Legal Ease: Putting the law in simple terms on CanLaw.
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Legal Ease:
Putting the law in simple terms.

Lay Person's Guide to the Criminal Prosecution Process on CanLaw

 

This page is not meant to replace legal advice.

If you might be in trouble with the law, Click here YOU NEED A LAWYER!

SAY NOTHING TO THE POLICE!
If you are under arrest: co-operate, be polite, DON'T fight or swear, and SAY NOTHING until you have spoken to a lawyer,but give them your name and address.

Because of the difference between how law is written and how most of us talk, the definitions in Legal Ease are general and don't explain all the details. To find out exactly what a law says, check the latest edition of the

Click here Criminal Code of Canada

Absolute Discharge

If the judge believes that you are guilty but that you don' t deserve to be punished, you may get an absolute discharge. You don't have to pay a fine or go to jail and one year after the discharge, the conviction on your criminal record is automatically removed. This usually only happens on your first offence.

Acquitted

Found not guilty of breaking a law by a court (judge or jury).

Adjournment

A court order to postpone a hearing to a later date.

Anonymous HIV testing

Protects your identity by giving you a number only you know which refers to your blood sample and a file containing your test results. The testing centre keeps no other identifying information but this number in the file. There is no way the number can be traced to you.

'Confidential' testing means that the government lab that tests your blood doesn't get your name, but your name is kept in a file at the doctor's office or institution that took your blood. Doctors are sworn by oath to keep the information their patients tell them confidential but doctors do report positive test results to the government and can be called to testify in court. If you are concerned about your health and want to be tested, you should go to an anonymous testing clinic like Hassle Free. In the past, prisons have kept prostitutes who tested positive for HIV past the end of their sentences, using public health laws. Medical officers of health have ordered prostitutes not to have sex. Public health orders shouldn't be able to demand anything except that you practise safe sex; for example, the can ask you to follow the Canadian AIDS Society's

Safer Sex Guidelines

.

Appeal

Can be made by either the defence or the prosecution. Convictions can be appealed when a mistake is made in a trial, either because new evidence was found or because the court didn't follow legal procedures properly (by violating the constitution, for example). Sentences can also be appealed if they seem unusually strict or lenient compared to sentences given in similar cases. An appeal is heard by a higher level of court, which may decide to uphold the first decision, find a new decision, or order a new trial.

Appearance Notice

The form that the police give you when you're arrested on the street (but not taken into the station) to tell you what you are charged with and when and where you have to be in court to set a date for a trial. (See Appendix I, p. 23.)

Arrest

Police can arrest you if they have a warrant from a judge to do so or if they catch you doing anything illegal (or if they have a good reason to believe that you have just committed or are about to commit a crime).

Backup

A police term for the cops who come to the scene of a crime to give extra help or who come to make arrests. Undercover cops are the ones who testify in court.

Bail

If you are up on a serious charge, or have failed to appear for court in the past, you may have to post bail before the judge will let you go. You may have to get someone who knows you (your surety) to sign a form saying they will pay a certain amount of money if you don't show up for trial. The more serious the charge, the higher the amount will be. You or your surety will have to prove that you have enough assets to pay; sometimes you'll be asked for a cash deposit. Sometimes your surety also has to promise to make you obey conditions.

Bail hearing

A court appearance where you give the reasons why you should be let out (kids to care for, a regular job, a clean record) and the crown gives reasons why you should be kept in custody, have a high bail or have strict conditions (you are a danger to the public or are likely to reoffend). The judge decides if you will be allowed out on bail, and if so how much the bail will be. Also called a 'show cause' hearing.

Bench Warrant

An order from a judge (the bench) for police to arrest the person named in the warrant, who didn't show up for, or stay in, court.

Breach of (bail/parole) conditions

Breaking a judge's orders or a probation officer's rules (see conditions).

Canadian AIDS Society

A national network of community-based AIDS service organizations responsible for the Canadian Survey of Gay and Bisexual Men and HIV Infection and for producing Safer Sex Guidelines--Healthy Sexuality and HIV.

Charge

An official accusation from the police that you broke a law. For more about types of charges, see hybrid, indictable and summary offences.

Charge Screening Sheet

A form given to you by the police when you are charged, which you have to take with you if you apply for legal aid.

Child and Family Services Act

The Ontario law that allows the Ministry of Community and Social Services to send social workers to investigate problems in families. Sometimes this law is used to take children from their homes if the worker believes that there's a risk that a child will be hurt or neglected. Because this isn't criminal law, parents aren't protected by the same rights one has under the Criminal Code (since they don't risk going to jail). If someone is under 18, they can be locked up in or controlled by institutions under this act.

