Criminal Law Terms
The best result is for the crown to realize that it has no reasonable prospect for conviction and withdraw the case against the accused. This puts an end to the proceedings. There is no criminal record.
Diversion is a method of resolving a case by having the accused person accept responsibility for his conduct and performing some community service, making a donation, attending counseling, writing a letter of apology or some combination of those or other good deeds. Once the good work is done to the satisfaction of the crown the charge is typically withdrawn. Some jurisdictions do not withdraw the charge but rather stay the charge, which essentially means that the charge does not proceed although it is not withdrawn.
A peace bond is a promise made by a person, committing to abide by the conditions of a court order. This is not an admission of
guilt and typically results in the withdrawal of the charge against the accused once he/she agrees to enter into the bond. Nevertheless the accused person promises to keep the peace and be of
good behaviour for the period of the bond, usually 12 months. Other conditions can be attached to the bond as well, including not to have contact with a certain person, not to be in the
possession of drugs, not to attend or be near a certain location or virtually anything else that the court might deem appropriate. The person entering the bond is also required to pledge an
amount of money (hence the term bond) that he might forfeit if he breaches a term of the bond. This is not a criminal record; however breach of the bond would constitute a criminal offence of
breaching a court order. If a breach of the bond does occur the person bound by the peace bond could be charged with Breach of a Court Order, in addition to or in lieu of losing the funds that he
It is becoming increasingly popular for the court to force a person who it has just found innocent or acquitted, to enter a peace bond. This allows the court to acknowledge reasonable doubt in the crown’s case against the accused person, but still provides some protection to the alleged victim.
There are two types of discharges: absolute and conditional. Neither type of discharge constitutes a criminal record. This is
because although the court makes a finding of guilt, no conviction is entered against the accused. There is therefore no record of conviction. It is the record of conviction that constitutes a
“criminal record.” There are no conditions attached to an absolute discharge. Three years following the absolute discharge the discharge is automatically expunged and essentially becomes the
equivalent of a pardon.
A conditional discharge becomes absolute after the expiry of the conditions ordered by the court. These conditions can be virtually anything that the court deems appropriate are generally the same sorts of conditions that might be attached to a less serious peace bond or a more serious probation order. Discharges must not be contrary to the public interest and must be in the interest of the accused person. In addition there must be no minimum sentence applicable to the offence in order to qualify for a discharge.
Conviction is the finding of guilt, beyond a reasonable doubt, and the entering of a criminal record.
A suspended sentence is a sentence that is interrupted after conviction. This makes the penalty the criminal record itself. A suspended sentence is quite often imposed with probation attached.
Probation is intended to be a rehabilitative rather than a punitive tool. This is accomplished by attaching conditions like: must attend alcohol counseling, drug treatment, refrain from contact with a certain person(s), refrain from being within 500m of a certain location, etc. There can also be a condition to report to a probation officer. This allows the probation officer to supervise the probation and compliance with the conditions of probation including attendance at the probation office. A breach of one or more of the conditions will result in another criminal charge: Breach of Probation. The probation period itself is a tool to keep the convicted person on the lawful path. Arrest for another criminal offence will result in an additional breach of probation charge, because the new criminal offence will be deemed, by the police, to be a breach of the standard probation condition, to keep the peace and be of good behaviour.
The significant difference between the familiar Highway Traffic Act fine and a fine levied under the Criminal Code of Canada, is that, the latter carries with it a criminal record.
Jail is the imposition of confinement at a correctional institution. If the period of jail is less than two years it will be served at a provincial detention center. If the period of incarceration is two years or greater than the term of incarceration will be served at a federal prison.
If the period of jail is 90 days or less than an intermittent sentence may be imposed. This is a jail sentence typically served on the weekends to allow the inmate to attend work during the week.
This will allow counsel time to read through the disclosure, discuss it with the client and then set up a crown pretrial, or resolution meeting. This is a meeting usually held over the telephone. The crown attorney and defence council will discuss the strengths and weaknesses of the case and whether or not a resolution is possible. If it does not appear possible then the crown and defence will discuss how long a trial would take whether there are any charter issues or special motions to be brought prior to the trial. If there are such motions, will the be integrated into the trial or blended with the trial evidence or held separately in a “voire dire” which is a trial of a constitutional, technical, procedural or evidentiary issue within the trial. How many witnesses are necessary and perhaps the order that the witnesses might be called and the time that it might take to have them testify and be cross-examined may be discussed, as well.
Some cases require judicial pre-trials in order to proceed to trial. Here the estimates for time and witnesses as well as application or motion issues will be discussed with the crown and the judge. Judicial input sometimes assists in more accurate estimates. Judicial input may also influence one party or another to consider a particular strength or weakness to a case. This may help the parties reach a resolution agreement or realize that no resolution is possible before trial.
Summary Conviction Offence
A Summary Conviction Offence is one which corresponds to the English or American classification of Misdemeanor. This is considered to be a less serious offence although it is still criminal in nature. Consequently, potential penalty is less, there is a 6 month limitation period on charging a person after the offence is alleged. There is no preliminary hearing afforded a person charged with a summary conviction offence and trial must be held in the Ontario Court of Justice. The accused will be tried by a judge alone and will not have a jury.
