Many individuals charged with criminal offences have no idea what their legal rights and obligations are. We have attempted to provide visitors with basic information regarding the criminal process. This information is not intended to be legal advice. In addition, users must be aware that Canadian criminal law and criminal procedure changes rapidly. Therefore, this information may not be up to date.
Listed below are basic topics on criminal law. For further information, please refer to the Links page.
The power to arrest an individual in Canada is given to all citizens, although peace officers and police are generally given wider powers of arrest. An individual may arrest a person found committing an indictable offence or whom he or she believes has committed a criminal offence and is escaping from and freshly pursued by persons with lawful authority to arrest. Peace officers can arrest for the same reasons, namely, if they find someone committing an indictable offence; they see someone apparently fleeing from lawful pursuit after committing a crime; they believe someone is about to commit an indictable offence; they believe there is a warrant out on the person; they have a warrant for the arrest of a person.
An arrest, by definition, involves taking physical control or custody of a person with intent to detain them. This may involve forceful contact. Note also that property owners are given powers of arrest without warrant against persons they find committing a criminal offence on or against that property.
If a citizen arrests a person without a warrant, he or she must take that person to a peace officer.
A Justice or Judge can issue a warrant for the arrest of a particular accused. Warrants are typically issued where the accused:
• Fails to appear in court.
• Fails to attend at the police station for the purpose of fingerprinting.
• Fails to attend an application to revoke bail.
• Breaches a conditional sentence order.
2. Conduct of Police after the Arrest
The police have the right to search someone being arrested. The main justification for this is to check for weapons, and for “officer safety”. Police can also search for evidence of the alleged offence in certain circumstances.
After the police arrest someone, they must tell the accused the reason for the arrest. An accused must also be told that he or she has a right to contact a lawyer. Often police will attempt to ask arrested accused questions. An accused that has been arrested has a right to refuse to answer questions and should, in most cases, refuse to answer questions until they speak to a lawyer.
3. First Appearance
After a person has been arrested he or she is entitled to appear promptly before a Judge or Justice within 24 hours of arrest. The person is entitled to have a lawyer to speak on their behalf.
Persons who are out of custody pending first appearance will be required to attend court on the date set out in their appearance notice or summons. These documents will often contain a requirement that the accused appear prior to court for photographing and fingerprinting pursuant to the Identification of Criminals Act. Typically, an accused’s release is on conditions, including a condition that they attend Court at a specific time and place. In Saskatoon, out of custody first appearance matters are usually at 2:00 p.m. in Court Room #4, or, for domestic violence matters, first appearances are in Court Room #6 at 9:00 a.m.
If the accused is not released from custody by police the accused will be brought before a Justice of the Peace or Provincial Court Judge where the charge is presented and the Crown will decide whether to release the accused from custody by consent, or, oppose release and argue for continued detention. In Saskatchewan, lawyers rarely conduct bail hearings in police cells before a J.P., and often wait to appear before a Provincial Court Judge.
Prior to the first appearance, an accused should retain a lawyer to attend court to ensure release is properly negotiated, or, to ensure the accused’s rights are protected throughout the process. The practice in Saskatchewan is to give priority to matters where lawyers are appearing. Therefore, matters will usually be dealt with faster if an accused has hired a lawyer.
During the first appearance the Crown will usually determine whether they intend to proceed summarily or by indictment. All offences in Canada may be classified as indictable (the more serious criminal matters) or summary conviction (the less serious criminal matters). Some offences may, at the discretion of the Crown Prosecutor, be prosecuted either by indictment or by summary conviction.
Prior to a first appearance, if a lawyer has been retained, the lawyer will request “disclosure”. “Disclosure” may include, police statements, witness statements, surveillance videos, photographs, and any other evidence that relates to the charges. The Crown must disclose all relevant materials to the lawyer. The nature and complexity of the allegations will usually dictate how quickly disclosure is provided. The more serious or complex a case is, the longer it usually takes to obtain full disclosure.
As a result of the importance in obtaining full disclosure, often, matters will be adjourned after the first appearance. If the accused is in custody, the lawyer will decide whether proceeding with limited disclosure is advisable, or whether an adjournment is necessary.
4. Bail and the Bail Hearing
Where the police decline to or are unable to release an accused, a bail hearing becomes necessary. Section 515 is the governing provision for a bail hearing before a Justice.
There are several notable provisions in the Criminal Code:
Section 516: The Justice may adjourn the bail hearing, on application of either party, for up to three clear days, or longer, with the consent of the accused.
