Canada

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ADDITIONAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background

Canada is a member of the British Commonwealth of Nations and is comprised of ten provinces and three territories. [1]The Canadian Parliament is located in Ottawa and the country ranks as the world’s second largest nation, after Russia. [2] In 1867, Canada became a self governing nation within the Commonwealth and since then has continued to develop at a similar rate as the United States to the south. [3] The head of state of Canada is Queen Elizabeth of England, as represented by the Governor General, and the head of government is Prime Minister Stephen Joseph Harper.[4] 58.8% of the Canadian population speaks English while 21.6% of the population (mainly located in the province of Quebec) speaks French.[5] Approximately 46% of the Canadian population is of European descent, while 26% is of mixed descent and 6% is of Asian, African, or Arab descent. [6]

Type of System

Canada’s legal system is based on English common law, except in the province of Quebec which applies a hybrid system inspired by French civil law with considerable common law influence.[7] Canada’s criminal law is within the exclusive jurisdiction of the federal government. The law and produre are included in a criminal code that has been in effect since 1862. [8] The Canadian Criminal Code is thus applicable uniformly throughout the country. Where the criminal code is deficient, the courts use interpretations common law to make decisions. The Courts are bound to apply the Canadian Charter of Rights and Freedoms, which is embedded in the Constitutional Act, 1982. Given the British sources of the Canadian legal system, the prosecutor in Canada is known as the Crown Prosecutor. As, a criminal case is referenced as "the Crown v. [defendant]".

Sources of defendants’ rights

The Canadian Charter of Rights and Freedoms provides Canadians with basic rights and protections against police actions. For example, the Charter provides rights against unlawful searches and seizures, protection from arbitrary detention, the right to counsel after arrest or detention, the guarantee to a fair trial, and the right not be denied reasonable bail. [9] All actions that do not respect the rights awarded by the Charter are deemed unlawful. [10] The Supreme Court of Canada has stated that the Canadian Charter of Rights and Freedoms is not exhaustive and that Canadian citizens have additional rights beyond the text of the Constitution.[11]

Pre-trial phase

In Canada, arrests are made with or without warrant, by the police or by citizens. Most arrests are made without warrants. [12] Section 495 of the Canadian Criminal Code gives police officers the right to arrest an individual without a warrant if the officer has reasonable suspicion that the individual has, is about to, or is in the act of committing a crime. [13] The Criminal Code allows also for citizen arrest. The arrest is made by an individual who finds another individual committing an indictable offence or a person who, on reasonable grounds, he believes(i) has committed a criminal offence, and(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person [14] The Code also has provisions for arrest with a warrant, including in cases where the accused fails to attend court in accordance with the summons. Upon arrest, police are bestowed with stop and search powers, only to the extent of frisk search. The Charter does not give Canadian police officers any statutory powers to stop and detain either individuals or vehicles. They also have no statutory powers to detain and question individuals. Canadian common law states that a police officer may question the detainee and ask for identification, but the detainee has the right to silence and is not required to cooperate. [15] Furthermore, Section 10(a) of the Charter states that an arrested individual must be informed of the reason for their arrest. [16]

Section 8 of the Charter states that “everyone has the right to be secure against unreasonable search or seizure”. In the event that an invasion of privacy is required in order to complete a search, a search warrant must be obtained. [17]

Article 9 of the Canadian Charter of Rights and Freedoms states that everyone has the right not to be arbitrarily detained or imprisoned. [18] Detention, according to the Canadian Charter, includes the deprivation of liberty, the assertion of control over another person, and the proposal of demands that carry legal significance. [19]

Section 10(b) of the Charter declares that individuals who have been detained have the immediate right to legal counsel and must be informed of that right promptly at the time of arrest. [20] Once a detainee asks for a lawyer, the arresting officer cannot ask him any more questions, but must enable the detainee to access legal counsel through the use of a telephone. [21]

Pre-trial detention is deducted from the whole sentence. If the circumstances warrant it, judges may deduct 1.5 day per day spent in pre-trial detention[22].