An Indictable Offence is one which corresponds to the English or American classification of Felony. These are considered to be more serious crimes and the penalties increase accordingly. The accused person is however afforded the advantage of having a preliminary hearing if he so chooses. After the preliminary hearing, if it is determined if there is enough evidence to send the accused person to trial, the defence has a choice of whether to have a trial by judge alone in the Superior Court, by judge and jury of the Superior Court or by judge alone in the Ontario Court.
A Hybrid Offence is one of the growing number offences which can be either summary conviction or indictable, depending on the crown’s election. In practice the crown prefers to try cases in the lower court because the conviction rate is perceived to be higher, and the theoretical cost to the government is less. Hybrid offences also allow the crown the flexibility to overcome a summary conviction limitation period, by electing to proceed by indictment.
An indictment is the piece of paper which particularizes the charge once a matter has been committed to the Superior Court.
An information is a paper which particularizes the charge in the Ontario court of Justice. It is also the name of papers sworn to obtain warrants.
A Preliminary Hearing is a hearing to determine if there is enough evidence to commit an accused person to be tried on the charge.
Over the years the test of enough evidence has been continually eroded to be any evidence. The test is supposed to be as outlined in R. v. Sheppard, which is actually an extradition case, but the
test for extradition and sufficient evidence for a committal at a preliminary hearing is the same.
Is there any evidence, if it is believed, upon which a properly instructed jury, could convict.
Promise to Appear
When arrested you may be released on a promise to appear, which is a paper which you will be asked to sign stating a date when you are to attend court. Typically there is also a promise to appear at the police station in order to be finger printed. Although people quiet often take offence to having their finger prints taken, it is of extreme importance that you attend to have them taken at the appointed time. If you do not attend you will be charged with failure to appear, for which the crown quite often seeks a jail sentence.
A Conditional Sentence is considered custody, in the community. It is what is commonly called house arrest. This sentence is being constantly restricted to fewer and fewer applicable offences and circumstances. The sentence is only available if the sentence that would otherwise have been imposed is less than 2 years in custody. There are additional statutory and common law restrictions on the imposition of conditional sentence as well. If conditional sentence is imposed, there are usually exceptions to the restrictive conditions allowing travel to work, getting groceries, attending medical appointments or religious services. The conditional sentence is sometimes graduated so that harsher conditions like full house arrest are imposed for the first two thirds of the sentence, while a curfew might be imposed on during the last third of the sentence. It is a flexible instrument which can be tailored to be appropriate to a wide range of facts and circumstances of the offence and offender.
A crime is the most serious type of offence. In Canada, all crimes are legislated by the federal government. There are no provincial or municipal crimes. Not all federal offences are crimes. Some are just regulatory offences like those pertaining to satellite dishes, or CRTC infractions. Criminal offences are those offences established in the Criminal Code of Canada, The Controlled Drugs and Substances Act, and the Firearms Act. Classically described, a crime requires a wrongful act (actus reus) and a wrongful intent (mens reus). It is not simply enough to have committed a wrongful act, but one must have also intended to do so, in order to have committed a crime. This is a useful distinction between crimes and lesser offences, but it is one which has been continually watered down, with an increasing fixation of the consequences of the act. If the consequences are “bad” the law will look for a way to get around the need for intent. Willful blindness or the notion that the accused person did not know something because he did not wish to know is one such method which lessens the importance of intent. Criminal negligence is another way to eliminate intent in a criminal offence. The introduction of negligence into the criminal law by definition eliminates.
The Charter of Rights and Freedoms is a part of the Constitution of Canada. It provides among other rights, the right to trial without unreasonable delay, the right to a reasonable bail, the right to be free of unreasonable search and seizure, the right to counsel, the right not to be arbitrarily detained, the right to silence. The Charter also contains language rights and provisions for aboriginal peoples. The Charter is often used to stay a proceeding against a person because of unfairness. It is also used to ensure that proceedings are fair, by making sure that the accused person has full disclosure of the case against him or her, and by excluding evidence that was obtained in violation of the accused persons rights.
Justice of Peace
A Justice of the Peace is a magistrate empowered to preside over bail hearings and set dates in the Ontario Court of Justice, and to hear provincial offence cases in Provincial Offences Court.
A Judge is a magistrate of the Ontario Court of Justice empowered to hear trials or preside over preliminary hearings, bail hearings, and supervise the court process.
A Justice is a magistrate of the Superior Court of Justice empowers to hear criminal and civil trials.
If you are not released either from your arrest location or from the police station after signing a promise to appear, then you will be held for a bail hearing. A bail hearing is a court proceeding to determine if you should be allowed to be released from custody pending the trial of your case. In most cases the crown must show why you out to be detained in custody, but in a growing number of circumstances the accused person must show that he ought to be released. Regardless of who must show the cause for detention or release the factors to be considered at a bail hearing are whether the accused is likely to flee or attend court and comply with conditions that the court might impose on him/her; whether the accused person is likely to reoffend; and the strength of the case against the accused.
