Criminal Law

1. What is the intended purpose of the criminal justice system in Canada?

By and large the common view of criminal justice is one of punitive sentencing; however, the criminal justice system itself is designed to protect society and the rights of accused persons alike. For while investigations, trials, and sentencing all seek to properly convict those who have committed offences against society, it is equally important to respect individual legal rights. At Knisely Shipanoff Nagase LLP we commit ourselves not only to ensuring the conduct of a fair trial, but also protecting your rights as citizen of Canada within the justice system.

2. Someone has accused me of a crime, or I have been arrested or charged with a crime. What should I do?

Obtain immediate legal counsel and do not take further action before procuring advice. Just as someone with health concerns would consult a medical professional, so too should accused persons obtain recognized, professional legal counsel on their matter; this is especially important in protecting one’s right not to self-incriminate.

3. Beyond the oft-repeated “right to remain silent,” what are my rights upon arrest?

In addition to the “right to remain silent” the Canadian Charter of Rights and Freedoms guarantees the following rights to Canadian citizens:

• The right to be secure against unreasonable search or seizure

• The right to retain and instruct counsel without delay and to be informed of that right upon detention or arrest

• The right to be promptly informed of the reasons for detention or arrest

• The right to reasonable bail

• The right to a trial within a reasonable time

• The right to be presumed innocent until proven guilty

Realizing these rights, it is not only legal but also advisable that you not make any statements until you have retained legal counsel on the matter. Asking to speak to a lawyer does not indicate guilt and is a Canadian Charter Right.

4. What are the possible consequences of being involved in the criminal justice system?

The specific consequences entailed by criminal charges, records, and convictions are contingent on the nature of the charges; however, in all cases, involvement with the justice system will potentially affect multiple components of one’s life. Accused persons may experience harm to their reputation, economic deprivation due to ensuing loss of licences, job and education opportunities, and explicit and implicit restrictions on liberty. More concretely, before and during proceedings accused persons may be subject to conditional release, placing restrictions on their liberty until the conclusion of the matter.

5. Who is involved in the system?

Suspects, accused and offenders: Before being charged, a person who has allegedly committed an offence is referred to as a “suspect”; once charges have been laid they are referred to as the “accused.” Should the accused be found guilty, they are described as an “offender.”

Complainants and victims: Complainants bring allegations to the court, which if confirmed by court ruling change the status of the complainant to one of “victim.”

Police officers: The first responders after an alleged offence, and may lay initial charges to guide the investigation process. Detectives undertake the inquiry, acquiring and compiling evidence. Involved officers prepare reports and may testify in court if proceedings require such participation.

Crown prosecutors: Review police findings and decide whether there is sufficient evidence to proceed with prosecution. If a case proceeds to court the Crown Prosecutor brings forth evidence to try and prove the guilt of the accused “beyond a reasonable doubt.” More explicitly, this may involve determining appropriate charges, examination and cross-examination of witnesses, and presenting arguments for conviction and sentence.

Defence lawyers: Are contracted by persons charged with a criminal offence, providing legal counsel and representing the accused in the court process. They are responsible for ensuring their client receives a fair trial, and undertake to examine the Crown’s case for prosecution and present any reasonable doubt therein.

Judges: Are appointed by either the federal or provincial government to hear evidence in legal cases, eventually culminating in rulings and sentences. In cases where a jury is involved the judge is still responsible for directing legal proceedings, ensuring the proper application of the law, and sentencing. Judges also are involved in the appeal process where there has been a conviction and sentence imposed.

Juries: Groups of citizens sworn to hear evidence and testimonies before ruling on the verdict (innocent/guilty) of a trial; however, in Canada juries do not decide sentences.

Correctional Services and the Parole Board: Correctional Services of Canada manages incarceration and rehabilitation for sentences over two years. The Parole Board of Canada has exclusive authority to grant, deny, and revoke parole for offenders. (In Quebec and Ontario their authority is reserved for sentences two years and over.)

Probation officers: Prepare reports assessing offenders and their suitability for rehabilitative programs, and enforce probation orders.

