawyer is crucial, as it involves negotiating with a crown prosecutor in order to come to an agreement on a fair and appropriate sentence. It is also at this stage that the criminal lawyer does everything in their power to prevent their client from having a criminal record, when possible.
If an agreement is reached, the joint suggestion will be presented to the judge, who will accept it unless he or she believes that the sentence is unreasonable.
If no agreement is reached, the parties will each plead a sentence they consider appropriate in the circumstances. The judge then has the discretionary power to impose the final sentence, taking into consideration the nature of the offence and the situation of the accused.
Before imposing a sentence, note that several options are available to the lawyer in order to prevent a criminal record for their client.
Talk to our lawyers to evaluate your chances of benefiting from an absolute or conditional discharge, settling the file via article 810 of the criminal code, obtaining a complete withdrawal of charges or converting your criminal offence into a penal infraction.