Chapter 5 Pre-Trial to The Criminal Trial © 2015 Cengage Learning

You’ve been Lawfully Arrested The defendant is innocent until proven guilty Burden of proof is on the Crown (prosecutor) Must be proven guilty “Beyond a reasonable doubt”

You’ve been Lawfully Arrested! Depending on the offence a person has been charged with, criminal trials in Canada are held in either the lower Provincial Court Generally, the more serious offences are held in the higher-level court before a judge or a judge and a jury, and the less serious offences are held in provincial-level court before a justice only.

Criminal Trials in Canada If your trial is being held in the upper-level court, you will likely have a preliminary hearing before your trial to determine whether there is enough evidence against you to hold a formal trial. At trial, the Crown prosecutor must prove beyond a reasonable doubt that the accused is guilty. If there is any reasonable doubt about whether the person is guilty, the accused must be acquitted.

What happens at the beginning of a trial A trial begins with the charges being read out loud to the court, which in law is called an arraignment. After the charges are read, the person charged will be asked to enter a plea, which means to declare whether you are guilty or not guilty.

Plea Bargain (Deal with the Devil) It is possible in some circumstances to plead guilty to a lessor charge and get a lessor sentence. The Law Reform Commission of Canada defined a plea bargain as "any agreement by the accused to plead guilty in return for the promise of some benefit." ... After all, there is only one guarantee in criminal law — if you plead guilty you will be found guilty.

Plea Bargain (Deal with the Devil) The accused gives up their right to be presumed innocent and waives their right to a trial. In other words, the accused relieves the state of the heavy obligation of proving guilt beyond a reasonable doubt. In exchange… The accused receives the benefit of reduced charges, or less jail time or some measure of certainty about the ultimate sentence.

Plea Bargain (Deal with the Devil) A father is charged with manslaughter in the death of his infant child. The father says he is innocent (many character witnesses all agree that he was a loving father), but the Crown retains a respected and world-renowned expert who concludes that the child died of shaken baby syndrome. The Crown tells the devastated father that it will seek a lengthy penitentiary sentence if he is found guilty after trial — the father will lose his family, his job and a decade of his life.

Plea Bargain (Deal with the Devil) If the father pleads guilty, the Crown will agree to drop the charge from manslaughter to aggravated assault and will agree to only a six-month jail sentence. Well, do you take the deal???

Plea Bargain (Deal with the Devil) This was the real-life choice faced by Richard Brant. He took the deal and served 6 months. It turned out that the world-renowned expert in Brant’s case was a man now known to be responsible for scores of wrongful convictions. In 2011 — 15 years after Brant pleaded guilty — the Ontario Court of Appeal found that a miscarriage of justice had occurred and entered an acquittal.

Plea Bargain (Deal with the Devil) Here’s another case: A hard-working, pro-social and otherwise loving husband is charged with domestic mischief. It is alleged that during an argument he grabbed his wife’s phone and smashed it. A neighbour called the police. His wife does not want to press charges, but once the police are called, it is not her choice. The husband is released from jail on bail, but, despite the wishes of his wife, he is not allowed to contact her in any way. He can’t move back home or see his children.

Plea Bargain (Deal with the Devil) The family’s finances are stretched. The husband is renting an apartment and waiting for his trial, but that trial is set for a year away.  He can’t afford a lawyer, so he asks the Crown to agree to vary his bail conditions so he can move home. The Crown’s response is: If you plead guilty, we will agree that you can move home. If you don’t plead guilty, there will be no agreement. (Penalty for Domestic Mischief…indictable (10 years in prison)…Summary (6 months and/or $5000)

Karla Homolka 23 December 1990, Paul Bernardo, 26, was engaged to Karla Homolka, 20. That evening, while Homolka’s parents and younger sister Lori slept, Homolka and Bernardo drugged the youngest sister, 15-year-old Tammy Lyn, so Bernardo could rape her. Homolka participated in and videotaped the sexual assault of her sister. 29 Jun 1991, Bernardo and Homolka were married. That same day, boaters and fishermen at Lake Gibson, discovered concrete blocks that encased human arms, legs, feet and a head. It was Leslie Mahaffy, 14

Karla Homolka 30 April 1992, a female body was found in a ditch along a rural road. The face was battered and the hair had been shaved from the head, but the corpse was identified as that of Kristen French, 15. 6 January 1993, Karla Homolka was admitted to Hospital after Bernardo beat her viciously with a flashlight. He was arrested and charged with assault with a weapon, and then released on bail. A month later, Bernardo’s DNA showed him to be the “Scarborough rapist”…

Karla Homolka Homolka was initially uncooperative with police. After consulting with her lawyer, she said she would testify against Bernardo on the condition of being granted immunity from prosecution. The AG for Ontario would not agree to immunity, but was willing to consider a reduced sentence. On 17 February, Bernardo was arrested for the murders of Mahaffy and French, and the Scarborough rapes.

Karla Homolka Homolka described herself as a battered wife who was forced to participate in Bernardo’s crimes, and who lived in terror of him. A search of their house turned up a list of the Scarborough rapes, books of a deviant sexual nature, a hunting knife, handcuffs and a videotape of Homolka and Bernardo engaged in sexual activity with two unidentified young women. Homolka was clearly a willing participant in both encounters.