CRIMINAL JUSTICE SYSTEM PROCESS

ARREST  —  RELEASE  —  DOCKET COURT  —  TRIAL  —  SENTENCE

 

  1. ARREST

  • An offence occurs. Police investigate.  Someone gets arrested and charged.
  • The person accused of the offence is referred to as “the accused.”

  1. RELEASE?

  • The accused is either released or detained (not released).
  • The accused can be released by the Police, by a Justice of the Peace, or by a Judge.

s.515 – Judicial Interim Release

  • If the Police and/or the Crown are opposed to release, then the accused is entitled to a “Show Cause Hearing” (aka: a Bail Hearing).s.515(1) Presumption of Release:  In general, the accused must be released, unless the Crown “shows cause” (good reasons) why the accused should not be released.s.515(6) Reverse Onus:  However, if a person is accused of committing a crime, while on release for another alleged crime (or under other specified circumstances), then the presumption of release is lost.  In that case, the accused must be detained, unless the accused “shows cause” (good reasons) why s/he should not to be detained.s.515(10) Grounds for Detention: 
    • Primary Grounds (flight risk): The accused may be detained if necessary to ensure his/her attendance at future court dates.  Factors include: History of failing to attend court; Ties to the community (home, family, employment…), etc.
    • Secondary Grounds (likelihood to re-offend): The accused may be detained if necessary to protect the public.  Factors include:  History of failing to comply with court orders; History of committing offences (especially similar offences); etc.
    • Tertiary Grounds (public confidence): The accused may be detained if necessary to maintain confidence in the administration of justice.  Factors include:  Strength of Crown’s case & likelihood of a conviction; Gravity of the offence; Use of a firearm; Likelihood of a lengthy jail sentence if convicted; etc.

  1. DOCKET COURT / CMO (Case Management Office)

  • Whether the accused was released or detained, the matter will be scheduled for an appearance in docket court.
  • NOTE: This is not a hearing! This is not the time to submit evidence or to explain your side of the story to the judge.  This is merely a filter court.
  • At this stage of the proceedings, the court simply wants to record a plea: Guilty or Not Guilty.
    • If the plea is “Not Guilty,”, then the matter will be scheduled for trial at a later date.
    • If the plea is “Guilty,” then the matter will be scheduled for a sentencing hearing at a later date.
  • If you are not prepared to enter a plea yet, then your matter will be adjourned to a later date.
  • Circumstances that may justify an adjournment:
    • The investigation is not yet complete and/or the Crown is awaiting additional information or evidence in relation to your case;
    • Disclosure (the evidence in your case) is not yet available;
    • Disclosure in incomplete (Ex: missing a witness statement, police notes, audio or video recording, forensic results, etc.);
    • You need more time to review the disclosure and to consider your plea;
    • You need more time to seek legal advice or to hire a lawyer;
    • Your lawyer or the Crown needs more time for whatever reason;
    • You are pursuing resolution discussions with the Crown;
    • You are being considered for an alternative resolution, such as the Alternative Measures Program, Mental Health Diversion, a Peace Bond, Drug Treatment Court, etc.
    • You want to schedule a hearing date, but the Crown’s dates are not yet recorded in the system;
  • Other actions that may be undertaken in docket court include:
    • Executing or vacating a warrant for arrest;
    • Speaking to release;
    • Re-opening bail to amend release (to add or delete conditions);
    • Rescheduling a previously scheduled trial or sentencing date;
    • Filing paperwork, such as: a Designation of Counsel, an election or a re-election;
    • Counsel applies for a direction of the court regarding a substantive or procedural issue;
    • Crown replaces the information with new charges and transfers process;
    • Co-accused are joined onto the same information, or split up into two or more separate informations;
    • Crown withdraws the charges or enters a Stay of Proceedings;
  • Essentially, docket court is merely for procedural and administrative purposes.

  1. TRIAL

  • If you entered a plea of “Not Guilty,” then this is when the Crown is required to prove the charges against you. It is also the time for you to question the evidence against you, to cross-examine the witnesses, and to testify if you wish and present your defence.
  • Trial Procedure:
    • The Crown must present evidence to support each and every element of each and every charge against you.
    • The Crown calls a witness to present their evidence, through “direct examination.”
    • You then get to question that witness and their evidence, through “cross-examination.”
    • The Crown may further question their witness, through “re-direct.”
    • You benefit from the “presumption of innocence,” and the burden of proof is on the Crown to establish “guilt beyond a reasonable doubt.”
    • You are not required to testify or to present any evidence, if you so choose.
    • Types of evidence:
      • Witness testimony: Yes, verbal testimony is evidence!  This includes actual eye witnesses, as well as other witnesses, police officers, and various experts.
      • Visuals: Photographs, maps, audio and video recordings of interviews, audio and video surveillance, photo line-ups, 911 calls,
      • Documents: Bank records, proof of ownership, transcripts, certificates of analysts, medical records,
      • Forensics: Fingerprints, DNA, GSR (Gun Shot Residue),
  • If you choose to call evidence and/or choose to testify, then you may present your case. You testify first, then your other witnesses (if any) may testify.
  • After you, and/or each of your witnesses testify, the Crown may cross-examine to question the reliability of the evidence.
  • After all of the evidence has been presented, then the lawyers will present arguments to the Court as to why you should or should not be found guilty.
  • The judge will then decide whether you are “Guilty” or “Not Guilty” of each charge.
    • If you are found Not Guilty, then that is the end of the matter, your charges are dismissed and your release conditions no longer apply.
    • IIf you are found Guilty, then you can either appeal the decision, or move on to the sentencing stage. That can either be done right away, or a new date may be scheduled for that purpose.
    • The judge who heard the trial is the same judge who determines the sentence.
  • For more info regarding types of pleas, consequences, and alternatives, refer to the Pleas page.

  1. SENTENCING

  • If you were found Guilty at trial, if your conviction was upheld on appeal, or if you entered a plea of “Guilty,” then this is when the Court imposes your sentence.
  • This is when both the Crown and your lawyer make submissions to the judge as to what would be an appropriate sentence and why.
  • For more info regarding sentencing principles, procedure, types of sentences, and potential consequences, refer to our Sentencing page.