PreTrial and Trial Procedure PreTrial Release Show Cause

Pre-Trial and Trial Procedure

Pre-Trial Release Show Cause Hearing (aka bail hearing): • Crown has to prove why accused should be held until trial • For less serious offences, release before trial is usually automatic • Accused sign a promise to appear agreement • Accused may have to sign a recognizance: – A guarantee that they will appear (will be fined if they don’t show up)

Pre-Trial Release • Police may request a surety: – A person who agrees to pay if the accused doesn’t show up • Accused must sign an undertaking: – A document outlining conditions that the accused must follow, such as a curfew, or orders not to associate with certain people or visit certain places.

Bail • For serious offences, police will want to keep the accused in custody until trial • Accused can make a bail application • A show-cause hearing is held to give the Crown the opportunity to convince the judge the person should remain behind bars – Ex. accused may flee, safety concern to others

Bail • Reverse onus: The defence must show that the accused’s release on bail is justified. • Occurs if: 1. The accused is charged with serious offence while already out on bail, or 2. The accused is not a Canadian resident, or 3. The charge is breach of bail condition 4. The accused is charged with importing, trafficking, or possession for the purpose of trafficking narcotics

Non-Trial Route (aka Plea Bargain/Plea Negotiation) • Plea Bargaining: • When the accused pleads guilty to a lesser charge so that the more serious charge is dropped • Benefits to the Accused: • Reduced sentence (this is the main reason in most cases) • Reduced publicity; no high profile trial; “get on with life” • Saves time and money

Non-Trial Route (aka Plea Bargain/Plea Negotiation) • Benefits to the Crown and Society: • Saves times and money; reduces number of cases going to trial • Guaranteed conviction • Plea bargain may also include an agreement that the accused provide information or testify in another case • Can save the victims or their families a great deal of stress if they do not have to testify in a trial • NOTE – Less than 10% of cases make it to trial. The other 90% are plea negotiated.

Trial Route The Preliminary Hearing: • Enables provincial judge to decide whethere is sufficient evidence to proceed with a trial in a higher court. • IF there is not, accused will be discharged, and charges will be dropped. • At the preliminary hearing the Crown presents some evidence (enough to convince judge that a reasonable jury could find the accused guilty on the evidence available) • NOTE – not necessary at this stage to prove that the accused is guilty beyond a reasonable doubt (police must continue to collect evidence throughout process)

Trial Route The Preliminary Hearing: • Disclosure of Evidence: • Prior to a trial, the Crown must disclose all of its evidence to the Defence so that the accused fully understands the Crown’s case and so that a defence can be prepared. • The Defence may disclose evidence or arguments that prove to the Crown that it (the Crown) does not have a case.

Trial Route The Preliminary Hearing: • Time Served: • Time served in jail (custody) before found guilty – counts as time and a half as an “innocent” person waiting for trial • For example – 9 years sentence – if you serve 2 year waiting for trial, technically you have served 3 years (time and a half per year) • Note – justice system is now trying to change this for 1 day (not changed yet)