CRIMINAL LAW

Who make laws? Who enforces them? What courts hear criminal cases? Whether you have a general interest in the law or are about to go to court, you may have questions like these. In this booklet we describe what criminal law is, how a case goes to court and what sentences a convicted person may get.

Criminal law sets a standard of behaviour for all people who live in our country. Its main purpose is to protect society and to keep the community peaceful and safe. Most people in our society are law-abiding. Their conduct does not fall below that set as a minimum by the criminal law. When a person’s behaviour does not meet the standard set out in the Criminal Code and other laws, he or she could face criminal charges.

A person accused of a crime is entitled to a fair trial in a court of law. No person may be punished for a crime without admitting guilt or being found guilty at a criminal trial.

However, not every person involved in criminal behaviour is held responsible for a crime. We may not hold responsible those people who do not appreciate that what they are doing is wrong. For example, a mentally ill person who hits someone will not be punished if she did not know that what she was doing was wrong. In the case of young children, we go one step further. We accept, as a matter of law, that children under twelve years of age cannot think criminally. No child under twelve years of age can even be charged with a criminal offence.

In Canada, no one can be convicted of a criminal offence unless the offence can be found in a written law, called a statute. Criminal offences are written so everyone is certain about what behaviour is against the law and what penalty applies if someone breaks the law. A person breaks the law only when his or her behaviour comes within the activities described by this written law.

The law sets out a range of penalties. The judge chooses the penalty based on the facts.

Most of our criminal law is in the Criminal Code. The Criminal Code contains hundreds of offences. Common criminal offences are theft, break and enter, assault, fraud and impaired driving. Weapons offences, arson and sexual offences are other examples of the wide range of behaviour covered by our criminal laws.

The Criminal Code also sets out the procedure for a criminal case, from the laying of the charge to the appeal. For information on criminal procedure see "The Process".

In Canada, the federal government has the power to decide what kind of behaviour is a crime. The most comprehensive criminal statute is the Criminal Code. Other criminal laws are found in the Controlled Drug and Substances Act, the Customs Act and the Income Tax Act.

The federal government can prohibit behaviour or activities that are harmful to society through the creation of criminal offences. Crimes can change over time. The government can add new laws, change existing laws or get rid of laws altogether as long as the proper procedures are used. Change happens as our ideas about what should be a crime change. For example, it used to be a crime to attempt to commit suicide. Now it is not. It is still a crime to help another person commit suicide.

Criminal law also changes as new technologies develop. For example, we now have criminal offences to specifically deal with theft and telecommunications and willful damage to computer data.

The police, the Crown Prosecutors and the courts enforce our laws. The police investigate crimes, arrest suspects and charge people with criminal offences.

The provincial government hires lawyers, called Crown Prosecutors, to prosecute criminal cases. To prosecute means to lay a charge in a criminal matter and to prepare and conduct legal proceedings against a person accused of a crime. The Crown Prosecutors check to see if the police charged the person with the right offences. The Crown Prosecutor looks at police reports and statements of witnesses and then decides if there is enough evidence to proceed with the charge.

The Canadian Constitution allows the federal government to make our criminal law and the provincial government to run the court system in each province. The Government of Saskatchewan organizes and administers the courts that hear criminal charge in Saskatchewan.

The Provincial government pays for criminal prosecutions through the budget for the administration of justice. Our government funded system of public prosecutions means that the Prosecutor, representing the public, often has greater resources than the accused person. The accused person must hire a lawyer privately or get a lawyer through Legal Aid unless they defendant the charge themselves. Sometime the lawyer gets experts, such as psychiatrists or scientists, to help with the case. It can be costly to defend against a criminal charge.

Long ago the person who had been wronged prosecuted the case. This power of private prosecution still exists although it is rarely used.

A person may be fined or imprisoned for criminal offences or for provincial offences. Provincial offences are not criminal offences but in some ways these two types of offences are alike. The Constitution of Canada gives the power to make criminal law only to the federal government. Any law the federal government makes applies across the country. The Constitution gives the provinces the power to make laws too. These laws are called provincial laws. Each province has different laws.

A person who breaks a criminal law may be punished with a fine, a jail sentence or one of several other sentences. Many provincial offences are also punishable by fine or imprisonment. Usually the law that creates the offence says what the maximum penalty or fine may be. Some provincial laws also say that if a person does not pay a fine the judge may order the person to go to jail. Although there may be little difference in the fine imposed, often a greater stigma attaches to a criminal prosecution than to a prosecution for a provincial offence.

A conviction under a provincial law does not form part of a criminal record. The province keeps records for its purposes. For example, provinces keep records of driving offences for licensing purposes. A conviction under The Highway Traffic Act of Saskatchewan, for example, forms part of a person’s driving record in this province. Provincial officials use the driving records to decide whether to suspend or renew a driver’s license. Drivers with a record may have to pay a surcharge to review their licence the following year.

Civil cases are private disputes between two or more people or companies. Civil cases occur in many areas, for example: family matters, contracts, debts, wills and estates and insurance. Civil cases may be decided by looking at written laws, called statutes. Sometimes cases are also resolved using the "common law" or "judge-made law". When deciding a civil case using the common law, a judge relies on legal principles that have developed over the years.

Criminal law involves protecting the public interest. The victim or person who has been wronged does not have to prosecute the crime. Because we view crimes as wrongs against society as a whole, not simply private matters between two people, our government pays for public prosecutors. In civil cases, individuals bring the matter to court and are responsible for the cots of the case.

Let’s take an example of a civil case involving a contract. When you agree to buy tomato plants for your garden you are making a contract. If those plants turn out to be useless because they are diseased, you could ask for your money back. If the seller refused, you could sue him for the purchase price. The lawsuit would be a civil suit, not a criminal prosecution. You could go to Small Claims Court. There you could fill out the paperwork yourself. If your contract was a commercial contract for a large sum of money, you could hire a lawyer and sue in the Court of Queen’s Bench.

Sometimes a single activity can create both civil and criminal liability. In the example above, the seller of the tomato plants could be charged with fraud if he knew the plants he was selling as healthy were diseased. Fraud is a criminal offence. In addition, the purchaser of the plants could sue the seller for damages for breach of contract. This is the civil liability that might arise.

The amount of proof needed to prove someone at fault in a civil case is less than that needed for a conviction in a criminal case. A criminal case must be proved beyond a reasonable doubt. A civil case must be proved on a balance of probabilities. That is, the judge must be satisfied that it is more likely than not that the terms of the contract, for example, were not fulfilled. This a basic difference between civil and criminal proceedings.

Our criminal system has developed safeguards against convicting the wrong person. Penalties for violating the criminal law can be very serious. We do not want to impose penalties on an innocent person, nor do we want to stigmatize the person or make it difficult for him or her to get a good job.

How, then, do we protect against convicting innocent people? We do so by not convicting anyone of an offence unless the prosecution proves that person’s guilt in a fair trial conducted according to law. Proof of guilt is proof beyond a reasonable doubt.

The accused person does not have to prove his or her innocence. The accused person is presumed innocent unless or until the prosecution proves guilt beyond a reasonable doubt. These two requirements, the presumption of innocence and proof beyond a reasonable doubt, are the main safeguards against convicting innocent people.

The following section called Proof of Offences described how the prosecution proves guilt. If an accused person decided to plea guilty, the Crown Prosecutor does not have to prove the person’s guilt. But every person accused of a crime is entitled to plead not guilty and to have a trial.

Even though the accused person does not have to prove anything, he or she may choose to raise a defence or to testify. The judge conducts the trial according to established rules or evidence. The judge also has power to make sure the police investigate fairly. At trial the defence lawyer can challenge police conduct. For example, if the police searched the accused person’s house without a warrant, the judge may no allow what they found to become evidence. In some cases police officers have pressured or tricked an accused person into confessing. The judge at trial listens to evidence of the circumstances surrounding the confession. If the judge agrees that the accused person did not confess freely, the confession may not be used as evidence at the trial.

A person charged with a criminal offence is presumed innocent until that person pleads guilty or is proven guilty in court. The Crown Prosecutor must prove that the accused person is guilty. That person does not have to show that he or she is innocent.

At any criminal trial the Crown Prosecutor must prove beyond a reasonable doubt that the accused person committed a criminal offence. The judge, or the members of the jury if there is one, cannot find the person guilty if they have a reasonable doubt about the accused person’s guilt. They have a reasonable doubt if, after considering all the evidence, they are unsure whether the accused person committed the offence. To convict, the judge or the jury must believe that the only sensible explanation, considering all the evidence, is that the accused person committed the crime.

To be found guilty of a crime, a person must have done something that is against the law while having what is called a "guilty state of mind". The prosecution tries to prove that the person intended criminal behaviour or that the person had a state of mind that was criminal. The person’s state of mind is not a question of motive. It is merely a question whether he or she intended the act. At any criminal trial the prosecution must prove these two things: (1) the criminal behaviour and (2) the accused person’s state of mind.

