Criminal Law: the Process

We know when a crime exists (actus reus and mens rea), so what happens after a crime has been committed?

THE LEVELS OF POLICE IN CANADA

1. Federal – RCMP – responsible for all federal law under the Criminal Code and federal regulations
2. Provincial Police
3. Municipal Police
4. Aboriginal Police

DETERMINE THE PARTIES INVOLVED

• The perpetrator (the person who committed the crime)
• Parties to the offence
  • Aiding (helping)
  • Abetting (encouraging)
  • Counselling (advising, recommending, persuading)
  • Accessory after the fact (assist in escaping the police)
  • Party to common intention (shared responsibility for additional offences committed in the course of the crime they originally intended to commit, i.e.  5 of you go to steal a truck, one kills the driver.  ALL are responsible for killing the driver.)

INVESTIGATING THE CRIME SCENE

1. Securing the scene
2. Protecting and preserving evidence
3. Officer’s roles at the crime scene
   1. i.      Patrol Officer – secure  the crime scene so no evidence is lost; arrest suspects
   2. ii.      Scenes of Crime Officer – evidence collection and preservation; work on less serious offences
   3. iii.      Criminal Identification Officer – search the crime scene, examine the scene for physical evidence, gather and analyze physical evidence and send evidence to the lab for analysis.
   4. iv.      Criminal Investigations Bureau Officer – detectives trained to supervise the investigation, interview victims and witnesses, interrogate suspects, draw conclusions from the evidence and arrest suspects.
4. Types of Search
   1. i.      Inward spiral
   2. ii.      Outward spiral
   3. iii.      Parallel
   4. iv.      Grid
   5. v.      zone
5. Identifying and collecting physical evidence (evidence found at the scene that might link a suspect with the crime)
   1. i.      Tools
      1. Class characteristics
      2. Individual characteristics
      3. ii.      Impressions

• fingerprints (latent and visible) THE BEST EVIDENCE AS NO ONE HAS THE SAME FINGERPRINTS, NOT EVEN IDENTICAL TWINS
• shoe prints
• tire tracks
• gloves

1. iii.      Body elements and DNA (blood, semen, saliva, etc.)
2. Depending on the evidence, the police may make an arrest before or after questioning
3. Questioning suspects/witnesses
   1. i.      Informed of rights when questioned (i.e. right to remain silent)
   2. ii.      4 stage interrogation techniques:
      1. Describe the incident
      2. Describe the period before the offence took place
      3. Describe the details of the offence
      4. Describe the period following the offence
4. The police can either ARREST or DETAIN a suspect.
   1. i.      To be DETAINED means to be legally deprived of your liberty for the purpose of asking questions, with or without physical restraint
      1. A person cannot be detained unless the police have good reason to do so.
      2. When you have been stopped to answer questions, you have been detained, but you do NOT have to answer any questions, not even your name.
      3. Detention should lead quickly to either arrest or release. If you are detained against your will then the detention is illegal and you can demand to speak to a lawyer, collect the officer’s badge number, and gather witnesses, HOWEVER, it is always advisable to cooperate with the police.
   2. ii.      ARREST is to legally deprive someone of their liberty by seizing or touching the person to indicate they are in custody.  There must be REASONABLE AND PROBABLE GROUNDS that the person was involved in a crime.  This means that based on the information available, a reasonable person would conclude that the suspect had committed a criminal offence.
   3. iii.      3 methods to apprehend an offender
      1. Issue an APPEARANCE NOTICE, requesting the offender appear in court on a specified date and specific time
      2. Obtain an ARREST WARRANT and arrest the suspect (for serious indictable offences)
         1. Police must ask judge or justice of the peace to issue a SUMMONS, which orders the accused to appear in court.
         2. Fear of no show in court – police swear an INFORMATION (inform the Court of the details of the offence) and then the Judge or Justice of the Peace decides whether or not an ARREST WARRANT is justified.
         3. Arrest the suspect WITHOUT A WARRANT – can only be done in 3 circumstances:
            1. If there is reasonable grounds to believe the person has committed or is about to commit an indictable offence;
            2. If they find a person in the act of committing a criminal offence;
            3. If they find a person whom they believe is named on an arrest warrant.
   4. iv.      Four steps to make an ARREST LAWFUL:
      1. Identify his/herself as a police officer;
      2. Advise the accused they are under arrest and inform them of the charge
      3. Advise the accused of their rights (to remain silent, right to a lawyer)
      4. Physically touch the accused to signify that they are in custody.
   5. v.      If the accused RESISTS ARREST, the police can use “as much force as is necessary” to prevent an escape.  Serious or deadly force can be used when:
      1. The behaviour of the suspect might cause serious harm or death to others;
      2. The suspect flees to escape arrest;
      3. There is no alternative means to prevent escape.
   6. vi.      Sometimes, citizens may make an arrest if
      1. They catch someone in the commission of an indictable offence
      2. They catch someone they believe has committed a criminal offence and they are escaping from the police

ARREST AND DETENTION

• Citizen’s arrests do not happen often as people are afraid of being sued for false arrest or being injured.

