If you are charged with a criminal offence there are a few main things that you should keep in mind.
The law always presumes that you are innocent. What this means is that if you are charged with a criminal offence, upon entering court the judge should be thinking ‘I presume this person is innocent’.
The Prosecutor Must Prove Your Guilt Beyond a Reasonable Doubt
The Prosecutor, better known as the Crown Counsel, has the responsibility of proving beyond a reasonable doubt that you are guilty. Should the judge not be convinced or if they have reasonable doubt then they cannot find you guilty.
In order to prove beyond a reasonable doubt, the Crown must establish a few things. The first is the time and location of the offence. Secondly, the Crown generally needs to identify that the offender was actually you. This is often proven through witnesses and video surveillance footage. Lastly, the Crown generally needs to prove that all elements of the offence actually occurred. This generally means that the crime was committed and that you had the right mental state/intent to commit the act. Should the Crown prove these, then generally they have proven beyond a reasonable doubt your guilt. However, there are defences that are available to you that if raised may disprove the Crown’s arguments.
You Have the Right to a Fair Trial
It is essential that you listen to the judge and ask questions if you do not completely understand something. While a judge is not your lawyer, they do still have the responsibility to ensure that the process of trial remains fair.
The Steps in the Process
Step 1. First Appearance
What Happens at the First Appearance
When you are charged, you will be given a document which indicates the date of your first appearance in court. If you fail to attend court on this date and time, a warrant for your arrest may be issued and you may be charged with the offence of failing to appear in court.
It is noteworthy that the first appearance date is not a trial. This is when you will be provided with more information about the charge against you as well as disclosure documents. The disclosure package will outline the allegations against you and the evidence that the Crown is relying upon to prove your guilt.
Additionally, in some circumstances, the Crown will also use the first appearance to make their initial sentencing position clear.
When Your Arrive at Court
It is imperative that you arrive at court on time. When you arrive at court, you must inform the sheriff that you are present, especially if you do not have a lawyer. After signing-in, you will wait for your name to be called by the judge or justice of the peace. Once your name is called you will need to stand and introduce yourself to the judge or justice of the peace. At this time you can ask the prosecutor for the disclosure package and their initial sentencing position.
After receiving the package you can ask the judge or justice of the peace to adjourn your case. This essentially puts your case on hold, providing you with time to review the material, speak with a lawyer and decide how to proceed.
Read the Material Carefully
When reviewing the disclosure package it is essential that you read the material carefully. It is possible that there may be a discrepancy between what the police say happened and what you believe happened. Additionally, there may be things that you think are important to your case but are missing from the disclosure. If this is the case you can follow-up with the prosecutor and they can provide those documents to you.
Step 2. Talk With a Lawyer
After you have attended your first appearance and reviewed the material your next step is to speak with a lawyer. A lawyer will be able to review the material with you and advise you as to what your rights and options are, the strength of the Crown’s case, and potential sentences you may face if you are convicted.
Additionally, most courthouses have duty counsel. These are lawyers that can provide you with free legal advice if you have a case in the courthouse that day.
You can book a free consultation with one of our experienced defence lawyers for more information regarding your case.
Step 3. Decide How to Proceed
When deciding how to plead you have three main options.
You Can Plead Not Guilty
One of your options is to plead not guilty. This means that since the law presumes you are innocent, the prosecutor must prove beyond a reasonable doubt that you are guilty. Pleading not guilty generally also means that the court will set a date for your trial.
You Can Plead Guilty
Pleading guilty to an offence means that you accept that you committed the offence and thus will need to go before a judge for sentencing.
You Can Ask for More Time
Lastly, you may ask for an adjournment. This means that the court will set another date for your next court appearance, allowing you more time to consider your options and decide how to plead.
Preparing for the Trial
When you prepare your defence for your trial there are two main things that you need to consider.
