Frequently Asked Questions

Ok, you are in trouble .... Now what?

What is the difference between a felony and a misdemeanor?

Summary offenses are less serious crimes that are tried in a lower court, usually without a jury, and can carry lesser penalties.

They often involve less serious misconductIndictable offenses are more serious crimes, such as murder or conduct causing bodily injury, or property offenses over $5000.00.    You can choose to have these charges tried in a higher court with a jury or judge alone, and they often carry more severe penalties. These cases usually involve more complex legal procedures due to the severity of the crime.

What are the elements of a crime?

The elements of a crime typically include:

1. Mens Rea: This is the "guilty mind" or intent to commit the crime. It's the mental element involved in the act.

2. Actus Reus: This refers to the actual act or conduct that constitutes the criminal offense. It's the physical element of the crime.

3. Causation: This element connects the defendant's actions to the consequences, showing that the criminal act directly resulted in the harm or damage.

4. Concurrence: This means that the intent and the act must coincide. In other words, the individual must intend to commit the crime at the time they are engaging in the criminal act.

5. Harm: In most cases, some form of harm or injury, either physical or to property, must have been caused for an act to be considered a crime.

6. Legality: The action must be considered a crime under the current law at the time it was committed.

7. Punishment: The act must be punishable under established law.

Each of these elements may not apply in every case, and the specific details can vary based on the jurisdiction and the specific crime being considered.

What is the role of a defense attorney in a criminal case?

The defense counsel in a criminal case represents the defendant. Their role includes providing legal advice to the defendant, arguing on their behalf, ensuring their rights are protected, negotiating plea deals with the prosecution, challenging the evidence and witnesses presented by the prosecution, and presenting a defense strategy. They also have a duty to ensure that the trial process is fair and that the defendant understands the charges, their rights, and the consequences of different decisions. They aim to either prove the defendant's innocence or to obtain the least severe penalty possible.

What is the process of a criminal trial?

The Process of being charged and tried in Canada includes these general steps (though there may be some minor variations):

  1. Arrest: Law enforcement arrests the suspect and reads them their Charter rights.

  2. Initial Appearance: The defendant is either asked to appear on a given date in court, or they are kept in jail and taken to court. They are informed of the charges.

  1. Someone held in jail either has a bail hearing, or they are released.Someone who is not held in jail receives a further court date. In both cases, the accused needs to request disclosure, so they know the facts and charges they must answer to.

  2. The Defendant enters a plea of Guilty or Not Guilty.

  1. Preliminary Hearing: A preliminary hearing can occur of the defence elects to be tried by superior court, and if they ask to have a preliminary hearing. A provincial court judge determines if there's enough evidence for a trial.

  1. Pre-trial Motions: Lawyers may file motions to exclude evidence, dismiss charges, or deal with other matters that have arisen. Discovery: Both sides share evidence they plan to use in the trial.

  1. Trial: The trial could include preliminary motions, opening statements (if a jury trial), witness testimony and cross-examination, closing arguments, jury instructions, jury deliberation, and verdict.

  1. Sentencing: If the defendant is found guilty, the judge determines the appropriate punishment during the sentencing phase.

  1. Appeal: If the Prosecutor or the Defendant believes there was a legal error or a mistake in the trial, they can appeal the conviction or sentence to a higher court.

Remember that this process may vary depending on the jurisdiction and the specifics of the case.

How does the plea bargaining process work?

The plea bargaining process in Canada, also known as plea resolution, involves a dialogue between the prosecution and the defense usually before trial begins, but it can and often does occur after trial begins. Here's a short outline of the process:

  1. Negotiation: The prosecutor and defense lawyer may engage in negotiations around the charges or the sentencing. This often involves the defendant pleading guilty to a lesser charge or in exchange for a lighter sentence.

  1. Agreement: If an agreement is reached, the defense will plead guilty to the agreed-upon charges. This agreement isn't legally binding until accepted by the court.

  2. Judicial Approval: The guilty pleas will be presented to a judge after a resolution has been reached (with respect to the original charges or after the charges are amended). After the agreed upon guilty pleas, some charges will be withdrawn. The judge has discretion to accept or reject the pleas based on whether the facts submitted meet the elements of the charges.

  3. Guilty Plea: If the guilty pleas are accepted by the judge, the defendant has waived their right to a trial and is confirming they did the acts which brought them before the court.

  4. Sentencing: The judge will then sentence the defendant when the defendant pleads guilty, or will do so at a separate sentencing hearing. If a specific sentence was part of the plea deal, the judge will typically impose that sentence, but they retain discretion and may impose a different sentence if they believe it's warranted.

While plea bargaining is a common practice in Canada, it's less formalized and more discreet than in countries like the United States. Plea bargaining in Canada must also comply with the principles of fundamental justice, as per the Canadian Charter of Rights and Freedoms.

What are the potential penalties for different types of crimes?

The penalties for crimes can vary widely based on jurisdiction, the severity of the crime, whether it's a first offense or a repeat offense, and other factors. Here are some general categories of crimes and their typical penalties in Canada, but it's important to note these can vary greatly based on the factors listed above. 

All criminal charges in Canada are classified as either Summary or Indictable, and the range of seriousness of the alleged crime in either category is extremely broad:

Summary Matters:  includes a range from less serious offences, such as petty theft, simple possession of illicit drugs,  public intoxication, mischief to more serious offences (but less serious than indicatable charges); such as, drunk driving, possession of stolen property under $5,000, or simple assaults.  Sentences can include fines, community service, probation, or up to 2 years less a day in jail.

