A step-by-step guide to a criminal case

Despite seeing news relating to criminal law on a daily basis, most people who have never been charged have no idea how the court system works. The whole process can be overwhelming, but it helps to know what steps are involved. I find myself routinely sketching out this diagram with clients, so I decided I should share it here.

The first step of the process is the incident itself. A charge is laid by the police which sets the system in motion. The individual charged will then be compelled to appear in court by one of several means. If the police release the person from the scene, they may issue a summons or a promise to appear. If they are not released, they could be held for bail.

If someone is held for bail (or ‘show cause’) then they will be brought to court by the police. There, a Crown attorney will review the file and decide whether they will consent to the individual being released. If so, then the Crown and a defence lawyer will work together to draft conditions that the person must follow. These could include not attending certain locations or abstaining from alcohol. If the Crown does not consent, then we must set a bail hearing. This hearing might take place a couple of days later, and will involve presenting evidence to a justice of the peace about where the person might live and what supervision can be offered. A person may then be released on a recognizance and given a date to come back to court. 

Once bail has been decided, then the individual will appear in remand court. Remand, or set-date as it is called in some courts, is used to set meetings and other court dates. No pleas are entered here. If a person does not have a bail condition to appear personally for remand, then a lawyer can appear on their behalf if they’ve signed a form designating them as counsel.

The next important step is to review disclosure. Disclosure is all of the evidence that the Crown has about the case, which they are obligated to give to the defence. The review of disclosure by a lawyer with a client is critical to assessing the strength of the Crown’s case and possible defences. 

A lawyer will then meet with a Crown prosecutor in a counsel pre-trial (or CPT). This meeting is used to discuss where the file is going, either to plea or trial. A defence lawyer might bring information about a client’s background to pitch a more lenient sentence, or the lawyers might simply discuss length of trial.

Sometimes a case will warrant some further discussions with a judge. In this case, we would set a judicial pre-trial (or JPT). At this meeting, the investigating police officer might also attend to give input. A judge will give their opinion as to an appropriate sentence, or confirm how long a trial would take.

Once the case has been reviewed and discussed, it is then up to the client to decide whether they want to plead or go to trial. (Sometimes a case will resolve outside of these options, if for example the Crown decides to withdraw the charge, but these are the typical options.) The client gives their instructions as to how they wish to plead. 

If someone pleads guilty, then they are taking responsibility for the facts that the Crown is alleging. In a plea court, the person is admitting to what they have been charged with and then are sentenced, which will be discussed below.

At a trial, a person is holding the Crown to their job of proving every charge beyond a reasonable doubt. The Crown will call witnesses to testify to prove their case and a defence lawyer will have the opportunity to cross-examine them. The individual may choose to testify at his or her own trial, but there is no obligation to do so. If the judge finds a person not guilty, then they are acquitted and the case ends there. If the person is guilty, then they proceed to sentencing.

At sentencing, a judge will decide the appropriate punishment for an offence. A sentence can range from an absolute discharge to jail, depending on a variety of factors. A judge’s ultimate job here is to balance aggravating and mitigating factors to decide the appropriate outcome.

Keep in mind that this is a very brief sketch of the typical case. While some files will deviate from this course, this is the routine path that criminal matter will take through the courts. 

April Criminal Law Round-up

While the Duffy verdict dominated headlines, there were lots of other criminal law news and cases of note this month:

News:

The Ottawa Carleton Detention Centre continued to make the news, with Minister Yasir Naqvi ultimately calling a task force to address the chronic overcrowding and harsh conditions. Read about the taskforce here, or find my thoughts on it in a previous blog post

Macleans ran a heartbreaking story featuring a letter written to Kinew James, a woman who died at the Regional Psychiatric Centre in Saskatoon. The letter gives a rare insight into compassion and resilience of the women who are incarcerated in Canada. An inquest into James' death began this month but is being adjourned to expand its scope to include her medical and mental health records from her time in custody.

Meanwhile, in Toronto, the Special Investigations Unit report in Andrew Loku's death was finally (partially) released. Loku was killed by police in July of 2015, and after intense pressure by the group Black Lives Matter Toronto, the Ontario government released the findings of the report. Read some background as to the decision and the impact of the decision here.  

