CRIMINAL PROCEEDING AND DEFENCE RIGHTS IN CANADA

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1 CRIMINAL PROCEEDING AND DEFENCE RIGHTS IN CANADA Fair Trials is a non-governmental organisation that works for the right to a fair trial according to internationally-recognised standards of justice. Our vision is a world where every person s right to a fair trial is respected. This factsheet covers: - Definitions of key legal terms; - Information about criminal proceedings and defence rights in Canada; and - Useful Links We have prepared this factsheet with the assistance of local criminal lawyers, who tried to describe how things happen in reality. Even within one country, however, practice can vary greatly from one place to another your own experience could differ from the descriptions below. This document does not constitute legal advice and only provides general information. If you need advice in relation to your specific case, or if you are concerned about a possible violation of your rights, you should discuss this with your local lawyer. If you think an important question is not covered by this note, please let us know by filling out the sheet attached at the end. We would also appreciate it if you could also take a few moments to give us some feedback about this note. Your comments will help us to improve our services. Fair Trials comprises Fair Trials International and Fair Trials Europe. Fair Trials International is a registered charity (no ) and in 2010 was incorporated with limited liability in England Wales (no ). Fair Trials Europe is a registered public foundation in Belgium (registered number ). We were initially founded in 1992 with the name Fair Trials Abroad. IMPORTANT This leaflet was last updated in May The information contained in this document is provided for information purposes only and is not intended as legal advice, nor does it constitute legal advice. Whilst we endeavour to keep the information up to date and correct, Fair Trials makes no representations or warranties of any kind, express or implied about the completeness, accuracy, reliability, suitability or applicability to individual cases of the information contained in this leaflet. Any reliance you place on such material is therefore strictly at your own risk. Fair Trials disclaims any liability to the fullest extent permissible by law for any loss or damage of any kind arising from the use of the information provided. You should always seek professional legal advice from a lawyer qualified to practice in the jurisdiction you are in. DEFINITIONS OF KEY LEGAL TERMS Appeal (appel): An opportunity to dispute a decision made at trial by asking a higher court to review it. This can result in the decision being overturned, upheld or changed. Bail (liberté provisoire): The temporary release from police custody of a person accused of a crime and awaiting trial. Bar Association / Law Society (barreau): An organisation whose role is to represent lawyers and help people in their dealings with lawyers. Consulate (ambassade): The section of the embassy whose task is to assist its citizens. Court of Appeal (cour d appel): A court that is competent to hear appeals (i.e. challenges) made to decisions of the lower courts. Court of First Instance: A lower court where a trial is initially heard. In Canada, this is usually the provincial court (cour provinciale) or the superior court (cour supérieure), depending on the offence and the choices made by the accused and prosecution. Disclosure (communication de la preuve): The disclosure of evidence (acts or documents) to the accused by the prosecution. 1

2 Embassy (ambassade): The office of a government official who resides in a foreign country and represents his/her government s interests. Information / Indictment (dénonciation): A written statement accusing a person of carrying out an offence. Judge / Justice (juge): A person with authority to hear and decide on cases in a court of law. Jury (jury): A body of people required to give a verdict in a legal case on the basis of evidence submitted to them in court. Judgment (jugement): A decision on a case provided by a judge in a court of law. Lawyer (avocat): A person whose profession is to give legal advice and assistance to clients and represent them in court or in other legal matters. Legal Aid (aide juridique): Financial assistance provided by the state to a person who needs a lawyer and who cannot afford to pay for one. Plea Bargain (reconnaissance préalable de culpabilité): A procedure which allows the accused to plead guilty in exchange for a less severe sentence. Pre-trial Custody (détention provisoire): Detention in police custody or in prison while awaiting and during a trial. If an accused person is denied bail they will be in pre-trial custody until their matter is dealt with. Prosecutor (The Crown) (procureur / la Couronne): A person who conducts a case against a person who is accused of a crime. Remand: The act of sending a person accused of a crime into custody. Sentence (peine): The punishment assigned to a person convicted of a crime as fixed by a court of law. Warrant (mandat): A document issued by a legal or government official authorising the police to make an arrest, search premises, or carry out some other action relating to the administration of justice. INFORMATION ON CRIMINAL PROCEEDINGS AND DEFENCE RIGHTS IN CANADA Q1. WHERE DO THE LAWS OF CANADA APPLY? WHAT KIND OF LEGAL SYSTEM DOES IT HAVE? Canada consists of 10 provinces and 3 territories (Nunavut, Yukon, and Northwest Territories). It is a federal state, which means that there are laws specific to each province and territory. The province of Quebec (the only province in which French is the sole official language) in particular, has a legal system that is very different from the rest of Canada. Criminal law however, is governed as a federal matter, which means that the same criminal laws apply throughout the entirety of Canada, including Quebec. Q2. WHAT ARE MY RIGHTS UPON ARREST? If you have been arrested, you should be brought before a provincial court judge or a justice of the peace within 24 hours, or be released, unless a justice of the peace is not available during this period. In exceptional circumstances, this period could be extended by the judge by up to 3 days. Right to information: (i) Will the police inform me of my rights? The police have an obligation to inform you of your rights orally. These include the right to a lawyer, and your right to remain silent. (ii) Do I have the right to be informed of the allegations / charges against me? Everyone has the right on arrest or detention to be informed promptly of the reasons for the arrest or detention. This information should be given immediately, in clear and simple language. However, if the reasons for your arrest are obvious, the arresting police officer may decide that it is not necessary to provide such information. The right to inform people: 2

