Criminal law, as distinguished from civil law, is understood as a body of law that lays down specific acts or omissions that constitute an offence against the society or public at large and the corresponding sanctions that ought to be imposed on convicted felons. Further, it also regulates the procedure for framing of charges, trial, and imposition of penalties.
Canadian Legal System Overview
Canada’s legal system is a unique blend of common law and civil law. Common law, also known as judge-made law, evolves through legal precedents and not written rules. Thus, common law changes with circumstances and new views or decisions of a court on a subject matter. Conversely, civil law refers to a system of statements of rules through written legislation. This legal system aims to comprehensively lay down general principles and rules that will govern all future disputes relating to the subject matter of that legislation. The common law legal system is followed across Canada, barring Québec, which follows civil law.
Further, the Constitution provides for a separation of power between the federal government and provinces. As a result, laws can be codified by both the federal parliament and legislatures at the provincial level. Such enacted legislation or statutes replace the common law or judicial precedents that govern the same subject matter. For instance, the Criminal Code is followed throughout Canada.
Jurisdiction in Montréal, Québec
Québec, and consequently Montréal, follows a separate legal system of civil law based on the Civil Code of Québec.
In Quebec, the courts of first instance, i.e. the courts where a matter is heard first, include the municipal courts, Court of Québec, Superior Court, Federal Court and The Human Rights Tribunal. Thus, these courts have original jurisdiction.
The municipal court in Montréal, like in other cities, deals with civil cases, less serious criminal offences such as assault, and penal legal services within the limits of the city.
The Court of Québec consists of 3 divisions:-
- Civil Division: The pecuniary jurisdiction of the Civil Division is claims of less than $100,000. This court also has appellate jurisdiction over a few administrative tribunals. Any dispute involving a claim of less than $15,000 is heard by the Small Claims Division.
- Criminal & Penal Division: A single judge hears matters involving less serious criminal offences and cases involving penal laws that do not fall within the ambit of the Criminal Code.
- Youth Division deals with cases care and protection of the youth. These matters may relate to adoption, or charges framed against minors.
The Court of Québec also houses the Human Rights Tribunal which has separate judges that hear matters relating to Human Rights violation as mentioned in the Québec Charter of Human Rights and Freedoms. The Commission des droits de la personne et des droits de la jeunesse (Quebec human rights commission) allows complaints to be filed on a discretionary basis.
The Superior Court has pecuniary jurisdiction of matters over $100,000.
Civil: It deals with divorce, bankruptcy cases and all residuary matters that are not within the powers of other courts, including writs.
Criminal and penal: Trials for serious criminal offences as well as jury trials are held in the Superior Court.
The Superior Court also has appellate jurisdiction over lower courts.
Finally, the appellate bodies include Federal Court of Appeal, the Court of Appeal of Québec and the Supreme Court of Canada. These courts have the power to hear questions of law relating to matters disposed by the courts of first instance that are brought to appeal.
Types of Criminal Offences
Summary Offences
The Provincial Courts hold trials for summary offences. Often known as petty crimes, these offences are the least serious of criminal offences mentioned in the Criminal Code. The procedure is simpler, expedited, and the matter is not heard by a jury. Sanctions include a maximum of $5,000 in fine with up to six months of imprisonment. Examples of summary conviction offences are vagrancy,
Indictable Offences
Contrary to summary conviction offences, indictable offences are the most serious offences under the Criminal Code, e.g. murder. Penalties vary from offence to offence. However, the highest punishment is life in a correctional centre. In the case of most indictable offences, one can elect where the trial will be conducted, i.e. before a Provincial Court judge or B.C. Supreme Court Judge or jury. However, trials for some offences can only be held in courts specified for the same.
Hybrid Offences
The Crown counsel possesses the discretion to elect whether an offence is to be treated as a summary or indictable offence. Accordingly, the trial procedure of that type of offence will be followed.
Hiring a Criminal Lawyer
Our experienced criminal lawyers in Montréal, Québecact as an anchor to help you navigate through the complex trial processes, including the pre-trial stage where they help you understand your rights, the possible outcomes of different alternatives, and provide strategic advice. We help you build a strong case for defense and eloquently present mitigating factors that could reduce the severity of a sentence.
The Role of a Criminal Lawyer
Any person facing criminal charges has the right to legal representation. A criminal lawyer is equipped to deal with the complexities of the Criminal Code. This involves gathering the relevant facts of the case, streamlining the evidence and pleas, extracting information from witnesses, interpreting and applying the laws relevant to the situation, and oversee the protection of the rights of their client. In criminal cases especially, protection of rights is necessary to ensure that no unreasonable arrest or seizure is made against the rights and liberties of a person. Moreover, a criminal lawyer is instrumental in negotiating with the prosecutor or plea bargaining to reach the most favourable outcome for the client.
