The criminal justice system is a confusing and complicated process, especially for victims of crime. For many people, their only experience with the criminal justice system is as a victim of crime. This guide is meant to be a snapshot of that process to give you an idea of how it works and what to expect. It is not intended to be a legal guide. First, you should establish a relationship with the police, victim services and/or the Crown to ensure you have all available information and know where to get your questions answered.
The process can be broken down into a few key elements – the investigation, the prosecution, the sentencing and prison/parole. There are three important things to remember in this complex journey. The first is that prior to a finding of guilt, the person charged with the murder (the accused) is presumed to be innocent. At times, it may feel like an inordinate amount of attention is being paid to the accused and his/her rights. It may seem like so much more care and attention is being paid to his/her rights than to you or your family. This is not just your perception. The Canadian Charter of Rights and Freedoms guarantees that an accused person has the right to be presumed innocent and has a right to a fair trial. While you may not agree with every decision made or understand them all, keep in mind that many decisions are made because of these guaranteed rights.
The second element is difficult for many victims to understand and it is that the criminal justice process is not necessarily a search for the truth. At best, it is a qualified search for the truth. The evidence presented at court or put before a judge/jury may not be the complete story as you know it or believe it to be. Evidence that you think is important may not be allowed for complex legal reasons. A trial is not necessarily about what has happened, but what can be proved given legal constraints.
The final thing is not about the law, but about you. The criminal justice process can be long and difficult for families. It may take years. Some expect that when the trial is over, they will have closure or a sense of closure. This is not always the case. For some, the conclusion of a trial may be an important part of their healing journey. For others, it does very little to address their needs or their questions. Everyone is different but try not to place too many expectations on the trial process and its role in your healing.
Investigation
Once a death has been ruled a homicide, the police will begin their investigation. Since most people are killed by someone they know, most homicides are solved and suspects are identified relatively quickly. In some types of murder, like gang related killings or stranger crimes, investigations are more difficult and may take longer to identify a suspect; some may never be solved.
Once a suspect is arrested and charged, he/she may apply for bail. A hearing will be held where a judge decides whether to release the accused person before the case is dealt with in court. The Crown and defence will summarize the evidence against the accused and the judge will decide whether the accused can be released into the community or keep him/her in custody. The judge will consider a variety of factors including whether the accused person has a criminal record, the seriousness of the charge, whether it involves any violence, etc. The judge must consider the safety or security of the public and if there is a risk of the accused fleeing.
The investigation continues even after a suspect has been arrested and charged. The detectives will continue to collect evidence, interview witnesses, etc. until the case goes to trial. They will work closely with the Crown to build a strong case. While it may not seem like anything is happening because you do not see the work the detectives are doing, it takes many hours and resources to build a strong case.
Preliminary Inquiry
Before the trial, there may be a preliminary inquiry. The purpose of this hearing, which is like a trial, is for the court to decide if there is enough evidence for the case to proceed to trial. At the preliminary hearing, the Crown will present evidence, call witnesses, etc. to show there is enough evidence to proceed to trial. The defence will try to question the evidence or the credibility of the witnesses but he/she is not obligated to present any evidence. If the judge finds that there is not enough evidence to send the case to trial, he/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 burden of proof is on the Crown. He/she must prove the accused is guilty beyond a reasonable doubt. The defence is not obligated to prove innocence and is not obligated to call any evidence or witnesses. The accused has the right to remain silent and does not have to testify. In fact, many accused will not testify.
If you are a witness, you may not be able to listen to other witnesses’ testimony to ensure your evidence is not influenced by what you hear someone else say. This is an issue you should discuss with the Crown.
The Crown presents his/her case first and will call witnesses and present evidence and arguments to support their case. Some of the witnesses may have testified at the preliminary inquiry. Both sides have the right to cross examine each other’s witnesses and will test the truth or accuracy of the witness testimony. After all witnesses have been called, both the Crown prosecutor and the defence lawyer present their closing arguments. The jury, or the judge, will then decide on whether the accused is guilty of the charges or possibly a lesser offence.
Sentencing
If the Crown has proved the case beyond a reasonable doubt and the accused has been found guilty or if the accused has pled guilty, the judge will decide on an appropriate sentence. The sentencing will not likely take place immediately and another hearing will be held. If the offender has been convicted of or pled guilty to first degree murder, the judge has no discretion regarding the sentence and must impose a sentence of life without parole for twenty-five years. If the offender has been convicted of or pled guilty to second degree murder, the judge must impose a life sentence without parole for a period between 10 and 25 years. If the offender has been convicted of or pled guilty to manslaughter, the judge has complete discretion to impose any sentence up to life.
At sentencing, victims have the right to present a victim impact statement to explain to the court the impact the crime has had on them. The Criminal Code requires the court to consider a victim impact statement before sentencing an offender. The statement must be done in writing and provided to the Crown and a copy will be given to the defence. You may read the statement in court at the sentencing hearing or prepare a video-audio tape.
Appeal
An appeal takes place when one side wants to question a decision of the court to make sure the court has not made a mistake applying the law. A Crown may appeal an acquittal or a sentence. An offender may appeal a conviction or ask an appeal court to decrease the sentence. Appeal courts are concerned with questions of law, not evidence. Witnesses are rarely required to testify. This process can take years.
Prison
If the offender is convicted of murder or manslaughter and given a sentence of more than two years, he/she will go to a federal prison. The Correctional Service of Canada is responsible for offenders with a sentence of two years or more. Victims have the right to information about offenders serving sentences but information is not automatically sent; victims must request this information (i.e. what prison the offender is in, when his parole dates are, etc.).
Parole
Parole allows some offenders to serve a portion of their sentence under supervision in the community. If the offender was convicted of first degree murder, he/she must wait 25 years to apply for full parole and 22 years to apply for day parole (from the date of arrest, not conviction). In the case of second degree murder, the offender will have to wait for the number of years the judge ordered (between 10 and 25 years) but can apply for day parole three years before that (from date of arrest). In the case of manslaughter, the sentence can be anything up to life imprisonment. If the offender receives a sentence of nine years (as an example), he/she may be able to apply for parole as early as 3 years (1/3 of the sentence) and will be eligible for statutory release after 6 years (2/3 of the sentence). If the sentence is life, the offender will be eligible for full parole after 7 years. If anyone with a life sentence does get parole, he/she remains on parole for the rest of their lives.
Parole Board of Canada hearings are normally held in the prison where the offender is. You may attend a parole hearing and present a victim impact statement (orally, in writing or on tape). The offender will receive a copy of your statement prior to the hearing. You may also receive financial assistance to attend the hearing, which you would have to apply for. Financial assistance isn’t always guaranteed.