Procedures After Arrest Pre-Trial Procedures Procedures After Arrest CLU3M

How long do police have to lay a charge? Indictable offences no statute of limitations for as long as the accused lives Summary conviction offences 6 months

Less serious offences Accused may have to: sign a promise to appear – must show up on assigned date sign a recognizance – a guarantee to appear or pay a fine up to $500 have a surety – someone who will sign a recognizance for accused and will pay a fine if they do not appear Can be done by police officer if offence <5 years max. penalty

The Arraignment First appearance in court Charge formally read in front of a Justice of the Peace Test the validity of the arrest Accused is advised to obtain counsel Duty counsel could assist in this regard Crown might request a show-cause hearing (A.K.A. Bail Hearing) Either released on own recognizance or remanded in custody a duty counsel is a lawyer paid by Legal Aid Ontario who provides limited legal services in criminal matters to people who arrive at court without representation, The onus is generally on the Crown to show cause why the accused should not be released (a bail hearing is also called a "show cause" hearing). In some situations, the onus is switched and it is the accused who must show cause why he should not be detained. For example: if he is charged with an indictable offence allegedly committed while he was on a release for an earlier indictable charge that is still pending, e.g., a driver facing an impaired driving charge who is charged with a new drinking and driving offence; a person facing an assault charge who is arrested on another assault charge (if the Crown has elected summarily on the first charge, it is no longer considered indictable and it is the Crown that must show cause) if he is charged with an indictable offence and is not ordinarily resident in Canada if he is charged with failing to comply with a condition of a recognizance or undertaking, or failing to attend court or appear for fingerprinting, while he was on release for an earlier charge that is still pending if he is charged with trafficking or possession for the purpose of trafficking in heroin, cocaine, more than three kilograms of marijuana or hashish, or importing any amount of these drugs

Pretrial Release Bail – a temporary release of an accused who posts money or some other security to guarantee his or her appearance in court Must be held before a Justice of the Peace within 24 hours of an arrest Must not be denied bail without just cause

Conditional Release A judge or justice of the peace may release an accused person with certain conditions attached. These terms may include: keep the peace (don’t break any other laws!) non-association (with criminals, children, etc.) surrendering passport (so they don’t leave country) curfew stay away from alcohol or drugs

What type of bail? Promise to Appear Recognizance Surety Money Deposit Conditional Release No bail (must be just cause!) NOTE: Some of these may be combined! For instance, an accused person may be released on a recognizance with conditions.

Case Remanded/Adjourned This means the case is put off until a later date if hybrid - charge is classified crown elects - either summary conviction or indictable Crown could drop the charges if not enough evidence (case ends at this point)

Preliminary Hearing Lets the provincial court judge decides whether there is sufficient evidence to proceed with a trial in a higher court Procedure: charge read, plea entered, witness examined, cross-examined and reexamined, defence could call witnesses (e.g. to establish an alibi), lawyers sum up, Judge rules. If there is sufficient evidence, the trial date is set by the judge If there is insufficient evidence, the charges are dropped and the accused is free to go

Outcome: Preliminary Hearing Judge rules: stay of proceedings Or committal for trial defence learns strengths and weaknesses of crown’s case can enter a new round of plea bargaining Direct Indictment Crown applies for this. Skip the Preliminary Hearing and proceed directly to trial Note: Accused could waive right to a preliminary hearing

Preliminary Hearing Sometimes the defendant will skip the preliminary hearing and go directly to trial. This is done if (1) the accused has decided to plead guilty; (2) the accused wants to have the trial date set as early as possible; or (3) the accused wants to avoid negative publicity that may result from the preliminary inquiry

The Plea if the accused pleads guilty to a summary conviction or minor indictable offence, he or she is sentenced immediately or remanded (sent back) into custody If the accused pleads NOT guilty, the provincial court judge will set a trail date

Second Appearance Enter Plea either guilty, not guilty or a special plea Elect court and type of trial - (if given a choice) No choice Most Serious (e.g. murder) Must be in superior court Must be a jury trial Least serious (s. c. and indictable< five years) must be in provincial court (judge alone) Crimes for which the accused does have a choice of type of trial: If maximum in the criminal code is 5 years or more Superior court - judge and jury Superior court - judge alone Provincial court – judge (Case will be dealt with sooner)

Resolution Discussions If there is strong evidence against the accused. The defence may encourage the person to plead guilty to a lesser charge in hope of receiving a lighter sentence A guilty plea to a lesser charge benefits the court – it saves time and money and eliminates jury selection

Resolution Discussions On the other hand, the accused may give the right to a fair public hearing in court, where he or she might receive a “not guilty” verdict If the plea cannot be negotiated, any evidence that was released during the negotiations can be used in trial This may weaken the position of the accused

Discussion – Karla Homolka Case Case Facts Karla received a plea bargain that resulted in a 12-year sentence Karla was sentenced before the public was aware of many of the gruesome facts that were revealed during the trial of her ex-husband Paul Bernardo (the pair where involved in torturing and killing several young women)

Documentary https://www.youtube.com/watch?v=u0NOr9ccmMk Write down your reactions while watching the case. Make sure to reference specific details of the case Describe 3 criminal actions that Karla Homolka was directly involved in. Explain the Actus Reus and the Mens Rea for each of the three examples. Discuss the details of the plea bargain that Karla Homolka and her attorney negotiated with the police. Why was it controversial?

Discussion – Karla Homolka Case In this case, was the plea bargain of value, and was it legitimate? If the plea bargain was not established, would the Crown have a strong case on Paul Bernardo? Overall, was justice served?

Discussion – Karla Homolka PLEA NEGOTIATIONS ADVANTAGES DISADVANTAGES

Plea Bargaining Benefits Criticisms shorter trials Accused agrees to plead guilty to a less serious charge if the crown drops the more serious charge e.g. Murder to Manslaughter Benefits shorter trials saves money provides police with valuable information Certainty of accused at least being guilty of something Criticisms Criminal gets off easy public loses confidence public becomes cynical Equity Is it fair to others who aren’t offered a plea bargain Victims are not consulted Court system seen as easily manipulated Police tend to overcharge