Section 517: The Justice may on application by the accused, ban publication of any evidence, information or representations made during the course of a bail hearing and the reasons given by the Justice. The ban lasts until the accused is discharged at preliminary inquiry or the trial has ended. The decision itself can be published
The standard of proof on a bail hearing is on a balance of probabilities. The onus of proof is normally on the prosecution, with the exception of:
• Circumstances listed in s. 515(6) which reverse the onus to the accused
• s. 469 offences
The party on whom the onus of proof lies must show cause why the detention of the accused is or is not justified. The onus is usually on the Crown to justify detention before trial. That onus is reversed where the accused is charged with certain offences (failure to appear, breach, drug trafficking).
Sections 515(10)(a), (b) and (c) of the CC, set out the three criteria justifying detention of an accused before trial:
The ”primary ground”: Is detention necessary to ensure that the accused appears in Court. The following factors are relevant to the primary ground:
The nature of the offence and the potential penalty the accused may receive.
The strength or cogency of the evidence against the accused.
Whether the accused has any connection to the community. The inference is an accused will be less inclined to flee if he or she has family, friends, property, or employment in the jurisdiction.
The accused’s record for compliance with court orders to attend court on previous occasions.
The “secondary ground”: The protection or safety of the public and the administration of justice. If there is a substantial likelihood that the accused will interfere with witnesses or otherwise interfere with the administration of justice, detention may be justified. Some of the factors the Court will consider with respect to the secondary ground are:
-The criminal record of the accused (particularly similar offences, or offences of violence).
-Whether the accused was already on bail or probation at the time of the alleged offence.
-The nature of the offence and the strength of the evidence.
– The personal circumstances of the accused.
-Any alleged interference with witnesses, or destruction of evidence.
The “tertiary ground”: Justifies detention to maintain confidence in the administration of justice.
Section 515 compels a Justice ordering release to first consider an undertaking without conditions. If the Crown “shows cause” why a more onerous form of release ought to be granted, a Justice may order release:
On an Undertaking with conditions;
On a Recognizance with or without conditions, with or without sureties, or with cash deposit.
Procedurally, the usual rules of evidence are relaxed at a bail hearing. Bail applications typically proceed on the basis of representations by counsel without the necessity of calling evidence. Defence counsel normally base submissions on the information provided by the accused. The Crown relies upon information provided by the police or witnesses.
At the bail hearing, the Crown can lead evidence of prior convictions, outstanding charges, or the circumstances of the alleged offence. The Crown will normally rely on the police reports and disclosed witness statements.
In some rare cases, oral testimony may be necessary. Letters from friends, family members, employers, psychiatrists, physicians or social workers may also be relevant to the hearing.
5. The Plea
Before there can be a preliminary inquiry or trial, the accused must enter a plea and election, where an election is required. He or she appears before a Judge, the Information is read and the accused is asked whether he or she pleads “guilty” or “not guilty”.
Although “guilty” and “not guilty” are the primary pleas there are other pleas available. If an accused pleads “autrefois acquit”, it means they are claiming they were charged with the same offence before, and were found not guilty. If the accused pleads “autrefois convict”, they are claiming that they were already convicted once for the same criminal act.
A guilty plea can lead straight to sentencing, or the sentencing may be adjourned to a later date. The sentencing is where the judge decides on the appropriate penalty. The accused is always asked if he or she would like to speak.
According to Section 606(1.1) of the Code a guilty plea requires admitting the facts that form the basis of the charge or charges before the court. In some cases, the Crown and defence may jointly ask for the same sentence – this is called a “joint submission”. In other cases the Crown and defence may disagree on the sentence resulting in both parties asking the judge for completely different sentences. In the end, it is up to the judge to impose the sentence.
6. Elections and Preliminary Inquiries
All crimes fall within one of the following categories. These categories include summary conviction offences, indictable offences, or dual procedure or “hybrid” offences. These offences differ significantly in the seriousness, mode of trial, sentencing and appeal procedure.
If the charge is prosecuted by indictment the accused will usually have a choice as to the method of trial. The options are:
1. Provincial court judge sitting alone;
2. Queen’s Bench justice sitting alone; or
3. Queen’s Bench justice sitting with a jury.
There are rules for changing an election. If no election is made, the trial will be by judge and jury. If two or more people are charged together, and make different elections, the court will record the “higher” of those two elections, and both accused will be tried the same way.
7. Preliminary Inquiries
The procedure for preliminary inquiries is found in Part XVIII of the Criminal Code.
A preliminary inquiry is held before a provincial court judge, justice of the peace or magistrate. Thier job is to decide if there is enough evidence for the accused to face trial. A second purpose of the prelim is to allow the defence to know the strengths of the case it has to answer.