Children' s Aid Society (CAS)

A charitable organization funded by government to assist in enforcing child welfare laws. CAS caseworkers or police officers can decide that children need protection and take them from their homes. Hearings are held to see if these children should be returned or kept as wards of the CAS. If you're made a ward of the CAS, you remain in their control until you turn 18. There's a Catholic CAS and Jewish Child and Family Services as well. Everyone has a duty to report suspected cases of child abandonment or abuse to these authorities or to the police.

Claim

A lawsuit or document explaining why someone feels they are owed money by the person they are suing.

Command post

A temporary police set-up used to process large numbers of arrests (like during street 'sweeps').

Community legal clinics

Clinics where you can get free legal help (without Legal Aid) Many clinics don't do criminal law but do help with things like landlord/tenant disputes, family law and immigration.

Community service order (CSO)

A judge can sentence you to do hours of community service work (unpaid) for a charity instead of doing jail time. In Ontario the CSO program is run by the Salvation Army. You have a supervisor at the charity who signs your time sheet as you complete your hours. If you don't complete your hours you're breaking a judge's order and may have to finish your time in jail.

Complainant

The victim of an alleged offence. In some cases (like if you're under 18), the police (or a parent, guardian, or Children's Aid) can make a complaint in your name, even if you don't agree with it.

Conditions (bail & parole)

Rules set by a judge or parole board that you must follow in order to remain out of jail, either before a trial (bail), or after having a sentence suspended, or after being let out on parole.

Conditional discharge

Is awarded after you have been convicted. You don't have to pay a fine or go to jail and don't get a criminal record, but you are given rules which must be followed for as long as the judge orders. You may be required to report to a probation officer regularly. If you're caught breaking any of the judge's orders, your discharge can be changed to a conviction. You may then have to pay a penalty (fine or jail) and a conviction will be registered on your record.

Contempt of court

Disrespect shown to the court in any way, including being 'disorderly' in court, not obeying a judge's order, not showing up for your own case or for some one else's case in which you are a witness. Even a spectator who is disruptive or disrespectful can be said to be in contempt of court and can be sentenced.

Controlled drugs

The

Food and Drug Act

lists medical drugs which are also sold illegally ('Schedule G'). These controlled drugs include amphetamines, barbiturates and steroids. You can't be charged for possession of these drugs unless the cops can show that you intended to sell them. See also restricted drugs.

Convicted

Found guilty of breaking a law by a court (judge or jury).

Conflict of interest

You are in a conflict of interest when you are in a position to make a decision on behalf of an organization or a person from which you will personally benefit (like when a politician votes to give a contract to a company they have a stake in). Lawyers are in a conflict of interest if they represent two or more people (or groups) whose needs are in competition with each other.

Counts

Refers to the number of times you are accused of breaking the same law in one trial.

Criminal record

Is an official record of all the times that a conviction has been registered against you. Some (minor) convictions are automatically dropped after a period of time. More serious offences can be removed from your record if you apply for and are granted a pardon.

Having a criminal record can affect your right to work at certain jobs (anywhere you need to be bonded) or professions (law) and your right to stay in Canada (if you're not a citizen) or to travel internationally. The number and type of convictions on your record will also affect how you are treated when you face a new charge or sentencing.

Crown attorney

A lawyer who works for the attorney general's office (the court) and who represents the police in trials where people are accused of committing criminal offences. Also known as crown prosecutor.

Defendant

The person against whom a charge is laid or a lawsuit (claim) is filed.

Discharge(s) (absolute and conditional)

When a charge is not too serious, a judge may decide that you do not have to suffer a penalty or have a permanent criminal record. Discharges may only be awarded when they are in your best interest and don't go against the best interests of the public. (See absolute and conditional discharges.)

Disclosure

Information that is given to your lawyer by the crown that includes details of the evidence against you. The crown can deliver the disclosure in pieces. This is most common when the evidence is being used in other people's trials. You don't go to trial until you have full disclosure.

Dismissing (a charge)

A judge's decision that a charge be dropped.

Duty counsel

Are paid by Legal Aid to help you find a lawyer, get legal aid and start the court process. They don't give legal advice. They have an office in the courthouse where you can talk to them, or you can call them from the police station.