3 (i) Do I have a right to have the consulate informed of the arrest? If you are not a Canadian citizen, you have the right to have your embassy, consulate, or high commission informed of your arrest. (ii) Do I have a right to inform my family of the arrest? There is no guaranteed right in Canada to contact a family member on arrest, but in practice, this is usually allowed. The exception is in respect of minors, where the police have an obligation to contact a parent or guardian. Do I have a right to a lawyer? You should be given access to a lawyer after you have been arrested. The police must inform you of this right, help you find the contact details of your, and give you access to the telephone. The police should stop questioning you, if you decide that you would like to seek legal assistance. (d) Do I have a right to a translator/interpreter? Yes. The police should arrange an interpreter free of charge, if you are unable to speak the language they are using. (e) Do I have to talk to the police or can I remain silent during police interrogation? Will it work against me if I am silent? If you are arrested, you have the right to remain silent. This means that you do not have to answer any questions asked by the police. As a general rule, if you decide to remain silent, the judge and jury at trial must not interpret this as proof of your guilt. Q3. WHEN WILL I KNOW ABOUT THE CASE AGAINST ME? You should informed of the accusations against you without delay, including the details of the specific offence you are alleged to have committed. You may find out more about the accusations against you during your first court hearing. You are entitled to seek documents from the prosecution from the early stages of your criminal proceedings, and as a general rule, you should be entitled to copies of all relevant evidence held by the prosecution or the police. Q4. HOW DO I FIND A LAWYER? WHAT IS THE ROLE OF MY LAWYER? How do I find a lawyer? Each province has its own Law Society, which is the professional body regulating lawyers practicing in each province or territory. Each operates a lawyer referral service. You may be eligible for legal aid if the offence would likely carry a prison sentence if you are convicted. I cannot afford to pay for a private lawyer, what should I do? The provision of legal aid is the responsibility of the provinces, and each has its own legal aid authority you can contact to find out about eligibility criteria. As a general rule, legal aid is available if: - You are a young person, facing criminal proceedings under the Youth Criminal Justice Act; or - You are economically disadvantaged, and you are facing serious and/or complex charges, for which you could be sentenced to imprisonment. What is the role of my lawyer? Will s/he investigate the case? Your lawyer s role is to advise you, represent your interests in your criminal proceedings, and to ensure that your rights are not being violated. 3