The prosecutor will usually produce any evidence and witnesses that support the Crown’s case.
At the end of a preliminary inquiry, the judge either dismisses the charge(s), or commits the accused for trial. The Crown does not have to prove its case beyond reasonable doubt to obtain a committal. A charge will only be dismissed at a preliminary inquiry if there is a complete lack of evidence.
8. The Trial
Trial procedures are different for “summary” offences than they are for “indictable” ones. Procedures for summary trials are set out in Part XXVII (27) of the Criminal Code.
Running a trial can be a very complicated. If you are the accused person, the most important thing to remember is the final objective: demonstrating to the trier of fact that there is a reasonable doubt whether you committed the offence, as charged.
A typical summary trial is held in a provincial court courtroom, with very few people present – unless the matter is a high profile case. During the trial their will be a judge, a crown prosecutor, an accused person with or without a lawyer, a court clerk, a deputy sheriff and possibly non-witness spectators. People who are going to be witnesses are usually kept outside of the courtroom to make sure they are not influenced by what others say before them.
Procedurally the prosecution calls its witnesses first. Each witness is brought in, swears an oath on a bible or makes a solemn affirmation to tell the truth. The witness is then questioned by the prosecutor. The defence then has opportunity to cross-examine each of the Crown witnesses.
When all the prosecution witnesses have testified, the Crown closes its case, and the defence has an opportunity to call evidence, if they wish. Calling evidence is sometimes a difficult decision and, before deciding, the defence needs to determine if the Crown’s evidence was sufficient to warrant the calling of evidence.
Once all the witnesses have testified, the normal procedure is for the judge to ask the Crown and defence to make final arguments. Following final arguments the judge decides whether the accused should be found guilty or not guilty.
9. Important Principles in Criminal Trials
The Presumption of Innocence
The presumption of innocence is the principle that one is considered innocent until proven guilty. The burden of proof is always on the prosecution. In case of remaining doubt, the accused is to be acquitted. This presumption is seen to stem from the Latin legal principle that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on he who asserts, not on he who denies).
Proof Beyond a Reasonable Doubt
The prosecutor must prove the Crown’s case beyond a reasonable doubt. This means that the proposition being presented by the prosecution must be proven to the extent that there is no “reasonable doubt””in the mind of a reasonable person that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a “reasonable person’s” belief regarding whether or not the defendant is guilty.
If an accused pleads guilty or is found guilty by the court following a trial, they will be sentenced. In determining the sentence, the Court will consider all relevant factors, both positive and negative. In addition the Court will consider the appropriate “range” of sentences in similar cases.
A Pre-Sentence Report may be prepared for the information of the Court. This is a report completed by a Probation Officer after interviewing the accused, thier family, employers and any victims of the offences.
Depending on the nature of the charge, the possible sentences the Court can pass include:
Absolute Discharge – No penalty is imposed, and the offender will have no criminal record for the purposes of Canadian law.
Conditional Discharge – The accused is placed on probation for a certain length of time, during which certain conditions are imposed on the accused. As long as the offender follows conditions the offender will have no criminal record for the purposes of Canadian law.
Suspended Sentence – The Court suspends the passing of sentence and places the accused on probation usually with a number of conditions. Failure to comply with these conditions can result in the accused returning to court for a different sentence.
Conditional Sentence – This is a term of custody to be served in the community. If the conditions attached to this sentence are not abided by, the sentence can be converted to a custodial sentence either for all or part of the remaining sentence.
Custodial Sentence – The court imposes a term to be served in a provincial correctional center or in a federal penitentiary.
11. What is an Assault?
Assault is defined by section 265 of the Criminal Code of Canada.
An assault usually occurs when a person directly or indirectly applies force intentionally to another person. An assault can also occur when a person attempts to assault another or threatens to do so without the consent of the other person. An injury need not occur for an assault to be committed. The force used must be offensive in nature with an intention to apply force. An accidental application of force is not an assault.
12. Domestic Violence Court
In Saskatchewan the Provincial Court has separated domestic matters in an attempt to address the significant number of matters involving domestic disputes leading to criminal charges.
Brian handles nearly 100 new domestic violence matters per year, and can assist you with the process as an accused, victim or witness.
Information regarding Domestic Violence Court is provided on the Saskatchewan Law Courts’ website and reproduced:
The DVC is a therapeutic court that addresses domestic violence and offers the Domestic Violence Court Treatment Option. The DVC Treatment Option allows those who are willing to take responsibility for their actions, who elect to plead guilty, and who will receive a non-incarceratory sentence, to complete a counseling program for domestic violence and address any substance abuse problems they may have.