When to Seek Legal Counsel
The right to counsel recognizes the benefit of seeking legal representation or advice early on. Thus, seeking legal advice and representation at the earliest stages is advisable. This may be at the time when one is stopped by the police, arrested or taken into custody. In this manner, your rights are protected against arbitrary administrative action.
Factors to Consider
Preliminary diligence from the clients’ end includes ensuring the lawyer’s credentials such as a valid license to practice in the jurisdiction. Other key requirements include the experience of the legal professional in the field, knowledge on the subject-matter, and previous experience in representing clients in similar cases.
Qualifications and Credentials
Legal Education and Training
One must have a valid degree from a law school recognized by the Bar, pass the Bar exams and hold all requisite licenses to represent clients in law courts. </p>
Experience in Criminal Defense
It is beneficial for the accused to hire a lawyer with prior experience in the field of criminal defense. This ensures proper knowledge of the complexities of the justice process, relevant laws and legal procedures, and sound legal advice and foresight. This is also vital to ensure that the best possible alternative is chosen at the beginning of the trial, based on the merits of the case. In some cases, it may be beneficial to plead guilty in order to reduce the sentence. A good defense lawyer is also able to negotiate with the prosecution as and when required.
Specializations in Criminal Law
A specialization in criminal law is a good indicator of the knowledge that a legal professional possesses in relation to the subject matter that the law of crimes encompasses. However, such academic qualification must be complemented by professional experience in the field.
Attorney-Client Privilege
In Quebec, attorney-client privilege is recognized as “professional secrecy”. Any communication made to the attorney by the client in confidence, and in the course of obtaining legal advice or representation is protected under this rule. No disclosure made in violation of such privilege can be admitted in a court of law as valid evidence. Thus, confidentiality is a fundamental civil right of the client. This right is forgone only in certain cases, for example, when the client waives this right themselves, when the innocence of an accused is at stake, or when such disclosure is in the interest of public safety.
Importance and Scope
Professional secrecy creates an environment of trust and confidence. It enables the client to freely communicate with their legal representative, not giving in to apprehension. Such open dialogue is useful in gaining in-depth knowledge about the various aspects of a case, effectively evaluate it and building a strong defense.
Maintaining Confidentiality
An attorney, generally, has a duty to maintain confidentiality with respect to the information pertaining to a client or their case. This concept is broader than attorney-client privilege. As a result, sensitive date of the client, documents and files of the matter also need to be protected. This duty also extends to information divulged in the continuance of a legal relationship by someone who seeks only legal advice, and to those who cease to be clients.</p>
Legal Ethics
This privilege has the backing of law. Being a civil right of the client, the same also takes the form of a professional duty of the attorney. Thus, lawyers have an ethical and professional obligation to ensure the confidentiality of sensitive information shared by their clients in the course of employment. Disclosing any such information without the client’s consent will lead to breach of client-attorney privilege which has severe consequences for the defaulting attorney. </p>
The Criminal Defense Process
Arrest and Detention
Arrest refers to physical restraint and deprivation of personal liberty by authority of law in relation to criminal charges. One may be taken into custody to enable investigation, prevent further criminal activity or to ensure their appearance in court.
Detention refers to restraint deprivation of personal liberty by authority of law, other than by arrest. A person may be detained for a short period of time, even before trial or framing of charges.</p>
Investigation and Charges
Investigations are conducted by the police on receipt of a complaint of criminal activity, or when such behaviour is witnessed by the police themselves. Evidence is collected and witnesses are interviewed in order to collect more relevant information about the elements of crime.
On the basis of all the information, witness statements and evidence collected during the investigation, if there is a reasonable ground to believe that a crime has been committed by the accused, the police lays charges. The information package is then sent to the Crown attorney and the accused. The Crown attorney is then responsible for determining whether to prosecute or not, based on considerations such as the likelihood of conviction and public interest</p>
Trial and Court Proceedings
Trial is then initiated in the appropriate court, according to the nature of the offence. A fair trial is to be conducted, giving both the prosecution and defence an equal opportunity to be heard, present evidence and examine witnesses. The accused is pronounced guilty only when all or any of the charges are proved beyond reasonable doubt, on the basis of evidence presented before the court. </p>
Legal Defenses and Strategies
Legal defenses in Canada are based on specific legal principles, such as self-defense, alibi, mental incapacity, duress, necessity, etc. that are recognized by the law to sufficiently justify or exempt the acts of the accused.
Innocence
Canada follows the doctrine of ‘innocent until proven guilty’. As a result, one is presumed to be innocent until they plead guilty or are proven guilty beyond reasonable doubt. Thus, the burden of proof to establish guilt is placed on the prosecution. The defence’s case of innocence is characterized by denying all accusations.