Cases:

In a lengthy decision, Justice Vaillancourt acquitted Mike Duffy was acquitted of all 31 counts of fraud, bribery and breach of trust. In case you aren't up for reading the full decision, you can listen to Michael Spratt and Emilie Taman speak with law professor Peter Sankoff on their podcast "The Docket."

The Supreme Court released two important criminal law decisions this month. R v. Lloyd dealt found the mandatory minimum sentence for drug possession where a person had a previous record for drugs was unconstitutional. In R v. Safarzadeh-Marhkalithe court found that the Conservative's Truth in Sentencing Act, which limited pre-sentence custody to those detained awaiting trial because of their criminal records was also unconstitutional. The cases were seen as the court dismantling Harper's 'Tough on Crime' regime. Read an overview of the cases here and see my thoughts on Safarzadeh-Markhali here.

The case of David and Collet Stephan, whose son died of meningitis after being treated with naturopathic remedies, drew lots of attention. The couple were ultimately convicted of failing to provide the necessities of life and the matter has been adjourned for sentencing. 

 

My Brain Made Me Do It: Neuroscience & Criminal Law

CBC’s the Nature of Things will be airing a fascinating documentary tomorrow night, March 17 at 8 pm, about the intersection of neuroscience and criminal behaviour. (Check out the trailer here.) The show asks some important questions about how the human brain affects behaviour and how the criminal justice system deals with this information. Essentially it comes down to asking who is ultimately to blame for criminal behaviour, the individual or their brain?

For me, one of the documentary’s most compelling examples was of an individual with no criminal background who all of a sudden started to hoard pornography. His behaviour escalated and he was later arrested for sexual assault against a child. A brain scan revealed a massive tumour that was pressing on a part of the brain responsible for inhibiting urges and desires. Once the tumour was removed, his symptoms of pedophilia disappeared. Interestingly, his symptoms began to re-emerge six months later and a brain scan showed that the tumour had grown back.

While this is perhaps an extreme example, the film also shows research of brain scans done on individuals who are incarcerated. The results show a pattern characterized as less ‘muscle mass’ in the emotional regions of the brain and a weaker connection between the frontal lobe and temporal lobe. These characteristics can affect empathy, impulse control and decision making. Similarly, drugs can affect our brain’s ability to manage information, throwing the rewards systems off balance. In fact, the film showed some examples of individuals who were given medication for Parkinson’s disease, and subsequently found themselves engaging in compulsive behaviours, from obsessively studying to gambling.

These stories made me reflect on many of the clients that I’ve represented over the years, who have acted in ways that didn’t make sense even to themselves. What would their brain scans look like? And how might that affect their cases?

The film doesn’t seem to suggest that neuroscience should necessarily absolve an individual of all responsibility for a crime, but instead might give some context as to their moral culpability. We use drug courts to provide a different structure to the court process that focuses on treatment rather than strict punishment, so maybe there could be room for this in terms of a person’s brain biology.

While the more extreme examples of brain lesions might come into the territory of NCR (not criminally responsible), the more common cases where a person’s brain is wired such that they are pre-disposed to criminal activity could provide a useful mitigating factor on sentence. In the same way that drug addiction or mental health are used to contextualize a person’s behaviour, neuroscience could provide significant insights. More importantly, this information could hopefully help to treat and rehabilitate those being sentenced, rather than just warehousing them in prisons. Indeed, the documentary shows that often the punishment of jail does nothing to deter behaviour, given the underlying reasons for the behaviour.

In the end, the documentary seems to suggest that as technology develops, criminal behaviour may become more ‘treatable.’ From my perspective, this shift in technology will need to be accompanied by a shift in how we understand culpability and moral responsibility, and an emphasis on rehabilitation rather than deterrence. These views are certainly at odds with the “Tough on Crime” approach that has dominated Canada’s justice system under our previous government. But a focus on the underlying causes of crime, be it the brain, addiction, mental illness or something else, coupled with an emphasis on treatment and rehabilitation should benefit both those within the criminal justice system and the community at large.

(If you're not able to catch the doc on CBC tomorrow night, it will be posted on March 18 at http://www.cbc.ca/natureofthings/episodes/my-brain-made-me-do-it).

