Court and trial Learn about the roles of key participants, including judge and jury, in the court process and learn what happens in court and at trial. Entering a plea and plea agreements Learn what happens at the beginning of the trial process. Roles of people in the court Learn about the roles of key participants, including judge and jury, in the court process.
Criminal offences Learn about different categories of criminal offences and how each is handled by the court. Young offenders Learn who is considered a young offender and how the Youth Criminal Justice Act is applied. Trial Learn about the various stages and elements of a trial. The issue at the preliminary hearing is not to determine innocence or guilt but to determine whether there is sufficient evidence to justify a trial.
If it is decided sufficient evidence exists, the accused will be ordered to stand trial in the higher court by the magistrate.
There is no specific time limitation regarding when an accused must be charged with an indictable offence, although the Canadian Charter of Rights and Freedoms requires that, once charged, the accused be tried within a reasonable time.
The maximum punishment for each indictable offence is set out in the Criminal Code and varies from offence to offence. Whether an accused is charged with a summary conviction offence or an indictable offence, he is eventually called upon to state in open court whether he pleads guilty or not guilty. If the plea is not guilty, the case will proceed to trial; if guilty, then a sentencing will take place before the judge who received the plea.
There are several procedural rules as to how guilty pleas may be entered and how a judge may sentence an accused. In all criminal cases, both the accused and the Crown may have statutory rights of appeal against the determination of guilt or innocence, as well as sentence. Once again, there are many procedural rules governing appeals. There are different theories concerning the best method of achieving a balance between the control of crime and the protection of individual rights.
In Canada, England and the US, an adversarial or accusatorial system is used, in contrast to the inquisitorial system practised in France and other European countries.
Canadian procedural rules are therefore designed to support the adversarial system in which the proceeding is a dispute between the state or Crown and the defendant or accused. As has been indicated above, the parties appear before an independent arbitrator, either a judge or jury, who must determine whether the accused is guilty or not guilty.
Both parties are responsible for gathering and presenting evidence. The arbitrator is expected to play a relatively passive role, maintaining an impression of independence and impartiality, and ensuring that the rules of procedure are observed. In contrast, the inquisitorial system is a judicial inquiry. The responsibility for investigating and bringing out the facts rests upon the decision maker.
The parties' roles are restricted to ensuring that their interests are properly represented during the trial. The adversarial system and the procedural rules which comprise that system unquestionably favour the accused to a greater degree than the inquisitorial system. The Crown generally has the burden of adducing evidence to prove the guilt of the accused, who is almost always entitled to a presumption of innocence until the Crown has proven otherwise beyond a reasonable doubt.
The accused is not required to give evidence and the court must acquit him if the Crown has not proven its case. If the accused elects not to give evidence or call witnesses, he through his counsel is still actively involved in the trial through cross-examinations of crown witnesses. This is very different from the inquisitorial system in which the accused is generally subjected, without election on his part, to extensive questioning but is otherwise inactive in the process. Nevertheless, certain principles are common to both systems, including the requirements that trials be public, that determinations be based on evidence presented in open court, and that the accused is presumed innocent until proven guilty.
However, even though both systems share these fundamental principles, there are differences in the manner in which they are applied. They may apply to a Judge for a search warrant to further their investigation.
The police attempt to arrest the client. The client becomes aware that the police are interested in them. The client contacts our office to ascertain the nature of the charges and to arrange for their surrender at a convenient time when they are in a position to proffer a strong bail application. The client is arrested. The client is either released from the police station or is held for a bail hearing.
The client is released after a bail hearing. After a period of days, weeks, and sometimes months, disclosure is provided by the Assistant Crown Attorney.
Defence counsel meets with an Assistant Crown Attorney to discuss the possibility of resolving the case prior to trial. If there is going to be a trial, trial issues and the anticipated duration of the trial are discussed.
If a resolution is agreed upon, the case will be adjourned for as long as it takes for the proposed resolution to be achieved. If the case cannot be resolved through negotiation, then a trial date will be set. If the estimate for the length of the trial is a day or longer, then all parties must attend a judicial pretrial prior to setting the trial date. Defence counsel meets with a Judge and the Crown Attorney who has carriage of the case, privately, to discuss outstanding issues relating to the case.
The presiding Judge ordinarily makes some effort to resolve outstanding issues and often attempts to bring the parties closer to a resolution of the case so that a trial is unnecessary.
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