4 Lawyers will review evidence and disclosure provided by the crown, and they do some low level investigation (internet searches, scene visits). Where necessary, however, defence lawyers may hire private investigators or their own experts to do investigation. (d) I am unhappy with my lawyer: How can I change lawyer? How can I complain about my lawyer? A good first step is to raise your concerns with your lawyer directly. If you are paying for your own lawyer, you can change your lawyer at any time. If you have a legal aid lawyer, you may have to apply to change your lawyer and provide reasons for doing so. You should consult the legal aid bodies in the relevant province. Complaints about lawyers are dealt with by provincial law societies. Q5. WILL I HAVE TO STAY IN PRISON UNTIL MY TRIAL STARTS? IF SO, FOR HOW LONG? The information given below is specific to Canada. For general information and tips about how to obtain your release prior to your trial, please refer to our note of advice on Applying for Release Pending Trial. Will I have to stay in prison until my trial starts? Under Canadian law, you should not be detained before trial, unless the court believes that: - Your detention is necessary to ensure that you attend court in the future; - Your detention is necessary for public safety reasons; and/or - Your detention is necessary for ensuring public confidence in the administration of justice. This usually only applies if you are facing a particularly serious offence. As a general rule, it is up to the prosecutor to persuade the court that you should be kept in detention, but if you have been accused of a very serious offence, or you were arrested whilst on bail for a different offence, it may be up to you to persuade the court to release you. You may be released subject to various conditions, these include giving a promise ( undertaking ) to the court to attend future hearings, and promising a sum of money to the court ( recognizance ) in order to secure your release. How long can I be kept in prison before my trial starts? You have the right to be tried within a reasonable time, but this time limit is not strictly defined by law. As a general rule, delays of 2 years or more are regarded as excessive. How and when can I apply for release while waiting for trial? Under most circumstances, you should be produced before a judge within 24 hours of your arrest. You will appear before a superior court judge if you have been accused of a particularly serious crime, such as murder or treason. If you are denied bail, you may apply to Superior Court for a bail review (this is essentially an appeal). An application for a bail review may be made right away. If a bail review is denied you have to wait 30 days before you can bring another one. (d) Can I go back to my home country if I have been released pending my trial? This depends on the conditions of your release. You may, for example, be required to remain in a particular area, or to surrender your passport. It is important that you fully understand the conditions of your release and seek legal advice before you decide whether or not to return to your home country on bail. (e) What will happen if I breach the conditions of my release? If you violate your bail conditions, the court may decide to issue a warrant for your arrest, and your bail could be revoked. Money deposited with the court as security could be lost either partially, or in its entirety. Violating bail conditions without a good excuse amounts to a separate criminal offence, punishable by up to 2 years in prison. (f) Do I need a lawyer to apply for release? 4

5 The burden is on the police/prosecution to apply to have you detained before trial. You do not normally have to make an application yourself. However, it is advisable that your lawyer attend any bail hearings to respond on your behalf. There is a free lawyer (duty counsel) who will assist you with your bail hearing if you don t have your own lawyer. Still, it is usually a good idea to hire your own lawyer because they are better able to prepare. Q6. HOW LONG BEFORE MY CASE GOES TO TRIAL? The timing of your trial depends on a number of different factors, which means that it is usually difficult to predict when your hearing will take place. Trials for minor offences tend to begin within 8-12 months after arrest. There are always delays with my case, does that mean my lawyer is doing a bad job? Not necessarily. Delays can be caused by the failure of the prosecution to provide relevant documents, by lack of resources such as court time or interpreters, by the availability of judges or witnesses, and other legitimate reasons. Q7. CAN I PLEAD GUILTY? WHAT ARE THE CONSEQUENCES OF PLEADING GUILTY? You may plead guilty or not guilty. If you plead not guilty (or if you refuse to plead), your trial will go ahead. If you plead guilty, the judge may accept your guilty plea only if s/he is satisfied that the plea has been made voluntarily, and that you are fully aware of the implications and consequences of pleading guilty (including the fact that the judge is not bound by any agreement you have already made with the prosecution on your sentence). If the judge accepts your guilty plea, the judge may either sentence you immediately or postpone sentencing to another date Q8. WHAT HAPPENS AT TRIAL? Your trial will begin with an arraignment, during which you will be asked to confirm your name, and the charges against your name will be read out in court. You will then be asked to enter your plea. There are two basic types of criminal offences under Canadian law summary and indictable. Summary offences refer to more minor offences, and as a general rule, they are punishable by a fine of up to 5,000 Canadian Dollars, or six months, imprisonment (some summary offences carry maximum sentences of up to 18 months in prison). Indictable offences refer to more serious offences. If you are being tried for an indictable offence, you will be given a choice of getting tried: - by a single judge at the provincial court; - by a single judge at the superior court; or - by a superior court judge and a jury. If you choose to be tried at the provincial court, you may be tried that same day by the judge. If you choose to be tried at the superior court (with or without a jury), or if you make no choice as to how and where you would like to be tried, you will be entitled to an initial hearing before a provincial court judge, if you request one. The provincial court judge will order you to stand trial in front of a superior court judge (alone or with a jury) at a later date if there is sufficient evidence that you committed the offence with which you are charged. Do I have to be present? You will be required to be present for the trial. Can I ask for the trial to take place in my home country? No. Is there a jury? If you are being accused of an indictable offence, you have choice as to whether or not you have a jury trial (d) Can my lawyer call and cross-examine witnesses? 5