Indictable Matters: These are the most serious types of crimes, such as assault causing bodily harm, murder, sexual assault, kidnapping, property offences over $5,000.00 or serious drug offenses. Penalties for indictable offences can include substantial fines, longer sentences in the community with stricter conditions, or longer prison terms.

Remember, this is a simplified breakdown, and actual penalties can vary based on many factors, including the details of the crime, the defendant's past criminal history, and mitigating and aggravating factors .

For accurate and specific information about potential penalties for a crime, you should consult legal advice from a professional.

What are the rights of a defendant in a criminal case?

In Canada, the defendant has a number of rights that are protected by law, typically under the Canadian Charter of Rights and Freedoms. Here are some (but not all) key rights:

1. Presumption of Innocence: Every person is presumed innocent until proven guilty beyond a reasonable doubt in a fair and public hearing by an independent and impartial tribunal.

2. Right to Counsel: A defendant has the right to retain and instruct counsel at any stage of the proceedings.

3. Right to be Informed: Defendants have the right to be informed without unreasonable delay of the specific offence they are being charged with.

4. Right to Fair Trial: Defendants have the right to a fair and speedy trial.

5. Right Against Self-Incrimination: Defendants have the right not to be compelled to testify against themselves.

6. Right Against Double Jeopardy: A person cannot be tried or punished again for an offence for which they have already been acquitted or convicted.

7. Right to Silence: The right to remain silent is an aspect of the right against self-incrimination. No negative inference can be drawn from the exercise of this right.

8. Right to Disclosure: The Crown must disclose all evidence to the defence, whether it intends to use that evidence or not, unless there is a valid reason for not doing so.

9. Right to Bail: Unless there are specific reasons not to do so, individuals have the right to be released on bail while awaiting trial.

10. Protection Against Cruel and Unusual Punishment: Defendants have the right not to be subjected to any cruel and unusual treatment or punishment.

These are some of the basic rights, but the specifics of a case can lead to additional rights or considerations. It's important to remember that these rights are meant to ensure the process is fair and just, irrespective of the crime alleged.

How is evidence collected and presented in a criminal trial?

In Canada, evidence for a criminal trial is gathered in several steps:

1. Investigation: The first step in evidence collection is the police investigation. This involves obtaining physical evidence from the crime scene, such as weapons, fingerprints, or DNA samples. It also involves gathering testimonial evidence from witnesses.

2. Seizure: In some cases, further evidence may be obtained through a search warrant, which allows the police to search a suspect's home, vehicle, or other property (though some warrantless searches are permitted under certain circumstances).  To obtain a warrant, the police must demonstrate to a judge that they have reasonable grounds to believe that a crime has been committed and that evidence of that crime will be found in the location to be searched (unless the search is 

3. Disclosure: After the evidence is collected, the prosecution must disclose all relevant information to the defense. This includes both evidence that supports the prosecution's case and any exculpatory evidence that might support the defense.

4. Admissibility: Not all evidence is admissible in court. For example, hearsay evidence (testimony about what someone else said) is usually not admissible, and evidence obtained illegally (e.g., without a warrant when one was required) may also be excluded.

5. Presentation: At trial, the evidence is presented through the testimony of witnesses. Physical evidence is usually introduced through a witness who can attest to its authenticity and relevance. Expert witnesses may also be called to interpret complex evidence, such as DNA analysis.

6. Cross-examination: After the prosecution presents its evidence, the defense has the right to cross-examine the prosecution's witnesses. This allows the defense to challenge the reliability and credibility of the evidence.

7. Defense: The defense also has the opportunity to present its own evidence. The prosecution has the same right to cross-examine the defense's witnesses.

8. Summation: After all the evidence is presented, both the prosecution and the defense summarize their case and the evidence presented to the jury or judge.

The judge or jury then weighs the evidence and determines the verdict. In general, the aim of this process is to ensure that the trial is fair and that all relevant and admissible evidence is considered.

What is the role of the judge and jury in a criminal trial?

The role of the judge and jury in a criminal trial in Canada is:

Judge: The judge has many roles, including ruling on the admissibility of evidence, ensuring that the trial proceeds according to the law, and giving legal instructions to the jury. In some cases, the judge determines the guilt or innocence of the accused.

If the accused is found guilty, the judge also determines the sentence.

Jury: The jury's main role is to determine facts. They listen to all the evidence presented during the trial, and based on these facts, they decide whether the accused is guilty or not guilty.

The jury's decision, also known as the verdict, must be unanimous in serious criminal cases in Canada.

What are some common defenses used in criminal cases?

1. Not Guilty Plea: This is the most common form of defense where the accused denies committing the crime.

2. Alibi: The defendant could provide evidence that they were elsewhere when the crime occurred, thereby proving it impossible for them to have committed it.

3. Self-Defence: This is where the accused admits to the act but argues it was necessary to protect themselves or another person from imminent harm.

4. Duress: This defense is used when the accused argues that they were forced or coerced into committing the crime under threat of harm.

5. Mental Disorder or Lack of criminal responsibility at the time of the incident: The accused may claim they were suffering from a mental disorder at the time of the crime, which made them incapable of appreciating the nature and quality of the act, or of knowing it was wrong.

6. Intoxication: In some specific cases, intoxication can be used as a defense if it can be proven that the level of intoxication was so high that it impacted the accused's ability to form the intent necessary to commit the crime.

7. Necessity: This defense is applied when the accused had no reasonable choice but to commit an illegal act due to an immediate and dire situation.

8. Entrapment: This occurs when law enforcement officials have induced a person to commit a crime that they would not have otherwise committed.

Remember, the applicability and effectiveness of these defenses can depend heavily on the specifics of the case, the type of crime committed, and the quality of the legal representation.

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