Trial

After an arrest, the Canadian police must release the suspect as soon as possible, unless detention is necessary in order to discern identity or obtain evidence. [23] Additionally, an arrested person must be brought before a judge either within 24 hours, or as soon as possible. [24]

Police officers and prosecutors draw up indictments and informations in Canada. There is no grand jury and the courts recognize that the police are independent from the executive in instances of decisions to lay charges. Additionally, court proceedings may be canceled if there has been irreversible damage to either the defendant’s rights or to the integrity of the judicial system. [25]

Right to be presumed innocent until proven guilty

Preliminary hearings in the Canadian legal system are only allowed for indictable offenses. Any party may request a preliminary hearing. Preliminary hearings are held by a magistrate and the issue is not to determine guilt or innocence of the accused, but rather to determine whether there is sufficient evidence to justify a trial. There has been recent debate, however, on whether or not preliminary inquiries should be abolished due to new disclosure requirements and the increasing length and cost of trials.[26] Pre-trial motions are used most commonly in instances of matters related to the Charter according to local laws of procedure. [27]

In the 1990 Stinchcombe case ([1991] 3 S.C.R. 326), the Canadian Supreme Court ruled that Section 7 of the Charter requires prosecutors to disclose relevant evidence to the defendant at an early stage of the trial. Relevant evidence is determined to be evidence that could possibly be useful to the accused. Canadian law does not recognize a difference between inculpatory and exculatory evidence. [28] Canadian trials are adversarial in nature. Trials are typically conducted according to a model in which the lawyer presents evidence to a judge who presides without a jury. The judge then decides whether or not the evidence is admissible. [29]

If the defendant is accused of an indictable crime, he may elect to have a trial by jury. In a judge and jury trial, the judge acts as the judge of law and the jury acts as the judge or trier of the facts. Section 11(f) of the Charter additionally provides that a defendant may have a trial by jury if he faces a minimum imprisonment of five years and is not charged with a crime under military law. [30]

Section 7 of the Canadian Charter of Rights and Freedoms states that a defendant has the right to answer and defend themselves fully. [31] The defendant also has the right to be present at the trial, as long as they do not exhibit disruptive behavior. [32]

Section 10(b) of the Charter states that an accused has the right to legal counsel at the time of arrest, but does not have the right to counsel at the trial stage for if they cannot afford representation. [33]However, the Charter also gives the accused the right not to be deprived of liberty, thus making Section 10(b) a violation of the principles of fundamental justice.[34] The right to legal counsel has been interpreted as including the right to be informed of this right, to be informed of the right to legal aid and the right to be informed of the right to legal aid. [35] Witnesses may be subpoenaed in order to testify for either the prosecutor or the defense. These witnesses, however, do not have the right to refuse to testify in order to avoid self incrimination. Section 13 of the Charter protects witnesses from self-incrimination. Expert witnesses may be chosen and paid to testify by the party that has hired them. [36]

Every person who has been the victim of a crime has the right to begin a prosecution against the person that they believe has committed the crime. Victims are additionally allowed to make “victim impact statements” and the Criminal Code was revised in 1999 to require judges to inform victims of their right to make such statements. [37] In some cases, the defendant may be required to make restitution to the victim. <Canadian Criminal Code, section 738</ref>

All Canadian judges must have at least ten years of experience at any Canadian Bar and are appointed to their positions. [38]

Post-Conviction

The Crown and the convicted may appeal a judgment made by the Court. Appeals can be brought against a conviction / acquittal or against the sentence. An appeal against a conviction can be brought on the following grounds: error of law, error of fact or error of law and fact. Leave for appeal is required when it involves a question of fact and law. It is also required when appeal is brought against the sentence, when the sentence is not one fixed by law. Appeals that are made from the provincial courts to superior courts are first made to the provincial court of appeal and then to the Supreme Court of Canada. [39] Section 11(h) of the Charter states that the defendant is protected from double jeopardy only if they have been fully acquitted after all appeals. [40]