The Criminal Behaviour

The criminal behaviour must fit precisely within the definition of criminal behaviour set out in the law. Often the criminal behaviour is an act, something the accused person did. Sometimes the criminal behaviour is not doing something that the law requires in certain circumstances. This is called "an omission". For example, it is an offence to fail to provide food for your dependent children. Failing to assist a police officer who needs and asks for help is also offence.

The criminal law sets out exactly what amounts to a crime, both the person’s behaviour and the circumstances under which it must take place. For example, section 175(1)(a) of the Criminal Code creates the offence of causing a disturbance:

175. (1) Everyone who

not being in a dwelling-house, causes a disturbance in or near a public place,

by fighting, screaming, shouting, swearing, singing, or using insulting or obscene language,

by being drunk, or

by impeding or molesting other persons...

is guilty of an offence punishable on summary conviction.

A person can cause a disturbance in once of three ways: by fighting or by some other behaviour listed in (i), by being drunk, or by bothering people. The Crown Prosecutor must show that (1) the accused person acted in one of those ways; (2) the accused person was not in a dwelling-house; (3) that the disturbance was caused in or near a public place; and (4) the accused person’s activity caused a disturbance. If the Crown Prosecutor cannot prove any one of the above, there is no offence.

The criminal behaviour must be voluntary. If a person fell into a coma and did not provide food for his or her children, he or she could not be found guilty of failure to provide necessaries of like. Movements that are beyond a person’s control are not voluntary. For example, a person who does a criminal act while sleepwalking may not be guilty because the harmful actions were not done voluntarily.

The Accused Person’s State of Mind

The Crown Prosecutor must prove that the accused person intended to do the act. Here we look at the person’s state of mind when he or she committed the act or omission that is the subject of the offence.

Different criminal offences require different states of mind. Most offences require one of intention, recklessness or negligence. By way of comparison, most provincial offences do not require proof of "guilty mind". These are called "absolute liability" offences. An example is speeding. In a speeding offence, what the driver was thinking or whether he or she intended to drive over the speed limit is not relevant. For other provincial offences, called "strict liability" offences, the accused person may be acquitted if he or she showed diligent efforst toa void breaking the law. Since most criminal offences require intention, reckless ness or negligence, we will discuss these states of mind more fully.

Intention is when the accused person meant to do what he or she did. For example, let’s look at shoplifting. Shoplifting is theft. A person who knowingly takes something from a store without paying for it commits theft. A preoccupied shopper who forgets to pay for something is not guilty of shoplifting.

We will sometimes be responsible for the unintended results of our actions. Recklessness is when a person realizes there is a certain risk involved, but commits the act anyway, regardless of the risk. For example, the charge of murder can result from either intention or recklessness. One part of the definition of murder says a person is guilty of murder if he or she injures someone, knowing that the injuries are likely to cause death and is reckless whether the victim dies or not.

Negligence is failing to act the way a responsible person acts or would act in the same circumstances. A person who is negligent does not look ahead to the consequences as we expect everyone to do. Where the definition of a crime includes negligence, a person can be guilty of criminal behaviour without actually thinking about the result. Criminal negligence is not the same as negligence in a civil case. Usually criminal negligence involves behaviour that is extremely careless.

A common example of criminal negligence occurs in driving cases. A person can be found guilty of criminal negligence if another person is injured or killed in a car accident as a result of the accused person’s criminally negligent driving. For example, a driver may be found criminally negligent if his actions are far below the standard of a cautious and careful driver and if these actions caused the accident. The driver may be guilty even if he did not realize this behaviour could cause an accident.

How does the Crown Prosecutor prove what the accused person was thinking at the time of the crime? It can be difficult. Only the accused person knows what he or she was thinking. The Crown Prosecutor must rely on proof that a criminal act occurred and proof of statements or actions that show what the person was thinking. For example, in a murder case, proof that the accused person threatened to "get" the person who was killed may be accepted as evidence.

The Criminal Code classifies a criminal offence as one of three types of offences. These are: summary conviction offences, indictable offences and duel offences.

Summary conviction offences

Summary means in a quick and simple manner. Summary conviction procedure means the person gets to court quickly. A judge hears summary conviction cases in Provincial Court. There is no choice of court nor is there a right to a jury trial. Generally, the maximum punishment is a fine of up to $2,000, a jail term of up to six months, or both. The offence of sexual assault carries a maximum jail sentence of 18 months.

Summary conviction offences are usually less serious offences. Some examples of summary conviction offences are creating a disturbance, joyriding and committing an indecent act in public. Summary conviction offences are often narrowly defined offences. For example, carrying a weapon while attending or on the way to a public meeting is a summary conviction offence. Another example is failure to keep watch while towing a person on water skis. Some summary conviction offences are rare, for example, fraudulently practising witchcraft.

The trial procedure for summary conviction offences also differs in some ways from the procedure for indictable offences. A person charged with a summary conviction offence does not have to appear in court personally. A lawyer or an agent may appear in court on that person’s behalf, unless the judge asks the person charged to appear in person. An agent may be a friend or relative or a person hired to appear in court.

There is a six-month limitation period for summary conviction offences. No one may charge a person later than six months after the facts occurred.

Very few offences in the Criminal Code are only summary conviction offences, though there are many dual offences that end up being prosecuted as summary conviction offences. Duel offences are discussed below.

Indictable offences

Indictable offences are more serious crimes than summary conviction offences. There is more than one procedure for indictable offences. The procedure that applies depends on the seriousness of the offence. Some indictable offences must be tried by a judge in Provincial Court. No jury is available for these offences. A number of very serious indictable offences, such as murder, must be tried by a judge and jury unless both the Attorney General and the accused person agree to a trial without jury. For all other indictable offences, the Criminal Code gives the accused person a choice called an election.

A person charged with an indictable offence must show up personally in court. He or she may represent himself or herself or may be represented by a lawyer. There is no limitation period for indictable offences. This means that the police can charge a person years after the offence occurred.

Duel offences

Dual offences can be prosecuted as summary conviction offences or as indictable offences. The Crown Prosecutor makes his choice. The court the accused person appears in and the range of penalties depend on whether the Crown Prosecutor prosecutes the offence as a summary conviction or an indictable offence. Usually the Crown Prosecutor prosecutes less serious dual offences as summary conviction offences. The Crown Prosecutor may choose to prosecute a dual offence as an indictable offence in the accused person has a criminal record or where there are circumstances making the crime more serious.

The Criminal Code includes many dual offences: assault, theft under $5,000 and impaired driving are common dual offences. The police charge the accused person with an offence, like theft or impaired driving. The dual offence is treated as an indictable offence until the Crown Prosecutor gets the case. Then the Crown Prosecutor makes the choice to proceed by summary conviction or indictable procedure.

Every person, even someone arrested in very suspicious circumstances, is entitled to present a defence at trial. A defence may be defined broadly as any denial or answer to the charge against the accused person. This definition includes defences that cancel part of the prosecution’s case, such as the first defence listed below, "no criminal state of mind".

Occasionally the defence lawyer thinks the Crown Prosecutor’s case is so weak that the defence lawyer chooses not to present any evidence. The defence lawyer can still argue that the Crown Prosecutor has not proven the facts or the required criminal state of mind, even when the defence calls no evidence. To convict, the Crown Prosecutor must prove the facts and the required state of mind in every case.

In a more narrow sense, a defence is a legally recognized excuse or justification for criminal conduct. To raise such a defence, the accused person must be able to point to evidence that supports the defence. For example, in an assault case, the Crown Prosecutor may have proved that the accused person hit someone and that the accused person intended to hit that person. Unless th or she raises a defence, the accused person will be convicted. The defence may present evidence that the accused person was defending himself or herself. The defence or "self-defence" may then justify what would otherwise have been criminal conduct.

A defence lawyer may use one or more of the following defences at a trial. The lawyer presents evidence such as witnesses, physical evidence or the testimony of the accused to prove a defence.

Where the accused person did not have a guilty mind when committing the crime, he or she may be found not guilty. For example, if the accused person was forced under compulsion to do something, he or she may not have had a guilty mind. He or she may not have had the intention to do something criminal.

The accused person must have acted consciously. The criminal behaviour - what the person did - must be voluntary. A person who does something while sleepwalking, for example, may not be acting consciously. Similarly, a person’s actions, brought on by an epileptic seizure or by a blow to the head, are not truly voluntary.

Crimes committed in an unconscious state are rare, but if the actions were not voluntary the accused person will be acquitted. This is called the defence of "automatism" because the person moves about automatically, without consciously controlling his or her actions.

An alibi is when an accused person claims that he or she was not present at the time of the offence. independent evidence supporting this claim strengthens an alibi defence.