Individuals will not be sentenced until after they have had a chance to complete the DVC Treatment Program, and if they meet the requirements of the DVC Treatment Option, the individual will receive a reduced sentence. Participation in the DVC Treatment Option is voluntary, and individuals have the right to plead not guilty, or to choose not to participate in the DVC Treatment Option. Individuals who do not participate in the DVC Treatment Option will proceed as they would though the regular court system.
For the purposes of the DVC, domestic violence is defined as any use of physical force, actual or threatened, in an intimate relationship. It may include a single act of violence or a number of acts forming a pattern of abuse. Abuse may include and is not limited to: physical abuse, emotional abuse, psychological abuse, criminal harassment (stalking), or threats to harm children, other family members, pets and property. Additionally, charges related to the violation of bail, probation, conditional sentences or other court orders made in domestic violence cases will be referred to DVC. However, DVC does not deal with sexual assaults.
An intimate relationship is defined as a relationship between opposite-sex or same-sex partners. These relationships vary in duration and legal formality and include: current and former dating relationships, current and former common-law relationships, current and former married relationships, and persons who are the parents of one or more children (regardless of their marital status or whether they have lived together at any time).
The benefits of the DVC Treatment Option include, but are not limited to, the following:
Getting early treatment is a positive step towards ending the cycle of violence;
Getting help now may lead to better relations with your partner and other family members;
Meeting the requirements of the DVC Treatment Option is something the judge will consider when he or she sentences you. You will receive a lighter sentence than you would without treatment;
You will have access to professional help to deal with other issues, such as substance abuse;
Your treatment team will support you through the process;
The domestic violence programs use a variety of ways to help you recognize and change controlling/abusive behavior;
The domestic violence programs recognize cultural differences and individual needs.
Participation in the DVC Treatment Option is open to all adult accused who are charged with domestic violence and are referred, by the Crown, to the Domestic Violence Court Treatment Option. Participants must acknowledge responsibility for their actions by entering a guilty plea and their participation must not pose a risk to public safety. Approximately a third of those who are charged with domestic violence will not be referred to the Domestic Violence Court because the violence involved is too repetitive and extreme, and the Crown will be seeking a significant jail term.
The following are some of the criteria considered by the Crown when determining eligibility:
The severity of the offence;
Past compliance or non-compliance with Court orders;
Past compliance with Corrections Public Safety and Policing; and
Obvious factors that would result in a negative assessment.
The following are some of the criteria considered by probations during an assessment:
The acceptance of responsibility by the accused;
The ability of the accused to attend weekly treatment sessions for several months;
No other charges pending that involve violence;
What programming the accused has participated in previously;
Language and other barriers; and
No psychiatric or psychological issues which would prevent participation in the program.
The DVC Treatment Option is voluntary. To participate, individuals must:
Accept responsibility for the offence by signing an agreed statement of facts and enter a guilty plea (you will have the opportunity to contact a lawyer before choosing how to deal with your charges);
Meet with Probation Services to participate in an assessment process, and make sure the DVC Treatment Option is suitable to you (after pleading guilty your case will be adjourned for approximately 6 weeks to allow you to do this);
Waive the right to immediate sentencing and agree to abide by the terms of the program;
Agree to attend an approved treatment program, and complete domestic violence and, if needed, substance abuse programming;
Attend approximately 20 weekly sessions (generally 2 to 2 ½ hours in length), however these vary depending on the Court, Program and offender;
Agree to participate and abide by group rules and expectations;
Report back to the court as directed;
Agree that the victim can receive information about your attendance and general involvement in the program;
Meet the requirements of the DVC Treatment Option.
Successful completion of treatment will be reflected in sentencing. Participants who fail to follow the treatment program will be sentenced by the court accordingly.
Non-contact and non-attendance conditions are typically put in place by police at the time an accused is charged. The non-contact and non-attendance conditions remain in place until the Court orders a change. Family Service Domestic Violence Victim Caseworkers complete risk assessments upon request for removals or amendments to non-contact and non-attendance conditions. Copies of completed risk assessments are provided to the Crown Prosecutor. The safety of victims and any children involved, not necessarily victims’ wishes, is the most important factor considered in determining risk.
Where is the Domestic Violence Court located?
Regina Domestic Violence Court
Every Thursday – Court room #4
Regina Provincial Court House, 1815 Smith Street.
Saskatoon Domestic Violence Court
Every Tuesday – Courtroom #6
Saskatoon Provincial Court House, 220-19th Street East.
In addition to this information, the Public Legal Education Society of Saskatchewan informs the public on basic principles in criminal law. Listed below is information reproduced from PLEA.org. We encourage you to donate to PLEA (http://www.plea.org/about/donations/) so that they may continue to educate the community on important legal matters.
