1. Procedures After Arrest
Pre-Trial Procedures
Procedures After Arrest
CLU3M

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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.

8. 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)

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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

16. 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)

17. 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?

18. 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?

19. Discussion – Karla Homolka
PLEA NEGOTIATIONS
ADVANTAGES
DISADVANTAGES

20. 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