PROCESSES OF CRIMINAL LAW: BEFORE THE TRIAL Law 12

Apprehending Suspects occurs when police officers determine that an offense has been committed, and have identified a suspect on reasonable grounds police have three choices 1.Appearance Notice 2.Arrest 3.Warrant for Arrest

Appearance Notice states that name of accused, charge, and time/place of court appearance can be issued for summary convictions, hybrid offenses, or less serious indictable crimes when the officer believes that the accused will appear on the specified date to issue, police must swear an Information before a judge, presenting their reasonable grounds for believing the suspect committed the offense

Arrest involves police taking the suspect into custody used for more serious indictable offenses can occur without a warrant if there are reasonable grounds to believe an offense has been, is being, or is about to be committed if done without a warrant, police must swear an Information if a suspect resists arrest, the police are allowed to use as much force as necessary to prevent escape but, police are criminally liable for use of unnecessary force

Warrant for Arrest used when police can show that the accused will not voluntarily appear in court (otherwise, a summons is issued, ordering the accused to appear in court) describes the accused, lists offenses, and contains an order for their arrest – Generally used when police don’t know the whereabouts of a suspect; the warrant stands until the suspect is brought into police custody

Citizen’s Arrest Citizens have the same rights as police when it comes to arrests That is, if a citizen sees a crime committed, they are permitted to detain them for arrest And they are also allowed to use “minimal necessary force” in doing so Discouraged by police because of the dangers to the citizen

Rights During Arrests: Upon Detention a person who is being detained by police does not have to answer questions unless at a police check or being arrested detention should quickly lead to arrest; otherwise, the person should be free to go a citizen is allowed to use as much force as necessary to resist an illegal arrest or search but must be careful to use “minimal necessary force”

Rights During Arrests: Upon Being Arrested Charter, Sec. 10 -> anyone charged with a crime must be informed of the charge and their right to obtain a lawyer request to hire a lawyer must be honoured immediately; the accused must be given access to a telephone and be allowed to talk privately with their lawyers

accused does not have to answer any police questions without a lawyer present except: name, address, occupation, date of birth accused does not have to take part in a line up or polygraph test (a.k.a. lie detector test) accused does not have to provide DNA, blood, urine, or breath samples unless charged with impaired driving or the police have a warrant …Upon Being Arrested Cont’d

Police Rights Upon Arrest can search the accused for evidence, weapons, or anything that could help them escape custody and confiscate such possessions can take the accused to a police station police of the same sex as the accused may conduct a body search once they arrive at a police station

Search Laws – to look for evidence, police may want to search the accused’s residence, business, car, etc., but to do so, they must get a search warrant – use of electronic surveillance (phone tap, camera, etc.) requires a warrant Search Warrants: police must apply to a judge to get a search warrant, stating their reasonable grounds for believing that evidence is present where they want to search (in person or by phone/fax/ for a telewarrant)

Warrants – the details – warrants can only be used on the date they are issued for – the search can involve only areas and items identified in the warrant; – anything not listed in the warrant cannot be seized unless it is illegal a warrant allows police to enter a premise; if access is not granted or the resident is not home, police are allowed to force entry

Rules for Searches police must show their warrant to the resident or anyone who answers the door entry can be refused if the warrant is not correct police cannot search people present unless: 1) they arrest the person, or 2) they have reasonable ground to believe that the person possesses illegal substances or weapons police do not need a warrant if an individual gives consent for a search

Exceptions to Search Laws under the Controlled Drugs and Substances Act, police may search any non-residential premise if there are reasonable grounds to believe illegal substances or weapons are present anyone found in such a premise may also be searched without police obtaining a warrant if police stop a motor vehicle and have reasonable ground to believe an offense is being or has been committed, they may search the vehicle

Release Procedures once charges have been laid against the accused, they can often be released until their trial They can be released through two processes: 1.Judicial Release 2.Bail Hearing

Judicial Release the process where the officer in charge at a police station can release people charged with summary conviction, hybrid, or minor indictable offenses the accused must sign an Undertaking (list of conditions to follow) and attend their trial if the accused is likely to commit another offense or to not appear in court, they can be held for a bail hearing

Bail Hearing for people charged with offenses that carry a penalty of 5 or more years (or people not granted judicial release) Bail: an amount of money paid to the court as assurance that the accused will attend their trial if it is paid, the accused is released until trial if the accused fails to appear, the bail money is kept by the court people without enough money can instead be released on a Promise to Appear bail can be denied if the accused is considered likely to miss their court date or is a threat to public safety

Pretrial Procedures Disclosure: – a meeting between the defense lawyer and crown prosecutor – both sides reveal all of their evidence to each other – considered essential for the preparation of a proper defense Court Appearance: – the accused appears in court so that the judge can: – set the date for the next appearance – adjourn if needed for the accused to obtain legal advice, and – decide which court will hear the case, based on the type of offense

Pretrial Procedures Cont’d Pleas: – the accused states in court whether they are guilty of the charge read – guilty plea-> the accused can be sentenced immediately or held in Remand for up to 8 days while the judge determines an appropriate sentence – not guilty plea-> the judge sets a trial date and a Preliminary Hearing is held to allow a provincial judge to decide if there is enough evidence to proceed to trial

Pretrial Procedures Cont’d Resolution Discussions (plea bargaining): – accused is not required to attend but may be encouraged to do so by their lawyer – an opportunity for the accused seek a lighter sentence in exchange for pleading guilty, providing the police with desired information, etc.