Legal Aid Alberta: Provides legal services and representation for low-income Albertans who could not afford legal counsel otherwise.

Student Legal Services: Offer legal assistance from Law students through accredited law schools, primarily to low-income individuals.

6. How does Knisely Shipanoff Nagase LLP fit into the criminal justice system?

Knisely Shipanoff Nagase LLP is a prominent, mid-sized criminal defence firm, committed to protecting and preserving clients’ liberties and privileges as they navigate through the justice system. We have seven active, experienced criminal lawyers who possess a good reputation among the public, bar, and bench alike.

7. What are the steps involved in a criminal case?

Investigation: Police conduct necessary interviews, searches, and background checks to determine the relevant and contributing histories behind an occurrence. Upon completion of the investigation charges may be laid if sufficient evidence has been compiled.

Charge: If police decide they have reasonable grounds they will lay charges and the information for the accused will be prepared, indicating the date and nature of the alleged offence.

Bail: If not released upon arrest, accused persons are taken before a judicial officer to determine if they will remain in custody until their pending trial. Conditions may be attached to bail, such as not contacting certain persons, or visiting specific addresses.

Docket Court/Disclosure: Primarily an appearance court, dealing with issues such as first appearances, disclosure of evidence, bail, and other matters not set for trial dates.

Plea/Election: If the crown elects to pursue a case by indictment (generally for more serious offences) then the accused may elect to have their trial before a provincial court, supreme court with just a judge, or supreme court with a judge and jury. In all cases a plea must be chosen by the accused, resulting in either a guilty or innocent plea.

Preliminary Inquiry: Is held to determine if the crown has enough evidence to justify continuing to trial. A preliminary inquiry does not rule on innocent/guilty; rather, the accused is either discharged or ordered to stand trial. Furthermore, preliminary inquiries offer the defence has opportunity to hear crown evidence and examine witnesses before presenting their own defence in the pending court trial.

Trial: In trial the Crown prosecutor will present all evidence and bring forth witnesses before the judge and court for the purposes of establishing a conviction. The accused’s lawyer may then cross-examine these witnesses. Due to the fact that the accused is presumed innocent they do not have to present and evidence or witnesses.

Verdict, Sentence and Parole: Once all evidence has been heard in a trial, the judge, or jury if applicable, will rule on the verdict (innocent or guilty). Following the verdict the judge will rule on the sentence, which may involve incarceration or conditional release. In the event of incarceration, early conditional release may be obtained by applying for parole, which allows offenders to serve the latter portion of their sentence in the community under certain restrictions.

Appeals: The crown or accused can elect to appeal either the conviction or sentence by having the trial reviewed by a higher court.

Record Suspensions: Formerly known as a “pardon,” a record suspension makes one’s criminal record unavailable to common searches and background checks. Depending on the type of offence, one can apply for record suspension 5-10 years after the competition of their sentence (5 for summary, and 10 for indictable convictions).

Wrongful Convictions: Although difficult and rare, the introduction of new evidence or may result in a former conviction being overturned.

8. What are the criminal laws in Canada, and who makes and changes them?

Officially, laws are written and changed by Federal, Provincial, and Territorial governments; however, extra-governmental actors also affect both new legislation and amendments. Lawyers, social advocacy groups, and citizens contribute to evolving legal standards by bringing matters before legislators. Voting citizens also indirectly influence criminal law in Canada by determining the composition of the legislative bodies that write and amend the law.

9. What are some of the current issues facing criminal justice in Canada?

In our current system there is a considerable delay in progressing matters to resolution; conversely, legislative measures introduced to streamline the justice system sometimes deprive accused persons of their rights. For example, in recent years there has been an evolving trend towards the reduction of individual liberty and freedom (including privacy) for the purposes of advancing allegations and cases already in progress. Furthermore, under-funding of legal aid and a general lack of understanding of how the justice system can and should function inhibit the realization of a more efficient and profound organ in our society.

10. What if I have other questions about criminal law?

Contact a criminal defence lawyer at Knisely Nagase Anderson LLP today.