The Canadian court system is complicated and filled with terms and practices that, at times, can be confusing.
In part two of our series, the Nouvelle continues delving deeper into the Canadian justice system’s methods by outlining some of the more possible outcomes and common terms used in court.
Once it’s in the courts
According to chief Crown prosecutor for St. Paul Jordan Kerr, charges can be withdrawn due to a number of factors.
“As a starting point, it must be remembered that every person charged with a criminal offence is presumed innocent until they’re proven guilty, beyond any reasonable doubt. This is a very high standard of proof. In the Canadian Justice System police investigate crimes and lay charges where they have ‘reasonable grounds to believe an offence has been committed.’ This is a low evidentiary threshold. Once the charge is laid, the Crown Prosecution Services assesses the evidence in support of the charge,” he stated.
In order for the Crown to proceed with a prosecution, “We must be satisfied that not only is the prosecution in the public interest, but that there’s a ‘reasonable likelihood of conviction.’ This is a higher evidentiary standard than is required for the police to lay a charge.”
That means, the Crown must be satisfied that if the offence proceeds to trial, it’s likely there will be a conviction.
“If the matter proceeds to trial, then the judge or jury must assess whether there is proof beyond a reasonable doubt. This is an even higher standard than is applied by the Prosecution Service,” Kerr explained.
He continued, “It follows that the police can appropriately lay numerous charges based on the lower standard of “reasonable grounds to believe an offence has been committed”. However, when the evidence is scrutinized under the higher standard of ‘reasonable likelihood of conviction,’ it can become apparent that convictions are only likely to result on some, but not all charges. In these circumstances, a set of charges may be resolved with the accused entering guilty pleas only on the charges where the higher standard of ‘reasonable likelihood of conviction’ is met.”
They can also be withdrawn because numerous charges can come from the same set of circumstances.
The difference between a pre-sentence report and a Gladue Report
A pre-sentence report is court ordered and is available for all offenders. They’re generally prepared by a probation officer and include information on the offender’s background.
“Gladue Reports are a specific type of pre-sentence report that can be prepared for individuals who are Aboriginal,” Kerr noted.
The Canadian Criminal Code requires a sentencing judge to consider all alternatives to incarceration for all offenders, with particular attention to the circumstances of Aboriginal offenders, Kerr explained.
“The Supreme Court of Canada has interpreted this section to also require that a sentencing judge consider whether the offender has been impacted by various systemic factors that affect many Aboriginal people in Canada, for example, the effects of residential schools, child welfare involvement, dislocation, lack of education or employment opportunities, poverty, and poor living conditions. The goal of a Gladue Report is to provide a sentencing judge with information on an Aboriginal offender’s background so the judge can assess whether these sorts of systemic factors have impacted the offender being sentenced,” he continued.
According to Kerr, whenever a judge sentences an offender, there are several things they must consider like the unique background circumstances of the offender.
“Pre-sentence reports and Gladue Reports are court-ordered reports that are intended to help the judge understand the offender’s background.”
Different types of charges
In court, the Crown can proceed by summary conviction or indictment.
If the Crown decides to go by indictment, the accused gets to elect to go straight to trial in provincial court, or to have a preliminary inquiry and then a trial in the Court of Queen’s Bench, either with a judge alone or judge and jury.
“The Crown proceeds by indictment on more serious charges,” Kerr noted, adding “maximum penalties that can be imposed are generally higher when the Crown proceeds by indictment, as opposed to summary conviction.”
Summary conviction means the accused has no election and their sentencing proceeds in provincial court.
Joint submissions
Although a judge ultimately decides on the sentencing, the Crown and defence counsel can offer a joint submission.
“Often, Crown and defence will make competing submissions on what an appropriate sentence is in any given case. The judge then makes the final decision on what sentence to impose,” Kerr said. “Generally when a joint submission is presented, an agreement has been made between Crown and defence on what pleas will be entered and what sentence will be recommended to the judge. The judge still retains a final discretion as to whether or not to agree with the sentence proposed. However, the Supreme Court of Canada has been clear that a sentencing judge should only reject a joint submission in rare circumstances where imposing the sentence proposed would be contrary to the public interest.”
There are numerous reasons why so much deference is shown for a joint submission, Kerr said.
In general, joint submissions are agreed on by counsel who have in-depth knowledge of the circumstances of the case, and are well positioned to assess what the Crown is likely to be able to prove at trial.
“Joint submissions can encourage resolution of some matters without all charges in the criminal system proceeding to trial. Judicial resources, like all public resources, are finite. The Supreme Court of Canada has stated that criminal charges must proceed to trial in reasonable periods of time. Charges that are unreasonably delayed in proceeding to trial may be stayed, meaning they don’t proceed. We need to be careful how we use our court resources to ensure that we can get serious matters to trial in a timely manner. Joint submissions can encourage resolution of some matters without a trial as they give both the accused and the Crown some certainty as to what sentence will be imposed if certain guilty pleas re-entered,” stated Kerr.
They also “promote the efficient use of court time.”
Formulating a recommendation for sentencing
“There are many factors that are considered in deciding what sentence the Crown will recommend. A starting point is assessing the objective seriousness of the offence by reference to the minimum and maximum sentences set out in the Criminal Code. The Criminal Code also sets out a number of principles of sentencing that we must consider in assessing what sentence to recommend. We review sentencing case law to assess what sorts of sentence have been imposed on similar offenders in similar circumstances,” outlined Kerr. “We consider the circumstances of the offence and whether there are any aggravating factors that make the offence more serious. We also consider whether there are any mitigating factors that suggest a more lenient sentence may be appropriate. We consider the impact of the offence on the community and the victim. We consider the personal background and circumstances of the offender.”
Instead of time in
custody
In some cases, first time offenders charged with “relatively less serious offences” are diverted from the criminal justice system.
This can be done through extra judicial sanctions and peace bonds.
Kerr explained, “A peace bond is a form of court order through which conditions can be imposed on an individual without that individual being found guilty of a criminal offence.”
There are programs that exist in order to divert first-time offenders with less serious charges from the criminal justice system.
“Typically, they meet with a probation officer and are given a series of tasks, for example completing community service hours or completing restitution. They are given a period of time to complete the tasks and if they are successful then the criminal charge is withdrawn,” noted Kerr.