13. What is criminal law and what is it for?
Criminal law sets a standard of behaviour for all people who live in our country. Its main purpose is to protect society and to keep our communities peaceful and safe. Most people in our society are law-abiding. Their conduct does not fall below that set as a minimum by the criminal law. When a person’s behaviour does not meet the standard set out in the Criminal Code and other laws, they could face criminal charges.
A person accused of a crime is entitled to a fair trial in a court of law. No person may be punished for a crime without admitting guilt or being found guilty at a criminal trial. Individuals who are not capable of distinguishing right from wrong are not held criminally responsible for their actions. For example, a mentally ill person who hits someone will not be punished if they did not know that what they were doing was wrong.
In the case of young children, we go one step further. We accept, as a matter of law, that children under twelve years of age cannot think criminally. No child under twelve years can even be charged with a criminal offence.
In Canada, no one can be convicted of a criminal offence unless the offence can be found in a written law, called a statute. Criminal offences are written so everyone is certain about what behaviour is against the law and what penalty applies if someone breaks the law. A person breaks the law only when their behaviour comes within the activities described by this written law. The law sets out a range of penalties. A judge chooses the penalty based on the facts.
Most of our criminal law is in the Criminal Code. The Criminal Code contains hundreds of offences. Common examples of criminal offences are theft, break and enter, assault, fraud and impaired driving. Weapons offences, arson and sexual offences are other examples of the wide range of behaviour covered by our criminal laws.
The Criminal Code also sets out the procedure for a criminal case, from the laying of the charge to the appeal. For information on criminal procedure see section entitled The Process, below.
14. Who decides what is a crime?
In Canada, the federal government has the power to decide what kind of behaviour is a crime. The most comprehensive criminal statute is the Criminal Code. Other criminal laws are found in the Controlled Drugs and Substances Act, the Customs Act and the Income Tax Act.
The federal government can prohibit behaviour or activities that are harmful to society through the creation of criminal offences. Crimes can change over time. The government can add new laws, change existing laws or get rid of laws altogether as long as the proper procedures are used. Change happens as our ideas about what should be a crime change. For example, it used to be a crime to attempt to commit suicide. Now it is not. It is still a crime to help another person commit suicide.
Criminal law also changes as new technologies develop. For example, we now have criminal offences to specifically deal with theft of telecommunications and wilful damage to computer data.
14. Who enforces the criminal law?
The police, the Crown Prosecutors and the courts enforce our laws. The police investigate crimes, arrest suspects and charge people with criminal offences.
The provincial government hires lawyers, called Crown Prosecutors, to prosecute criminal cases. To prosecute means to lay a charge in a criminal matter and to prepare and conduct legal proceedings against a person accused of a crime. The Crown Prosecutors check to see if the police charged the person with the right offence. The Crown Prosecutor looks at police reports and statements of witnesses and then decides if there is enough evidence to proceed with the charge.
The Canadian Constitution allows the federal government to make our criminal law and the provincial government to run the court system in each province. The Government of Saskatchewan organizes and administers the courts that hear criminal charges in Saskatchewan.
The provincial government pays for criminal prosecutions through the budget for the administration of justice. Our government-funded system of public prosecutions means that the prosecutor, representing the public, often has greater resources than the person who has been accused of an offence. The accused person must hire a lawyer privately or get a lawyer through Legal Aid, unless they defend the charge themselves. Sometimes the lawyer gets experts, such as psychiatrists or scientists, to help with the case. It can be costly to defend against a criminal charge.
Long ago, the victim prosecuted the case. This power of private prosecution still exists, although it is rarely used.
15. Is a provincial offence a criminal offence?
A person may be fined or imprisoned for criminal offences or for provincial offences. Provincial offences are not criminal offences, but in some ways these two types of offences are alike. The Constitution of Canada gives the power to make criminal law only to the federal government. Any law the federal government makes applies across the country. The Constitution gives the provinces the power to make laws too. These laws are called provincial laws. Each province has different laws.
A person who breaks a criminal law may be punished with a fine, a jail sentence or one of several other sentences. Many provincial offences are also punishable by fine or imprisonment. Usually the law that creates the offence says what the maximum penalty or fine may be. Some provincial laws also say that if a person does not pay a fine the judge may order the person to go to jail. Although there may be little difference in the fine imposed, criminal offences generally carry a greater stigma than provincial offences.
