Procedure

Procedure from Arrest to Trial

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 to lay a charge

Indictable offences no statute of limitations for as long as the accused lives

Summary conviction offences 6 months

First AppearnaceCalled an Arraignment

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 Either released on own recognizance or

remanded in custody

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 BargainingAccused 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

1) Enter Plea either guilty, not guilty or a special plea

2) Elect court and type of trial - (if given a choice) A) No choice

a) Most Serious(e.g. murder) Must be in superior court Must be a jury trial

b) 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

1) Superior court - judge and jury 2) Superior court - judge alone 3) Provincial court - judge

Case will be dealt with sooner

Choose Judge or Jury

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

Case Remanded

Prepare case Gather evidence research similar cases (persuasive precedents)

Preliminary Hearing

Which Court?: Provincial

Purpose of: 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.

Note: if defence calls the accused the transcript of the preliminary can be entered as evidence later at trial

Preliminary Hearing continued

Results of: Judge either rules:

eitherstay of proceedings or committal for trial defence learns strengths and weaknesses of

crown’s case could 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

Remand for Trial

Prepare for trial - more research etc.

Trial begins with the selection of the jury

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

Juries Exemptions

Exemptiions: 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)

Types of challenge Challenge for cause (unlimited number)

“not indifferent” too closely related (case p 223) Peremptory challenge (no reason given)

20 for murder, 12 if max > 5 years, 4 if max = 5 years

Facts about juries

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 (case p 247)