Enterprise crime

A crime committed to earn money. If you're convicted of or discharged on any of the enterprise crimes named in the 'proceeds of crime' law (section 462.3) such as procuring, trafficking, fraud, extortion, forgery, or contract killing, the Attorney General can apply to a judge for permission to seize any property or assets that you have earned from the crime. If the court can't be sure that you earned the stuff from that particular crime but is sure that you earned it from an enterprise crime in general, the judge can decide to seize your stuff anyway. If the earnings aren't readily disposable (like property) you'll be notified of the impending seizure. Police aren't allowed to damage anything and must file a report listing what they took within seven days of the seizure. If you ask, you (or anyone else the judge believes has an interest in the property) will be given a copy of this list. A forfeiture hearing will be held to decide if you will get the stuff back. If you dispose of (hide, destroy, give away) property in order to avoid having it seized, you can be fined; if you can't pay, you can be jailed . You can get up to six months for a fine of up to $10,000. You can get no less than five years and no more than ten for $1,000,000 or more.

Evidence (circumstantial, physical; admissible, inadmissible)

The facts that are used to try to prove whether a charge is true or not. Physical evidence is material like fingerprints, clothing shreds and blood samples. Circumstantial evidence shows that circumstances made it possible that you committed the crime; for example, someone saw you in the vicinity at the time the offence took place. There are rules about what is allowed in court as evidence and how that evidence is collected. Police have to be sure not to violate the accused person's rights in order to collect evidence. Things like wire tap evidence collected without a warrant are not admissible.

Extortion

Threatening someone in order to force them to give you money or do something for you.

Failure to appear

The charge which is laid against you if you do not show up, or stay in, court when you have been ordered to. See bench warrant.

Fine

Money that you have to pay to the court if you are convicted.

Fraud

Tricking or lying to people to gain money or other benefits.

Garnishment

The process by which the court collects money from your bank or job for someone who you have been ordered by a court to pay.

Garnishee

The person or company (such as your employer or bank) who can be ordered by a court to pay the money that they owe you directly to the court.

Half-way house

A place run by the Ministry of Corrections to house people who've been in jail, as part of getting them back into the community. You can be placed in the custody of a half-way house as part of your parole.

Hybrid offences

Crimes which allow the crown attorney to decide if a charge is to be treated as indictable or summary.

Indictable offences

Are more serious than summary offences and can get you higher fines and longer jail terms. The police fingerprint and take mug shots of people accused of indictable offences. You may be held and will have to apply for bail. Indictable offences may involve preliminary hearings (to decide whether there is enough evidence to go ahead with a trial) and/or a jury.
     

Information (laying an)

Swearing an oath before a Justice of the Peace about the evidence in order to bring a matter to small claims or family court or to press criminal charges.

Internal Affairs Unit

A branch of the police force which investigates crimes committed by other members of the force and which reports directly to the chief of police.

Investigation(s)

Police looking into your actions to see if you are breaking a law. This can include watching, searching and bugging the places where you live or work.

Justice of the Peace (JP)

An upstanding citizen who has been appointed to act for the court to do some of the things judges do, like set dates for trials and sign bail forms. JPs aren't full judges and can't accept pleas or pass sentence on people in serious criminal cases, though they can conduct minor trials.

Juvenile court

See youth court.

Landlord and Tenant Act

The law that deals with the rights of people renting residential property in Ontario.

Law Society of Upper Canada

The governing body of the legal profession in Ontario.

obstruct (police or justice)

Means to get in the way. These are laws (sections 129 and 139 of the Criminal Code) which you will be charged under if, for example, you get caught using a false name in an arrest or trial, because you are getting in the way of police or the courts doing their jobs.

Ombudsman

A person who is appointed to look into complaints about a government. Ontario's Ombudsman can look into the actions of many government agencies, including medical facilities and treatment centres.

Ontario Labour Relations Act

The law that governs the relations between employers and employees. This law does not govern relations between free agents

Ontario Mental Health Act

The law that governs the control of psychiatric patients in Ontario. It allows a doctor or police officer to require that you be held in a hospital for a three-day 'assessment.' During this time a doctor will decide whether you should be declared 'incompetent' and, if so, to extend your committal for two weeks, then a month, then three months, and at three-month intervals after that. The Act also sets up a way for patients to appeal these committals through a review board and to appeal review board decisions to the courts. You can get a lawyer, a patient advocate (if you're in a provincial psychiatric hospital), or a rights advisor (in many other hospitals) to help you with appeals of any of these decisions.

Outstanding charges

Charges that haven't been dealt with because you haven't had a trial yet or because you didn't show up for court.

Parole

Refers to being out of jail on probation before the end of a term because you behaved well and promised to obey the law and the orders of the person supervising your probation. Parole will be revoked if you break one of these promises.

