The Criminal
Case: Step-by-Step
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Investigation
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Laying a Charge
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Deciding whether to prosecute
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Requiring the accused to attend court,
entering a plea and bail
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Types of offences
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Choice of trial court and election by accused
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Preliminary inquiry
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Plea negotiations
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Trial
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The verdict
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Sentencing
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Appealing the verdict or sentence
A crime is committed.
Leads are followed, evidence is gathered, and a suspect is charged with
the offence. The criminal legal process begins.
For the victims of crime, their families and the
community, the complexity of the Canadian criminal justice system can
often seem difficult and frustrating. This
page takes you step-by-step through a Canadian criminal case.
It explains the process clearly and simply to help you to understand, in
a general way, how a Canadian criminal prosecution works. 1. Investigation
The police conduct criminal investigations. Investigations
begin when police witness behaviour or receive information about
behaviour which may be a crime. Some criminal investigations
are completed quickly. Others take weeks, months, or, in complex
matters, years to complete.
2. Laying a charge
The decision to lay a charge rests with the police. If, based
on reasonable grounds, the police believe a person has committed a
crime, they may lay a charge. They must consider all evidence
against the accused, witness statements, case law, burden of proof
and other variables.
When the police lay a
charge, they complete an information package describing all the
evidence and deliver a package to the Crown attorney. The
accused person or, more often, the accused person's lawyer, also
receives a copy of the information package. The court receives
a list of charges against the accused person from the police.
3.
Deciding whether to prosecute
The Crown attorney is responsible for deciding whether to proceed
with charges against an accused person. He or she is required
to prosecute cases fairly and treat all parties in the case,
including victims, witnesses and the accused, in a fair manner.
He or she must also consider the public interest in making a
decision. The Crown attorney must answer two very important
questions:
- Is there a
reasonable likelihood of conviction?
- Is it in the
public interest to proceed?
If the answer to
both of these questions is yes, the Crown attorney will
prosecute. If the answer to either or both of these
questions is no, the Crown attorney will not prosecute. In
this way, the Crown attorney exercises prosecutorial discretion.
Another element of this discretion is that the Crown attorney
may decide that it is not beneficial to proceed with all the
charges against the accused. In that case, some of the
charges may be dropped.
4.
Requiring the accused to attend court, entering a plea and bail
Most people charged with a crime receive a document by the
police advising them of the date and courtroom where and when
they are required to appear to answer to the charge. Sometimes,
the crime is very serious or the accused person has a criminal
record. In these cases, the accused person may be held in jail
until his or her first court appearance.
If the accused person is held in jail,
there may be a bail hearing held to determine whether he or she
should be released or held until trial. In determining whether
to oppose the accused person’s release on bail, the Crown
attorney must consider the public interest and the need to
promote confidence in the administration of justice. Before
making this decision, the Crown attorney will consider all
necessary and relevant information. His or her decision must be
based on legal considerations, government policies and public
safety. In most cases the Crown attorney must show cause why
detaining the accused in custody is justified. If the judge
decides to release an accused person, the accused may be ordered
to obey certain conditions. For example, the accused may be
required to follow a curfew or not have any contact with victims
or witnesses. The accused person could be charged with a
further offence if he or she fails to obey these conditions.
5. Types of offences
Offences are set out in the Criminal Code and divided into
two broad types: summary and indictable. In some cases, the
Crown can decide whether to proceed summarily or by way of
indictment. Summary offences tend to be less serious ones and
indictable more serious.
6.
Choice of trial court and election by accused
If the accused is charged with a summary offence, his or her trial
will be in the provincial court before a judge.
If the accused is charged with an indictable
offence and the offence is not within the jurisdiction of the provincial
court, the accused can choose which court will hear the case. The
accused may choose to be tried by a provincial court judge without a
jury and without a preliminary inquiry; by a Queen’s Bench justice
without a jury, or, by a Queen’s Bench justice and jury.
7.
Preliminary inquiry
A preliminary inquiry (or preliminary hearing) may be held before
the trial to find out if there is enough evidence to go to trial.