 

February Criminal Law Round-up

Despite the relentless coverage of the Ghomeshi trial at the beginning of February, there was no shortage of criminal law news this month.

In the news:

The mother of a young Inuit man who died in custody is seeking redress from the federal government.

The Current did an interesting piece on the ripple effects of Harper’s ‘tough on crime’ legislation, looking at the issue of aging populations in Canadian federal prisons. 

 Meanwhile, the popular website Humans of New York did a number of profiles of American prisoners. Many, like this one, outline the hurdles that face many people in trying to stay out of the criminal justice system. Others, like this one, are just heartbreaking. 

Harper Lee, the author of arguably the most famous fictional lawyer, Atticus Finch, passed away this month. Rebecca Bromwich asked us to consider the parallels between ‘To Kill a Mockingbird’ and the Jian Ghomeshi trial in this article for the Canadian Bar Association Magazine.

Macleans ran an important story about Indigenous people and the criminal justice system (“Canada’s prisons are the new residential schools”), focusing on street checks, bail, sentencing and segregation.

In the courts:

A judge in Newfoundland reacted strongly to an accused woman in his court being shackled for a court appearance. In this decision, he called out the police for the routine use of unreasonable restraint in courtrooms, citing a culture of fear that “undermined the presumption of innocence, offended her human dignity and humiliated her in the face of the court.” Read the decision here: or an overview here

The Federal Court struck down the provisions that restrict medical marijuana users from growing their own marijuana. While this doesn’t impact the Criminal Code provisions around recreational use of marijuana, it does stipulate that the federal government come up with new regulations for medical marijuana.

An Ontario Court judge found that human trafficking is a serious personal injury offence, making it possible for the Crown to bring a dangerous offender application in the case of Tyrone Burton. (He is the first person in Canada to be convicted of the offence, which was created in 2014.)  The decision is here and you can read an overview of the case here.

Vince Li, the man who was found Not Criminal Responsible following the beheading of Timothy McLean on a Greyhound bus, had his conditions loosened and may move to independent living in the community.Debra Parks, a law professor at the University of Manitoba, provides some insightful commentary here.

The Ontario Court of Appeal found in R v. Quick  that an individual needs to understand all of the collateral consequences of a conviction in order for the guilty plea to be valid. In this case, the lawyer had not discussed a licence’s suspension that would result from the plea to a dangerous driving offence. 

Maria Shepherd, a woman who plead guilty to manslaughter in the death of her daughter, was exonerated by the Ontario Court of Appeal. The case had involved evidence from disgraced pathologist Charles Smith, and following new evidence, the convictions was quashed and an acquittal entered. Read the story here

Around here:

I appeared on CBC’s All in a Day to chat about the Ghomeshi case. Have a listen here

I’m also happy to announce that I am now serving as a director on the Defence Counsel Association of Ottawa.

Fixing our Broken Bail System

There has been growing discontent with our current bail system and the topic is on the radar of the federal government, who just released a study that it commissioned to look at how to reform our bail system in Canada. A news story of the report can be found here.

Bail is a critical part of the court process and can have huge effects on an individual. Being detained prior to trial means that people often lose housing and other supports that they have in the community. (I wrote about one such example here.) Further, it can limit their ability to make a decision as to whether to plead guilty or go to trial. Often, when an individual is facing a short sentence and little prospect of bail, they are tempted to pass over possible defences in order to get out sooner. Unfortunately, such a decision can end up hurting them in the long run should they be charged again, this time with a longer criminal record.

Under section 515(10) of the Criminal Code there are three grounds of bail:

 (a) where detention is necessary to ensure his or her attendance in court;

 (b) where detention is necessary for the protection or safety of the public…having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice;

 (c) if the detention is necessary to maintain confidence in the administration of justice.

The primary ground of bail is focused on whether a person poses a flight risk. A justice of the peace looks at whether they have a history of failing to show up to court in the past and if there are supports in place to make sure that the person attends. According to the summary of the report in the news, one possible change would require clear evidence that the accused would not show up for court, not merely a presumption. It’s not clear what this evidence would be, but it would certainly heighten the Crown’s burden to show that the individual is a flight risk.