Mitigation
Mitigating factors are presented to the judge or jury with the aim of reducing the severity of the sentence or reach a more favourable outcome. This may involve presenting evidence, testimonies and arguments relating to the circumstances of the accused at the time of the offense such as mental state, lack of prior criminal record, potential for rehabilitation, etc. Mitigation may not result in exoneration of the accused but reduction of the sentence to as low as community service. The aim is to humanize the accused in the justice system.
Procedural Defenses
Procedural defenses aim to challenge the legality of the proceedings by pointing out the procedural irregularities, errors committed by the law enforcement, or grave actions like suppression of evidence. Such a defense is not based on the merits of the case but the technicalities of the procedure followed in earlier stages such as investigation. Examples include entrapment, improper identification of accused, mishandling or tampering of evidence, unlawful search/seizure, etc. If accepted, the result could be exclusion of certain evidence from trial, or the proceeding failing entirely.
Plea Bargaining
Definition and Process
Plea bargaining is a type of negotiation between The Crown and the defence where the accused may agree to plead guilty to fewer or lesser charge, in exchange of concessions or reduced punishment. A plea can be made at any time up to and during the trial. The judge may finally accept or reject any such plea that has been negotiated.
Pros and Cons
Plea bargaining leads to a quicker resolution. The victim benefits from a plea negotiation because a conviction is assured and the victim is spared the emotional trauma of testifying and being cross-examined by the defence. On the other hand, the defendants obtains a reduced sentence. However, it also entails waiving the right to trial and the right to appeal. Thus, it is a strategic decision that must be made only after analysing all the potential risks.
Negotiating with the Crown
The initial stages of plea bargaining begin when the defence proposes specific terms for the negotiation. The Crown may consider the same and put forth counter-proposals or demand amendments. A series of discussions, proposals and counter-proposals lead to a plea deal which is then presented to the court for its approval.</p>
Court Representation
Lawyer’s Role in Court
A lawyer plays multiples roles in the courtroom. Ranging from extensive research, drafting and filing requisite documents to examining witnesses, presenting arguments and counter-arguments, negotiating to reach the best interest of the client, etc., a lawyer plays a crucial role in securing the rights of their client. Legal representation also ensures that the legal process both inside and outside the courtroom is conducted in a fair and just manner, without prejudice to their client.
Courtroom Etiquette
Customs govern the behaviour and code of conduct that is to be followed in all courtroom interactions. Such protocol and order are essential in keeping the respect and integrity of the judicial process intact. This is reflected in the manner in which the judges are to be addressed, rising when the judge enters, dressing in the prescribed attire, exhibiting appropriate behaviour, and complying with the orders of the court. Failure to adhere to courtroom etiquette may result is admonishment by the judge or more severe consequences.
Expert Witnesses and Evidence
In cases where the subject matter or the facts of the case require the interpretation of technical terms or procedures, specific knowledge or skills, the court may call for the assistance of experts in that subject matter or field. This becomes an overriding duty of the expert to testify or report to the court in an independent, impartial and objective manner.
Appeals and Post-Conviction Relief
Grounds for Appeals
Appeals can be preferred to set aside a conviction given by a lower court. It must be noted that appeals are not re-trials, thus, the evidence is not heard again to determine guilt. There are limited grounds for appeal i.e:-
- Unreasonable verdict, not supported by evidence;
- Error of law;
- Miscarriage of justice.
Process and Timeline
Appeal Courts require a notice of appeal to be filed by the convicted person within 30 days of conviction. If already in custody, one may file an inmate notice. In case, one is not able to adhere to the deadline, they may file a motion seeking extension of time to file such notice with reasons for delay. The Court may accept such delayed notice of appeal on being satisfied with the reasons.
Trial transcripts and relevant documents are to be sent to the appeal court. Once they are received by the court, a hearing is scheduled. Thereafter, both the parties are required to file their written arguments or “factum”, followed by oral arguments. No new evidence is admissible unless it is proved to be unavailable at the time of the original trial, and be directly related to the main issue of appeal. After all the submissions are completed, the Court pronounces its verdict. The conviction can be altered by setting aside the conviction and ordering a fresh trial, acquitting the defendant, or reducing the sentence or fine.
Pardons and Record Suspension
Pardons, now known as record suspension, refer to allowing certain convicted criminals who have completed their sentence and proved to be law abiding citizens, to have their criminal record kept aside from other criminal records. These records are not erased, but simply removed from the Canadian Police Information Centre (CIPC) database. The objective is to give the convicts a clean slate after serving their sentence, and enable their reintegration into the society through equal employment and educational opportunities. It must be noted that record suspensions can be revokes on account of new convictions, ineligibility for record suspension at the time, absence of good conduct, having made false or misleading statement at the time of application, etc.
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