These are the steps that may occur in a criminal case: charges, bail, initial appearance, arraignment, preliminary inquiry, pre-trial conference, trial and sentencing.
What you should know about the steps that may occur in a criminal case
Bail
A judge or judicial justice may only refuse to release an accused person on bail when one of three grounds is established.
Primary ground
Detention is necessary to ensure the accused attends trial.
Secondary ground
There is a substantial likelihood the accused will commit offences endangering the safety of the public.
Tertiary ground
Detention is necessary to maintain public confidence in the administration of justice.
Sometimes, the Crown and defence lawyer agree on a plan for release, often called a consent release. Before making recommendations, the prosecutor reviews the file and the information provided by police, and often consults with the complainant, the police and other relevant parties. The Supreme Court of Canada has said a justice or judge does have discretion but should not routinely second-guess these joint proposals.
Preliminary inquiry
At a preliminary inquiry (also called a preliminary hearing) the judge does not decide guilt or innocence. The judge only decides whether there is sufficient evidence to send the accused person for trial in the Supreme Court of BC. If not, the accused is discharged and the matter is ended. The scope of a preliminary inquiry may be limited to specific issues.
Sentencing
Judges cannot sentence according to their feelings or personal opinions.
BC judges impose hundreds of sentences every day. Each one is based on a judge's full consideration of the relevant legal principles and an assessment of the appropriate range of sentence for a particular offender and offence. However, the law limits their options in many ways. For example:
The Criminal Code, a law passed by elected members of Parliament, sets out sentencing objectives a judge must balance (denunciation, deterrence, protection of the public, rehabilitation, reparation, responsibility, and respect for the law) and principles judges must apply
For example, “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”
Judges must balance all of the required factors when determining a sentence
The Criminal Code sets maximum sentences for some offences
Sometimes the prosecutor’s choice of procedure for an offence will limit the judge’s sentencing discretion. For example, when the prosecutor chooses to “proceed summarily” with an auto theft charge, the maximum sentence possible is 18 months in jail, but it is 10 years if the prosecutor chooses to “proceed by indictment”
Sentencing judges must follow the decisions of appeal courts
They must also try to be consistent with other decisions in similar cases
If the range of cases dealing with a particular offence sets a one year jail sentence at the top end of the range, a sentence outside the range set by similar cases may be reversed by an appeal court if appealed
When Crown and defence lawyers make a “joint submission” on the appropriate sentence after a guilty plea, the judge may only reject it if it would “bring the administration of justice into disrepute or is otherwise contrary to the public interest”
Principles you may hear in a criminal case
Presumption of innocence
Under the Canadian Constitution, all accused persons are presumed innocent until they plead or are found guilty by a judge or jury. News reports quoting people who say a crime has been solved or an accused is guilty before they are convicted may be inconsistent with the presumption of innocence.
Burden of proof
In criminal cases, the Crown must present enough admissible evidence to prove beyond a reasonable doubt that the defendant is guilty of the offence charged. An accused person does not have to prove their innocence.
Right to silence
A person accused of an offence cannot be compelled to explain or justify what they have done at any stage of the process. They may refuse to give a statement to police and choose not to call evidence or testify on their own behalf.
Double jeopardy
Individuals may only be punished once for every crime committed. They cannot be retried on the same charge if there is new evidence.
Voir dire
A mini trial conducted within a trial to determine whether evidence is admissible, or whether it should be excluded because of a violation of the Charter of Rights.
Appeals and judicial review
If someone wants to challenge a decision made by the Provincial Court, they can ask a higher court to review it. Depending on the type of case, the higher court could be the Supreme Court of British Columbia or the Court of Appeal for British Columbia. If the Supreme Court reviews the case, its decision could be appealed to the Court of Appeal. In some cases, decisions from the Court of Appeal can be appealed to the Supreme Court of Canada.
If a victim or member of the public is unhappy with a criminal court decision, they cannot appeal it themselves. They must ask the prosecutor (either provincial Crown Counsel or the federal Prosecution Service, depending on the type of crime) to decide whether there is a legal basis to appeal.
Court of Appeal for British Columbia
Supreme Court of British Columbia