A person who is attacked may use force to resist the attack. The person may use only the amount of force necessary to defend against the attack. This is called "reasonable force". A person charged with assault, murder or manslaughter may use this defence.

Defence of property is similar to self-defence. A person may use reasonable force to prevent someone from entering his or her home or property. The person defending his or her property may not use excessive force. This defence cannot justify shooting, stabbing or setting traps that would injure a trespasser.

A person who commits an offence because he or she was threatened may claim the defence of duress. The threat must be of immediate death or serious injury. It must have forced the person to commit the offence. Duress is not a defence to violent crimes such as sexual assault, aggravated assault or murder. An innocent bystander, forced at gunpoint to drive the getaway care after a bank robbery, might use this defence.

Provocation is something that causes another person to lose their self-control. It can be an act or an insult. Provocation can reduce a charge of murder to manslaughter. This is the only time a person may use provocation as a defence. An accused person who acts on provocation before "cooling off" may be acquitted of murder and convicted of manslaughter. If too much time passes between the provocation and the offence, the defence of provocation may not be available. Even so, evidence of provocation can lessen the punishment the accused person received for the offence if the person is convicted.

A person whose behaviour would otherwise be criminal may have a defence if he or she made a mistake about the facts. Someone who leaves a bicycle in a bike stand, returns and rides off on another bicycle the same colour and make could use this defence. The rider was mistaken about which bike belonged to him or her, not about whether it was illegal to take someone else’s bike. The person must be mistaken about the facts, not the law. The mistaken belief must be an honest one.

Mistake of fact, where it occurs, cancels any "criminal state of mind". It is related to the first type of defence discussed earlier.

Ignorance of the law is no excuse. Not knowing that something is a criminal offence does not mean it is all right to commit the offence. But when an accused person can show that a government official misled him or her about the law, an exception called "officially induced error" applies. This is an example where mistake of law can provide an defence.

An accused person who suffered from a mental disorder at the time he or she committed the offence may not be criminally responsible. The person must not have known what he or she did or that it was wrong. This defence was formerly called the defence of insanity.

The judge may order an assessment of the accused person’s mental condition. The assessment may be done to see whether the accused person is unfit to stand trial, to see whether the accused person was suffering from a mental disorder at the time of the offence, or for several other reasons. A psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer and the Crown Prosecutor.

If an accused person is found not criminally responsible, the judge has a choice. He or she may make an order concerning the person or may choose instead to refer the case to a review board. If the judge make an order, there are three choices available: an absolute discharge, a conditional discharge or a term in a psychiatric hospital. The judge may grant an absolute discharge if the mentally ill person is not a threat to the public. Where the judge orders that the person be kept in a psychiatric hospital, the judge’s order last for the maximum of 90 days. After that, the review board review the person’s case.

If the judge does not make an order and refers the case to the review board, the board holds a hearing and decides. The board has the same choices of absolute, conditional discharge or a term in an psychiatric hospital.

A person who does an illegal act to prevent a more serious result may raise the defence of necessity. There are several conditions. The accused must show that the act was done to avoid a greater evil; that there was no alternative; and that the illegal act was not more than necessary to avoid the evil.

Ordinarily intoxication by alcohol or drugs is no excuse. For example, in criminal law, a person who gets drunk and does a criminal act is usually still responsible for his or her actions when drunk. Intoxication may be a defence for a narrow range of offences, such as murder or theft. These offences require the accused person to form a specific intent. A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases. A person may be so intoxicated that she was unable to form this intent to kill. In this example, the accused person may not be convicted or murder but could be convicted of manslaughter.

Long term drunkenness or abuse of drugs may cause a person’s health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminal responsible for his or her actions and could use a defence of mental disorder.

A person who has been tried for an offence cannot be tried again for a similar offence arising out of the same facts. That person may plead a special plea that he or she has already been acquitted, convicted or discharged. The Canadian Charter of Rights and Freedoms also gives this right.

The police may carry out undercover activities to detect crime. In doing so, legally they may present a person with the opportunity to commit a crime but they may not harass, bribe or otherwise induce the person to break the law. Police conduct that induces criminal behaviour is called entrapment. The accused person must prove entrapment.

Entrapment is an abuse of process. It is so unfair and shocking to our sense of justice that it wold be an abuse to force the accused person to stand trial in these circumstances. After accepting that there was an abuse of process, the judge "stays" or stops the trial.

note: Parliament is considering a new Youth Criminal Justice Act that would significantly alter the existing law. At the time of printing, these changes have not occurred.

Young people 12 years old and older but under 18 years of age when they commit a criminal offence are dealt with under the Young Offenders Act (YOA). The YOA tries to balance the goal of protecting society with the recognition that young people have special needs. The YOA recognizes that young people make mistakes and these mistakes should not be held against youth all their lives. The YOA tries to achieve this balance in several ways, usually by adding special protections to the laws, but sometimes by treating the young person as an adult.

These special protections take many forms. When a young person is charged, the police must notify his or her parents. There are special provisions regarding a young person’s right to speak to a lawyer. Young offender cases are dealt with by a special court call the Youth Court. There are restrictions on the publication of a young person’s identity. There are special provisions for dealing with a young person’s criminal record. The maximum penalty for most offences is two years, and for murder, up to ten years.

Sometimes taking a young person to youth court is not the best solution to the problem. The YOA acknowledges this by providing for programs that avoid court altogether. These alternative measures allows a young person to participate in special programs, such a providing volunteer work in the community.

Alternative measures are suitable for young people who commit less serious offences, usually first. The Crown Prosecutor or police decide who takes part in alternative measures. The young person must accept responsibility for what he or she did. After completing the alternative measures, the young person does not get a youth court record. Each province is responsible for developing its own programs. Different programs may be available in different provinces.

The YOA applies to young people from the age of 12 years until they reach 18. It is the age of the young person when he or she commits the offence that matters. For example, the police may charge a 20-year-old with committing an offence when he was 17 years old. Though he is now over 18, he will be dealt with under the YOA.

In certain circumstances a young person who commits a violent crime may be transferred to adult court. A young person must be at least 14 years old when the offence was committed to be considered for transfer. A young person who is 16 or 17 years old, charged with murder, attempted murder, manslaughter or aggravated sexual assault, will be tried in adult court unless a youth court judge orders otherwise.

All young people are entitled to lawyers. Young people can get Legal Aid or a court-appointed lawyer. This right is a basic part of the YOA. A young person has a right to a lawyer when the police consider alternative measures and for any youth court proceedings.

The YOA sets out some special rules about evidence. A police officer or other person in authority must satisfy several conditions before taking a statement from a youth. The young person may give up or waive these protections. For example, the police must tell the young person in understandable language that he does not have to make a statement. The young person must have an opportunity to talk to a lawyer and a parent or other adult. The YOA also says a young person may have a parent present when making the statement. The young person is entitled to have another adult person present if a parent is not available. If the police do not satisfy these conditions and if the young person has not given them up, the judge will not allow the statement to be used as evidence at the trial.

The YOA requires the police to notify the young person’s parents whenever a young person is charged with an offence or kept in jail. A parent includes any person who has custody or control of the child. The judge may order a parent to attend court with the young person. If the parent does not follow the judge’s order, the judge may find the parent in contempt of court. The judge could sentence the parent to jail or a fine.

Sometimes the police decide to keep a young person in custody. The young person is then entitled to a hearing before a judge, called a show cause hearing or a bail hearing. A judge decides whether the young person may be released from custody while he or she waits to go to trial. In some cases, a young person who would otherwise be kept in custody may be released in the care of a responsible person. Both the young person and the responsible person must agree to the arrangement in writing. A young person who is not released before trial is kept in custody until trial.

Youth court is open to the public. The media may report on the proceedings in youth court, but they cannot identify the young person charged or any other young person involved, for example, a witness or a victim. A judge may order that the trial be held in private in some cases but this is rare.

The youth court judge can choose from many sentences. The judge may order a pre-disposition report to help in choosing the appropriate sentence. The judge must consider such a report before deciding on an appropriate disposition.

The YOA provides a wide range of penalties to give the greatest number of alternatives when sentencing a young offender. These alternatives include an absolute discharge, where no punishment of any kind is imposed, and a conditional discharge, where the judge sets conditions that the offender must fulfill (see Sentences under the Criminal Code). The judge may fine the young person up to a maximum of $1,000.00. The judge also may order that the young person compensate the victim, pay money to another person, perform personal or community service or comply with a probation term up to two years.

As a last resort, the judge can also sentence the young offender the serve a term of custody. Custody can be "open" or "closed". A young offender sentenced to open custody may leave the institution during the day for planned activities, such as school. A young offender sentenced to closed custody does not have the freedom to leave the institution. Young offenders sentenced to custody must be kept in an institution separate from adults unless a judge orders the young offender to go to an adult facility.

