After a crime is committed or allegedly committed, it is typically reported to a law enforcement agency, which assigns a law enforcement officer to either investigate, or process a suspect that has been identified. After their arrest, the individual will go through the booking process, where they are formally identified with a driver's license or other valid identification. Descriptive information is entered into the police computer system about the arrest and the nature of the charges. The individual's personal information is also entered, and they must provide a complete set of fingerprints. They are photographed.
Once you are charged, whether it is in relation to a drug related offence or impaired driving or domestic assault or any other criminal offence, there will be a number of court appearances to permit a person to retain counsel and obtain disclosure of the prosecution's case. Since every person has a right to a trial within a reasonable time according to Section 11 of the Canadian Charter of Rights, the clock is running against the prosecution. The Crown produces "disclosure" to the defence, which ordinarily consists of a collection of police officers' notes and witnesses' statements. This disclosure of evidence is reviewed by your lawyer often in consultation with the person charged (you).
Once the strength of the case against you is assessed by your counsel, counsel meets with the Crown Attorney to discuss the matter. The weaker the case against you, the more that your counsel will have the upper hand. If your counsel is able to convince the prosecutor that there exists "no reasonable prospect of conviction" then the accusation will likely be withdrawn. However, in most cases, the meeting between the prosecutor and the defence will either take the form of guilty plea negotiations or the banging of heads that signals the beginning of the adversarial trial process.
In a situation where there is an overwhelming case against you (the smoking gun and confession and fingerprint and DNA), and there are no viable Charter of Right issues to pursue, your counsel may recommend that you plead guilty to a less serious offence rather than inevitably be convicted of a more serious criminal offence after trial. It is true that a person who pleads guilty to an offence often receives a better result than a person who is found guilty of the same offence after trial. Those who do plead guilty to an offence do so in Court in front of a judge who hears the guilty plea. If the defence and the Crown agree on what the sentence should be, the Judge will ordinarily except the result unless the Judge finds it to be grossly unreasonable. If the defence and the prosecution do not agree on the sentence a person should receive, the parties may take different positions and attempt to persuade the Judge that their position is just.
If the matter is not resolved by guilty plea, the next step in the trial process may be a judicial pre-trial. Defence, prosecutor and Judge (not the trial judge) meet to discuss the case. The Judge takes the role of mediator and attempts to bring the parties together so that the matter can be resolved and a trial can be avoided. The Judge does not have the authority to make any legal rulings at such a meeting. All he can do is express his view on the case and the positions of the parties. Sometimes the Judge will indicate what he would do if the case was tried by him. The Judge's opinion may play an important role in future negotiations between the prosecutor and Defence.
If the matter cannot be resolved through negotiation, a trial is scheduled. Trial preparation continues. Witnesses are interviewed and prepared for their performance at the trial. Legal arguments are prepared. Challenges to the investigatory process are prepared and argued. At trial, the prosecution presents its case first. If, after all the prosecution evidence is heard, there is no evidence establishing a crucial legal issue, the Judge puts an end to the prosecution. However, more often than not, the trial continues. After the defence has the opportunity to present evidence, the Judge will decide whether the case against the defendant has been proven beyond a reasonable doubt. At a civil trial, the burden is proof on the balance of properties (51%). At a criminal trial, an individual is presumed innocent, and the burden is on the prosecution to prove the case beyond a reasonable doubt. If after all the evidence is heard, the trier of fact (judge or jury) is left with a "reasonable doubt", the defendant is acquitted.
A judge and/or jury renders a verdict of "guilty" or "not guilty". A "not guilty" verdict means that the accusation is dismissed. It is over. The Bail Order ends. Bail conditions are no longer in force. However, if the Judge or jury decides that the prosecution has proven its case, a verdict of guilty is rendered, and the sentencing process begins. Both prosecution and defence are given an opportunity to persuade the Court that a particular result should follow.
If an individual is found guilty, there are a wide variety of sentences available to the Court. The Court will balance the competing interests of the rehabilitation of the offender, and specific and general deterrence, to find the appropriate sentence for the particular offence and offender. The Court may choose to grant a defendant a form of discharge and place them on probation, if the Court is satisfied that it is in the best interests of the offender and not contrary to the public interest. If one receives a form of discharge then they do not have a criminal record and, technically, have never been convicted of a criminal offence. The Court can also sentence the defendant to a fine or a sentence of house arrest or a period of incarceration.
The defendant who has been acquitted after trial, and the defendant who has the accusation against him withdrawn by the Crown, are in virtually the same position. Technically, a withdrawn charge can be reinstituted. In practice, it rarely is. For most criminal offences, after the appeal period is over or six months, your lawyer will apply to the police requesting that the photographs and fingerprints taken upon your arrest be destroyed. The police will ordinarily confirm that the records have been destroyed.
Those who have been convicted of a criminal offence are ordinarily eligible for a pardon after a three or five year crime-free waiting period. If one receives a pardon, the criminal record and all information related to the occurrences, is sealed.Kostman Pyzer is a criminal defence law firm serving clients in the Greater Toronto area and elsewhere in the province of Ontario since 1983. Not all ontario lawyers are created equal. We are creative, experienced and hardworking. We pride ourselves on our aggressive representation of clients and our relentless commitment to success. Visit online today.
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