Pre-Trial Procedure

1. Pre-Trial Procedure

2. The Crime Scene • Police have the right to cordon off the crime scenetomake sure no evidence is lost or tampered with. • Police can refuse entry to a crime scene. • If the incident involves a death, the coroner has jurisdiction over the area the Coroner’s Act allows police to seize anything relevant to the investigation at the crime scene. • The area will be photographed and searched for items such as hair or fibre samples, blood, forced entry, physical struggle, fingerprints, footprints, or weapons, or other evidence. This is called forensic evidence. • There are strict procedures on the seizure, handling, and storage of evidence: • no evidence is left unattended; • the case officer must secure evidence in the police property locker; • transferring evidence is the responsibility of the case officer; • no evidence can be removed from property locker without appropriate authority and signature. This is to maintain the chain of custody of the evidence. • Police will also question witnesses about their knowledge of the crime or the persons involved.

3. Evidence is Processed • Forensic scientists analyse the information collected. • Fingerprints are one of the best ways to identify if a suspect as each is unique. • Fingerprints are compared with those on file at the RCMP central repository. • Dirt, dust, and minute quantities of fibres and hair known as trace elements, can be used to link the suspect and the victim together. • Blood, semen, saliva, vaginal secretions, skin, and hair can be used to establish the DNA and identify an individual when properly analysed since DNA is unique to each individual.

4. Search and Seizure • Under the Canadian Charter of Rights and Freedoms, “Everyone has the right to be secure against unreasonable search or seizure …”. • Searches must be specifically authorized as police do not have the right to generally search an individual or a place in hopes of finding evidence. • Justices of the Peace can grant a search warrant under section 487 of the Criminal Code provided that reasonable grounds exist. • Requirements of a search: just cause for the search, judicial authorization, and the specificity of objects to be searched. • Telewarrants can be issued if the accused committed an indictable offence and may destroy evidence. • Some searches do not need a warrant, such as the “power to search incidental to arrest”. Police can search an individual as part of the arrest procedure to ensure the safety of the police and public.

5. Arrest and Detention • Formal arrest occurs when the police have reasonable grounds to believe the person committed or will commit an indictable offence. • Detention is a situation where it is made clear that the person is not free to leave either through threats, physical restraint, psychological means, or issued a demand or direction where there would be legal consequences if the person refused, e.g., the RIDE program. • The police must inform the individual of their right to counsel under section 10(b) of the Charter of Rights and Freedoms. • The police must also promptly inform the person of the reasons for the arrest. • The right of habaes corpus prevents unlawful arrest and detention by bringing a person to court to see if they are being detained legally. • An arrest warrant is issued by the Justice of the Peace and describes the accused, briefly states the charges, and orders the police to arrest, and brings the suspect to court.

6. Questioning the Accused • An individual cannot be forced to make a statement to the authorities and has the right to remain silent. • All statements must be made voluntarily with the understanding that it may be used as evidence in court. • A statement cannot be obtained through threats or promises, i.e. promising to reduce the sentence. • Police are not allowed to use harsh or threatening tactics, i.e. no food for 24 hours, keeping them awake, keeping them in a room with no heat, or other oppressive conditions. • Police cannot use trickery, i.e. pose as a lawyer, priest, doctor, or any other person, in order to gain information as these are privileged communications.

7. Judicial Release • After arrested and charged, the accused is not generally kept in custody, unless there are fears that the individual will not show up for trial or the belief that the accused poses a danger to the public. • Under the law all persons are presumed innocent until proven guilty and therefore should not have their personal liberty taken away. • For minor or summary offences the accused may be presented with an Appearance Notice that indicates the date for fingerprinting (if necessary) and the date to attend court.

8. Judicial Release • A Summons, which is issued by a Justice or Judge, serves the same function as an Appearance Notice. • In other summary or hybrid offences, an accused can be released under a Promise to Appear, which guarantees his/her appearance in court. • A Recognizance is a written promise to appear in court or else pay money if they fail to show on the prescribed court date. • The accused could also be released on an Undertaking, which is an agreement with specific conditions, i.e. no drinking, or avoiding contact with particular individuals (e.g. known criminals). • If police want to hold the accused in custody until trial, an application for bail can be made. • Bail involves posting a sum of money to guarantee that the accused will show up at trial. • The onus is on the Crown to show why the accused should not be released on bail, unless it is a specific offence like drug trafficking or terrorism, in which case the accused must justify his/her release.

9. Method of Trial • Depending on the crime, the accused may have a choice of a trial by judge or a trial by judge and jury. This choice is called an election. • All summary conviction offences in Ontario are tried by a lower court judge.

10. Preliminary Inquiries • If charged with an indictable offence a preliminary hearing is held to ensure that there is sufficient evidence to put the accused on trial • The preliminary hearing is mandatory in all jury trials and is attended by the judge, the Crown attorney and the defence lawyer • the Crown must disclose the evidence it intends to present at trial, including questioning Crown witnesses • If enough evidence is found a trial date is set; if not the judge can dismiss the charges. • If the accused pleads guilty a preliminary inquiry is not held. • The inquiry allows the defence to assess the weaknesses in the Crown’s case.

11. Plea Bargains • Plea bargaining may involve the Crown agreeing to a lesser charge, with a lighter punishment or it may included making recommendations for sentencing. • It helps reduce the number of cases going to court and reduces the backlog and expense of a trial. • There is much criticism over plea bargaining and whether or not it serves the public’s best interests if criminals are given lesser sentences.