If I am arrested, does this mean that I am considered guilty of a criminal offence?

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1 What is cnsidered a crime in Canada? Mst criminal acts in Canada are listed and defined in the Criminal Cde f Canada. Hwever, sme are als listed in ther laws, such as the Cntrlled Drugs and Substances Act and the Excise Tax Act. What is the Criminal Cde f Canada? The Criminal Cde is a law made by the federal gvernment. It lists acts related t a variety f situatins that are criminal ffences, ranging frm hmicide t sexual explitatin, and crruptin t unauthrized firearm pssessin. If I am arrested, what are my rights, and what d they mean? The Canadian Charter f Rights and Freedms lists the basic rights f Canadians, especially in terms f interactin with the gvernment r gvernment representatives and agencies. This is especially relevant when a persn is interacting with the plice, and particularly when a persn is placed under arrest. If a persn is being arrested, the fficer must tell the persn they are arresting what their rights are under the Charter. There are three basic rights fr anyne being arrested: - T be tld immediately why s/he is being arrested, and t understand why s/he is being arrested - T be tld that s/he has the right t a lawyer, and if s/he cannt affrd a lawyer, ne will be appinted fr him/her - T nly be held under arrest if there are legal grunds t d s, and t be released immediately in the case that there are n legal grunds fr arrest If I am arrested, des this mean that I am cnsidered guilty f a criminal ffence? N. In Canada, an individual, even if s/he has been arrested, is cnsidered inncent until prven guilty. Arrested individuals must be given a full and fair trial befre it is decided by a judge r jury whether the accused is guilty. Wh is the Crwn Attrney and what is his/her jb? Crwn Attrneys are lawyers wh wrk fr the Department f Justice r private practice lawyers wh wrk n behalf f the Attrney General f Newfundland and Labradr. While Crwn Attrneys smetimes give advice t plice frces r gvernment departments and agencies, Crwn Attrneys are nt lawyers fr the plice. Crwn Attrneys als d nt represent victims f crime r witnesses t crime. They are independent, impartial fficers f the curt with a respnsibility t prsecute criminal charges if it is in the public interest t d s and if there is a reasnable prspect f cnvictin, based n the available evidence. Wh can help me if I am accused f a crime? Being accused f a crime is a serius matter. An accused persn shuld speak with a lawyer t get legal advice abut their situatin, even if they cannt affrd a lawyer fr actual curt prceedings. Fr criminal cases, accused persns can seek help thrugh:

2 - Newfundland and Labradr Legal Aid Cmmissin (www.legalaid.nl.ca) - Public Legal Infrmatin (www.publiclegalinf.cm) These rganizatins can answer legal questins, prvide lawyer-referral services, r help thse wh cannt affrd a lawyer t find representatin fr a criminal case. What is Legal Aid? Legal Aid is a prgram available t help peple with serius legal prblems that are in financial need, and cannt affrd a lawyer n their wn. Hw can I get help frm Legal Aid, and is it free? Legal Aid can smetimes be prvided withut charge, but nt always. The Newfundland and Labradr Legal Aid Cmmissin will take a clse lk at yur financial situatin t determine what r if yu will be charged fr Legal Aid services. T get Legal Aid, a persn must meet the financial requirements, and his/her legal matter must be the kind f legal matter that is cvered by the rganizatin. Applicatins fr aid are available n Legal Aid s website. The applicatin can be prcessed by drpping it ff r mailing it t a Legal Aid ffice, r by making an appintment. T learn mre abut Legal Aid, their website can be visited at r they can be reached by phne at , r tll-free at What happens at my first appearance in curt? A persn accused in a criminal case will be ntified in writing f what s/he has been charged with, and with the first curt date where s/he will have t appear. The first appearance in curt is usually very shrt. The charges laid against the accused will be read, and the accused will be asked if they understand the charges. When matters are clear and understd, the accused will be asked if s/he is prepared t plead. This means that a persn can plead guilty r nt guilty, r can ask fr a delay if s/he needs t speak t a lawyer. This delay wuld be called an adjurnment. If a persn pleads guilty, the judge may decide n a sentence, r set a date fr sentencing. If a persn pleads nt guilty, the next curt hearing will be a trial r preliminary hearing that can be many mnths after the first appearance. If a secnd curt date is required, the judge will chse a date that is acceptable t bth the accused and the Crwn Attrney. What is bail and hw is it decided? Bail is nt always just a sum f mney that is paid t release a persn frm jail. It is actually the right f an accused persn t be released frm plice custdy. Mney may be invlved, but that is nly ne type f bail arrangement. If the accused persn beys the cnditins f his/her release, bail mney is refunded.

