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A Crime Victim's Guide to the Criminal Justice System
Going to Trial
Preliminary Inquiry
A preliminary inquiry is a hearing to determine whether there is enough evidence to justify sending the case to trial.
At the preliminary inquiry, the Crown prosecutor presents critical elements of the evidence against the accused. Witnesses may be called, and victims may have to give evidence at this time.
If the judge finds that there is not enough evidence to send the case to trial, he or she will dismiss the charge. If the judge finds that there is enough evidence to justify a trial, the judge commits the accused person to trial and, if the accused pleads not guilty, sets a trial date.
Trial
At trial, the Crown prosecutor and the defence lawyer call witnesses and present evidence and arguments to support their case. The Crown prosecutor goes first; the defence follows. Even if there has been a preliminary inquiry, witnesses still need to testify at trial and may be cross-examined on their testimony. Cross-examination is a way to test the truth of something a witness has testified about.
An accused person has a right to remain silent and does not have to give evidence at trial. If an accused person chooses to give evidence, he or she may be cross-examined and must answer questions.
After all witnesses have been called, both the Crown prosecutor and the defence lawyer present their closing arguments. If the Crown prosecutor is able to prove the case against the accused person beyond a reasonable doubt, the result will be a finding of guilty. If not, the accused person will be acquitted, or found not guilty.
Sentencing
If an accused person is found not guilty, they are acquitted of the charge and are free to go. If an accused person pleads guilty or is found guilty at trial, the judge must choose from a range of sentences set by law and determine an appropriate sentence.
Under the Criminal Code, the purpose of the sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. A sentence for a criminal offence should accomplish one or more of the following objectives:
- 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
Victim impact Statements
A victim impact statement is a written statement that describes the harm or loss suffered by the victim and the effect of the crime on the victim. The Criminal Code requires the court to consider a victim impact statement, if there is one, at the time of sentencing an offender. A person who has suffered harm or physical or emotional loss as a result of the offence can prepare a victim impact statement, as can survivors of a deceased victim. Provincial victims' assistance programs, court-based victim/witness programs and community agencies can help victims prepare a statement.
The forms and procedures for victim impact statements are determined by each province and territory, and vary slightly across the country. Generally, the police will give the victim a form to complete or will refer the victim to a victim services agency that will provide information about victim impact statements in that area.
Offenders will be provided with a copy of the statement, and the Crown prosecutor and the defence lawyer may question the victim about it. The Crown prosecutor and victim services personnel can provide assistance and information to victims throughout this process.
Range of Sentences
Generally both the Crown and defence lawyers recommend a sentence to the judge. The judge may also ask a probation officer to prepare a pre-sentence report before passing sentence. The report can provide information that may help the judge determine an appropriate sentence.
In some communities the judge conducts a sentencing circle. The sentencing circle draws members of the community together to discuss possible sentences that may help to make the defendant accountable to the community.
The judge will consider the circumstances surrounding the crime, the defendant's criminal record (if any) and personal history, and the impact of the crime on the victim. The sentence should be proportionate to the offender's degree of responsibility. It should also be based on sentences for similar crimes and circumstances across the country.
The Criminal Code specifies aggravating factors a judge must consider in determining an appropriate sentence. If the offender abused or took advantage of a position of trust or authority in committing the crime, for instance, the sentence should be harsher. If the crime involved racial hatred or bias, the sentence may also be harsher.
The Criminal Code sets out the maximum sentence that the judge can give for each offence, and for some offences the minimum as well. Sentences for indictable offences range from short sentences to life imprisonment. The maximum sentence is for the worst offender who has committed the worst type of crime.
Sentences can vary widely. There are many types of sentences or combinations of penalties that a judge can choose from, such as the following:
Absolute or Conditional Discharge
The judge can “discharge” the accused of an offence, even after a finding of guilty, and no conviction will be registered. A discharge is available only if the offence carries no minimum penalty and has a maximum penalty of less than 14 years' imprisonment, is in the best interests of the offender, and is not contrary to the public interest. A judge has the option of imposing a conditional discharge, with specific conditions to address the accused's conduct, or an absolute discharge, without any conditions at all. A conditional discharge requires the accused to enter into a probation order for a specified period of time. The Crown prosecutor may apply to have the discharge revoked if the offender does not comply with the conditions.
Suspended Sentence and Probation
The judge may choose to put off or suspend passing a sentence and release the offender on probation for a specified period of time. The judge may also attach another disposition, such as a fine, conditional discharge or imprisonment, to the probation order. A person on probation, with a suspended sentence remains out of custody but is under supervision from a probation officer and must follow any conditions included in the probation order. The judge is given wide discretion as to what the offender can or cannot do under a probation order. For example, the order will contain terms to follow, such as reporting to a probation officer, performing community service, or providing “restitution” to the victim. If the offender does not keep the terms of the order, they can be charged with breaching probation and may face being sentenced for the original offence as well. A probation order may last up to three years. Suspended sentences are available for many criminal offences if no minimum punishment is required by law.
Fine
A fine is a set amount of money that the offender pays to the court as penalty for committing a criminal offence. A fine may be combined with another penalty, such as imprisonment or probation. Failing to pay the fine may lead to a civil judgment against the accused or a jail term. The judge cannot impose a fine, though, unless he or she is satisfied that the accused will be able to pay it.
Conditional Sentence
Where a person is convicted of an offence and the court imposes a sentence of less than two years' imprisonment, the court may order that the sentence be served in the community, with certain conditions, instead of jail. Along with supervision, these conditions govern the offender in the community. The court must be confident that serving the sentence in the community will not endanger the safety of the public. The offender must live at a specific location, usually their own home, under a detailed order. The terms of conditional orders tend to be lengthy and restrictive. However, if the conditions are not met, the offender may face harsher consequences and could serve the rest of their sentence in jail.
imprisonment
imprisonment is the most serious sentence under our law because it deprives a person of freedom. A judge may sentence a person convicted of a serious offence, or who is a repeat offender, to jail. An offender who is sentenced to less than two years serves the sentence in a provincial correctional institution; this may be combined with probation. An offender sentenced to two years or more usually serves the sentence in a federal penitentiary.
Intermittent Sentence
Where the court imposes a sentence of 90 days or less, the court may order that the sentence be served intermittently, that is, in blocks of time, such as on weekends, which permits the offender to be released into the community for a specific purpose such as going to work or school or caring for a child or for health concerns. An intermittent sentence must be accompanied by a probation order, which governs the offender's conduct while he or she is not in jail. The probation order will contain terms for the accused to follow, such as reporting to a probation officer, performing community service or abstaining from drugs or alcohol. If the offender breaches probation, they can be charged and may face being imprisoned full-time.
Indeterminate Sentence for Dangerous Offenders
Following a special application and hearing, a person who commits a violent offence may be declared to be a dangerous offender and sentenced to an indeterminate period of detention. Indeterminate means that the judge does not specify when the offender's sentence will end. A person declared a dangerous offender is kept in jail with no fixed date for release. The National Parole Board reviews the case after seven years and every two years after that.
Restitution Order
Restitution orders are orders requiring an offender to pay money directly to a victim to help cover the victim's losses or damage to property caused by the crime. Restitution is intended to make up at least partially for harm done to a victim or community, and to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims and the community.
Victim Surcharge
Upon conviction, a victim surcharge is added to any sentence. This surcharge is paid into provincial and territorial assistance funds to develop and provide programs, services and assistance to victims of crime. The amount of the victim surcharge is 15% of any fine that is imposed on an offender or, if no fine is imposed, $50 where the offence committed was a summary conviction offence or $100 for an indictable offence.
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.