The maximum custodial or jail sentence for most offences is two years. A young offender may go to jail for three years for any offence for whish an adult can receive life imprisonment, except murder. A young offender found guilty of murder can be sentenced for a term of up to six years in custody and up to four more years under conditional supervision. The law says young offenders should not receive a harsher sentence than an adult would get.

Youth Court records are different than adult criminal records. Only certain people may see them, such as the young person, their parents, lawyers, prosecutors and police officers. In some circumstances other persons may be permitted to se them. After a certain time limit has passed some types of records must be destroyed. Other types cannot be disclosed after the time limited have passed. If the record is for a very serious offence, such as murder, manslaughter, or aggravated sexual assault, the record may be kept indefinitely.

Schools have the right to receive some information about young offenders if it is needed to protect their safety or it is needed to make sure an offender complies with a court order.

The Canadian Charter of Rights and Freedoms (the Charter) is part of the Constitution of Canada. It is designed to protect people against abuses or power by governments. For example, if the provincial government refuses to give someone social assistance because of his or her religion, the Charter applies. A judge could overturn the government’s discriminatory decision. The Charter applies to all Canadians, young and old. it applies to all laws, provincial governments or a government agency, like the police. The Charter only comes into play when government is involved . It has no effect when individuals are involved in a dispute over private matters. The Saskatchewan Human Rights Code may provide a remedy in a private matter. The Charter outlines fundamental rights and freedoms that all Canadians may claim as protection against laws or other forms of government action. Fundamental freedoms protected by the Charter include freedom of religion, expression and association. The Charter has a great impact on criminal law because of the rights it guarantees to all persons charged with an offence. These include the right to a fair and speedy trial, freedom from unreasonable search and seizure, and the right to seek legal advice when arrested. The Charter also protects against unlawful arrest, detention and imprisonment.

The Charter says that the police must inform a person they arrest of his or her right to seek a lawyer’s advice and assistance. The police must tell the arrested person of this right without delay.

If the police or other government officials do not respect a person’s Charter rights, a judge can decide not to allow the use of any evidence that the police obtained while violating those rights. The judge’s decision to exclude evidence may affect the outcome of the trial. The judge has the power to exclude evidence if allowing it would decrease respect for the courts and our system of justice.

There are many people involved in a criminal case. This section outlines who these people are and what they do.

The person charged with a criminal offence is known as the accused or the defendant. He or she may want a lawyer to represent him or her or simply to give advice about the proceedings, including whether to plead guilty or not guilty. The accused person hires and instructs a lawyer and makes the final decision about how to plead and whether to testify or not.

The police investigate crime, arrest people suspected of committing offences and charge people with criminal offences. Sometimes police officers prosecute minor provincial offences, such as traffic offences, but Crown Prosecutors handle criminal prosecutions.

In each province the provincial government is responsible for policing. In some provinces there is a provincial police force. In others, the province hires the Royal Canadian Mounted Police to police the province. That is the case in Saskatchewan. Several cities and towns have their own police forces.

A lawyer who represents a person charges with a criminal offence is known as a defence lawyer. The accused person is the lawyer’s client. A lawyer can advise an accused person about the law and help that person decide how to plead. A person accused of certain offences chooses whether to be tried in Provincial Court of the Court of Queen’s Bench. A lawyer helps the person in making this choice, called an election. If there is a trial, a defence lawyer prepares the case. He or she researches the law, talks to witnesses and prepares exhibits and paperwork for the trial. If the person pleads guilty or is found guilty after a trial, the defence lawyer recommends an appropriate sentence to the judge. The Crown Prosecutor also recommends a sentence. After hearing their recommendations, the judge decides the sentence.

The client hires the lawyer and makes final decisions about how to proceed. The lawyer has a duty to defend the client to the best of his or her ability. The defence lawyer speaks for the person charged with the crime. He or she is the accused person’s advocate.

The defence lawyer has an obligation to ensure that the rights of the accused are protected throughout the criminal process. They may negotiate with the Crown Prosecutor to consider withdrawing a charge or explore the possibility of alternative measures for their client. At trial, a defence lawyer must question the evidence put forward by the prosecution, examine the importance or relevance of that evidence and explore other possible interpretations. The defence lawyer must do so within the limits of the law and according to certain ethical standards. For example, a defence lawyer cannot knowingly permit a witness to give evidence that is not truthful.

The lawyer must keep information received from the client confidential, unless the client clearly allows the lawyer to give out certain information. This is called solicitor-client confidentiality. An important exception to solicitor-client confidentiality is that a lawyer may disclose confidential information about a crime that is about to be committed.

If the lawyer and the client disagree about how to conduct the case, the client can change lawyers. The original lawyer will expect to be paid before sending the file to a new lawyer. A lawyer may withdraw from the client’s case if he or she has a good reason to withdraw. For example, a lawyer whose client refuses to decide how to proceed with the case may withdraw. Occasionally a lawyer may be forced to withdraw. If the client instructs the lawyer to do something inconsistent with the lawyer’s duty tot he court, the lawyer must withdraw. This may happen in a criminal case where the client tells the lawyer he or she plans to lie on the witness stand. Lawyers have a duty not to mislead the court. In such a case it is the lawyer’s duty to withdraw.

Crown Prosecutors are government lawyers who handle criminal cases. The Crown Prosecutor prepares the case by researching the law, reviewing exhibits and paperwork for court and interviewing witnesses.

The Crown Prosecutor decides if there is enough evidence to justify taking the case to trial. The Crown Prosecutor also decides whether to prosecute a dual offence as a summary conviction or an indictable offence. If there is a trial, the Crown Prosecutor must have evidence to present in court. Evidence is something that tends to prove the elements of the offence. Witnesses give evidence in person in court. Often there is also physical evidence, that is, an bject that the Crown Prosecutor shows in court and enters as an exhibit.

Justices of the Peace are Saskatchewan Justice officials authorized to carry out some judicial functions, such as issuing arrest or search warrants. Sometimes an accused person appears before a Justice of the Peace, not a judge. Justices of the Peace do not conduct criminal trials or sentence people.

Witnesses give evidence of their knowledge of the crime or of the circumstances surrounding the crime. Usually the Crown Prosecutor or the defence lawyer asks a witness to appear in court by issuing a subpoena to the witness. A subpoena is a written document ordering that person to appear in court on a certain date. A peace officer such as a commissionaire or a police officer usually delivers or "serves" the subpoena personally to the witness. It can also be served on another resident of the witness’s home if substitute service is ordered. A judge may issue a warrant for the arrest of the witness who receives a subpoena and does not appear in court. If the witness refuses to testify, the judge may find him or her in contempt of court. The witness faces a jail sentence or a fine for contempt of court. The witness can also be charged with a criminal offence if he or she fails to appear in court.

Witnesses must take an oath or solemnly affirm to tell the truth. It is a criminal offence, called perjury, to lie while giving evidence under oath or affirmation in court. Perjury is a serious criminal offence, punishable by up to 14 years in jail.

The lawyer who calls the witness asks questions first. Witnesses can testify about anything that is important to the case. This information must be something that the witness saw, knows to be true, or heard. With a few minor exceptions, witnesses cannot give evidence based on what someone told them. This evidence is called heresay.

After the first lawyer finishes questioning the witness, the lawyer for the other side has a turn to cross-examine the witness. In cross-examination the second lawyer asks questions to gain other helpful information, to clarify what the witness has already said or to point out any inconsistencies in the witness’s testimony or statements the witness may have made earlier. After the second lawyer finishes, the first lawyer can question the witness again briefly if there is a point that needs clearing up. This is called re-examination.

Most people can appear as witnesses at a criminal trial. A child or young person under the age of 14 may give evidence if he or she understands the nature of an oath or solemn affirmation and can communicate the evidence. A child or young person who does not understand the nature of the oath or the solemn affirmation may also give evidence. He or she must be able to communicate the evidence and must promise to tell the truth.

A husband or wife can testify against the other, but in some cases the Crown cannot force the spouse to give evidence. The spouse may choose. There are times when the spouse can be forced to testify. For example, a spouse can be forced to testify about certain violent offences, such as spousal or child abuse.

An accused person may give evidence if he or she wants to take the stand. The Crown Prosecutor cannot force the accused person to do so. It is the accused person’s choice.

Although the right to a jury trial is available for many criminal cases, jury trials are rare. Some offences, such as murder, must be tried by a jury, except where the accused person and the Attorney General agree to a trial without a jury. The Charter says a person charged with an offence where the maximum punishment is five years or more has the right to a jury trial. As well, there are many offences under the Criminal Code punishable by less than five years in prison where the accused person has the right to a jury trial.

Each province has laws that set out how juries are selected and who is eligible to serve on a jury. When a jury is needed, the Sheriff calls a number of people to court. The Crown Prosecutor and the defence lawyer choose the jury from these people.

The jury is made up of 12 people who do not have legal training. During the trial, the jurors listen to all the evidence. Sometimes the judge asks the jury to leave the courtroom while the lawyers argue about whether the jury may hear certain evidence. This is called a voire dire.