The secondary ground is often a bigger hurdle for those with criminal records or a pattern of breaching bail conditions. The possible change according to the study would be to include the commission of ‘serious harms’ to society, rather than just ‘commit a criminal offence.’ Under the current test, any offence, including breaching a bail condition by failing to ‘keep the peace’ counts and can then be used against the individual. So, if we consider the individual who plead to a breach instead of fully exploring their ability to fight it or take it to trial, then their odds of getting out at the next bail hearing are even lower. The serious harms test could instead shift the focus away from petty or nuisance type breaches to offences while on bail that cause more significant harms to society, whether that is injury or property damage.

The article from the Canadian Press also states that the legislative framework that does not detain anyone unless the Crown demonstrates a need to do so. Under the current regime, the onus of showing that a person should be released or detained can switch based on the circumstances. The presumption starts with the Crown, but in certain cases, such as where the person has allegedly breached their bail, the responsibility shifts to the accused person to show why they should be released. It is not clear from the brief overview whether the report is calling for these ‘reverse onus’ provisions to be removed.

It will be interesting to see how much of this report is adopted by the federal government in their efforts to reform our bail system. It is certainly in need of change, and hopefully these efforts will result in a reduced remand population that can balance the needs of accused person and the safety of the community. 

Believing Complainants & Reasonable Doubt

Jian Ghomeshi’s trial for sexual assault and overcoming resistance by choking wrapped up yesterday with both the Crown and defence making their final submissions. The trial has been extensively covered by the media, with many others weighing in on social media. The media coverage and public outcry over this trial shows that there is a general discontent with how we treat sexual assault cases and complainants in this country. Now, as the dust settles, we can take a step back to think about how the trial unfolded and how the impending decision will reflect how complainants of sexual assault are perceived and believed by the courts. Will the judge believe the complainants? Or will he acquit Mr. Ghomeshi? While it is counter-intuitive, the answer could well be both given that the charges must be proven beyond  a reasonable doubt. 

When Lucy Decoutere first came forward with allegations of assault by Mr. Ghomeshi, there was a flurry of support. The hashtag “#IBelieveLucy” gained traction as women and men rallied behind her and others affected by sexual assault. Meanwhile, outside of Mr. Ghomeshi’s trial, demonstrators held signed with slogans such as “Believe all Survivors.” Much of the commentary by advocates has centred around the need for complainants not to be discounted or discredited. 

While these sentiments of unequivocal belief in survivors of sexual trauma or abuse are a completely appropriate message for twitter, they cannot translate into the reasoning of the judge. Indeed, every case needs to be decided on its own merits based on the testimony of the witnesses. The judge considers whether they gave a credible accounts of events that can be believed to the point that they are convinced beyond a reasonable doubt.

The phrase beyond a reasonable doubt, while often used, warrants further consideration and thought. It means that a judge does not have to believe or disbelieve a witness one hundred percent in making their decision, but they must be past the point of being very, very sure. While it may seem counter-intuitive, a judge can largely believe a complainant, but still acquit the accused.

Consider the case of of Maria Sosa, a woman who was acquitted last month of manslaughter in the death of her toddler daughter. In this case, the judge ruled that while he did not find that the death was accidental, he could not be sure beyond a reasonable doubt that the accused was criminally responsible. So, while he was not absolving Ms. Sosa of all responsibility, he found that there was too much uncertainty surrounding her death to not raise a reasonable doubt. In other words, despite being suspicious, he could not find that her actions rose to the level of criminal liability.

This may well be the outcome in Mr. Ghomeshi’s case. Justice Horkins may find that he believes the complainants to a certain extent, but given the issues that arose under cross-examination, that he cannot find, beyond a reasonable doubt, that Mr. Ghomeshi is guilty. On the other hand, he may find that the inconsistencies in the complainants’ statements are not material enough to form that reasonable doubt. Or maybe he will acquit on some counts and convict on others. He will no doubt carefully weigh all of the evidence to make that decision. And while many are looking at this case in terms of a bigger picture, the conviction or acquittal will rest squarely on the evidence presented at trial.

But until Justice Horkins delivers his decision on March 24, we will have plenty of time to think about who we believe.