The stages of the legal process
The stages of the legal process
It is important for a person accused of a criminal offense to fully understand the legal process and its different stages in order to better prepare for it. A lawyer specializing in criminal law will also have the role of ensuring the proper understanding of his clients. It is therefore essential to consult us quickly following an arrest.
Before entering the judicial process, an arrest must take place. There are two types of arrest in criminal law, arrest with or without a warrant.
The police have the power to arrest without a warrant any person:
- Have committed a criminal act or who he believes on reasonable grounds has committed or is about to commit one;
- Who is in the act of committing a criminal offence;
- Who has an arrest warrant.
For example, in matters of impaired driving, the peace officer has the power to arrest a person when he believes, on reasonable grounds, that the latter was driving his vehicle while his faculties were impaired by effect of alcohol or a drug.
It is the job of the criminal lawyer to ensure the legality of the arrest. If the arrest is unlawful, there are ways to challenge it in court.
« Commits theft any person who takes, or diverts for his own use or for the use of another person, fraudulently and without color of right, any thing whatsoever with the intention of temporarily or absolutely depriving its owner of it. »
Following an arrest, the police officer has the power (mostly discretionary, with some exceptions) to release the person or keep him detained.
When the police officer releases a person, he can do so in one of the following ways:
- Release her unconditionally, by immediately giving her a promise to appear or a summons, i.e. a document requiring her to appear on a specified date in a courthouse or municipal court to appear for the offence(s) ( s) committed;
- Release her unconditionally, indicating that she will receive a summons or subpoena by mail;
- Release her with conditions to be respected, by giving her a promise to appear accompanied by a promise with conditions, which she must sign and agree to respect.
If the police officer does not release the detained person, he will remain detained until he appears before a judge at a courthouse or municipal court. It will then be up to a Crown prosecutor to determine whether or not he objects to this person being released.
If the crown prosecutor opposes, it will be the duty of the defense lawyer to bring out all the arguments useful to the release of the person, and this, during a release investigation presented before a judge.
The appearance is the first step in the legal process. During this stage, the person represented by a lawyer generally does not need to appear, since the latter will appear for them.
This step is important, since it is at this time that the lawyer obtains a copy of the police report containing all the evidence they say they have against the accused person.
In the vast majority of cases, and as recommended, a not guilty plea is entered and the case is postponed to a later date. This is so to allow the lawyer to meet his client, take his complete version of the facts and proceed with the study of the file in order to provide him with a legal opinion on the possible avenues in the file.
The meeting with the criminal lawyer is essential in order to determine if a defense can be invoked, in which case a trial will be set, or if it is possible to avoid a criminal record. If this is not the case, the defense attorney will have a duty to lessen the consequences of a guilty plea or conviction.
The trial and the sentence
In the event that a trial takes place, the parties will present the evidence they have, following which a judge will determine whether or not the accused is guilty of the crime charged.
The trial therefore serves to bring to light the circumstances surrounding the alleged offence. The burden of proof is on the prosecution. In other words, it is up to the Crown prosecutor to prove, beyond a reasonable doubt, the guilt of the accused.
It should be noted that several types of defense are possible, whether for example for the violation of a right protected by the Charter, the absence of element(s) constituting the offense or the absence of guilty intent.
At the very end of the trial comes the pleadings stage. It is during this stage that the parties put forward their arguments in support of their respective positions.
After this exercise, the judge will have to give his verdict. He will then pronounce the acquittal, the conviction or the verdict of not responsible on account of mental disorder. If a verdict of guilty is returned, a sentence will be imposed. The lawyer representing the accused will then have the task of reducing the consequences of this sentence on his client.
The settlement of the case and the sentence
When a trial is not possible, the accused person may have to enter a guilty plea in order to dispose of his case. Once the plea has been entered, a sentence must be imposed.
At this stage, the work of the criminal lawyer is crucial, since it involves negotiating with a Crown prosecutor, the possibility of an agreement on a fair and appropriate sentence in the circumstances. It is also at this stage that the criminal lawyer does everything in his power to avoid a criminal record for his client, when possible.
If an agreement is reached, the suggestion on the sentence is submitted to the judge, who must accept it unless he judges that this sentence is unreasonable.
If no agreement is reached, the parties will plead each on their side the sentence that they consider appropriate in the case. It is at the judge’s discretion to impose a sentence appropriate to the nature of the offense and the circumstances of the accused.
Before even thinking about being given a sentence, note that the lawyer has several options to save his client from a criminal record.
Discuss with our lawyers to assess your possibilities of benefiting from an absolute or conditional discharge, settling your case with an 810 form, obtaining a complete withdrawal of the charges or even transforming your criminal offense into a criminal offence.
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