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CRIMINAL LAW

 

 

GoodmanMacDonald Lawyers have extensive experience in the area of Criminal Law. Tim Daley provides representation on all levels of Courts with respect to Criminal and Quasi-Criminal charges Whatever your situation, we invite you to contact us to discuss your matter.

 

In general, charges under the Criminal Code of Canada fall into two categories. The first is called summary offences. These are lesser offences that are dealt with in the Provincial Courts of Nova Scotia. These generally include matters such as simple assault, theft, uttering threats and related offences. The bulk of the Criminal Law charges are dealt with as summary offences in the Provincial Court.

 

More serious charges, called indictable offences, are dealt with in a different fashion.

 

LAYING OF A CHARGE

 

For the vast majority of charges, particularly of a summary offence nature, the police will issue an Appearance Notice requiring an accused person to appear in Court on a certain date and time. Arrest is not always required.

Where a person is arrested, they have certain rights pursuant to the Canadian Charter of Rights and Freedom including, but not limited to, the right to be informed of the charge for which they are held and the right to speak to a lawyer. Any accused person should speak to a lawyer prior to providing any information to the police other than their name and address. The accused person’s right to silence is extremely important to understand and exercise at the early stages after arrest. Any comments that an accused person makes to a police officer will be recorded by that officer and may be admitted against the person at Trial. Thus, it is important for the accused not to say anything to the police, to be co-operative and provide the minimum information noted above.

 

For most offences, the police will release the accused after arrest with an Appearance Notice. When the police choose not to, the police must bring the accused before a Court for a “show cause” Hearing where the Crown usually has the burden to show why the person should not be released with or without conditions. In certain circumstances, the burden falls to the accused to show why they should be released but this is far less common. In most circumstances, the accused will be released with conditions such as a Signature Bond, a requirement that they keep the peace and be of good behaviour, report to Court when required, notify the Court of any change in address and other similar conditions. It is important to have competent counsel before adjourning such a Hearing to ensure that there is the minimum intrusion into the life of the accused on release and prior to Trial.

 

PRELIMINARY INQUIRY AND TRIAL

 

If you are charged with an indictable offence, you will generally be put to an election. You can choose to be tried by a Provincial Court Judge alone, a Supreme Court Judge alone after a Preliminary Inquiry has been held or a Supreme Court Judge and Jury after a Preliminary Inquiry has been held. Once you have elected your method in consultation with your lawyer, you will follow a particular process.

 

If you elect Provincial Court Judge alone, at your first appearance before Court, a Trial date will be set and a Trial will take place at that time. If you choose a Supreme Court Judge alone or Supreme Court Judge & Jury Trial, you will first take part in a Preliminary Inquiry in Provincial Court. This Inquiry will take place at some point after your first appearance.

 

At the Preliminary Inquiry, the Crown will call evidence in the matter and must convince a Provincial Court Judge who hears the matter that there is some evidence on which a properly instructed Jury, acting judicially could convict. This is a far lower standard than the trial standard of beyond a reasonable doubt. The vast majority of matters that go through Preliminary Inquiry do move on to Trial.

 

The purpose of the Preliminary Inquiry, from the Defendant’s point of view, is to test the evidence and the witnesses of the Crown. It allows the Defense Counsel to discover the general case of the Crown, to determine how witnesses will react and to commit them to certain versions of defense that can later be challenged at Trial as either inconsistent or unlikely to have occurred. It could be thought of as a “test run” for the Trial but has several other purposes which counsel will take into account.

 

Once the Preliminary Inquiry is finished, if the accused is remanded over to Trial he will next appear in Supreme Court and a Trial date will be set. At that Trial, whether by Judge alone or Judge and Jury, the facts will be brought out through the witnesses and documents and a verdict rendered.

 

SENTENCING

 

If sentencing is required in a matter, either the Crown or Defense can request a Pre-Sentence Report. This is a report prepared by the Probation Services in consultation with the accused as well as anyone who may have knowledge relating to that accused person. The purpose is to build a profile of the accused for consideration by the Court prior to sentencing. This report is presented to the Court and both lawyers involved to be reviewed at the sentencing Hearing.

 

At the appointed time for sentencing, either the Crown or Defense may call evidence or merely make submissions through counsel as to the appropriate sentence for the accused. Sentencing under Canadian law can range anywhere from an absolute discharge all the way up to significant jail time. In between are the options of probation, community service, fines, conditional sentence (often referred to as house arrest) and intermittent incarceration. Different offences call for different minimum or maximum levels but the Court generally has wide discretion in imposing a sentence within both guidelines set by the Criminal Code and by the Court of Appeal or the Supreme Court of Canada.

 

APPEAL

 

At the finish of any Trial, or after sentencing, either the Crown or Defense may appeal either the conviction or the sentence or both. Depending on the level of Court involved, that Appeal will be heard by either a Supreme Court Justice or by the Court of Appeal. On Appeal the Court will not retry the case nor will it hear fresh evidence. It will simply review the transcript of the Trial and submissions of counsel to determine whether or not an error of law has been made by the Trial Court which must be corrected.

 

If such an error of law is found, the Court of Appeal may order that the verdict be changed or the matter to be remanded back to Court for a new Trial or determination of a single issue. The Court of Appeal has wide latitude in how to deal with a matter but will be careful not to substitute its opinion of what should have happened for that of the Trial Judge or Jury.

 

As with all legal matters, if you have been charged with a criminal or quasi-criminal offence you should seek counsel and GoodmanMacDonald Law can help you. The information above is intended to be general in nature and you should not rely upon it to make any decisions respecting your legal position. Please contact us directly for legal advice from one of our lawyers.