3 Smetimes a persn accused f a criminal ffence is simply released until they must next appear in curt. Hwever, depending n the circumstances, a persn may have t stay in plice custdy until he/she ges t curt. If held in custdy, the accused persn must appear befre a judge within 24 hurs, r as sn as pssible if a judge is nt available in that time. A bail hearing may happen at this first curt appearance. Smetimes it is delayed t give the accused persn time t get witnesses and prepare fr it. The bail hearing has nthing t with whether r nt the accused persn is guilty. It is a hearing t decide whether the accused persn can be released frm custdy until his/her actual trial. There are several reasns why a persn may be held in custdy withut bail: - T make sure the accused persn will actually attend his/her hearing in curt - T ensure public safety, if the accused is likely t cmmit mre crimes if released - Based n the seriusness f the crime and hw strng the prsecutin s case is, a judge may decide t hld the accused in custdy t maintain the public s cnfidence in the justice system There is n set frmula fr deciding bail cnditins r amunts. If bail is granted, it may be subject t sme f these cmmn cnditins: - Staying away frm the victim f the crime - Checking in with the plice regularly - Nt using r pssessing alchl r drugs - Giving up passprt - Staying in the prvince What is disclsure? Disclsure refers t the bligatin f the Crwn Attrney (r prsecutr) t disclse all relevant evidence it has abut a criminal case t the defence lawyer r the accused persn. This includes any evidence the plice cllected during the investigatin, even evidence the Crwn Attrney desn t intend t use during the trial. This evidence may be what is used against an accused persn r it may help the defence. This helps t make sure that the accused persn is given a fair trial. An accused persn des nt have the bligatin t disclse any relevant evidence it has abut the criminal case t the Crwn Attrney. What happens during a trial? At a criminal trial, the accused persn is presumed inncent until they are prven guilty. This is a right granted by the Canadian Charter f Rights and Freedms. The Crwn Attrney has the burden f prving the accused persn s guilt beynd a reasnable dubt. When appearing at curt fr a criminal trial, the accused persn will sit at the frnt f the curtrm. A judge will ask if the accused and the Crwn Attrney are ready fr trial if either answers n, the judge must be given a gd reasn t delay the trial, therwise it will cntinue. If the accused r the Crwn Attrney asks fr an exclusin rder, this means that the judge excludes anyne frm the curtrm (asks them t leave) wh is giving evidence r testifying. If the accused