After the Crown Prosecutor and the defence lawyer complete their cases, the judge explains the law to the members of the jury. The jury must often decide whose evidence they believe. They may choose to believe or not to believe any witness or any part of the witness’s evidence. They must decide whether they are satisfied beyond a reasonable doubt of the accused person’s guilt. If they have a reasonable doubt of guilt, they must choose to acquit the accused person. To acquit the person means to find him or her not guilty of the offence. After the judge’s explanation, the jurors leave the courtroom to decide. They must consider what the judge said before they return with a verdict.

A conviction is a finding of guilt; an acquittal is a finding of not guilty. The jury members must all agree on the verdict. If they do not agree, the judge lets them go and ends the trial without a conviction or an acquittal. This is called a "hung jury". The Attorney General may order a second trial with a different jury.

If all the jury members agree to the same verdict, they tell the judge what they have decided. Their job is then done. If the verdict is not guilty, the accused person is released and is free to go. If the verdict is guilty, the judge sentences the person.

In cases of second degree murder, the jurors may recommend that the accused serve a certain number of years before becoming eligible for parole.

Other people work in the courtroom too. The clerk of the court assists the judge, announces when the court is in session and records the exhibits. If the accused person or a witness is in custody, the bailiff accompanies him or her to court. The bailiff also helps maintain order in the court. Court reporters sometimes attend court to record evidence as it is given. In most courtrooms tape recording machines have replaced court reporters. If the lawyers ask for a transcript, a court reporter uses the recorded tape to prepare the transcript of the trial. A transcript is a typed record of everything that is said in court. Transcripts are often used a appeal hearings.

A criminal case starts when the police charge a person with committing an offence. There are many steps a case may go through. This section sets out these various stages. Not all cases follow the same steps. The steps a case takes depend on the circumstances. The police arrest some people but not others, so the description of arrest procedures will not apply in all cases.

If the person is arrested, there may be a show cause hearing to decide if he or she stays in jail. People charged with an offence appear in court to enter a plea. This is when the person chooses to plead guilty or not guilty. Many people decide to plead guilty. Their cases never reach the trial stage because of this choice. Others plead not guilty and go on to trial. In some cases there is a preliminary inquiry before trial.

When the police charge a person they formally accuse that person of committing the offence named in the charge. The charge is called an Information. A person charged with an offence gets a copy of the charge. Whether the police officer arrests a person or not, he or she swears an Information at the police station charging the person with a crime.

The police often charge a person with a criminal offence but do not arrest the person. An arrest is when the police take the person into custody. The police can give a person an appearance notice at the scene of the crime, they can have the person come into the police station or they can later give a summons to the person. The police can charge the person with another offence if he or she does not appear in court.

Alternative measures programs which divert people from the traditional court process are now available to adults as well as young offenders. This allows some offenders who admit responsibility for the offence to participate in a special program rather than go to court. The program may involve community service and a mediation process with the victim. The Crown Prosecutor or police decide who participates. The offender does not get a criminal record. Each province is responsible for developing its own programs.

A police officer may arrest a person he or she things has committed an offence. Although an officer may show that the person is under arrest by touching the person, usually the officer simply tells the person that he or she is under arrest. The officer must say something that clearly shows that the person is not free to leave and must obey the instructions of the arresting officer. An officer may use reasonable force to make an arrest, if necessary. What reasonable force is depends on the circumstances. The officer must say why the arrest is taking place, unless circumstances make it impossible to do so or unless the reason for the arrest is obvious.

A warrant is a judge’s order for the arrest of the person named in the warrant. The police officer who believes an offence has been committed asks a judge to issue a warrant. A judge must reasonably believe that a person has committed a criminal offence before issuing a warrnat.

Usually when a police officer arrests a person, he or she does so without having a warrant. To make an arrest, the officer must have a good reason to believe that a person has committed an offence. If that is the case, the officer may arrest someone to find out who the person is, to preserve evidence of the offence, to stop the offence from continuing or to make sure that the person will come to court. An officer also may arrest a person for whom he or she believes there is a valid arrest warrant. If these circumstances do not exist, the Criminal Code directs that the officer cannot arrest the person. The officer will charge the accused person and later serve the person with a summons to appear in court.

If the officer has a good reason to believe that a person committed one of certain indictable offences, he or she may arrest that person without a warrant. The officer is then not limited to those circumstances listed above.

Any person may arrest another person who is committing an indictable offence or who is escaping from arrest. This is called a "citizen’s arrest". A person who owns property may arrest another person if he or she finds that person committing an offence against that property. After making a citizen’s arrest, the citizen must take the arrested person to a police officer as soon as possible. Citizen’s arrests are very rare. Most people rely on the police to make arrests.

After a police officer arrests a person, that person must go with the officer. The officer must tell the accused person why he or she has been arrested. The accused person has the right to remain silent and the right to contact a lawyer.

If the police keep the person in custody, they must charge him or her with an offence. Any person who has been arrested must be taken before a judge or Justice of the Peace within 24 hours or as soon as possible.

A police officer may search a person, place or thing for evidence. Since a search is an intrusion on a person’s body or property, the police must have good reason for the search. In certain circumstances the police may make a search without a warrant. In other cases, they must have a warrant.

Often the police must have a search warrant to search a place or a thing. For example, in most cases the police may not search a private residence without a warrant. A warrant is a judge’s order permitting the search. The warrant allows the police to search a place or a thing named in the warrnat. The police officer who asks the judge for a search warrant must have reason to believe that he or she can find evidence there.

There is a special provision for the police to get a warrant to force a person to give a cell sample for DNA typing. The police must show that a serious offence has been committed, that there were cell samples at the crime scene and that there are reasonable and probable grounds to believe that the person committed the offence. The cell sample will be a few hairs, a saliva swab or drops of blood from a person’s fingertip.

In certain situations the police may conduct a search without a warrant. For example, the police may search a person when they make an arrest. The police also may search a person they believe is carrying a dangerous weapon. Some laws give the police power to search a place or a thing without a search warrant under some circumstances.

For example, under the Controlled Drug and Substances Act police may sometimes search a person, place or thing without a warrant. They may do this if they would have grounds to get a warrant but at the time it is not practical to get one. Under this law, the police may stop and search a car if they have good reason to believe that it contains illegal drugs. Customs laws allow customs officers to open a package or search a person or a car. The officer must reasonably believe that someone is trying to smuggle goods into or out of the country before he or she conducts a search.

The Charter protects our right to be free from unreasonable search and seizure. Even where a law allows a search without a warrant the police should get a warrant, if possible, before the search. A search without a warrant may be against the Charter. A judge who finds this right has been violated may decide not to allow evidence obtained through the search to be given in court. If the judge decides not to allow the evidence in court, it may be difficult or impossible to get a conviction.

After making a search, the police may take things they believe could be used as evidence. This is called seizure. The police must report to a judge about anything they seize under a search warrant, even if it will be used for evidence. The judge may order that the police or the Crown Prosecutor keep anything they need for the investigation, for a preliminary inquiry or for trial. These items can be kept until the investigation if completed or the hearing takes place. Other things must be returned to the owner.

A person charged with an indictable or dual offence must allow the police to fingerprint and photograph him or her. Since most offences are either indictable or dual offences, in all but a few cases the police have a right to take fingerprints and photographs. The police do not have this right for an offence that is only a summary conviction offence (see Are there different types of crimes? Page 10).

If the police arrest a person, they usually fingerprint or photograph the person while he or she is in custody. If the police serve a person with a summons, they will set a date, time and place for fingerprints and photographs.

The police may ask a person charged with an offence to appear voluntarily in a police line-up. The person may agree or refuse.

The police often release an arrested person soon after charging him or her. A judge may order that the police keep an accused person in jail until a later date, even until a trial. There must be a good reason to keep a person in custody. Only a judge or Justice of the Peace may order that the accused stay in jail for longer than 24 hours.

The police officer who arrests a person may release that person if he or she is charged with a less serious offence. In fact, the officer must release the accused person unless the officer believes there is a need to identify that person, to prevent him or her from committing another offence or to protect evidence about the offence. The officer also may refuse to release the accused person if he or she believes that person will not appear in court. The officer usually gives the accused person an appearance notice or a summons that states what date the person must go to court.

The officer in charge at the police station may release the accused person if there is no longer any reason to keep him or her under arrest. The officer may release a person charged with any offence punishable by imprisonment for five years or less. The officer in charge usually has the accuse person sign a promise to appear or gives the person a summons. The officer in charge may refuse to release the accused person for the same reasons as the arresting officer.

When the police keep a person in custody, they must take that person before a Justice of the Peace or a Provincial Court Judge within 24 hours or as soon as possible. The judge must release the accused person unless the Crown Prosecutor argues that the person should not be released. If this happens, there will be a show cause hearing. This hearing is often called a bail hearing.