6 Your lawyer should be permitted to call witnesses, and also cross-examine prosecution witnesses, in order to challenge their evidence. (e) I don t speak the language of the court, do I have a right to an interpreter? Is it free? Yes, you have the right to an interpreter in court proceedings, if you do not understand the language of the court. Interpreters are free of charge. (f) Will the written evidence be translated for me? Yes. (g) Will the interpreter also help me if I need to talk to my lawyer? Yes. (h) Why is the victim taking part in the trial? The alleged victim at the trial is called a complainant. The complainant will likely be called to give evidence at trial, and your lawyer will have the opportunity to cross-examine him or her. If you are convicted, the complainant will be referred to as the victim, and will be asked to submit a victim impact statement. A victim impact statement is a written statement that describes the impact the crime has had on the victim. (i) Will I be informed of the decision of the court on the day of the trial? The jury (or the judge, if sitting without a jury) should deliver its verdict as soon as possible after reaching a conclusion. This may be on the day your trial ends or shortly thereafter. (j) Can I receive a copy of the judgment in my mother tongue? You will normally need to pay for a private translator to have the judgment translated. (k) I was tried in my absence and was not informed of this, what can I do? Trials that proceed in the absence of the accused (also known as trials in absentia ) are extremely rare and take place only in cases in which you have deliberately avoided the trial. Generally, all testimony and evidence, and decisions of guilt or innocence should only be made only when the accused has been found. Q9. I AM NOT HAPPY WITH THE DECISION, CAN I APPEAL AGAINST IT? HOW DO I APPEAL? You can appeal against the judgment. Procedures for appealing vary from province to province, so it is important that you seek legal advice from your local lawyer to ensure that you comply with all the relevant deadlines and procedural requirements. As a general rule you will need to file a notice of appeal within 30 days of the judgment. You will also need to file written arguments and any other documents relevant to your appeal. New evidence can only be considered by the appeal court if it is very significant. Do I need to pay my lawyer more money if there is an appeal? If your lawyer is privately funded, you will have to pay him or her additional fees for the appeal, as they will most likely be paid on an hourly rate. If you qualify for legal aid, you may receive legal assistance for your appeal may also be covered. However, not all appeals qualify for legal aid. What is the timeframe for an appeal to take place? The length of time varies with each case. However, the courts may set out a timetable which specifies timeframes in which documents relevant to your appeal should be filed. Could things get worse during the appeal? If I am acquitted, can the prosecution appeal? 6

7 Yes, the court could, for example, impose a harsher sentence, or in certain cases overturn an acquittal. It also has the power to order a re-trial. The prosecution may also appeal against an acquittal or a sentence but, the prosecutor's right to appeal a conviction is limited to questions of law, such as the admissibility of evidence or the interpretation of the Criminal Code. Q10. I HAVE EXHAUSTED ALL LEGAL REMEDIES. WHAT OPTIONS DO I HAVE? Is it possible to get my case reviewed? Once you have exhausted your appeals, the only way of re-opening a case is by making a petition to the federal Minister of Justice, who has responsibility for the administration of criminal justice. The minister can directly re-open the case by ordering new trials or appeals, where "there is a reasonable basis to conclude that a miscarriage of justice likely occurred". This process is used very rarely. Can I apply for a pardon? In Canada, pardons are available after you have completed your sentence and the relevant waiting period has expired. The waiting period varies with the nature of the offence. If you are convicted of an indictable offence, the waiting period in 10 years. Pardons are not available if you have been convicted of a sexual offence with a minor, or you have convictions for 4 or more indictable offences which carried a sentence of two or more years in prison in each case. Q11. WHAT RIGHTS DO I HAVE AS A PRISONER? Do I have rights as a prisoner? Where can I find out about my rights? If you are sentenced to less than two years in prison, it is likely that you will serve your sentence in a prison run by the province in which you were sentence. If your sentence is longer than two years, it is likely that you will serve it at a federal facility. Your rights include the right to personal safety, and the right to participate in rehabilitation and reintegration programmes. Any restrictions on your rights should be necessary by virtue of imprisonment. What can I do if my rights are violated? Where can I get assistance regarding my welfare issues, regarding abuse and mistreatment? If you are in a federal prison, you can make a complaint to a grievance committee. If you are unhappy with the way the grievance committee has handled your complaint, you can take the matter to the Warden of the Institution and in turn, to the Deputy Commissioner of the region, the Commissioner of Correction Services Canada and the Correctional Investigator as necessary. If you are in a provincial prison, you can submit your complaint in writing to the Director of the institution where you are being held. If you are unhappy with the Director s decision on your complaint, an appeal can be made to the provincial Ombudsman. If you are not a Canadian citizen, you can also speak to your consular representatives about the problems you are facing, in case they can help in any way. Q12. CAN I GET MY SENTENCE REDUCED? It may be possible to appeal against your sentence on the basis that it is excessively harsh or unlawful. You could also be eligible for parole (early release) after serving a part of your sentence. What would help me get an early release? You may be eligible for parole after serving a part of your sentence. The Parole Board of Canada handles the parole process for federal prisons. The relevant provincial parole board will make parole decisions for provincial prisons. In general, prisoners are automatically considered for parole after serving one-third, or 7 years of their sentence, whichever is less. You could apply to be released earlier if there are compelling or exceptional circumstances. 7

