An acquittal is a verdict after a trial following that the Crown has not proven beyond a reasonable doubt that the person accused of a crime is guilty. This determination can be made by either a judge or a jury depending on what mode of election the defence made (that is, so long as an election is available). The accused is free to leave and the conditions he or she was subject to also disappear.
An appeal is a formal request to review an inferior court’s decision. In some cases, an accused must apply for leave to appeal.
Bail is the release of an accused person from custody while the charges remain outstanding.
If the accused is not released either from the place of arrest or from the police station after signing a promise to appear, then he/she is brought into court to decide the bail issue. A bail hearing is a court proceeding to determine if the accused should be allowed to be released from custody pending resolution of the charges (either by guilty plea or trial or other disposition).
If an adult is denied bail then he or she can bring an application for bail review to the Superior Court of Justice. The application must be filed in accordance with the Rules of Criminal Procedure, which include the mandatory filing of transcripts for the proceedings to be reviewed. A substantial change in circumstances of the accused or an error in law by the lower court or the expiry of a mandatory review period is necessary in order to bring the application for bail review. The addition of a new surety or the change of a surety is often viewed as a material change in circumstances.
If bail conditions become impossible to honour, there is a mechanism by which one can seek to change the conditions. There are two ways: 1) with the Crown’s consent; 2) by conducting a contested hearing.
If there has been a bail hearing, and if the Crown will not consent to the variation of bail conditions, then the only alternative is to bring an application for bail variation in the Superior Court. While this is quite often successful, it is also quite often cost and time prohibitive.
Breach is a legal term meaning “did not follow”. Breaching a court order is a criminal offence and is probably the single most common charge in the criminal justice system. Courts do not take lightly allegations or findings of guilt for violations of court orders.
The Charter of Rights and Freedoms is a part of the Constitution of Canada. It is the supreme law of Canada. All Canadian legislation must conform to its principles. The Charter guarantees certain rights and freedoms including: the right to trial without unreasonable delay, the right to a reasonable bail, the right to be free of unreasonable search and seizure, the right to counsel, the right not to be arbitrarily detained, and the right to silence. The Charter is used frequently in criminal law but it applies only where the state (government) is a party. Given that prosecutions are conducted by the government in the public interest, it follows that the Charter applies to the conduct of state agents including police and the Crown Attorney.
A conditional sentence is a jail sentence that is permitted to be served in the community. While it may sound contradictory to serve a jail sentence in one’s home, the conditions imposed are strict, usually forbidding any departure from one’s residence except for work or to obtain the necessities of life.
The sentence is only available if the sentence that would otherwise have been imposed is less than 2 years in custody. There are additional statutory and common law restrictions on the imposition of conditional sentence as well.
Although it is a flexible instrument which can be tailored for a wide range of facts and circumstances, a conditional sentence is unavailable for a “serious personal injury offence”.
A conviction is the finding of guilt, beyond a reasonable doubt, and the entering of a criminal record. This record is held by the RCMP forever. In some cases, one can apply to “seal” the record. This process is now called a record suspension (formerly pardon).
Deferred custody is a sentence under the Youth Criminal Justice Act and is the youth court equivalent of a conditional sentence.
There are two types of discharges: absolute and conditional. Neither type of discharge constitutes a criminal record. This is because although the court makes a finding of guilt, no conviction is entered against the accused. There is therefore no record of conviction. It is the record of conviction that constitutes a “criminal record.” There are no conditions attached to an absolute discharge. Three years following the absolute discharge, the discharge is automatically expunged and essentially becomes the equivalent of a pardon.
A conditional discharge becomes absolute after the expiry of the conditions ordered by the court. These conditions, that can be can be virtually anything that the court deems appropriate, are generally the same sorts of conditions that might be attached to a less serious peace bond or a more serious probation order. Discharges must not be contrary to the public interest and must be in the interest of the accused person. In addition there must be no minimum sentence applicable to the offence in order to qualify for a discharge.
Diversion is a method of resolving a case by having the accused person accept responsibility for his/her conduct and performing some community service, making a donation, attending counseling, writing a letter of apology or some combination of those or other good deeds. Once the good work is done to the satisfaction of the Crown, the charge is typically withdrawn. This is almost invariably a desirable result for an accused person but it does involve that person accepting responsibility for the offence. If an accused is not able to do that, then diversion is not a suitable option. There is no criminal record after successful diversion.
