Procedures After Arrest Pre-Trial Procedures Procedures After Arrest CLU3M

Laying a charge Arrest - Formally charged with a criminal offence, taken to the station to be booked Or 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 a duty counsel is a lawyer paid by Legal Aid Ontario who provides limited legal services in criminal matters to people who arrive at court without representation, The onus is generally on the Crown to show cause why the accused should not be released (a bail hearing is also called a "show cause" hearing). In some situations, the onus is switched and it is the accused who must show cause why he should not be detained. For example: if he is charged with an indictable offence allegedly committed while he was on a release for an earlier indictable charge that is still pending, e.g., a driver facing an impaired driving charge who is charged with a new drinking and driving offence; a person facing an assault charge who is arrested on another assault charge (if the Crown has elected summarily on the first charge, it is no longer considered indictable and it is the Crown that must show cause) if he is charged with an indictable offence and is not ordinarily resident in Canada if he is charged with failing to comply with a condition of a recognizance or undertaking, or failing to attend court or appear for fingerprinting, while he was on release for an earlier charge that is still pending if he is charged with trafficking or possession for the purpose of trafficking in heroin, cocaine, more than three kilograms of marijuana or hashish, or importing any amount of these drugs

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

Second Appearance Enter Plea either guilty, not guilty or a special plea Elect court and type of trial - (if given a choice) 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) Crimes for which the accused does have a choice of type of trial: If maximum in the criminal code is 5 years or more Superior court - judge and jury Superior court - judge alone Provincial court – judge (Case will be dealt with sooner)

Advantages of Jury Trial Juries more easily manipulated than a judge by a good lawyer Time delays Prepare case More time to reform witnesses become less reliable Chance of 1 of 12 rather than all or nothing

Advantages of Judge Alone Trial Judges are more predictable not swayed by emotions not influenced as easily by lawyers Many cases too technical for juries 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: stay of proceedings Or 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: to base verdict solely on the evidence advised not to read papers or watch TV news Will come to a verdict in good conscience