Canadian Criminal Law
Canadian Criminal Law Topics on this page:
Canadian Criminal law is concerned with acts or omissions deemed illegal by legislature. Criminal law offences range from crimes such as murder, assault, robbery and theft to driving with a blood alcohol level over the legal limit.
In Canada criminal law is enacted by the Federal Parliament. Canadian Criminal Law procedure in Canada is concerned with:
- criminal proceedings in the criminal courts:
- conduct within the courtroom,
- competency of witnesses,
- presentation of evidence.
- evidence, and practice,
- rules in the Criminal Code which deal with police powers,
- right to counsel,
- search warrants,
- interim release, and
- witnesses, etc.
Offences are set out in the The Canadian Criminal Code
and are divided into two broad types: "summary" and "indictable". Summary offences tend to be less serious ones, indictable more serious.
Complaint is Sworn
The police swear a complaint and present it to a judge. If the judge feels the person should be made to come and answer the accusation that has been made the judge will issue either a summons, or a warrant for arrest.
A summons is usually delivered personally by a police officer. It sets out what the charge is, and when the person must appear in court to answer the charge. If the offence charged is one that can be proceeded with by indictment, the person may also be told to go to the police station for finger-printing. Failure to show up for finger-printing can lead to a warrant for arrest being issued.
An arrest can be made by the police under the following circumstances:
- if they find someone committing an indictable offence;
- if they see someone apparently fleeing from lawful pursuit after committing a crime;
- if they believe someone is about to commit an indictable offence;
- if they believe there is a warrant out on the person;
- If they have a warrant for the arrest of a person.
Conduct of Police after the Arrest
- The police have the right to search someone being arrested. The main justifications for this are to check for weapons, and for evidence of the alleged offence;
- Police can't arrest someone on mere suspicion, or just to help with an investigation;
- It is proper for the police to question anyone, and even to ask the person to voluntarily accompany them, to the police station;
- The person arrested must be told the reason for the arrest;
- If the offence is an indictable one , the police can fingerprint and photograph the person;
- The person must be told about his or her right to talk to a lawyer;
- If the person wishes to speak with a lawyer, the police must make a telephone available;
- Questioning should cease until there has been a reasonable opportunity for the person to get legal advice.
Conduct of Arrested Person
An arrested person is not obliged to answer questions put to him or her by the police. This is a right of the person and no blame or suspicion will be placed on the person for exercising this right.
The best action the arrested person can take is to get advice from a lawyer as soon as possible, and before talking to the police.
Lawyers may recommend making a limited statement in some circumstances:
- someone who is a juvenile may want to let the police know this as soon as possible; and
- giving basic personal I.D. information (name, address, occupation, and so on).
First Appearance at Court
After a person has been arrested he is entitled to appear promptly before a judge to answer any charges that are being laid. The person is to appear before a judge within 24 hours. The person is entitled to have a lawyer to speak to whether the person should be released and, if so, whether there should be bail.
The first court appearance may result in the following:
- The judge may decide to order that the person remain in custody;
- The judge may require that the person deposit money or property with the court to ensure appearance in court if released;
- An adjournment to allow time for the person to speak with a lawyer or relatives or friends before pleading;
- In the case of a "guilty plea" on a "summary charge" the court can deal with sentencing right away or set another date to deal with sentencing;
- In the case of a "not guilty plea" on an "indictable offence" the person may choose trial by judge, or jury and the court will set the trial date or a preliminary hearing will be set.
The Corrections and Conditional Release Act (CCRA) was enacted on November 1, 1992.
Who has jurisdiction?
The National Parole Board (NPB/Board) is an independent administrative tribunal that has exclusive authority under the Corrections and Conditional Release Act to grant, deny, cancel, terminate or revoke day parole and full parole. The NPB may also order certain offenders to be held in prison until the end of their sentence.
The National Parole Board has an operating budget of more than $30 million a year. There are about 95 board members; 45 full-time members and 50 part-time. Besides the members, the Board employs 285 people at the national and in the five regional offices. The Board makes about 25,000 decisions a year. At any given time, about 9,500 people are serving out their sentences in the community under supervision.
British Columbia, Ontario and Quebec have their own parole boards that have authority to grant releases to offenders serving less than two years in prison.
The Board's Primary Objective
The Board'sprimary objective is the long term protection of society. The NPB believes that law-abiding behaviour can best be achieved by timely and supervised conditional release and the effective administration of sentences.
National Parole Board Offices
The NPB'snational office is located in Ottawa and there are five regional offices located in: Moncton (New Brunswick), Montreal (Quebec), Kingston (Ontario), Saskatoon (Saskatchewan), Abbotsford (British Columbia) and Edmonton (Alberta). The Appeal Division of the Board is also located in the national office.
The National Parole Board deals with early release programmes as follows:
- Day Parole is used as a preparation for release on full parole or statutory release. A prisoner is eligible for day parole six months before full parole.
- Sentencing judges have the authority to set full parole eligibility at one-half of sentence for violent and serious drug offenders. . Previously (before the enactment of the Corrections and Conditional Release Act (CCRA) on November 1, 1992) it had been set automatically, in most cases, at one-third or seven years, whichever came first.
- Accelerated Parole Review (APR) is a programme in which first-time, non-violent federal offenders are to be directed for release on full parole if it is deemed unlikely they would commit a violent offence prior to warrant expiry.
- Statutory Release.
All offenders serving sentences of fixed length are automatically released
on statutory release to serve the last third of their sentence in the
Offenders serving life or indefinite sentences are not eligible for statutory release. Statutory release is a release by law rather than a decision of the National Parole Board. Even if an offender had been denied parole, or his parole was revoked, the law still required that he be released after two thirds of his sentence had elapsed, to serve the rest of his term in the community.