Peace bond

Section 810 of the Criminal Code allows you to get a court to order anyone who has hurt or threatened you to stay away from you for a year (this doesn't go on their criminal record). You have to lay an information before a Justice of the Peace, who can make the person come to court. In order to get the bond, you have to convince the judge at that court appearance that you have good reason to fear being harmed. The person doesn't have to have been charged, or convicted, of anything.

You get a legal document which you must show to the police if the order is broken; if you do not contact the police, the order is voided. If you contact the police, the person who broke the bond can be fined or jailed (which does go on their criminal record). (See also restraining order.)

Perjury

Lying in court, whether in your own case or in someone else's case in which you are a witness, is called perjury (sections 131 - 136 of the Criminal Code). In most cases perjury is an indictable offence that can get you up to 14 years in jail.

Plea

Your statement of whether or not you're guilty of whatever you are accused of (guilty, not guilty, not guilty by reason of insanity).

Plea-bargaining

If you are charged with more than one offence the crown may offer to drop some charges (usually the more serious ones), or ask for a lighter sentence, if you agree to plead guilty to other charges. Sometimes police lay many charges, and extreme charges, to put you in the position where you feel you have to bargain because you can't afford to fight them all or risk being convicted on a heavy charge.

Police Act

Ontario law outlining rules of conduct and discipline for police officers. Cops get charged under this act when the case is serious enough to involve criminal charges, and often charges are laid under the Police Act instead of the Criminal Code. The Police Act is easier to get convictions under than the Code but its penalties are lighter.

Possession

The

Criminal Code of Canada

(section 4.[3](3)(a)) says, 'a person has anything in his possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and where one of two or more persons, with knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.'

Preliminary hearing

A hearing conducted when you are accused of an indictable offence to make sure that the evidence is good enough to bring you to trial.

Pre-trial hearing, pre-hearing conference ('judicial pre-trial')

A conference among the judge, the defence and the crown (often the defendent is not allowed to be there) to ensure a fair and speedy trial.

Priors/prior convictions

findings of guilt which are on your criminal record.

Probation

A judge or a parole board can place you on probation when your sentence is suspended or you are out of jail early on parole. It ends when your sentence is up, or when you're sent back to jail for breaking a condition. Usually you have to see a probation officer regularly.

Promise to appear

The form that the police give you when you have been arrested and taken into the station; it tells you what you're charged with and when and where you have to be in court to set a date for a trial. (See Appendix II, page 27.)

Ppublic health order

Public health laws in Ontario empower medical officers of health (for each city or county) to place orders on people (such as quarantine) in order to prevent the spread of diseases. (See also anonymous HIV testing.)

Public place

Is anywhere you might be seen — even if you're in a private place but can be seen through an open door or an uncovered window.

Recognizance

A promise which you make to a court that you will obey an order (without having to put up money), such as keeping the peace, paying a debt or appearing in court.

Referees

Civil court (like Small Claims) officials who listen to cases and decide what's fair (which may include a payment plan). If both parties agree then there's no need to go to trial.

Registered conviction

A conviction which shows on your official criminal record.

Restraining order

An order made by a family court to a spouse or common-law spouse (of three years or more), or to the co-parent of a child with whom you no longer live, to stay away from you and/or your children. You get a legal document which you must show to the police if the order is broken; if you do not contact the police when the order is broken it is voided. If you contact the police, the person who broke the order can be fined or jailed. (See also peace bond.)

Restricted drug

'Schedule H' of the Food and Drug Act (FDA) lists non-medical drugs such as LSD, speed, mushrooms, MDA and ecstasy as 'restricted.' You can be charged for having, as well as selling, these drugs. The FDA also lists medical drugs to be 'controlled.' Other non-medical drugs are prohibited under the Narcotics Control Act. See also controlled drugs.

Retainer

An agreement with a lawyer, usually involving payment, that she or he will represent you.

Right to counsel

Your right to consult a lawyer once you are arrested. This is what a police officer is supposed to read you upon arrest:

'I am arresting you for ... (briefly describe the reasons). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now?'

Search warrant

Permission from a judge for police to do a search at the place named in a warrant. You can legally ignore a warrant that has the wrong date, time, or address on it. You should always demand to see a warrant before you admit the police; otherwise you can't lay a complaint because you've invited them in.

Self-defence

In order to be able to use this legal excuse for assaulting or killing someone you cannot use more force then is necessary to fend off the attacker and you must not have provoked the attack.

Sentence

The penalty you get if you're found guilty of breaking a law. Usually it's a fine and/or a jail term. The judge can also decide that the sentence should be discharged or suspended.