It is important to request terms of release that you can live by. Frequently, an accused person will agree to virtually anything in order to get out on bail. Once out though he may find that he does not wish to be confined to his house 24 hours a day, that he needs to be out past his curfew of 12 O' Clock because he works midnight shifts, or that he has to have some contact with an individual because they are classmates at school. Once the conditions of the bail are imposed by a Justice of the Peace the crown must consent to the bail conditions being varied, as must the surety. If the crown will not consent to the variation of bail conditions then the only alternative is to bring an application for bail variation in the Superior Court. While this is quite often successful it is also quite often cost and time prohibitive. It is much better to be released on reasonable conditions that allow the accused person reasonable freedom. If a condition is not necessary to protect the public or ensure compliance and or attendance, then it ought not to be imposed and the accused ought not to consent to it. Bail conditions are not supposed to be a punishment.
Bail De Novo
If bail is denied then the accused has options which differ depending on whether or not he is a youth or an adult. If the Accused person is a young person under the Youth criminal Justice Act, then he can have an “Bail De Nova” after 2 clear days. This means that he or she can serve notice on the crown and have a Judge of the Youth Court rather than a Justice of the Peace do a new bail hearing as if the youth had not had a bail hearing at all. The significance of this is that it is faster and cheaper. There is minimal paperwork involved and the young person does not have to wait for transcripts of the original bail hearing to be produced. If the young person is still detained, after the bail de novo, then he or she can bring an application for bail review to the Superior Court of Justice.
If an adult is denied bail then he or she can bring an application for bail review to the Superior Court of Justice. The application must be filed in accordance with the Rules of Criminal Procedure, which include the mandatory filing of transcripts for the proceedings to be reviewed. A substantial change in circumstances of the accused or an error in law by the lower court or the expiry of a mandatory review period is necessary in order to bring the application for bail review. The addition of a new surety or the change of a surety is a change in circumstances.
A surety is a person who will act as a supervisor. Someone who will ensure that the accused person attends court, does not breach his conditions of release and does not reoffend. A surety typically is
asked to pledge a sum of money, which he understands he will forfeit, if he reneges, on his duties as a surety.
Usually the surety need only demonstrate that he/she has the money and does not have to pay the funds into court. A cash bail can be required. If the accused person then breaches a condition of his bail and the surety knows of the breach but does not inform the police or if the surety fails to supervise the accused in terms of court attendances and maintaining his conditions, then the crown may make application to the court to obtain the money posted for bail. Funds do not automatically default to the crown if the accused is rearrested for another offence or alleged to have breached a condition of his release. The crown must show that the surety did not properly supervise and did not report, if the surety had knowledge of a breach or contravention of the bail condition or terms.
Deferred Custody is roughly the Youth Court equivalent of a conditional sentence.
A young person is a person 17 years of age or younger. Young people are dealt with in a special Youth Court, with special procedures and rules pertaining to the process and the taking of statements, notice to parents etc. There are also separate rules for sentencing.
E.J.S. (Extra Judicial Sanctions)
Extra Judicial Sanctions are small penalties, provided for in the Youth Criminal Justice Act outside of the actual trial process. These are roughly akin to adult diversion programs. A young person will be asked to take responsibility for his actions and perform community service, right letters of apology, write essays or undertake some other measure that is a consequence without the weight of the full court process.
Stay of Proceedings
A Stay of Proceedings is the stoppage or suspension of the proceedings against the accused without a determination of the merits of the case. The case is stopped before an acquittal or conviction is entered, but since everyone is innocent until proven guilty the end result is that the accused person is innocent and is removed from jeopardy. A stay is typically entered because of procedural unfairness to the accused person. His or her rights were violated in some fashion that was severe enough to deny him or her’ ability to have a fair trial. Examples of this are cases where the delay in trying the case is so great that the right to a trial within a reasonable time has been denied. Denial of the right to counsel, misconduct or abuse of process, the loss or unavailability of evidence, or some combination thereof might also result in a stay of proceedings. With regard to criminal proceedings a stay of proceedings is a win for the defence.
Trial is the final (except for Appeal)
process in the life of a criminal offence.
The trial is where the crown attorney calls witnesses who give testimony against the accused. Those witnesses are cross-examined by the defence lawyer. Most evidence is given verbally.
The Defence will have the opportunity to call whatever witnesses it chooses, to contradict or establish facts that are helpful to the defendant. After hearing the evidence the judge, in the case of a trial by judge, will decide what facts it believes, what law prevails and as a consequence what verdict will be rendered. In the case of a trial by jury, the judge will try issues of law (decide what evidence will be heard, and what laws are applicable) and the jury after receiving instructions from the judge will decide the facts of the case and innocence or guilt of the defendant.
Acquittal is he determination that the crown has not proven beyond a reasonable doubt that the person accused of a crime has committed the crime. This determination can be made by either a judge or a jury depending on what mode of election the defence made if an election is afforded by the charge.