Criminal Law

Many people are under the mistaken belief that the police do not have the right to carry out a search without a warrant. There are a number of situations in which the police are entitled to conduct a search without first obtaining a warrant. For example, the police may perform a “frisk” search on an individual that is incidental to a lawful arrest or detention.

Usually, the police cannot enter any residence against the occupant’s wishes unless they have a valid search warrant. However, a warrant is unnecessary if the police are invited into the home. Another exception is when a hang up call is received and the police believe that someone in the home may be in danger.

No one can be forced to provide a name, address, or other information, show identification, or go with a police officer unless they have detained you, which means they are preventing you from leaving. The police are allowed to detain you to investigate if they have reasonable grounds to believe you have committed an offence, but they must tell you in clear and plain language why they are detaining you and advise you of your right to speak with a lawyer. If you are detained and asked to provide information about your identity, you must provide it. If you are not sure if you are being detained or not, simply ask the police officer. They must tell you.

Exceptions to this rule are when a person is charged with an offence but has not actually been arrested yet, or if a person is detained when driving a vehicle. In such cases, the police have the right to find out your identity.

You are required to show the police your automobile insurance, driver’s license, and proof of ownership if stopped while driving.

You can attempt a private prosecution. If successful, a judge will order that charges be laid against the accused. For more details on private prosecutions, contact a lawyer or a local court house.

You must attend for fingerprinting regardless of whether you have been convicted of an offence or not. Attending for fingerprinting is a condition of your release and you must attend as directed. If you do not attend for fingerprinting, you could be charged and a warrant could be issued for your arrest.

The letter is a request for civil damages. It is separate from any criminal proceedings and does not mean that you have been charged with any offence.

The police do not need a warrant to arrest an individual they find committing a criminal offence. They can also arrest without a warrant any individual who has committed an indictable offence, or if they believe, on reasonable and probable grounds, that the person is about to commit an indictable offence.

The police officer must give you the following information upon arrest:

• • They must tell you that you are under arrest,
  • They must give the reason for the arrest,
  • They must tell you about your right to call a lawyer and the availability of Legal Aid Duty Counsel, and
  • They must inform you that anything you say may be used in evidence.

An individual who is under arrest must go with the police, give a name and address, and have fingerprints and a photograph taken. Although the police have the right to ask further questions as part of their investigation, you have the right to remain silent and can refuse to make a verbal or written statement or sign a confession.

You may be released on an appearance notice or on a promise to appear. You must attend court on the date stated in the notice. You could also be served with a summons to appear in court at a future date. In some cases, a person is kept in custody after being arrested and will need to apply for bail in order to be released.

You have a right to a bail application or hearing within 24 hours of being arrested or as soon as possible if a magistrate is not available within the 24-hour period.

The court considers three issues at the bail application. One is whether the detention is necessary to make sure that the accused attends court. The second consideration is whether detention is necessary for the protection or safety of the public. The third issue is whether the detention is necessary to maintain confidence in the administration of justice. When considering the third issue, the court must look at the strength of the prosecution’s case, the gravity of the offence, whether a firearm was used in the offence, and whether the accused was charged with an offence involving a firearm which has a minimum sentence of three years imprisonment.

A recognizance is a promise that you will attend court as required. The court may require a surety as part of the recognizance. A surety is a person who puts up or guarantees to put up property or money. The property or money may be lost if the accused fails to appear for court, breaks conditions of the court, or becomes involved in a new criminal activity.

A surety must be a Canadian citizen with no criminal record. They must have a full-time job, house, or other property of value.

Some common conditions include personal appearance at all court hearings, no contact or communication with the victim, residing at a certain address, not possessing weapons, obeying a curfew, attending treatment or counselling, reporting to a bail supervision program as required, and to not use alcohol or drugs.

If you are not released after a bail application, you may apply at a later date for bail review in a higher court (the Court of King’s Bench or the Court of Appeal).

Summary conviction offenses are less serious offences. Indictable offences have more severe punishments available and they are processed differently than summary conviction offences by the court.

Hybrid or dual offences can be treated as either summary conviction or indictable. The decision whether to treat a hybrid offence as summary conviction or indictable is made by the provincial Attorney General, who bases the decision on the circumstances of the case and the past behaviour of the accused person.

In a trial, the court hears all of the facts of the case to decide if the accused is guilty of the crime. Both the Crown Attorney and the defence lawyer present their evidence and make their arguments. Evidence is usually spoken testimony from witnesses. There can also be physical evidence, such as torn clothing or the weapon used to injure or threaten.

The Crown presents its case first. The Crown Attorney calls up witnesses and asks them questions. The witnesses are then cross-examined by the defence lawyer. Then it’s reversed – the defence lawyer calls up and questions witnesses and then the Crown Attorney cross-examines them. The person accused may or may not choose to testify.

The Crown can call on a victim of a crime to testify at trial. If you are served with a subpoena (a document stating you must attend court), you must attend court on the date specified. If you do not attend, you could be charged with a criminal offence yourself. If you do not wish to testify, you can get in touch with Victim Services or the Crown and let them know this. However, you may still ultimately be required to attend court.

When called to testify, you must go to the front of the courtroom to be sworn in. You will have to state your full name, and swear to tell the truth. You will have the option to swear on the Bible, swear on a sacred eagle feather, or simply promise to tell the truth.

Courts are open to the public. You can bring a friend with you for support. A worker from Victim Services may also be available for support. It’s a good idea to see the courtroom before the trial date, and if possible, to watch part of another trial. It will give you a good idea of what to expect on your day in court.