Sentencing or sentencing hearing

A hearing after the trial where the judge decides what your sentence will be. Occasionally the judge will ask for more information (like a report from a doctor) or will want to take more time to decide, so you may have to appear in court again.

Sexual assault

Any assault that 'violates the sexual integrity of the victim' whether it's intended to be sexual or not. See section 271 of the Criminal Code.

Show cause hearing

If you're taken into custody, instead of just being given an appearance notice, you will be taken in front of a JP who will decide whether the police have 'shown cause' to keep you in jail until your trial or whether you can be let out on bail.

Small Claims Court

Is where you can settle a minor dispute (usually without a lawyer) over things like money owed or damage to property.

Student legal services

Free services run by universities which have law schools. Students do the work under the direction of lawyers.

Submission(s)

Arguments presented to the court by the defence or the crown about what your sentence should be. They argue for a punishment appropriate to the crime. The defence argues for lighter sentences because, for example, the defendant has kids to care for, or a regular job, or is undergoing treatment (if the conviction is drug-, alcohol- or violence-related). The crown argues for heavier penalties, citing things like the defendant's record of similar convictions in the past or victim impact statements. In prostitution cases in the past, judges have allowed submissions from the crown to include statements from residents' associations (community impact statements) about the negative effects of prostitution on the neighbourhood. If the crown and defence agree on what a sentence should be, they make a joint submission. The judge can decide to agree with this joint submission or he or she may decide on a different sentence.

Subpoena

A notice that you (or something you have) must appear in a certain court at a certain time, to be a witness (or evidence) at a trial.

Summary offences

Are less serious offences with lower penalties-- up to a $2,000 fine and/or six months in jail. An accused will be given an appearance notice and not taken into custody.

Summons

An official form that accuses you of breaking a law and demands that you pay a fine, if you're guilty, or appear in court to explain, if you're not.

Supreme Court of Canada

The highest court in the country, which operates under the federal government. It's the last level of appeal but can refuse to hear a case without giving reasons. (Some provinces have their own supreme courts and others have appeal courts, but the decisions of those courts can be appealed to the Supreme Court of Canada.) Supreme Court cases are heard by a panel of judges who have the power to strike down any law a majority of them believe denies people their rights as protected by the constitution.

Surety

Someone who ensures that you will show up for court by putting up bail (money or property) so that you can be released until your trial. Sometimes sureties will also have to ensure that you abide by whatever conditions the JP sees fit. If you don't show up for court, your surety will have to pay the amount of the bail.

Suspended sentence

You get convicted and receive a sentence (fine, jail or both), but it's 'suspended,' so you don't serve time or pay a fine. A conviction is registered on your record and you're put 'on probation.' (See probation.)

Sweeps

Mass arrests of street prostitutes and their customers. Usually sweeps involve stings where undercover cops pretend to be hookers or johns and arrest anyone who approaches them. In the past, big sweeps before political and other events (Shriners' convention, economic summit) have involved rounding up prostitutes without even attempting to entrap them.

Temporary Absence Program

A form of parole where you are given early release from jail into a half-way house for the rest of your term.

Trafficking

The

Narcotics Control Act

says in Section 2 that to 'traffic' means '(a) to manufacture, sell, give, administer, transport, send, deliver or distribute, or (b) to offer to do anything referred to in paragraph (a),' unless you have the authority to do so under the NCA.

Undertaking

A promise (sworn oath) which you make to a court.

Victim impact statement

A statement written by the victim that details the effects of the crime on him or her. These statements are used by the crown to argue for a heavier sentence.

Warrant

Written permission from a judge for police to do such things as make arrests, conduct searches or plant bugs.

Wire taps

devices used to listen to and record phone calls. Police must have a warrant for the phone tap in order to use it as evidence in court. Information from an illegal wire tap (without a warrant) can't be used in court (it's inadmissible) but it still helps police in their investigations.

Young Offenders Act

Criminal Code rules for youth court, which apply to people 12 to 17 years old. These rules include protecting your identity from the press and others. The most jail time you can get from youth court is five years. If you stay out of legal trouble for five years after your sentence is up, the offence will not appear as a registered conviction on your record.

Youth court

If you're accused of doing something when you were under 18, you'll go to youth court under the Young Offenders' Act. If charges are serious enough, anyone 14 or older can be sent to adult criminal court and punished accordingly.

Understand this: Police records and files on you will never be erased. Records of every contact with you, every complaint by a neighbour,
arrest, charge, acquittal, stay, discharge, diversion and conviction are kept permanently by the police regardless of the outcome.
 

   

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