Hiring Legal Representation
If an accused has been charged with a criminal offence, legal representation should be hired, regardless of if the accused is innocent. A mere allegation that someone committed an offence is enough for the police to lat a charge, or at the very minimum, begin to seriously investigate someone. Unfortunately, asserting innocence and simply telling the police "I didn't do it, I'm innocent" is not enough to avoid being arrested or for an investigation to conclude.
Without having legal representation to address the charges, an accused can be brought to trial where the outcome is dependent upon credibility between the complainant and the accused. The prosecutor can and will be using their legal skills throughout and it is important to have someone equally as knowledgeable defining these charges. The consequences that can be faced are serious and it is inadvisable to act on your own behalf when being faced with criminal charges.
An investigation is begun when the police either witness criminal behaviour or receive information about potential criminal behaviour. The length of the investigation process depends - someare completed quickly while others can take months, or even years to complete.
Laying a Charge
If the police have reasonable grounds to believe that a person has committed a crime, they can lay a charge. The police then complete an information package to deliver to the Crown Attorney, which outlines all of the evidence. The accused (or their legal representative) receive a copy of the information package. The Court receives a list of charges laid against the accused person.
Deciding Whether to Prosecute
If the Crown Attorney belives that there is a reasonable likelihood of conviction and that prosecuting is in the public interest, they will prosecute. The Crown Attorney does not have to prosecute all of the charges against the accused and can drop some of them if they do not believe they are beneficial.
Requiring the Accused to Attend Court, Entering a Plea and Bail
In many circumstances, an accused will receive a document informing them of the date and courtroom where they are required to appear and answer to the charge. In situations where the charges are serious or there is a pre-existing criminal record, the accused may be held in custody until the first appearance.
If the accused is held in jail, a bail hearing may be held to determine whether or not they should be released or held. If the judge determines the accused can be released, there may be an order that certain conditions are obeyed.
Choice of Trial Court and Election by the Accused
If the accused is charged with a summary offence, the trial will be held before a judge in the provincial court.
If the accused is charged with an indictable offence that is not within the jursdiction of the provincial court, the accused may choose which court will hear the case and whether or not there is a jury.
A preliminary inquiry/hearing may be held to determine whether there is sufficient evidnece to proceed to trial. If there is sufficient evidence, a trial date is set. If there is insufficient evidence, the accuse is discharged and the case is closed.
Plea negotiation a process where the Crown and defence agree on a charge that the accused will plead guilty to and a sentence is recommended to the judge. The judge has the ultimate decision to accept or reject a plea and they can be made at anytime up to and during the trial.
A trial provides the prosecution and the defence an equal opportunity to prevent their evidence. The judge (or jury) decides whether or not the evidence proves that the accused is guilty of any or all of the charges beyond a reasonable doubt.
Once all of the evidence has been considered, there are three possible options:
- Guilty: the judge may sentence the accused immediately or set a later date for sentencing
- 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
- A hung jury: the jury was unable to reach a unanimous decision
In situations of a hung jury, the judge may order a new trial without a jury, or with a new jury.
The judge determines the sentence based on an assessment of the case and/or a pre-sentence report. In addition, the Crown Attorney and the defence may make recommendations.
Appeals must be based on errors made by the trial judge on a point of law, not because the Crown Attorney or defence representative do not like the outcome. Appeals can only be made to higher courts.