A lawyer may represent the accused person at a show cause hearing. Most show cause hearings take place in Provincial Court. A few serious offences, such as murder, go to the Court of Queen’s Bench for the show cause hearing.

At a show cause hearing the Crown Prosecutor must show that there is a good reason to keep the accused person in custody. The Crown Prosecutor can show that the accused person is not likely to appear for trial or that he or she would be a danger to the public if released.

In come cases the Crown Prosecutor does not have to show why the accused person should be kept in jail. The accused person must argue for his or her release. This happens if the accused person is not a resident of Canada. This also happens if the accused person is charged with murder or with an indictable offence while on bail for another serious offence, or if the accused person is charged with trafficking narcotics. In these cases, and a few other situations, the accused person must satisfy the judge that it is safe to release him or her.

At the end of the show cause hearing the judge decides. The judge will release the accused person unless there is a strong risk he or she will not appear for trial or that the accused person will be a danger to public safety.

If the judge releases the accused person, the person must sign an undertaking in court. The judge may add conditions to the release, such as reporting to the police once a week or even once a day. Sometimes the judge orders the accused person to sign a recognizance. A recognizance is a written promise made by the accused person to appear in court and to pay money if he or she does not appear. The judge can ask the another person guarantee payment of the amount of the recognizance. In some cases, the judge asks for a deposit of money with the court. If the accused person does not show up for trial, the person who paid the deposit loses this money.

In Saskatchewan there are three levels of court that handle criminal cases: The Provincial Court, the Court of Queen’s Bench and the Court of Appeal. First appearances in all criminal cases take place in the Provincial Court. Trials can be held in Provincial Court or in the Court of Queen’s Bench, depending on the charge. Sometimes the accused person can choose where the trial is held. The Court of Appeal hears appeals only. Most cases are tried in Provincial Court.

An accused person who has a choice often chooses Provincial Court because cases in Provincial Court usually get to trial more quickly. A case in Provincial Court goes directly from first appearance to trial. Cases tried in the Court of Queen’s Bench do not go to trial until after a hearing, called a preliminary inquiry.

The courts are structured in a hierarchy. Lower courts must follow decisions of higher courts. The Court of Queen’s Bench and the Provincial Court must follow a decision of the Court of Appeal, the highest court in the province. Decisions of the Court of Queen’s Bench are not binding on the Court of Appeal, but the Provincial Court must follow them.

There are two kinds of language rights available in criminal proceedings. First, the accused person or any witness has the right to the assistance of an interpreter. Second, the accused person is entitled to a trial in English or French, depending on which of these two languages he or she speaks.

Section 14 of the Charter guarantees the right to an interpreter:

A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

The accused person or a witness may have an interpreter if he or she does not understand or express himself or herself adequately in the language the trial is held in. The court provides and pays for an interpreter.

Canadian courts may function in French or English. If an accused person does not have a lawyer at the time he or she first goes to court, the judge must advise the accused person of his or her right to have a trial in English or French, depending on which of these two languages he or she speaks. If the accused person’s language is not French or English, the judge can hold the trial in whichever of the two languages the accused person can best give evidence. In some cases the trial can be held before a judge or judge and jury who speak both official languages. These language rights are available across the country, not matter where the accused person lives, but the accused person must ask for them.

All criminal proceedings, whether summary or indictable, start in Provincial Court. After an accused person has been released from custody at a bail hearing, he or she returns to Provincial Court to enter a plea or to elect which court to be tried in. An accused person who was not held in custody appears in Provincial Court for the first time for the same purpose. The accused person may ask for an adjournment at this time to consult a lawyer. The judge usually grants this request. The judge adjourns or puts off the case for a short time to allow time to see a lawyer.

The judge will ask an accused person who chooses to go ahead without a lawyer to enter a plea or make an election, if one is required, at this court appearance.

If the accused person pleads guilty and the judge accepts the plea, there is no trial. The judge has a duty to make sure that the facts justify a plea of guilty and that the person is not pleading guilty out of fear or ignorance. If the judge accepts the guilty plea, the judge holds a sentencing hearing, often right away.

If the accused pleads "not guilty", the judge sets a date for the trial. The trial date may be several months away, depending on how busy the courts are. The Charter protects the right to have a trial within a reasonable time. The courts must now consider this Charter right when scheduling criminal trials.

An accused person who has an election and who chooses the Court of Queen’s Bench does not make a plea until after the preliminary inquiry. If the accused person is committed to stand trial, at the first appearance in the Court of Queen’s Bench the judge asks him or her to enter a plea.

At the first appearance in Provincial Court the judge or the Crown Prosecutor reads the charge. The accused person enters a plea of guilty or not guilty. Before entering a plea, a person charged with certain indictable offences must choose which court to be tried in. The accused person can choose Provincial Court or the Court of Queen’s Bench. There are two types of trials in the Court of Queen’s Bench: with a judge alone or with a judge and jury. This means an accused person may have the choice of a trial in (1) Provincial Court, (2) the Court of Queen’s Bench with a judge alone, or (3) the Court of Queen’s Bench with judge and jury. This choice is called an election.

Fewer cases go to the Court of Queen’s Bench than to Provincial Court. Some offences do not go to the Court of Queen’s Bench because the accused person has no choice but Provincial Court. Many other cases go to Provincial Court because that is where the accused person chooses to have the case tried. Some very serious offences, such as murder and treason, must be tried in the Court of Queen’s Bench with a judge and jury. Where both the accused person and the Attorney General consent, these offences may be tried before a Queen’s Bench judge alone.

There must be a preliminary inquiry for all cases that will be tried in the Court of Queen’s Bench. A judge conducts the preliminary inquiry to see if there is enough evidence to justify sending the case to trial. All preliminary inquiries are held in Provincial Court by a Provincial Court judge. If the judge finds there is not enough evidence to send the case to trial, the judge will dismiss the charge. If the judge finds there is enough evidence to justify a trial, the judge commits the accused to trial in the Court of Queen’s Bench. A court date is set and the accused person then enters a plea. If the accused pleads not guilty, a trial date is set in the Court of Queen’s Bench.

Even if the Provincial Court judge dismisses a case after holding the preliminary inquiry, a small chance remains that the case might continue to trial. The Attorney General may decide to send the case to trial. This is called a "direct indictment". The Attorney General rarely chooses to send a case to trial on a direct indictment without having a preliminary inquiry at all.

At the trial the Crown Prosecutor and the defence lawyer call witnesses and argue their cases. The Crown Prosecutor goes first; the defence follows. The length of the trial varies depending on how many witnesses the lawyers call and how long their testimony takes.

The accused person has a right to remain silent and does not have to give evidence at trial. No one can force him or her to say what happened. But, if the accused person takes the stand, he or she may be cross-examined and must answer any question asked. as long as the question complies with the rules of evidence.

If the charges are proved at trial, the judge or jury finds the accused person guilty. If the charges are not proved, he or she is found not guilty. Another way of saying this is that the person accused of the crime is acquitted. After a person has been tried and acquitted he or she may not be tried for that crime again, unless the Crown Prosecutor successfully appeals the case. This is a basic principle of our law.

A finding of guilty or not guilty does not necessarily end the case. Appeal courts exist to make sure that courts do not make mistakes applying the law. Appeal rights and the procedure on appeal depend on how the offence was prosecuted. A person convicted of a summary conviction offence can appeal. If the charge has been dismissed, the Crown Prosecutor can appeal.

Both the accused person and the Crown Prosecutor may appeal an indictable matter. The Crown Prosecutor’s right to appeal is limited to "questions of law", such as the admissibility of evidence or the interpretation of the Criminal Code. In some cases the accused person or the Crown Prosecutor must have a judge’s permission to appeal. This is called "leave" to appeal. Both the accused person and the Crown Prosecutor may appeal the sentence for any offence. Sometimes the judge must give leave for a sentence appeal too.

Appeals go to a higher court. In most appeals the appeal court does not listen to the evidence again. The court studies the transcript of the trial and listens to the lawyers for each side. The appeal court has the power to decide if the lower court correctly interpreted the law or if the sentence is fair.

Most summary conviction appeals go to the Court of Queen’s Bench. Appeals of indictable offences go to the Court of Appeal of Saskatchewan. The Supreme Court of Canada hears appeals from the provincial Court of Appeal where "leave" is granted or where the Criminal Code gives a right of appeal.

After the judge or jury finds a person guilty, the defence lawyer and the Crown Prosecutor each recommend a sentence to the judge. If a jury finds a person guilty of murder, the judge will ask if the jury has a recommendation as to the length of time the person should be jailed before becoming eligible for parole. The judge chooses from the range of sentences set by law. The judge may ask for a pre-sentence report on the accused person before passing sentence. A probation officer prepares this report. The information in it helps the judge decide the proper sentence.