A conviction under a provincial law does not form part of a criminal record. However, the province does keep records for its purposes. For example, provinces keep records of driving offences for licensing purposes. A conviction under The Traffic Safety Act of Saskatchewan, for example, forms part of a person’s driving record in this province. Provincial officials use the driving record to decide whether to suspend or renew a driver’s licence. Drivers with a poor record may have to pay a surcharge to renew their licence the following year.
16. How does criminal law differ from civil law?
Civil cases are private disputes between two or more people or companies. Civil cases occur in many areas, for example: family matters, contracts, debts, wills and estates and insurance. Civil cases may be decided by looking at written laws, called statutes. But sometimes civil cases are also resolved using the “common law” or “judge-made law”. When deciding a civil case using the common law, a judge relies on legal principles that have developed over the years.
Criminal law involves protecting the public interest. The victim or person who has been wronged does not have to prosecute the crime. Because we view crimes as wrongs against society as a whole, not simply as private matters between two people, our government pays for public prosecutors. In civil cases, individuals bring the matter to court and are responsible for the cost of the case.
Let’s take an example of a civil case involving a contract. When you agree to buy tomato plants for your garden, you are making a contract. If those plants turn out to be useless because they are diseased, you could ask for your money back. If the seller refused, you could sue him for the purchase price. The lawsuit would be a civil suit, not a criminal prosecution. You could go to Small Claims Court. There you could fill out the paperwork yourself. If your contract was a commercial contract for a large sum of money, you could hire a lawyer and sue in the Court of Queen’s Bench.
Sometimes a single activity can create both civil and criminal liability. In the example above, the seller of the tomato plants could be charged with fraud if he knew the plants he was selling as healthy were, in fact, diseased. Fraud is a criminal offence. In addition, the purchaser of the plants could sue the seller for damages for breach of contract. This is the civil liability that might arise.
The amount of proof needed to prove someone at fault in a civil case is less than what is needed for a conviction in a criminal case. While a criminal case must be proved beyond a reasonable doubt, a civil case must be proved on a balance of probabilities. Proving something on a balance of probabilities means that the judge must be satisfied that it is more likely than not that the terms of the contract, for example, were not fulfilled. The burden of proof is a key distinction between civil and criminal proceedings.
Our criminal justice system has developed safeguards against convicting the wrong person. Penalties for violating the criminal law can be very serious. We do not want to impose penalties on an innocent person, nor do we want to stigmatize them or make it difficult for them to get a good job.
How, then, do we protect against convicting innocent people? We do so by not convicting anyone of a criminal offence unless the prosecution proves that person’s guilt in a fair trial conducted according to law. Proof of guilt is proof beyond a reasonable doubt. The accused person does not have to prove his or her innocence. The accused person is presumed innocent unless or until the prosecution proves guilt beyond a reasonable doubt. These two requirements, the presumption of innocence and proof beyond a reasonable doubt, are the main safeguards against convicting innocent people.
The following section called Proof of Offences describes how the prosecution proves guilt. If an accused person decides to plead guilty, the Crown Prosecutor does not have to prove the person’s guilt. But every person accused of a crime is entitled to plead not guilty and to have a trial if they choose.
Even though the accused person does not have to prove anything, they may choose to raise a defence and testify on their own behalf. The judge conducts the trial according to established rules of evidence. At trial the defence lawyer can challenge police conduct. The judge has powers to help ensure that the police investigate fairly. For example, if the police searched the accused person’s house without a warrant, the judge may refuse to allow items recovered from being used as evidence at trial. In other cases a defence lawyer may argue that police officers pressured or tricked an accused person into confessing. The trial judge listens to evidence of the circumstances surrounding the confession. If the judge agrees that the accused person did not confess freely, the judge can prevent the confession from being used as evidence at the trial.
17. Proof of Offences
A person charged with a criminal offence is presumed innocent until they plead guilty or are proven guilty in court. The Crown Prosecutor must prove that the accused person is guilty. The accused person does not have to establish or show that they are innocent.
18. How much proof is required?
In order to convict an accused person the Crown Prosecutor must prove beyond a reasonable doubt that the accused person committed the criminal offence they are charged with. The judge, or the members of the jury if there is one, cannot find the person guilty if they have a reasonable doubt about the accused person’s guilt. They have a reasonable doubt if, after considering all the evidence, they are unsure whether the accused person committed the offence. To convict, the judge or the jury must believe that the only sensible explanation, considering all the evidence, is that the accused person committed the crime.
19. What kind of proof is required?
To be found guilty of a crime, a person must have done something that is against the law while having what is called a “guilty state of mind”. The prosecution tries to prove that the person intended their criminal behaviour or that they had a criminal state of mind. The person’s state of mind is not a question of motive. It is merely a question whether they intended the act. At any criminal trial the prosecution must prove two things: (1) the criminal behaviour and (2) the accused person’s state of mind.