E.J.S. (Extra Judicial Sanctions)
Extra judicial sanctions are a manner of disposing with a criminal offence for youth. It is usually community service. These are roughly akin to adult diversion programs. A young person will be asked to take responsibility for his/her actions, perform community service, write letters of apology, write essays or undertake some other measure that is a consequence without the weight of the full court process. It is not a youth record. The charges are typically either stayed or withdrawn. This is a great result for a young person charged with a criminal offence.
A fine is a payment of money to the government as part of a sentence. It is one form of entry onto a criminal record. A fine can sometimes be paid over a period of months depending on the convicted person’s ability to pay.
An indictable offence is one which corresponds to the English or American classification of felony. These are considered to be more serious crimes and the penalties increase accordingly. The accused person is however afforded the advantage of having a preliminary hearing if he/she so chooses. After the preliminary hearing, if it is determined that there is enough evidence to send the accused person to trial, the defence has a choice of whether to have a trial by judge alone in the Superior Court, by judge and jury of the Superior Court or by judge alone in the Ontario Court.
An indictment is the piece of paper which particularizes the charge once a matter has been committed to the Superior Court.
An information is a paper which particularizes the charge in the Ontario court of Justice. It is also the name of papers sworn to obtain warrants.
If the period of jail is 90 days or less, then an intermittent sentence may be imposed. This is a jail sentence typically served on the weekends to allow the inmate to attend work during the week. Sentences beyond 90 days cumulatively cannot be served intermittently.
Jail is the imposition of confinement at a correctional institution. If the period of jail is less than two years, it will be served at a provincial detention center. If the period of incarceration is two years or greater, than the term of incarceration will be served at a federal prison.
Some cases require judicial pretrials in order to proceed to trial. Here, the estimates for time and witnesses as well as application or motion issues will be discussed with the Crown and the judge. Judicial input sometimes assists in more accurate estimates. Judicial input may also influence one party or another to consider a particular strength or weakness to a case. This may help the parties reach a resolution agreement or realize that no resolution is possible before trial.
A judge is a magistrate of the Ontario Court of Justice empowered to hear trials or preside over preliminary hearings, bail hearings, and supervise the court process.
A justice is a magistrate of the Superior Court of Justice empowered to hear criminal and civil trials.
Justice of the Peace
A Justice of the Peace is a magistrate empowered to preside over bail hearings and set dates in the Ontario Court of Justice, and to hear provincial offence cases in Provincial Offences Court.
A peace bond is a court order where a person promises to abide by conditions. It does not involve an admission of guilt. Rather, one must simply not oppose the imposition of the order because there are reasonable grounds to believe that the complainant feared for their safety or the security of their property at some point in the previous six months.
It is commonly also referred to as an “810” referring to the statutory version of a peace bond. A peace bond is a common resolution negotiated between defence lawyers and the Crown.
Typically a peace bond is entered into in exchange for the withdrawal of criminal charges. The accused person promises to keep the peace and be of good behaviour for the period of the bond, usually 12 months. Other conditions can be attached to the bond as well, including not to have contact with a certain person, not to be in the possession of drugs, not to attend or be near a certain location or virtually anything else that the court might deem appropriate.
The person entering the bond is required to pledge an amount of money that might be forfeited if a term of the bond is breached. A peace bond does not involve a criminal record. Failure to follow the terms of the bond or an accusation thereof is a new criminal offence.
A preliminary inquiry is a hearing to determine if there is sufficient evidence to commit an accused person to be tried on the charge. The test can be found in the Supreme Court of Canada case R. v. Sheppard. A preliminary inquiry feels like a trial. There is a judge presiding over the hearing. Evidence is lead by the Crown. Sometimes there are disputes with regard to leading questions.
Ultimately, the judge must satisfy himself or herself whether there is any evidence, if it is believed, upon which a properly instructed jury, could convict? If the answer is yes, then the accused is committed on that count. If not, they are discharged and do not have to stand trial on that count. That count is treated as legally extinguished.
