Criminal Law

What you need to know about Criminal Law

In Canada, criminal law is under the exclusive jurisdiction of the federal government. The laws enacted by the federal government are set out in the Criminal Code, which is a federal statute. The interpretation of the Criminal Code is subject to the Charter of Rights and Freedoms, which is part of the Constitution. The Constitution is the highest law of the land. This means that certain acts may be contrary to the Criminal Code but, if the way the law was written or enforced violated the Charter, then the person accused of the crime may be entitled to an acquittal or a stay of proceedings.

In the area of criminal law, it is not only relevant whether a person committed the crime, but also whether the state can prove the crime was committed beyond a reasonable doubt and without violating the Constitutional rights of the accused person. Always remember:

· You are innocent until proven guilty and
· You are entitled to the best defence possible.

Before any goes to trial, there is usually a plea bargaining process. This stage of a criminal prosecution is governed by the weaknesses in the Crown’s case. Simply put, the stronger the Crown's case is, the less likely an accused person will get a deal. It is the role of defence counsel to review the Crown's evidence and convince the prosecutor of the weaknesses in the Crown’s case so that the accused is offered a deal that is much better than the likely outcome if convicted at trial. Once that deal is worked out, the Crown and defence prepare a "joint submission" to take to the judge.

Joint submissions are almost always accepted by the judge who relies on the expertise of the lawyer’s involved to make recommendations on a fair disposition. Without the plea bargaining process, the courts would be completely overwhelmed by the volume of cases. Therefore, both the Crown and defence, as well as the judges, understand that plea bargaining is a necessary part of the justice system.

In the courtroom, whether at trial or on sentencing, advocacy is important. The personal circumstances of the offender and the case for the defence must be brought to the attention of the judge. Where someone is acquitted or the charges are stayed, that is the end of the process. If a conviction is entered, the judge must move on to sentencing. The goals of sentencing are set out in the Criminal Code. They are designed to result in a fair and balanced sentence for all concerned. A properly prepared sentencing brief can save a convicted criminal months, if not years, of incarceration and other onerous penalties under the Criminal Code.