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QUICK FACTS


  • The prison population rate of Canada is 39,132 with every 117 per 100,000 people in prison
  • 36.2% of Canadian prisoners are pre-trial detainees and 4.9% are juvenile prisoners
  • Canada currently has 172 prison institutions with an official capacity of 35,190 prisoners. The current occupancy level of Canadian prison institutions is about 91.3%

Notes

  1. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  2. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  3. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  4. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  5. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  6. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  7. CIA World Factbook available at <www.cia.gov/library/publications/the-world-factbook>
  8. RSC 1985
  9. Canadian Charter of Rights and Freedoms, Articles 7, 8, 9, 10, and 11
  10. Constitution Act, 1982 section 52(1)
  11. New Brunswick Broadcasting Co. v. Nova Scotia [1993] 1 S.C.R. 319
  12. Craig M. Bradley, Criminal Procedure A Worldwide Study 60 ( 2d ed., Carolina Academic Press 2007)
  13. Canadian Criminal Code, section 495
  14. Section 494 Criminal Code
  15. Craig M. Bradley, Criminal Procedure A Worldwide Study 58 ( 2d ed., Carolina Academic Press 2007)
  16. Canadian Charter of Rights and Freedoms, section 10(a)
  17. Craig M. Bradley, Criminal Procedure A Worldwide Study 66 ( 2d ed., Carolina Academic Press 2007)
  18. Canadian Charter of Rights and Freedoms, article 9
  19. Craig M. Bradley, Criminal Procedure A Worldwide Study 77 ( 2d ed., Carolina Academic Press 2007)
  20. Canadian Charter of Rights and Freedoms, section 10(b)
  21. Canadian Criminal Code Section 34 (3d) and Canadian Criminal Code Section 385
  22. Section 719 (3) Criminal Code and Projet de loi C-25 : Loi sur l'adéquation de la peine et du crime, 24 avril 2009
  23. Canadian Criminal Code, sections 497-499
  24. Canadian Criminal Code Section 503
  25. Craig M. Bradley, Criminal Procedure A Worldwide Study 80 ( 2d ed., Carolina Academic Press 2007)
  26. Craig M. Bradley, Criminal Procedure A Worldwide Study 81 ( 2d ed., Carolina Academic Press 2007)
  27. Craig M. Bradley, Criminal Procedure A Worldwide Study 82 ( 2d ed., Carolina Academic Press 2007)
  28. Craig M. Bradley, Criminal Procedure A Worldwide Study 82 ( 2d ed., Carolina Academic Press 2007)
  29. Craig M. Bradley, Criminal Procedure A Worldwide Study 83 ( 2d ed., Carolina Academic Press 2007)
  30. Canadian Charter of Rights and Freedoms, section 11(f)
  31. Canadian Charter of Rights and Freedoms, section 7
  32. Criminal Code section 650
  33. Canadian Charter of Rights and Freedoms, section 10(b)
  34. Craig M. Bradley, Criminal Procedure A Worldwide Study 84 ( 2d ed., Carolina Academic Press 2007)
  35. Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. (Scarborough, Ontario: Nelson Thomson Learning, 2000), p. 439; ↑R. c. Bartle, [1994] 3 R.C.S. 173]
  36. Craig M. Bradley, Criminal Procedure A Worldwide Study 85 ( 2d ed., Carolina Academic Press 2007)
  37. Canadian Criminal Code, section 722.2
  38. Craig M. Bradley, Criminal Procedure A Worldwide Study 85 ( 2d ed., Carolina Academic Press 2007)
  39. Craig M. Bradley, Criminal Procedure A Worldwide Study 86 ( 2d ed., Carolina Academic Press 2007)
  40. Canadian Charter of Rights and Freedoms, section 11(h)
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