What to Expect in a Criminal Proceeding in Edmonton
If you have been arrested with a criminal offence, the police have the option to release you without having a bail hearing. They can release you on a promise to appear which would have a court date and possibly a date to appear for fingerprinting. They can also release you on an undertaking. An undertaking is a document that you would sign that would contain conditions of your release, for example a no contact condition, an abstention from consuming alcohol or drugs.
The police may elect not to release you with a promise to appear or on an undertaking. In some cases, even if they are not opposed to your release, they may request conditions of the Court that they cannot impose in an undertaking.
Whether they are opposed or not opposed to your release, they must arrange a bail hearing within 24 hours of the arrest before a justice or justice of the peace or a Provincial Court Judge. Murder is an exception to this rule. Also, if the Crown Prosecutor consents to your release, then they have not shown cause to keep you in custody and the Court must fashion a form of release.
Typically, the Crown bears the burden of proof to satisfy the Court that the detention of the accused is necessary. There are times when there is a reverse onus on the accused where they must justify their release to the Court.
Certain offences like narcotics or drug charges have a reverse onus. A reverse onus is where an accused person must justify to the Court why they should be released. An accused who has already been granted judicial interim release on a different charge is also subject to a reverse onus. The bail hearing may be adjourned by the defence, prosecutor or court, but can only be adjourned up to 3 days and the Court will determine whether or not it is justifiable to adjourn the bail hearing.
We can appear on your behalf to apply for your bail or judicial interim release if you have been arrested without being released up by the police (if the police are seeking your detention). A bail hearing can occur before a Justice of the Peace, a Provincial Court Judge or a Justice in the Court of Queen’s Bench depending on the circumstances of a particular case. Some applications for judicial interim release are straight forward, and some very complex requiring the filing of legal argument with case authorities.
After charges are laid by police, the Crown must provide disclosure to the accused. This may include a list of the charges with information package of the evidence. This may include the following information and documents but is not exhaustive:
- Video or photographic evidence;
- Witness statements;
- Transcripts of statements;
- Police notes, police reports;
- Expert reports.
The prosecution must then provide the defence counsel with full and complete disclosure. The purpose of the disclosure is to ensure that you know the evidence of the Crown and you have the ability to prepare to make full answer and defence to criminal charges. Having full disclosure allows an accused person to decide whether to proceed to trial, make further disclosure requests, or decide to resolve the case with the prosecutor.
A preliminary inquiry is held by election in cases where indictable offence charges are laid and where the Criminal Code allows for an election for the mode of trial. The purpose of the preliminary hearing is not to determine innocence or guilt but to determine if the prosecutor has sufficient evidence, if believed, to proceed to trial. The standard of proof to be committed to stand trial is low and most accused are committed to stand trial. The Judge hearing the preliminary inquiry does not sit as a trial judge and as a result does not have jurisdiction to make findings of credibility or rule on remedies if an accused’s Charter rights have been violated. to justify a trial. A preliminary inquiry assists an accused in the following ways:
Narrowing the issues for trial (by reaching agreement on which facts are not in dispute);
Allowing counsel for the accused to cross-examine Crown witnesses to test their reliability and credibility. This evidence is taken under oath and a transcript of the evidence is provided to the accused. Counsel for the accused may be able to use this transcript to highlight inconsistencies in evidence that a witness may have provided to the police, at the preliminary inquiry and at the trial.
Cross-examining police officers on the methods of their investigation and strength, weaknesses and reliability of the evidence gathered;
Strengths or weaknesses in the Crown’s evidence that may lead to the resolution of the criminal litigation without a trial.
At the preliminary inquiry, the prosecutor will call evidence that one may expect to be called at the trial. However, the Crown is not obliged to call the same evidence at the preliminary inquiry as the trial. Because a judge sitting at a preliminary inquiry does not sit as a trial judge and cannot make findings of credibility, an accused, practically speaking, would never testify at a preliminary inquiry. Like Crown witnesses, an accused would testify under oath and could be cross-examined at trial on that evidence. There is no practical advantage to provide the prosecutor with a transcript of evidence of an accused’s testimony at a preliminary inquiry to be cross-examined on it at trial.