In some communities the judge conducts a sentencing circle at the time of sentencing the accused person. The sentencing circle involves members of the community. For example, native elders may participate in a Northern Saskatchewan community. Community members gather informally to discuss what sentence is appropriate. This input into the sentence from elders, friends or neighbours may help make the person accountable to the community.

There are principles for sentencing. The sentence should:

denounce the criminal conduct

deter the offender and others

separate offenders from society when necessary

assist in rehabilitating the offender

provide reparation to the victim and the community

give a sense of responsibility to the offender

The sentence should be proportionate to the degree of responsibility of the offender. It should also be based on sentences for similar crimes and circumstances from across the country.

The Criminal Code also specifies aggravating factors a judge should consider in sentencing. If the offender abused a position of trust or authority in committing the offence, the sentence will be harsher. If the crime was motivated by bias prejudice or hatred against certain identifiable groups in society, as, for example, in racial crimes, the offender would receive a higher penalty.

The Criminal Code and other laws usually set out the maximum fine and the maximum sentence of imprisonment that the judge can give for each offence. Sentences vary widely. Summary conviction offences generally have a maximum six month jail term and a maximum fine of $2,000, except sexual assault offences which carry a maximum 18 month jail term. Sentences for indictable offences range from short sentences to life imprisonment. A judge rarely gives the maximum sentence. The maximum sentence is for the worst offender who has committed the worst type of the offence. Some offences have mandatory sentences. For example, a person who is convicted of murder must be sentenced to life imprisonment.

The judge decides on the sentence by looking at the circumstances surrounding the offence and the number, if any, of previous offences. The person’s personal situation affects the judge’s decision too. The judge considers such things as the person’s age, whether he or she is employed and whether he or she suffers from a mental or physical illness.

A discharge is when the person is found guilty or pleads guilty but the judge dies not give him or her a sentence. No conviction is entered against the accused person. A person who receives a discharge has not been convicted of a criminal offence and does not need to apply for a pardon (see Criminal Records and Pardons, page 52).

A discharge is available for many offences. A person may receive a discharge for any offence that has a maximum penalty of less than 14 years imprisonment. A person cannot receive an absolute or conditional discharge for an offence that carries a minimum sentence. A discharge can be absolute or conditional. If no conditions are attached, the discharge is immediate.

If the judge attaches conditions to the discharge, it is a conditional discharge. The judge orders a term of probation. Community service may be a condition. The Crown Prosecutor may apply to have the discharge revoked if the person does not complete the conditions.

The judge can suspend passing a sentence and release the convicted person on probation for most offences. A person cannot receive a suspended sentence for an offence that carries a minimum sentence. A person on probation remains out of custody but receives supervision from a probation officer. Probation orders usually say that the person must keep the peace, be of good behaviour and fulfill any other conditions the judge imposes. A judge may order that the person perform community service for a certain number of hours or make restitution to the victim. To make restitution means to pay money back to the victim. A probation order can be in effect for up to three years.

If the person does not keep the terms of the order, he or she can be charged with breach of probation. A breach of probation is a separate criminal offence. If the Crown Prosecutor applies to the judge for re-sentencing, the judge also may revoke the probation order and sentence the person for the original offence.

When a person receives a sentence of imprisonment that is not longer than two years that person also may receive a term of probation. The judge also may order a term of probation in addition to a fine.

A judge can order the person to pay a fine. A fine is a set amount of money that the person pays to the court. Usually a judge gives a fine alone, but the judge may combine it with another sentence, such as imprisonment and a fine. A judge can fine a person only if the judge is satisfied that the person can afford to pay the fine or can work it off. If the person does not pay the fine, the judge may order the person to go to jail. Some communities have a fine option program in place. Eligible persons may do community service work to make up the amount of the fine. Fine option programs are set up by the province, not by the federal government. The fine option program is available throughout Saskatchewan. A person who wants to participate must ask the judge in court at the time of sentencing for time to pay. The person may then register for the fine option program, if eligible.

In some cases, the judge makes an order that takes away the accused person’s driving privileges. This is called a prohibition order. Where a person is convicted of impaired driving, driving with a blood alcohol content exceeding .08, or refusing to take a breathalyser test, the judge must make a prohibition order of at least one year for a first offence. Where an accused is convicted of dangerous driving or other driving offences, the judge may make an order but does not have to. This order is in addition to any fine or imprisonment. Prohibition periods increase for second or third convictions.

A prohibition order is part of the accused person’s sentence. It is effective throughout the country and means that the person cannot drive a vehicle anywhere in Canada.

Provincial legislation also provides that people convicted of impaired driving lose their driver’s licence for at least one year.

Provincial driver’s licence suspensions are effective in the province where they are made. They usually run at the same time as prohibition orders made under the Criminal Code.

A judge may also disqualify a driver convicted of a provincial driving offence, for example, under The Highway Traffic Act.

The judge can order a person to pay money for property damage or loss caused by the offence. This is called an order for compensation or restitution. The judge also can order the accused person to pay money to a person who bought stolen property, if the person bought the property without knowing it was stolen.

The judge does not have to make a compensation order. The judge may choose to make an order or not. If the judge chooses to make an order and the offender does not pay the money right away, the victim can file the order with the Court of Queen’s Bench. This allows the victim to enforce the order by asking the Sheriff to seize and sell the offender’s property.

Conditional sentences are an addition to the traditional forms of imprisonment. The sentence is served in the community instead of jail. It is available for sentences that do not have a minimum term of imprisonment. It can be for a period of less than two years. There are certain terms that are a part of the sentence. Along with supervision, these terms will govern the offender in the community. A conditional sentence may appear to be similar to a probation order. However, if the conditions of the sentence are not met, the offender may face harsher consequences. Violations could result in the offender serving the rest of their sentence in jail.

Imprisonment is the most serious sentence under our law because it deprives a person of his or her freedom. The judge may sentence a person who is convicted of a serious offence or who is a repeat offender to jail. A person goes to a provincial institution if his or her sentence is less than two years. A person sentenced to two years or more usually goes to a federal penitentiary. There are a range of ways to serve sentences in both the federal and the provincial correctional systems. Not all are described here.

Where a judge orders a sentence of imprisonment for 90 days or less the judge may order that the person serve the sentence intermittently. This type of order allows a person to serve the sentence on weekends and holidays. The judge sets out when the person is to be in jail. An intermittent sentence allows a person to continue working, studying or looking after his or her family while serving a short sentence. When a person serving an intermittent sentence is out of jail, he or she is on probation.

A person who committed a violent offence against another person may be declared to be a dangerous offender. This is done at a special hearing. Following this hearing the person may be sentenced to an indeterminate period of detention. Indeterminate means the judge does not say when the sentence ends. The dangerous offender is kept in jail with no fixed date for release. The National Parole Board reviews the case after three years and every two years after that.

Parole allows a person to serve the rest of his or her sentence out of prison. A person becomes eligible for full parole after serving a portion of the sentence, usually one-third or seven years, whichever is less. A judge may order that violent offenders or serious drug offenders not become eligible for parole until one-half of the sentence has been served. The parole eligibility period is different for a person convicted of murder. For example, a person convicted of first degree murder must wait 25 years before becoming eligible for full parole. A judge may set the parole eligibility period for a second degree murder at 10 to 25 years.

In Saskatchewan, the National Parole Board decides if a person gets full parole. The Board assesses the person’s case to make this decision. Parole is never automatic.

A person serving a sentence of imprisonment of less than two years must apply to the Board for parole. A person serving a sentence of two years or longer does not need to apply. The Board reviews these cased when the parole eligibility date comes up.

In many cases the Board holds a hearing with the person to consider whether leaving prison on parole will help him or her to rehabilitate. The Board may direct the release of low-risk, non-violent offenders serving their first federal penitentiary term without holding a hearing. The Board may do this if it considers it unlikely that the person will commit a violent offence.

In making any decision concerning parole the Board’s most important consideration is to protect society. Parole is based on the philosophy that the best way to protect society is to release offenders back into the community gradually under supervision and with conditions. The aim is to contribute to a safer society by helping offenders re-integrate into society as law-abiding citizens.

Victims of crime have the right to certain limited information about the offender and the offender’s prison status. The victim must ask for the information. The Board may choose to disclose certain additional information, if requested.

Members of the public, including victims of crime, may ask in writing to attend parole hearings. The Board decides whether to approve the request.

If the Board grants parole, the person is released from prison. He or she must comply with certain conditions and see a parole officer regularly until the date the original sentence was scheduled to end.

It is important to distinguish between parole and statutory release. While parole is a discretionary type of conditional release whereby Board members assess offenders’ risk to the community, most federal inmates are entitled to serve the last one-third of their sentence out of prison if full parole has not already been granted. Statutory release is automatic, not discretionary, with some exceptions. Persons serving life sentences or indeterminate sentences are not eligible for statutory release.

