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Criminal Law
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. Criminal procedure in Canada is concerned
with:
- criminal proceedings in
the criminal courts:
- conduct within the courtroom,
- competency of witnesses,
- oaths
- affirmations,
- presentation of evidence.
- pleading,
- evidence, and practice,
- rules in the Criminal Code
which deal with police powers,
- right to counsel,
- search warrants,
- interim release, and
- witnesses, etc.
Types
of Offences
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.
Procedure
if an an offence is Alleged
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.
Summons
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.
Arrest
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.
Young
Offenders
We
have a separate page on this Topic
Parole
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’s primary 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’s national 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
community.
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.
Pardons
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.
More
information and to how to apply for a pardon.
Extradition
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
request.
Arrest Procedure
- 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.
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.
Possible Appeals
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.
Links
to More Information
The
Canadian Criminal Code
More
Information and to how to apply for a pardon.
Extradition
Act |