8 When considering your case, the parole board will consider various factors, including: - Your criminal and social history; - Any progress you have made by yourself or through participation in programs; - Your behaviour in the institution and while on any previous conditional release; - Any victim impact statements; and - What you intend to do once you are released. I have been sentenced to pay a fine, what will happen if I don t pay it? The court should make an assessment of your financial situation when determining the appropriate fine. If you have difficulty paying the fine, you can ask the court for an extension, which could be granted if the court is satisfied that you have tried your best to pay it. You could be sentenced to serve time in prison, if you do not pay your fine. Q13. CAN I GO BACK TO MY HOME COUNTRY? Can I serve my prison sentence in my home country? This may be possible if there is an agreement between Canada and your home country that enables such transfers to take place. For more information about this process, please refer to our Prisoner Transfers note. The Canadian authority responsible for approving prisoner transfers is the Minister or Public Safety and Emergency Preparedness. Can I be expelled instead of serving my sentence? No. Is there a risk that I will be deported after serving my sentence? If you are not a Canadian citizen, there is a risk that you could be deported as a direct consequence of your conviction. This is a matter to discuss with an immigration lawyer. Fair Trials would like to thank the law firms and individual practitioners, including Dean F. Embry who have generously given their time and expertise to help produce these legal guidance notes. For a full list of our funders see 8

9 Fair Trials aims to help people accused of crimes to understand and exercise their fair trial rights by providing information and where appropriate, by referring them to local sources of support. We do not charge for any of our assistance. If you complete this form, we may be able to: - Send you general information, including advice about the local legal system that could be helpful to you; - Provide answers to any specific questions you might have; and - Refer you to local sources of support (for example, referrals to local lawyers, if appropriate). We cannot provide any legal advice or representation that is specific to your case, and we are also unable to provide any welfare support or financial assistance. Please fill out this form and send it back to: By Post: Fair Trials, Temple Chambers, 3/7 Temple Avenue, London, EC4Y 0HP, United Kingdom By Fax: +44 (0) All information will be treated confidentially, and in accordance with our privacy notice set out overleaf. A) Personal Information Full Name Nationality Your current address (your prison address, if you are in custody) Prisoner Number (if applicable) B) Legal Representation Would you like referrals to local lawyers? Yes No Are you able to pay for a lawyer? Yes No Depending on the country, you may not be able to choose your own specific lawyer, if you cannot pay for one. C) Fair Trials How did you hear about us? How did you receive this form? If you have already seen any of our materials (e.g. Arrested Practical Guidance ), please let us know, and tell us which you have seen. D) Further Information / Questions 9

10 We have printed materials on a range of topics where we are most often asked for help. Please tick on any of the following topics on which you would like further information. Applying for Release Pending Trial Prisoner Transfers The European Arrest Warrant ( EAW ) Criminal Records in the European Union INTERPOL Red Notices Use the space below to: - Request clarifications on any information from us that you have already seen; - Highlight any specific information, or referrals that you believe could be helpful to you; and - Give us feedback or comments Please be specific with any questions or requests you have. E) Nominated Contact It can sometimes be difficult for Fair Trials get in touch directly with people in prison. In such cases, it can be helpful if we are provided with the name and contact of a family member or a friend whom you are happy to nominate as Fair Trials point of contact. Please provide their details below: Full Name: Relationship to you: Address: Telephone: F) Privacy Notice We collect information about you when you complete and return this form. We use this information to assist you and otherwise provide support in relation to your case. Fair Trials will retain your information for up to six years after: 1) if we are notified about the end of your legal proceedings, from the date of notification; or 2) if we are not notified, the date of the last correspondence with you about your case.. For more information about how we handle your personal information, please see the privacy policy on our website ( Please sign here to confirm that you have read and agree to the Privacy Notice in this form. Full Name:.. Signature:. 10