AFTER THE ARREST IS MADE – PRE TRIAL PROCEDURES

1. SEARCH

• The investigators will continue to SEARCH for evidence.  Sometimes, the search occurs before the accused is arrested; sometimes it occurs after.  The police can arrest before obtaining a SEARCH WARRANT if they have reasonable grounds to believe the person has committed or is about to commit a crime.
• There are rules of search and seizure, and if they are not followed, the court can throw out any illegally obtained evidence and possibly end the trial.

1. Searching a person
   1. i.      no warrant needed if they have arrested the person or if the police believe the person is carrying a concealed weapon – SEARCH INCIDENT TO ARREST
   2. ii.      Do not need to provide a breath, blood or urine sample unless you are suspected of impaired driving.  If the police want one, they must provide a warrant
   3. Searching a place:
      1. i.      Must obtain a search warrant if it is a person’s private dwelling
      2. ii.      Only between the hours of 6:00am and 9:00pm
      3. iii.      Can only search the dwelling on the search warrant for the evidence/items listed on the warrant, unless other illegal items are found in the process (i.e. in plain view).  If other illegal items are found, then additional charges can be laid based on that evidence.
      4. iv.      Search warrants are also needed when the police use electronic or video surveillance
      5. v.      TELEWARRANTS (a warrant obtained over the phone or by fax) can be used in situations where the police believe they have to act quickly.
      6. Exceptions – EXINGENT CIRCUMSTANCES:

• Where illegal drugs are involved, the police can search any place except a private residence without a warrant
• If there is a fear that evidence might be destroyed or that someone might be harmed, police may search without a warrant.
• At ride programs or spot checks, the police can search your car without a warrant BUT they cannot search for anything that is not in plain view (i.e. no trunk), or on the basis of smell alone i.e. search for marijuana in a car only if they SEE it. If the police suspect illegal weapons or drugs, they can search the car.

b.  FULL DISCLOSURE

• this is where the Crown advises the accused of any evidence they intend on presenting at trial, whether it be physical evidence or witness testimony.  The defence only has to inform the Crown of whether or not the defence will present an alibi defence, so the Crown will have the opportunity to question the alibi.
• For indictable offences, the accused’s photograph and fingerprints are taken.
• Incarceration is seen as the greatest infringement on one’s liberty, so the courts like to do what they can to release an offender (remember, you are innocent until proven guilty, so to keep a suspect incarcerated is like saying they are guilty before it has been proven).
• Offenders can be released by

PRE-TRIAL RELEASE

1. i.            Signing a promise to appear – for minor offences, a document is signed promising that the accused will appear in court on a set date at a set time.
2. ii.            A RECOGNIZANCE might be signed, where the accused agrees to return for court, and could face a fine of up to $500 if they don’t
3. iii.            A recognizance with a SURETY is provided – a surety is someone who agrees to pay up if the accused does not appear in court.
4. iv.            Posting BAIL – not really favoured anymore as it discriminates against those who are poor.  Bail is for serious offences, and if the accused refuses to show up for court, whoever posted the bail will lose their money.
   1. A bail hearing must take place within 24hrs.

• Suspects have the right to HABEAS CORPUS – a fair and speedy trial, and must be brought before a judge within 24 hours of being taken in to custody to explain why they have not been released.
• Sometimes the Crown might ask that the accused not be released.  If this is the case, a SHOW CAUSE hearing is held where the Crown must show cause as to why the accused shouldn’t be released i.e. flight risk, risk to public safety, etc.
  • REVERSE ONUS might apply where the defence would be required to show why bail should be granted.  This happens when:

1. i.            The charge is murder
2. ii.            The accused committed an indictable offence when out on bail
3. iii.            The offence is indictable and the accused is not a Canadian resident
4. iv.            The charge involves failure to appear or breach of a bail condition
5. v.            The accused is charged with importing, trafficking, or possession for the purpose of trafficking narcotics.
6. vi.            The accused used a firearm while committing certain serious offences (attempted murder, discharging a firearm with intent, sexual assault with a weapon, etc.)
7. vii.            The accused is under a firearms prohibition order and they are charged with an indictable firearms offence
8. viii.            The accused is charged with trafficking, possession for the purpose of trafficking, or smuggling firearms.

