A criminal charge is serious. If the police charge you with a criminal offence, you should talk to a lawyer. This information sheet gives an outline of what to expect if you are charged with a criminal offence.
Being charged with a crime by the police does not mean that you are guilty of that crime. It means the police have some evidence that they think shows you committed the crime. It means you will have to go to court. However, once you are in court the charges against you must be proven. You are presumed innocent until proven guilty.
The police may charge you at the scene of the offence, at the police station, or at any other time or place after the offence.
Being charged with a criminal offence does not always result in arrest. A police officer has four options. The police may...
- give you a summons charging you with the offence and telling you when you need to go to court
- give you an appearance notice to go to court on a certain date and time to answer the charge
- arrest you, give you a summons or an appearance notice and then release you
- arrest you and have the court decide whether to release you (You must be brought to court within 24 hours at the latest to determine if you will be released.)
Fingerprints and Photographs
The police have the right to take your fingerprints and photograph after they charge you with most criminal offences. If they arrest you, they will generally take your fingerprints and photographs while you are in custody. If they do not arrest you, they will give you written notice of when to go to the police station for fingerprints and photographs. If you do not show up, they can charge you with the offence of failing to appear for fingerprints and photographs.
Duty to Appear in Court
Whether or not you must personally appear in court will depend on the offence. Someone else can appear for you if you are charged with a less serious offence. You can find out from the Crown Prosecutor whether you have to be present in person. Unless you are sure, go yourself.
If you do not appear in court when you are supposed to, the judge can issue a warrant for your arrest. As well, you can be charged with the offence of failing to appear.
At your first court appearance your name appears on a list called a "court docket." When it is your turn, a court official calls you. You will then go to the front of the court and stand before the judge. At that time, a court official will read the charge.
If you do not have a lawyer, the judge will usually ask you if you want to talk to a lawyer. If you tell the judge that you would like to talk to a lawyer, then he or she will give you another date to return to court. If the judge does not ask, you can ask the judge for time to talk to a lawyer.
If you already have a lawyer, or do not want to see a lawyer, the judge will ask you if you understand the charge. You will then be asked to plead guilty or not guilty.
For some serious offences, you have the right to choose to have your trial in either Provincial Court or the Court of Queen's Bench, with or without a jury. This is called making an election. If you elect to have your trial in the Court of Queen's Bench, you will not make a plea until you appear before the Court of Queen's Bench.
You should talk to a lawyer before making an election or pleading guilty to a criminal offence.
Pleading Not Guilty
If you plead not guilty, the Crown Prosecutor will have the responsibility of proving that you are guilty. If the Crown Prosecutor fails to do so at a trial, the judge acquits you.
After you plead not guilty, the judge sets a date for your trial or preliminary inquiry. Your case will be adjourned until that date. The court holds a preliminary inquiry only when you elect to have your trial in the Court of Queen's Bench.
At a preliminary inquiry, a Crown Prosecutor presents evidence to show you committed the crime. The judge decides if there is enough evidence to go ahead with a trial.
At trial, the Crown Prosecutor and the defence lawyer call witnesses and argue their case. If the charges are proved at trial, the judge or jury finds the accused person guilty. If the charges are not proved, the accused is found not guilty.
If you plead guilty, you admit in court that you committed the offence. After you plead guilty or are found guilty after a trial, the judge will sentence you.
Before the judge sentences you, the Crown Prosecutor tells the judge what happened. You or your lawyer will then have a chance to speak. The judge wants to know something about you and why you committed the offence. The judge may also ask a probation officer to prepare a pre-sentence report.
A pre-sentence report contains information about you to help the judge decide on a proper sentence.
You may have to return to court more than once even if you plead guilty. The judge may want a pre-sentence report or time to think about a proper sentence.
Changing Your Plea
You can change a not guilty plea at any time before the court finds you guilty.
It is very difficult to change a guilty plea. You cannot change it just because you received a harsher sentence than you expected.
The judge chooses from a number of sentences that include:
- Discharge - The judge gives you a discharge rather than showing a conviction for the offence. If you are discharged, you will not have a criminal record. An absolute discharge takes effect right away. A conditional discharge means that you must meet conditions set by the judge.
- Fine - You must pay money to the court. There will likely be a jail term if you do not pay the fine. You can ask the judge for time to pay your fine. You can also ask to take part in a fine option program. A fine option lets you do community service to work off your fine.
- Suspended sentence - The judge postpones sentencing you for a period of time. The judge sets conditions that you must meet during that time. The conditions are written in a probation order. If you meet all the conditions, no further punishment is imposed. If you do not meet the conditions, you can be brought back to court to be sentenced.
- Restitution - The judge orders you to pay money to the victim of your crime for any damage or loss caused by your crime.
- Prohibitions - The judge can suspend your driver's license or order that you cannot own a firearm.
Sometimes the law sets a minimum sentence for an offence. In this case, the judge must give you at least the minimum sentence.
The judge must also order you to pay a victim surcharge, in addition to the regular sentence. The amount depends on the type of offence you committed and whether you received a fine as part of your sentence. Victim surcharges are used to fund victim support programs. You cannot pay the surcharge by fine option.
Either you or the Crown Prosecutor can appeal a finding of guilty or not guilty. A sentence may also be appealed by either side.
There is a possibility that your name could appear in the newspaper or on T.V. Criminal court proceedings are open to the public. The media can decide whether they wish to publish or broadcast the name of an adult charged with an offence.
The court may prohibit publication if it could identify a victim or a witness.
You will have a criminal record if you plead guilty or if the court finds you guilty. If you receive an absolute discharge, your record will be automatically removed one year after the discharge. If you receive a conditional discharge your record is automatically removed three years after you complete the conditions.
For all other sentences you can apply to the Parole Board for a record suspension. However, before you can apply for a record suspension you must complete your sentence and wait 5 years for a less serious offence and 10 years for a more serious offence. If you receive a record suspension, federal departments and agencies will be required to keep your criminal record separate and apart from other criminal records. Although the record suspension only applies to federal organizations, most provincial and municipal criminal justice agencies also restrict access to their records once they are told that a record suspension has been ordered.
Record suspensions are given by the Canadian government, and may not be recognized by foreign countries. For example, with a prior conviction, you may experience difficulty trying to visit the United States, even with a record suspension. Because the U.S. government does not recognize the Canadian record suspension, as far as they are concerned, you still have a criminal record. You would likely have to make special arrangements to be able to legally cross the border.