The Correctional Service of Canad has the authority to refer some statutory release cases to the National Parole Board if there is a concern that the offender, before the end of the sentence, is likely to commit a serious offence causing death or serious harm to another person, a sexual offence involving a child, or a serious drug offence. If the Board decides that this is likely, the statutory release will be prevented and the offender will remain in custody. The Board is required to review orders for continued detention annually.

If the Board decides an offender is unlikely to commit such crimes, the Board may allow a special "one-chance" statutory release. The person is released but if he or she breaks the conditions of release and the Board revokes the statutory release, they must serve the rest of their sentence in prison. The person cannot get another chance for statutory release.

A person who leaves prison on statutory release must comply with certain conditions. Their release into the community is supervised and they must see a Correctional Service of Canada supervisor regularly until the date the original sentence was scheduled to end. If an offender does not comply with these conditions their statutory release may be suspended or revoked. If statutory release is taken away, the person is not eligible for another statutory release until serving two-thirds of the remaining sentence.

The federal and the provincial governments fund programs for victims of crime. Some of these programs offer crisis intervention. Some help the victim learn about and take part in the trial process. Other programs provide financial compensation to victims.

One source of funding for victims programs is the victim surcharge.

Upon conviction, the judge must impose a victim surcharge along with any sentence. This surcharge is paid into provincial and territorial assistance funds to develop and provide programs, services and assistance to victims of crims. An offender convicted of a summary conviction offence will have to pay a $50 surcharge, in addition to any other sentence imposed. An offender convicted of an indictable offence must pay a $100 surcharge, as well as another 15% of any fine imposed by the judge, in addition to any other sentence imposed.

This amount may be increased in appropriate circumstances, if the judge is satisfied that the offender has the ability to pay the increased amount. The judge also has the discretion to waive the surcharge if the offender satisfies the court that paying it would cause undue hardship to the offender or his or her family.

A person convicted of a provincial offence may have to pay a surcharge under provincial law. The amounts of the surcharges under provincial law are different from those under the Criminal Code and drug laws.

In some provinces a victim can prepare a written statement called a victim impact statement. If the judge finds the accused person guilty, the judge reads the victim impact statement at the time of sentencing. The statement tells the judge about the effect of the crime on the victim. It may help the judge decide on the sentence.

In some locations people who commit offences may take part in victim-offender reconciliation programs. Victim-offender reconciliation brings victims and offenders together, formally or informally, to encourage communication about concerns arising out of criminal behaviour.

Formal programs are available for adults and for young people. Some victim-offender reconciliation programs are part of a program of alternative measures. Others are part of a sentence. They offer the victim and the offender an opportunity to meet face-to-face, along with a mediator. This gives both people a chance to talk about their experiences. The offender may agree at the meeting to pay money to the victim as restitution, but this is not the only goal of the meeting. The goal is to benefit the victim, the offender and the community, by helping people to take control of and to accept responsibility for their own lives.

In Saskatchewan, the Victims Fund provides financial compensation to victims of crime. The victim may get reimbursed or paid back for lost wages, medical expenses or other expenses caused by a criminal offence. The victim has to apply for financial help within one year of the crime. The maximum amount of money available is $25,000. The provincial Victims Services, listed in the Government of Saskatchewan blue pages, administers the Victims Fund.

The Provincial Victims Service is a part of the Saskatchewan Department of Justice. Its office is located in Regina. The office co-ordinates services available to victims and administers the Victims Fund. Community groups planning new victims services may apply for funding to this office.

The police keep a record of criminal charges and convictions. Other agencies, such as the courts, also keep records of the outcome of trials. The police information system keeps track of people who are convicted under the Criminal Code or the Controlled Drug and Substances Act. A person’s criminal record does not include convictions under a provincial law, such as The Highway Traffic Act or The Alcohol and Gaming Regulation Act. The police may have a record of people who commit these offences too. A person convicted of a criminal offence who moves to another province still has a criminal record.

The Royal Canadian Mounted Police keep a central computerized file of people’s criminal convictions. The RCMP, the police and other law enforcement agencies use this national information system to find out if a person has a criminal record.

The Criminal Records Act creates a procedure for applying for pardons. A pardon is a formal acknowledgement that a person has completed his or her sentence and not been in trouble with the law again. The police is that convictions should not have a negative impact on the person’s character forever.

A person found guilty of a federal offence who did not receive a discharge applies to the National Parole Board for a pardon. He or she must complete the sentence given by the court and wait a certain time, from three to five years, before applying. If the convictions was for a summary conviction offence the Board will issue a pardon to a person who has not committed a criminal offence for three years. In the case of indictable offences, the Board will grant a pardon if it is satisfied that the person’s conduct has been good and the person has had no new convictions for five years.

The National Parole Board may take away a pardon if the person is later convicted of a summary conviction offence. This is called revoking a pardon. If a person who receives a pardon is later convicted of an indictable offence, the pardon automatically ends.

A person who received an absolute or conditional discharge does not need to apply for a pardon. Following a waiting period of one year for absolute discharges and three years for conditional discharges, the RCMP automatically remove the record of a discharge from their computers. This applies for discharges given after July 24, 1992. To have information about discharges received before July 24, 1992 removed from the system, write to the Pardon and Purge Services, Information and Identification Services, Royal Canadian Mounted Police, P.O. Box 8885, Ottawa, ON, K1G 3M8, Phone: (613) 998-6158, website: www.rcmp-grc.gc.ca/html/crimrec.htm.

A job application that asks if a person has a criminal record is asking about criminal convictions only. Criminal convictions are convictions under federal, not provincial law.

A pardon has a limited effect because the Criminal Records Act applies to the federal government and federally-regulated businesses only. There is no Saskatchewan law that regulates provincial employers. When applying for work with a federally-regulated employer, a person does not need to answer questions that require him or her to tell about a conviction for which he or she has been pardoned. In fact, federally-regulated employers may not ask questions designed to elicit this type of information.

How can our society lessen crime? What can individual members of society do to further this goal? Everyone needs to learn to protect themselves from crime. People may avoid becoming victims of crime by adopting safe behaviour, such as keeping little cash at home and using good locks on their doors. But there is more to preventing crime than keeping out of crime’s way.

Individuals can help prevent crime in several ways: by learning about the law; by cooperating with police as they enforce the law; and by participating in crime prevention in the community. Along with others, individuals can work to reduce crime by changing conditions in society that favour crime.

It is important to be aware of your rights and responsibilities. Young people learn about law in school. Adults can learn about the law from free law classes offered by community organizations, community television or materials at the public libraries. The police, lawyers, government and the courts also have a part to play in making information about the law available and accessible.

Individuals who want to prevent crime can cooperate with the police in their work enforcing the law. People help by reporting crime or suspicious behaviour and by appearing in court as witnesses, if necessary. The police offer programs to the public, such as "Operation Identification". This program helps people to mark and identify their person belongings in a way that discourages theft. Community groups such as Neighbourhood Watch, Business Watch, Block Parents and Rural Crime Watch work in concert with the police to prevent crime locally.

Although working with police helps, crime prevention has a broader aspect too. Crime fighting is also a community responsibility. Many people choose to work in their communities to offer potential offenders alternatives other than crime. Community groups offer many types of crime prevention programs. Service clubs, women’s groups, business groups, seniors’ organizations, churches, schools, the YMCA and the YWCA run many programs that have a crime prevention component. Group action encourages people to think of new ways to work to prevent crime, while encouraging cooperation. Participation in a crime prevention group can foster a sense of neighbourhood.

Preventing crime can involve changing attitudes and social conditions that lead to crime. This is crime prevention in its broadest sense. Those who advocate adopting a broad social development approach to crime prevention start from the premise that crime is a result of complex social problems. Poverty, unemployment, changes in families and the communities in which we live, drug and alcohol abuse and lack of affordable housing all have been identified as root causes of crime. Crime prevention through social development works to remedy these causes of crime. Many different types of approaches are used to deal with these problems. Some crime prevention approaches are short term, others long term.

Like other crime prevention programs, crime prevention through social development works through the community. Different communities may design or develop programs that suit their needs. Collective action and community support are essential. Some programs target distinct groups before they get into trouble with the law. For example, some programs are designed for young people. One rationale for these programs is cost-efficiency: it is cheaper to invest in prevention than to pay to prosecute, supervise or jail offenders, or to provide treatment. These programs aim to improve the environment for those most at risk of becoming offenders. Other programs select an important community concern, such as race relations or violence against women, to work on. Whatever aspect of crime prevention a community chooses, these programs focus on the underlying causes of crime. The common goal of crime prevention programs is to build a safer community by working together.

Finally, exercising the right to vote and participating in the democratic process give a person the opportunity to influence what becomes law. Lobbying for changes in the law can help bring about change. Talking about concerns and issues with elected representatives, both Members of the Legislative Assembly and Members of Parliament, also can make a difference in working for a crime-free community.
 

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