After counsel has read through the disclosure, discussed it with the client, and then set up a counsel pretrial, or resolution meeting. This is a meeting usually held over the telephone. The Crown attorney and defence counsel will discuss the strengths and weaknesses of the case and whether or not a resolution is possible. If it does not appear possible then the Crown and defence will discuss how long a trial would take and whether there are any Charter issues or special motions to be brought prior to the trial. If there are such motions, will they be integrated into the trial or blended with the trial evidence or held separately in a “voir dire”, which is a trial of a constitutional, technical, procedural or evidentiary issue within the trial.
Probation is intended to be a rehabilitative rather than a punitive tool. Many conditions of probation may be imposed such as: drug treatment; refraining from contacting certain person(s); refraining from being within 500m of a certain location, etc. There can also be a condition to report to a probation officer. This allows the probation officer to supervise the probation and compliance with the conditions of probation including attendance at the probation office.
A breach of one or more of the conditions will result in another criminal charge: breach of probation. The probation period is a tool to keep the convicted person on the lawful path.
Promise to Appear
When arrested you may be released on a promise to appear, which is a paper which you will be asked to sign stating a date when you are to attend court. Typically there is also a promise to appear at the police station in order to be finger printed. Although people quite often take offence to having their finger prints taken, it is of extreme importance that you attend to have them taken at the appointed time. If you do not attend, you will be charged with failure to appear for prints, for which the Crown quite often seeks a jail sentence.
Stay of Proceedings
A stay of proceedings is the stoppage or suspension of the proceedings against the accused without a determination of the merits of the case. The case is stopped before an acquittal or conviction is entered. A stay is typically entered because of procedural unfairness to the accused person. If his or her rights were violated significantly enough to deny him or her the ability to have a fair trial, then a stay of proceedings may be appropriate.
Summary Conviction Offence
A summary conviction offence is one which corresponds to the English or American classification of misdemeanor. This is considered to be a less serious offence although it is still criminal in nature. Consequently, potential penalty is less and there is a 6 month limitation period on charging a person after the offence is alleged. There is no preliminary hearing afforded a person charged with a summary conviction offence and trial must be held in the Ontario Court of Justice. The accused will be tried by a judge alone and will not have a jury.
A surety is a person who will act as a supervisor. Someone who will ensure that the accused person attends court, does not breach his/her conditions of release, and does not commit new offences. A surety is typically asked to pledge a sum of money (known as a bond), that he or she understands will be forfeited, if the duties of a surety are not upheld.
Usually the surety need only demonstrate that he/she has the money and does not have to pay the funds into court. A cash bail can be required. If the accused person then breaches a condition of his/her bail and the surety knows of the breach but does not inform the police or if the surety fails to supervise the accused in terms of court attendances and maintaining his conditions, then the Crown may make application to the court to obtain the money posted for bail. Funds do not automatically default to the Crown if the accused is rearrested for another offence or alleged to have breached a condition of his/her release. The Crown must show that the surety did not properly supervise and did not report, if the surety had knowledge of a breach or contravention of the bail condition or terms.
A suspended sentence is a sentence where no further action is taken except for (typically) probation. The penalty is the criminal record entry itself. A suspended sentence is quite often imposed with probation and conditions.
Trial is the final (except for Appeal) step in the life of a criminal offence. The trial is where the Crown attorney calls witnesses who give testimony against the accused. Those witnesses are cross-examined by the defence lawyer. Most evidence is given verbally.
The defence will have the opportunity to call whatever witnesses it chooses, to contradict or establish facts that are helpful to the accused. After hearing the evidence the judge, in the case of a trial by judge, will decide what facts it believes, what law prevails, and as a consequence, what verdict will be rendered.
In the case of a trial by jury, the judge will try issues of law (decide what evidence will be heard, and what laws are applicable) and the jury, after receiving instructions from the judge, will decide the facts of the case and innocence or guilt of the defendant.
This is an ideal result for an accused person. A withdrawal of charges means the Crown has accepted that it has no reasonable prospect for conviction against the accused. The charges are “withdrawn”, meaning they will no longer proceed with the case. This puts an end to the proceedings. There is no criminal record.
A young person is a person 17 years of age or younger. Young people are treated differently under the criminal law. They are dealt with in a special youth court, with special procedures and rules. These rules are lengthy and designed to protect young offenders from long term consequences of their criminality. As such, there are also separate rules for sentencing, recognizing the diminished moral culpability of teenagers.