Since the judge hearing a preliminary inquiry does not sit as a trial judge, they cannot exclude evidence because of Charter or any constitutional violations. Also, a motion for disclosure or a motion to provide the production of third party records is within the jurisdiction of the trial judge only. Further, a judge cannot order a stay of proceedings for an abuse of process if there are any constitutional violations. The judge, however, must rule on the admissibility of evidence. For example, a judge sitting at a preliminary inquiry must rule on the admissibility and voluntariness of a statement made by an accused to a person in authority. The prosecutor must prove that any confession, or statement made to a person in authority was voluntary. The standard of proof is proof beyond a reasonable doubt. At the conclusion of the preliminary inquiry, the Court either discharges or commits the accused to stand trial on none, some or all of the charges. If the evidence discloses other offences, the Court can commit on charges not listed on the information.
Pretrial motions can be complex. Some pre-trial motions apply to jury trial only and some pre-trial motions apply to trials with or without juries. Pre-trial motions may be procedural or substantive and may include the following legal issues:
- Severance of co-accused;
- A demand for particulars on an indictment;
- A motion for further disclosure;
- A motion for a stay of proceedings.
If an accused is seeking the exclusion of evidence as a result of a Charter violation, they must file notice of the basis of the application and the relief sought. Charter motions are often complex and require the defence to file legal arguments and case authorities in support of the application.
Entering Pleas and Plea Negotiations
If you are charged with a summary conviction, hybrid or indictable offence, you will have the option to enter a plea or election depending on the case. Some indictable cases allow for a trial with a judge alone or a judge with a jury. Unless you enter a guilty plea, your case will be scheduled directly to trial or for a preliminary inquiry prior to a judge alone or judge and jury trial. As your criminal defence lawyer, we can enter into plea negotiations with the prosecution to resolve what charge or charges you may plead guilty to, what facts are read into the record or filed and what sentence the Crown will seek at the sentence hearing.
The prosecutor will always consider resolving a case to spare witnesses from testifying and giving credit to an accused who pleads guilty. Resolution negotiations are important and can occur any time up to and during the trial. The judge makes a final decision about whether to accept or reject any pleas that have been negotiated but will typically not interfere with a resolution that has been agreed upon by the Crown and the defence.
The burden of proof remains with the Crown throughout a criminal trial. The standard of proof is proof beyond a reasonable doubt. Because the Crown has the burden of proof, they must present their case and evidence first. When they call evidence, the defence has the opportunity to cross-examine Crown witnesses. As the accused charged with an offence, you have the benefit of the presumption of innocence in a criminal trial. This means that you do not have to prove your innocence and you do not have to testify or present evidence at a trial. Once the prosecution has called and closed its case, the Court then asks the defence whether or not they are calling evidence. Often, the defence does not call evidence and argues that the Crown has not proven their case beyond a reasonable doubt. There are cases where it is important for the defence to call evidence. If we choose to call witnesses, then the prosecutor has the right to cross-examine them, including an accused if they chose to testify.
At the conclusion of the trial, Crown and defence make final argument to a Judge or a jury. If the defence does not call evidence, the Crown argues first. If the defence calls evidence, they provide final argument first. In a jury trial, the judge rules on what evidence the jury will hear and instructs the jury on the law that applies to the case for them to arrive a decision. The judge or jury then renders a verdict of acquittal or conviction. The trier of fact can also, in some circumstance, convict on a lesser or included charge.
If, at the end of a trial, you are convicted of an offence, you proceed to sentencing. Sentencing may occur on the same day as the conviction or the Court may schedule a date for sentencing to allow counsel to make submissions and file materials. For example, the Court may order a pre-sentence report, counsel may file case authorities, letters of character reference, psychological reports.
Both Crown and defence make submissions on what ought to be a fit and proper sentence. The Court is bound by certain sentencing principles found within the case law and also the Criminal Code. Some offences have mandatory minimum sentences. Some offences allow the Court to exercise a consideration amount of discretion in determining a fit and proper sentence. The benefit of a good criminal defence lawyer is that thorough and detailed sentencing submissions will have a significant impact on the sentence imposed by the Court.
Appealing a Verdict or Sentence
If you are convicted, you have the right to appeal your conviction. However, you cannot appeal a conviction or sentence just because you do not agree with the verdict or sentence. If you appeal, you must file a Notice of Appeal within 30 days of the verdict or sentence. The defence may appeal on a question of law, fact or mixed law and fact if the trial judge committed an error. We can review the reasons for judgment or sentence with a transcript to access the viability of an appeal.
Contact Rod Gregory today if you’ve been convicted in a criminal case in Edmonton and surrounding areas. Rod is well-versed inmany areas of criminal defence and has worked with clients in Fort McMurray, Grand Prairie and the rest of Western Canada. You can learn more about him here.