Gathering Evidence
Arguably, the most important aspect of your defence is the evidence that you can rely upon to disprove the Crown’s arguments. The Crown will provide you with a disclosure package indicating all of the evidence that they are relying upon. This will include police reports, witness statements, video surveillance, etc. Additionally, you should be informed of who the prosecutor is going to use as witnesses. If any information is missing from your disclosure package you can ask the prosecutor to provide it to you.
When building your own defence, some evidence you can consider using is witnesses – such as an alibi, documents and your own personal testimony.
Presenting Your Defence
You can choose to present your defence during trial. This is where you will have an opportunity to present your evidence. Any documents you wish to present, generally need to be provided to court by a witness to confirm that it is real.
If you have witnesses, you will have the opportunity to question them first. Then the Crown will generally have the opportunity to cross-examine them. This is when the Crown can question your witness.
Additionally, if you wish to testify you must speak under oath and the prosecutor will have the opportunity to cross-examine you. Notably, you have the right to remain silent, which means that you do not need to testify if you choose not to.
The Trial
Your trial will take place before a judge. During the trial each side (the prosecutor and the defence/you) will have the opportunity to call witnesses and present their evidence. The judge will then make a decision on whether you are guilty or not guilty.
The Crown Must Prove Its Case
The Crown will have the opportunity to make their case against you before you can present your defence. Here, the Crown will present their evidence using witness statements and documents to prove beyond a reasonable doubt that you are guilty. The witnesses testify about what they saw/heard and you will have the opportunity to cross-examine these witnesses. When you cross-examine the witnesses you will be able to ask questions about points that the witnesses may seem unsure about in order to highlight the weaknesses in the Crown’s case.
You Might Make a No-Evidence Motion
The Crown must prove beyond a reasonable doubt that you are guilty. If they are unable to prove this and you believe that they have not proved some elements then you may make a no-evidence motion. If the judge agrees that the Crown has missed proving some element of the offence, then the charge may be dismissed.
Presenting Your Defence
You will need to present your defence if you do not make a no-evidence motion, or if the judge disagrees with your no-evidence motion. This is where you will present any documents through a witness, examine witnesses and allow the Crown to cross-examine your witnesses and if you choose make your personal testimony.
Once you have presented all your evidence you will need to close your case. This is where you make your submission which essentially is your statement to the judge as to why you think the Crown was not able to prove beyond a reasonable doubt that you are guilty.
After both you and the prosecutor have made your submissions the judge will then make their decision. If the verdict is that you are not guilty, then the charge will be dismissed and you are acquitted. If the verdict is that you are guilty, then you will be convicted. The judge can sentence you right away or they may choose to sentence you at a later date.
Sentencing
If the judge finds you guilty then you will receive a sentence. The sentence is dependent on various factors, and the judge may ask you a series of questions before giving you a sentence. This may include your age, if you have previous convictions, your income, if you are married and have dependents, why you committed the offence and your plans. Additionally, you may be able to provide letters from individuals such as employers, doctors, family and friends testifying to your character. You can request an adjournment in order to gather these letters before receiving your sentence.
Understanding the Possible Sentences
There are various sentences available, however, the judge will need to consider many factors including public interest, the harm of the offence committed and the circumstances of the offender.
- Discharge: Even after finding you guilty the judge may decide to discharge you rather than convicting you. There are two main types of discharges. The first is an absolute discharge. This is where you will not get a criminal record. The second is a conditional discharge. This is where you must follow a set of conditions and upon meeting them, you will not have a criminal record.
- Suspended Sentence: This is where you are convicted but your sentence is suspended. What this means is that you will be released on probation and your probation order will contain conditions that you must follow.
- Conditional Sentence: This is when the judge gives you a jail term, but rather than serving in a prison cell, you serve the sentence in the community with a set of specific conditions. Often this can include house arrest.
- Fine: The judge may choose to fine you. This is where you will need to pay a certain amount to the court.
- Restitution Order: If the judge sentences you to a restitution order then you will need to pay a certain amount to someone, generally the victim.
- Jail Term: This sentence requires you to spend a set amount in prison.