- Detention. While the Parole Board has no authority to grant statutory release, it does have the authority to set conditions and revoke the release for failing to abide by those conditions. The Board also has the power to "detain" an offender in prison until the expiry of the sentence. Detention is a mechanism for managing offenders who are considered to pose a serious risk for committing an offence of violence, and who are about to be released at the two-thirds point in the sentence.
The Role and Entitlement of Victims and the Public
Victims have the legal right to receive information about specific offenders. The Act requires the NPB to disclose information about an offender when victims, as defined by the Act, request it. Victims are also allowed to submit an impact statement in writing for the Board's consideration in its decision-making.
The Act also provides the NPB with authority to permit observers at hearings. Victims and victims' groups have represented 40 per cent of the observers at hearings. The legislation also makes it possible for other interested parties, including the media and members of the general public, to attend parole hearings as observers.
What They Do:
- A pardon allows people who were convicted of a criminal offence, but have completed their sentence and demonstrated they are law-abiding citizens, to have their criminal record kept separate and apart from other criminal records.
- When a pardon is issued all information pertaining to convictions will be taken out of the Canadian Police Information Centre (CPIC) and may not be disclosed without permission from the Solicitor General of Canada.
- The Canadian Human Rights Act forbids discrimination based on a pardoned conviction. This includes services a person needs or the opportunity to work for a federal agency.
- The CRA states that no employment application form within the federal public service may ask any question that would require an applicant to disclose a pardoned conviction. This also applies to a Crown corporation, the Canadian Forces, or any business within the federal authority.
What They Don't Do:
- A pardon does not erase the fact that a person was convicted of an offence.
- A pardon does not guarantee entry or visa privileges to another country.
- If a person was pardoned for certain sexual offences, his record will be kept separate and apart, but his name will be flagged in the CPIC computer system. This means a person may be asked to let employers see his record if this person wants to work with children or with groups that are vulnerable because of their age or disability.
- A pardon will not cancel
a driving or firearms prohibition order.
Extradition is covered by the Extradition Act, which came into force in 1999.
Extradition from Canada
A foreign country or entity is allowed to make a request for extradition of a person who is wanted to stand trial or to serve a sentence, under the following conditions:
- If that state or entity is an extradition partner under the Extradition Act.
- A person may be extradited from Canada only if the alleged criminal conduct in respect of which the extradition is requested is recognized as criminal by both countries.
- The foreign country may
seek the extradition of a person in two ways:
- by providing Canada with a formal extradition request and supporting documentation or
- by requesting the provisional
arrest of a fugitive, which must then be followed by a formal extradition
- Upon the arrest (whether provisional or following the formal request for extradition), the person is brought before a judge of the Superior Court of the province or territory where the arrest was made to be spoken to and to set a time for a bail hearing.
- When the arrest is provisional, the country or entity has a set number of days (from the date of provisional arrest) to submit its formal request and documentation.
- Counsel with the Department of Justice's International Assistance Group, on behalf of the Minister, must determine within 30 days after the time period provided to submit the formal extradition request whether an Authority to Proceed will be issued.
Procedure if the Authority to Proceed is Issued
- The Authority to Proceed authorizes an extradition hearing to be held to consider whether the arrested person should be committed for extradition.
- Counsel with the Department
of Justice's Federal Prosecution Service handles cases on behalf of
requesting states or entities. They initiate and conduct proceedings
before a judge of the Superior Court of the province or territory to
seek an order for the committal for extradition.
Procedure at the Extradition Hearing
- The judge hears the case
in two ways:
- If the individual is sought to stand trial, the judge determines if the evidence provided by the extradition partner is sufficient to commit the person for trial in Canada if the conduct had occurred in this country.
- If it is for imposition or enforcement of sentence, the judge determines if the conviction was in respect of conduct that would be punishable in Canada, including evidence of identification.
- If the presiding judge is satisfied with the evidence, he or she will order the person committed for extradition pending the decision of the Minister of Justice on surrender.
- Otherwise, the person
is discharged and released.
Canadian Criminal Law - Procedure if Surrender is Ordered
The Minister of Justice makes
the decision with respect to whether the person will be surrendered to
the extradition partner. At this phase of the process, commonly referred
to as the executive or ministerial phase, the Minister will receive and
consider any submissions from the person committed for extradition or
counsel with respect to why he or she should not be surrendered, or concerning
any conditions that should be attached to the surrender.
The person may appeal the decision
of the extradition judge and/or apply for judicial review of the Minister's
decision to a Court of Appeal. If the appellate Court upholds the decisions
of the extradition judge and the Minister, the person may seek leave to
appeal either or both decisions to the Supreme Court of Canada.
Extradition to Canada
The extradition process is also used when Canada requires the extradition of a person to Canada from another country to stand trial or serve a sentence in Canada:
- A competent authority (i.e. the Attorney General or the Attorney General of the province responsible for prosecution of the case) must make a request to the Minister.
- At the request of a competent authority, officials with the International Assistance Group (IAG), on behalf of the Minister, will review the request and determine if it should be made.
- The IAG may make a request to a State or entity for the extradition of a person in order to prosecute them for an offence over which Canada has jurisdiction or to impose or enforce a Canadian sentence.
- If it is required, the IAG may also make a request of the foreign country for the provisional arrest of that person.
- The foreign country will then go through its own processes in responding to the request.
- Canadian officials will be advised of the progess of the proceedings.
- Canadian officiers will
bring back the person to Canada.
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