• Once release is determined, the court date is set and, depending on the type of offence, the accused may choose trial by judge alone, or trial by judge and jury.  In serious indictable offences, all trials are by judge and jury.  This decision will determine what court the trial will take place in

1. i.     Provincial Court – court of INFERIOR JURISDICTION – hears summary conviction offences and minor indictable offences; trial is by judge alone
2. ii.     Superior Provincial Court – the court of SUPERIOR JURISDICTION – tries serious indictable offences, such as murder and treason; trial is by judge and jury; also hears appeals.

• The trial date is set and the accused will enter their plea – GUILTY OR NOT GUILTY.  90% of those arrested and accused of committing a crime plead guilty, and consequently no trial takes place, just a sentencing hearing for indictable offences; for summary conviction or minor indictable offences, sentencing takes place immediately.
• For serious crimes, a PRELIMINARY HEARING takes place where the court determines if there is enough evidence to proceed.
• After a plea of not guilty is entered, RESOLUTION DISCUSSIONS take place before the trial begins – these are “plea bargains or plea negotiations” – very controversial i.e. Karla Homolka’s plea bargain is considered a plea with the devil, however many legal scholars argue that if plea bargains were discontinued it would take a lot longer and would be a lot more difficult to arrest, try and convict.

TRIAL PROCEDURES

1. TRIAL PARTICIPANTS
   1. i.            Judge/Justice of the Peace
   2. ii.            Counsel:

• The Crown (prosecutor)
• The Defence
• Duty – gives free legal advice to accused.

1. iii.            Court Clerk – assists the Judge
2. iv.            Court Reporter – records everything said during the trial
3. v.            Court Security Officer – maintains security in the courtroom
4. vi.            Sheriff – responsible for managing the jury
5. vii.            Bailiff – assists the Sheriff
6. viii.            Witnesses
7. ix.            The jury
8. THE ROLE OF THE JURY

• 12 people chosen at random
• EMPANELLING – the selection of a jury
• QUALIFICATIONS:

1. i.      Must be Canadian citizens
2. ii.      Must be at least 18
3. iii.      Must have resided in the province or territory for at least 1 year
4. iv.      Must speak English or French
5. v.      Must be mentally fit

• EXEMPTIONS:

1. i.      MPs, senators, and MPPs
2. ii.      Judges, justices of the peace, lawyers, law students
3. iii.      Doctors, coroners, veterinarians
4. iv.      Anyone employed in law enforcement and their spouses
5. v.      People who are visually impaired
6. vi.      People with a mental or physical disability that seriously impairs their ability to complete jury duty
7. vii.      Anyone who has served on a jury within the presiding two or three years
8. viii.      Anyone convicted of an indictable offence that has not been pardoned.

• CHALLENGES

1. i.      CHALLENGE OF THE JURY LIST

• Needs proof that the sheriff or selection committee was fraudulent or biased, or showed wilful misconduct in selecting prospective jurors.

1. ii.      CHALLENGE FOR CAUSE

• Objection of a juror for specific reasons, i.e. already informed an opinion on the case;
• Unlimited

1. iii.      PEREMPTORY CHALLENGE

• Objection of juror for no specific reason;
• Limited depending on the charges:

1. Serious charges i.e. first-degree murder – 20 challenges
2. Where the penalty is 5+ years – 12 challenges
3. Where the penalty is under 5 years – 4 challenges

• JURY DUTY
  • Jurors are not allowed to:
    • Discuss the case with anyone other than the other jurors;
    • Follow media reports about the case
    • Disclose any information from jury discussions that is not revealed in open court even after the conclusion of the trial
  • Sometimes, the jury is SEQUESTERED – separated from external influences until a verdict is decided.
  • As trials continue, jurors may get paid.  In Ontario, jurors get
    • $40/day after day 11 of jury duty;
    • $100/day after 50 days of jury duty.

William Anderson (Schoolworkhelper Editorial Team)

William completed his Bachelor of Science and Master of Arts in 2013. He current serves as a lecturer, tutor and freelance writer. In his spare time, he enjoys reading, walking his dog and parasailing. Article last reviewed: 2022 | St. Rosemary Institution © 2010-2024 | Creative Commons 4.0

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