4 persn is a witness r will be testifying, they cannt be asked t leave, and have the right t remain in the curtrm fr the whle trial. First the Crwn Attrney will call witnesses and present evidence. The defence has the pprtunity t crss-examine any witnesses called by the Crwn Attrney. This is meant t challenge the credibility and the stry f the Crwn Attrney s witnesses. Then the defence (accused persn/defence lawyers) will present its case, als calling witnesses and presenting evidence. The Crwn has the pprtunity t crss-examine witnesses presented by the defence. The Crwn and the defence then bth have the pprtunity t sum up their cases. This is when bth sides can briefly restate all the pints that are in their favur and that argue fr their side f the case. Finally, the judge will make a decisin called the verdict. This decisin is based n whether the evidence presented against the accused persn is enugh t prve that s/he is guilty beynd a reasnable dubt. If there is a jury invlved, the jury will reach a decisin tgether based n the same evidence and prcess. If a judge finds an accused persn nt guilty, that persn is acquitted. If a judge finds an accused persn guilty, the next step is fr that persn t be sentenced (have their punishment decided) by a judge. If a persn is fund guilty, wh decides the sentence? A sentence is the punishment an accused persn receives if s/he is fund guilty f r pleads guilty t a crime. If an accused persn is fund guilty, his/her sentence is decided by a judge. When deciding n a sentence, a judge must cnsider things like: - Whether the accused plead guilty r was fund guilty - Hw serius the ffence was - Hw invlved the accused was in the crime (planned it; used a weapn) - If there was a previus criminal recrd - The accused persn s attitude is s/he srry fr cmmitting the ffence? - What kind f sentence is usually given fr the ffence in questin - If legislatin mandates a minimum and/r maximum sentence fr the crime(s) the accused cmmitted. If a persn is sentenced fr a crime, what sentence might they receive? There are six (6) basic types f sentences: - Abslute r cnditinal discharge Abslute discharge means the persn has been fund guilty but there is n cnvictin entered. They d nt have t fllw any cnditins and their criminal recrd shuld be erased, if they stay ut f truble, after 1 year. A cnditinal discharge is similar, but the accused persn must fllw a prbatin rder and stay ut f truble. The persn s criminal recrd will typically be erased after 3 years. - Prbatin

5 - Fine Regular reprting t prbatin fficer. May invlve restrictin frm the use f alchl r drugs, cmmunity service, r having t stay away frm the victim f the crime, r ther cnditins set by a judge. Usually accmpanies prbatin r a jail term. Judge will take int accunt the ability t pay a fine. - Restitutin Usually paid t the victim t cmpensate fr any harm dne t them in cmmitting the ffence. It culd be fr physical r psychlgical injuries, damaged prperty, etc. - Jail and Cnditinal sentences A jail term is when the cnvicted persn is held in custdy. A sentence f less than 2 years is usually served in a prvincial prisn (i.e. Her Majesty s Penitentiary). A sentence f mre than 2 years is usually served in a federal prisn. - Prhibitins What is prbatin? An example f a cnditinal sentence is huse arrest, with specific cnditins t fllw as set by a judge. This is t prevent an actin that culd result in a re-ffence, because, fr example, it was the actin that resulted in the crime a persn is cnvicted f (e.g. driving, pssessing a firearm, being present at daycares r schls) Prbatin is when an ffender (persn cnvicted f a crime) remains in the cmmunity instead f in jail, under the supervisin f a prbatin fficer. Wh is a prbatin fficer? A prbatin fficer is a trained prfessinal wh is authrized by the curt t supervise and help prvide guidance t an ffender that is under a prbatin rder. What if I d nt fllw my prbatin rder? Prbatin is an fficial rder frm the curt. This means that it must be fllwed. Nt ding s may result in further criminal charges. Nt fllwing the cnditins f prbatin is an ffence, under Sectin f the Criminal Cde. Breach f a curt rder is cnsidered by the curts t be very serius. Hw can yu challenge a decisin made at a criminal trial? When an ffender wants t challenge a decisin made at a criminal trial, they are appealing the decisin. In Newfundland and Labradr, if the trial was held in Prvincial Curt, the ffender will need t file an appeal with the Supreme Curt, General Trial Divisin. If the trial was held in the Supreme Curt, Trial Divisin, the ffender will need t file an appeal with the Supreme Curt, Curt f Appeal. It is recmmended that a persn wishing t appeal a curt decisin seek advice frm a lawyer.

6 The persn filing fr an appeal is called the appellant. That persn must file multiple cpies f the Ntice f Appeal frm with the Registry f the Curt f Appeal. Any required fees must als be paid. Dcuments required fr an appeal include: - Ntice f Appeal: The first frm t be filed with the curt. - Appeal Bk: Cntains dcuments that were previusly filed with the lwer curt. - Factum: A summary f facts and issues relating t the appeal. The argument being brught frward and the rder r relief being sught by the persn filing the appeal. - Bk f Authrities: Any relevant case law r legislatin applicable t the ffender s case being appealed. - Transcript A written cpy f any ral evidence given by witnesses at the riginal trial.

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