Preliminary hearings allow the defence to hear the prosecution’s case.
During the hearing, the Cown attorney and the defence lawyer may call
and cross-examine witnesses. If the court is satisfied that sufficient
evidence exists, a trial date is set. If not, the accused is discharged
and the case is closed.
8.
Plea negotiations
The outcome of a trial is never certain. Each case has strengths
and weaknesses. The Crown and defence may agree on a charge to which
the accused will plead guilty or the sentence that will be recommended
to the judge. This process is referred to as plea negotiation. The
victim benefits from a plea negotiation because a conviction is assured
and the victim is spared the emotional trauma of testifying and being
cross-examined by the defence. These are important considerations for
the Crown attorney in negotiating with the defence. A plea can be made
at any time up to and during the trial. The judge makes the final
decision to accept or reject any pleas that has been negotiated.
9.
Trial
A trial gives the prosecution and the defence an equal opportunity
to present their evidence. The judge decides whether the evidence
proves beyond a reasonable doubt that the accused is guilty of any or
all of the charges. A basic principle of Canada’s justice system is
that the accused is innocent until proven guilty.
The trial begins with the prosecutor presenting the
evidence against the accused. This is done by calling witnesses and
introducing materials as evidence to support the charges. Each witness
called for the Crown is asked questions by the Crown attorney. This is
called direct examination or examination-in-chief. The defence is then
given an opportunity to question the prosecutor’s witness and present
evidence favouring the accused. It is called cross-examination.
After cross-examination, the prosecutor may
question the witness again. This is done if the witness's evidence needs
to be clarified or if a new issue has been raised by the prosecutor and
could not have known about before the trial. This is called redirect
examination. During redirect examination, the prosecutor may only
question the witness about matters brought up by the defence during
cross-examination.
Once the Crown has presented all its evidence, the
defence presents its case. The defence may not present any evidence at
all. If the defence chooses to present evidence, witnesses are called.
The Crown can cross-examine the defence witnesses and the defence may
redirect after the prosecutor’s cross-examination based on the evidence.
After all witnesses for both sides have given their
evidence, the prosecutor and defence counsel may sum up their case.
Each side gives reasons why the accused should or should not be
convicted. The court then decides to convict or acquit the accused.
In a jury trial, the judge decides what evidence
the jury will hear and instructs the jury on the law that applies to the
case. The jury decides on the facts and determines guilt. In trials
without a jury, the judge applies the law and decides whether the
accused is guilty or not guilty.
10.
The verdict
Once the judge or jury has considered all the evidence, three
results are possible: guilty, not guilty or, in the case of a jury
trial, a hung jury. A hung jury means the jury was not able to reach a
unanimous decision and jury members do not believe one can be reached.
In this case, a judge may order a new trial with a new jury or without a
jury.
If the judge or jury find the accused not guilty,
the accused is free to go and cannot be tried again on the same charge,
unless the Crown attorney appeals and the appeal court orders a new
trial. If the accused is found guilty, the judge may sentence the
accused immediately or set a later date for sentencing.
11.
Sentencing
The judge decides the sentence. In making the decision, an
independent assessment of the background of the case or a pre-sentence
report may be asked for by the judge. The Crown attorney and defence
lawyer may make sentencing recommendations. The judge considers these
recommendations but it is the judge who makes the final decision on the
sentence.
12.
Appealing the verdict or sentence
An appeal is a request to a higher court to change a verdict, a
sentence or some other decision made by a lower court. For more
information on courts in Manitoba
click here. The Crown attorney may
appeal a verdict of not guilty or a sentence he or she believes does not
fit the crime. The defence lawyer may appeal a verdict of guilty or a
sentence he or she believes is too harsh. Appeals cannot be made just
because the Crown attorney or defence lawyer doesn’t like the
decision. Appeals must be based on errors made by a trial judge on a
point of law.
It is important to note that the minister of
justice and attorney general for Manitoba cannot change a court
decision. A court decision can only be changed by an appeal to a higher
court.
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