The judicial process
It is important for a person charged with an offense in criminal law to understand the judicial process and its various stages in order to be better prepared for what’s ahead.
Moreover, it is the duty of the criminal lawyer to ensure that each client understands the process.It is therefore very important to consult us quickly following an arrest.
1. STAGES PRECEDING THE JUDICIAL PROCESS
a) The arrest
There are two types of arrest in criminal law, arrest with or without warrant.
The police officer may arrest without warrant
- a person who has committed an indictable offense or who, on reasonable grounds, he believes has committed or is about to commit an indictable offense;
- a person whom he finds committing a criminal offense; or
- a person in respect of whom he has reasonable grounds to believe that a warrant of arrest is in force
For example, with regards to a drinking and driving infraction, the police officer has the power to arrest an individual when he has reasonable grounds to believe that his driving ability was impaired by the effect of alcohol or drugs.
It is the criminal lawyer’s responsibility to examine the legality of the arrest. If the arrest is illegal, there are ways to challenge by setting the file to trial.
b) The detention
Following an arrest, the officer has the power (mostly discretionary, subject to exceptions) to release the person from custody or keep him detained.
When the police officer decides to release an individual from custody, he may do so in the following matter :
- release the person with the intention of compelling their appearance by way of summons;
- release the person on their giving a promise to appear;
- release the person on the person’s entering into a recognizance before the officer in charge and compelling their appearance by way of summons
If the police officer does release the person in custody, that person will remain detained until appearing before a judge in a courthouse or a municipal Court. It will then be the discretion of the Crown prosecutor to decide whether or not he objects to the release of the individual
If the Crown prosecutor objects, it is the duty of the defense lawyer to bring forth all the necessary arguments in what is know as a bail hearing in front of a judge.
2. THE JUDICIAL PROCESS
a) The appearance
The appearance is the first step of the judicial process. During this stage, the person represented by a lawyer does not generally need to be present.
This step is crucial, as it is the moment when the attorney get a copy of the evidence, containing the police report of the alleged infraction.
In the vast majority of cases and as commonly recommended, a non-guilty plea is registered and the file is postponed to a later date. The case is postponed to allow the lawyer to meet with his client, taking his side of the story, and to proceed with the study of the file in order to provide a clear legal opinion.
The meeting with the criminal attorney is essential to determine whether a defense can be invoked, in which case a trial date will be set, or if there is a possibility to avoid a cirminal record. If this is not the case, the defense attorney has a duty to mitigate the consequences of a guilty plea or conviction.
b) The trial and the sentence
If a trial is held , the parties shall respectively submit the evidence they have, after which a judge will determine whether the accused is guilty or not of the crime. The trial thus serves to bring to light the circumstances surrounding the alleged offense.
The burden of proof is on the prosecution. In other words, it is up to the Crown prosecutor to prove beyond a reasonable doubt that the accuse dis guilty.
It is important to note that many types of defense are possible, for example the violation of a right protected by the Charter, the absence of element(s) constituting the offense, or the absence of an intent.
Oral arguments are presented at the very end of the trial. It is during this step that the parties put forward the arguments supporting their respective positions.
Following this exercise, the judge will render his verdict. He will pronounce an acquittal, a conviction or a verdict of not criminally responsible by reason of a mental disorder.
If a guilty verdict is rendered, a sentence will be imposed. The lawyer representing the accused will then have the task of minimizing the consequences of this sentence on his client.
c) The settlement of the file and the sentence
When a trial is not possible under the circumstances, the accused will eventually register a guilty plea in his file. Once the plea is entered, a sentence will be imposed.
At this stage, the work of a criminal lawyer is crucial, as it involves negotiating with a crown prosecutor in order to come to an agreement on a fair and appropriate sentence. It is also at this stage that the criminal lawyer does everything in his power to prevent his client from obtaining criminal record, when possible.
If an agreement is reached, the joint submission will be presented to the judge, who must accept it unless he or she believes that the sentence is unreasonable.
If no agreement is reached, the parties will each plead a sentence they consider appropriate in the circumstances. The judge then has the discretionary power to impose the final sentence, taking into consideration the nature of the offense and the situation of the accused.
Before you even think a sentence being imposed, note that counsel has several options to prevent his client’s criminal record.
Before imposing a sentence, note that several options are available to the attorney in order to prevent a criminal record for his client.
Talk to our lawyers to evaluate your chances of benefiting from an absolute or conditional discharge, settle the file via article 810, obtain a complete withdrawal of charges or transform your criminal offense into a penal infraction.