20. Defences to a Charge
Every person, even someone arrested in very suspicious circumstances, is entitled to present a defence at trial. A defence may be defined broadly as any denial or answer to the charge against the accused person. This definition includes defences that cancel part of the prosecution’s case, such as the first defence listed below, “no criminal state of mind”.
Occasionally the defence lawyer thinks the Crown Prosecutor’s case is so weak that the defence lawyer chooses not to present any evidence. The defence lawyer can still argue that the Crown Prosecutor has not proven the facts or the required criminal state of mind, even when the defence calls no evidence. To convict, the Crown Prosecutor must prove the facts and the required state of mind in every case.
In a more narrow sense, a defence is a legally recognized excuse or justification for criminal conduct. To raise such a defence, the accused person must be able to point to evidence that supports the defence. For example, in an assault case, the Crown Prosecutor may have proved that the accused person hit someone and that the accused person intended to hit that person. Unless they raise a defence, the accused person will be convicted. However, the defence may present evidence that the accused person was acting in self-defence. “Self-defence” may then justify what would otherwise have been criminal conduct.
A defence lawyer may use one or more of the following defences at a trial. The defence lawyer may present evidence such as witnesses, physical evidence or the testimony of the accused in order to prove a defence.
No criminal state of mind: Where the accused person did not have a guilty mind when committing the crime, they may be found not guilty. For example, suppose that a person accidentally backed their car over a neighbour’s lawn ornament. As a result, the ornament was destroyed. The driver may be liable in civil court for causing damage to the ornament. However, because it was an accident, there likely was no guilty mind, so the driver should not be convicted of a criminal offence.
However, suppose that the driver drove over the lawn ornament on purpose, thinking that it was too ugly to exist. In that case they may be guilty of the crime of mischief. The crime of mischief includes wilfully destroying another person’s property.
Behaviour not voluntary: The accused person must have acted consciously. The criminal behaviour – what the person did – must be voluntary. A person who does something while sleepwalking, for example, may not be acting consciously. Similarly, a person’s actions, brought on by an epileptic seizure or by a blow to the head, are not truly voluntary.
Crimes committed in an unconscious state are rare, but if the actions were not voluntary the accused person will be acquitted. This is called the defence of “automatism” because the person moves about automatically, without consciously controlling their actions.
Alibi: An alibi is when an accused person claims that they were not present at the time of the offence. Independent evidence supporting this claim strengthens an alibi defence.
Self-defence: A person who is attacked may use force to resist the attack. The person may use only the amount of force necessary to defend against the attack. This is called “reasonable force”. A person charged with assault, murder or manslaughter may use this defence.
Defence of property: Defence of property is similar to self-defence. A person may use reasonable force to prevent someone from entering their home or property. A person defending their property may not use excessive force. This defence cannot justify shooting, stabbing or setting traps that would injure a trespasser.
Duress: A person who commits an offence because they were threatened may claim the defence of duress. Generally speaking, courts will consider how immediate and serious the threat was, whether there was a reasonable legal alternative, and the degree of harm avoided by way of comparison to the offence itself. Duress may not be a defence to violent crimes such as sexual assault, aggravated assault or murder.
An innocent bystander, forced at gunpoint to drive the getaway car after a bank robbery, might use this defence.
Provocation: Provocation is something that causes another person to lose their self-control. It can be an act or an insult. Provocation can reduce a charge of murder to manslaughter. This is the only time a person may use provocation as a defence. An accused person who acts on provocation before “cooling off” may be acquitted of murder and convicted of manslaughter. If too much time passes between the provocation and the offence, the defence of provocation may not be available. Even so, evidence of provocation can lessen the punishment the accused person receives for the offence if the person is convicted.
Mistake of fact: A person whose behaviour would otherwise be criminal may have a defence if they made a mistake about the facts. Someone who leaves a bicycle in a bike stand, returns and rides off on another bicycle the same colour and make could use this defence. The rider was mistaken about which bike belonged to him or her, not about whether it was illegal to take someone else’s bike. The person must be mistaken about the facts, not the law. The mistaken belief must be an honest one.
Mistake of fact, where it occurs, cancels any “criminal state of mind”. It is related to the first type of defence discussed earlier.
Mistake of law: Ignorance of the law is no excuse. Not knowing that something is a criminal offence does not mean it is all right to commit the offence. But when an accused person can show that a government official misled him or her about the law, an exception called “officially induced error” may apply and mistake of law may provide a defence.
