The Criminal Procedure

From arrest to sentencing, a criminal procedure involves several stages and can take several months or even years. What happens at each of these stages of criminal proceedings in Quebec?

Arrest

When a police officer arrests a suspect, the suspect will be notified of the offence with which he is charged as well as their various rights, such as the right to a lawyer and the right to silence.

Before releasing the suspect, the police officer gives the individual a summons. This form allows the police officer to summon the suspect before a judge.

By law, a police officer may detain a person in custody if they have reasonable grounds to believe that the person will not appear in court on the day of their appearance. Detention will also be exercised in connection with certain offences. In this case, the suspect will appear, detained, before the judge.

Alternatively, the suspect may be asked to sign a promise to appear before release, a document similar to the subpoena, but with conditions to be met. In the event of non-compliance with these conditions, the suspect could be charged again for non-compliance with the conditions imposed on them.

Among other things, the promise may contain one or more of the following conditions:

• Remain in the area under the jurisdiction of the court;
• Inform the court of any change of address, employment or occupation;
• Avoid contacting, directly or indirectly, the people named in the undertaking (in the case of a charge of assault or sexual assault);
• Avoid going to specific locations (in the case of a theft charge);
• Surrender your passport to the authorities;
• Refrain from possessing firearms and surrender firearms licences (in the case of firearms charges);
• Refrain from alcohol or other intoxicants (in some cases drinking and driving);
• Do not use drugs except with a doctor’s prescription;

Failure to comply with a promise is a separate criminal offence of breach.

Appearance

The appearance begins the criminal process by requiring the accused to meet with a judge and learn about the charges against them.

The appearance offers the accused the opportunity to obtain a copy of the evidence gathered against them by the prosecution, which includes police reports, witness statements, photos and/or videos.

This first step in the court process can bring a lot of stress to someone who is being charged for the first time in a criminal case. We strongly advise you to contact a criminal lawyer before the appearance date who can represent you in court and collect evidence on your behalf.

Not guilty plea

At the time of the appearance, the accused can either plead guilty or not guilty. It is generally recommended not to plead guilty at this stage and to contact a lawyer who specializes in criminal law.

Indeed, it is necessary to take the time to verify the evidence accumulated by the prosecution before pleading guilty, in order to ensure that the constitutional rights of the accused have been respected. Only an experienced criminal lawyer can properly analyze a criminal file and determine the strategy to be adopted for the rest of the proceedings.

Pro forma

Normally, after a plea of not guilty has been recorded, the judge may set a pro forma date for taking a position or directly set a trial date. A pro forma date is a date “for form“, in Latin.

If you are represented by a lawyer, it is during the pro forma dates that your lawyer will be able to verify the position of the prosecution and negotiate your file if necessary.

Your lawyer will also ensure that the disclosure of the evidence is complete. If this is not the case, they will ask for other pro forma dates to ensure that the file is complete before setting a trial date.

Guilty plea

After analyzing the evidence, a recording of a guilty plea may be recommended by your lawyer. This is particularly the case where the evidence of the prosecution is very strong and all your constitutional rights have been respected by the police.

Your lawyer can then enter into negotiations with the prosecution to try to agree on a more favourable sentence in exchange for a guilty plea.

If the negotiations are successful, the accused and the prosecution will have to present their agreement to the judge. When entering a guilty plea in court, the judge will ensure that the accused understands the consequences of a guilty plea. Among other things, that your guilty plea is not the result of threats or promises.

If negotiations do not result in a settlement, but the accused still wishes to plead guilty, the parties may ask the judge to set a hearing date during which each party will argue for a specific sentence.

Lawsuit

If the accused decides not to plead guilty, a trial date will be set and each party will be required to present its evidence and arguments.

At the hearing, the prosecution and the defence will be asked to present their evidence and arguments. The prosecution will have to establish mens rea and actus reus, and the accused may present his defence or raise a reasonable doubt as to the commission of the offence with which he is charged. It should be noted, however, that the accused may choose not to testify.

Judgement

Following the trial, the judge will render their judgment. In other words, they will state whether he finds the accused guilty or not guilty. The judgment may be rendered on the bench, following the trial, or in writing at a later date.

Sentence

If the judge finds you guilty, now is the time to argue on the sentence. Sometimes the prosecution and the defence submit a joint suggestion. If the judge finds it reasonable, he will follow the recommendation of the parties. Alternatively, either party may propose the award it deems appropriate. The judge will obviously have the final say on the sentence to be imposed.

Time

Timelines for certain stages of the court process can vary greatly, depending on the circumstances. Some issues slow down the process, while others shorten it. Here are some examples of issues slowing down a process and/or adding court dates for the accused:

• A pandemic;
• A question of constitutional law (i.e., remedies for infringement of Charter of Rights and Freedoms rights and freedoms);
• A request for additional disclosure of the evidence;

If you are accused of a criminal offence, it is important to be well assisted from the first stage of a criminal case. Call us now for a confidential consultation.