Mental disorders: An accused person who suffered from a mental disorder at the time they committed the offence may not be criminally responsible. The person must not have understood the nature and quality of what they did or that it was wrong. This defence was formerly called the defence of insanity.
The judge may order an assessment of the accused person’s mental condition. The assessment may be done to see whether the accused person is unfit to stand trial, to see whether the accused person was suffering from a mental disorder at the time of the offence, or for several other reasons. A psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer and the Crown Prosecutor.
If an accused person is found not criminally responsible, the judge has a choice. The judge may make an order concerning the person or may choose instead to refer the case to a review board. If the judge makes an order, there are three choices available: an absolute discharge, a conditional discharge or a term in a psychiatric hospital. The judge may grant an absolute discharge if the mentally ill person is not a threat to the public. Where the judge orders that the person be kept in a psychiatric hospital, the judge’s order lasts for a maximum of 90 days. After that, the review board reviews the person’s case.
If the judge does not make an order and refers the case to the review board, the board holds a hearing and decides. The board has the same choices of absolute discharge, conditional discharge or a term in a psychiatric hospital.
Necessity: A person who does an illegal act to prevent a more serious result may raise the defence of necessity. There are several conditions. The accused must show that the act was done to avoid a greater evil; that there was no alternative; and that the illegal act was not more than necessary to avoid the evil.
Intoxication: Ordinarily intoxication by alcohol or drugs is no excuse. For example, in criminal law, a person who gets drunk and does a criminal act is usually still responsible for his or her actions when drunk. There are two possible exceptions. One possible exception is when a specific intent is required for the crime and the other is where intoxication is so extreme that it is clear the person did not know what they were doing.
Intoxication may be a defence for a narrow range of offences, such as murder or theft. These offences require the accused person to form a specific intent. A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases. A person may be so intoxicated that they are unable to form this intent to kill. In this example, the accused person may not be convicted of murder but could be convicted of manslaughter.
Even if the offence does not require a specific intention a person who was extremely intoxicated could still argue that they could not even form the general intent required for the crime or that their actions were not voluntary. However, the Criminal Code states that no amount of intoxication can be used to show that an accused could not form a general intent, or that an accused’s actions were not voluntary, if the crime involves violence or threatened violence to a person. This means that a defence of extreme intoxication would only be possibly available for crimes that do not involve violence to a person.
Long term drunkenness or abuse of drugs may cause a person’s health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminally responsible for their actions and could argue a defence of mental disorder.
Special pleas: A person who has been tried for an offence cannot be tried again for a similar offence arising out of the same facts. That person may plead a special plea that they have already been acquitted, convicted or discharged. The Canadian Charter of Rights and Freedoms also gives this right.
Entrapment and Abuse of Process: The police may carry out undercover activities to detect crime. In doing so, legally they may present a person with the opportunity to commit a crime, but they may not harass, bribe or otherwise induce the person to break the law. Police conduct that induces criminal behaviour is called entrapment. The accused person must prove entrapment.
Entrapment is an abuse of process. It is so unfair and shocking to our sense of justice that it would be an abuse to force the accused person to stand trial in these circumstances. After accepting that there was an abuse of process, the judge “stays” or stops the trial.
How the Charter Affects Criminal Law: The Canadian Charter of Rights and Freedoms (the Charter) is part of the Constitution of Canada. It is designed to protect people against abuses of power by governments. For example, if the provincial government refuses to give someone social assistance because of their religion, the Charter applies. A judge could overturn the government’s discriminatory decision. The Charter applies to all Canadians, young and old. It applies to all laws, government policies and decisions made by the federal or provincial governments or a government agency, like the police. The Charter only comes into play when government is involved. It has no effect when individuals are involved in a dispute over private matters. The Saskatchewan Human Rights Code may provide a remedy in a private matter.
The Charter outlines fundamental rights and freedoms that all Canadians may claim as protection against laws or other forms of government action. Fundamental freedoms protected by the Charter include freedom of religion, expression and association.
The Charter has a great impact on criminal law because of the rights it guarantees to all persons charged with an offence. These include the right to a fair trial within a reasonable time, freedom from unreasonable search and seizure, and the right to seek legal advice when arrested. The Charter also protects against unlawful arrest, detention and imprisonment.
The Charter says that the police must inform a person they arrest of their right to seek a lawyer’s advice and assistance. The police must tell the arrested person of this right without delay.
If the police or other government officials do not respect a person’s Charter rights, a judge can decide not to allow the use of any evidence that the police obtained while violating those rights. The judge’s decision to exclude evidence may affect the outcome of the trial. The judge has the power to exclude evidence if allowing it would decrease respect for the courts and our system of justice.