Canadian Law in the Media PDF

Chapter 7 When most people think of the law, they think of the criminal law and for good reason. As noted in the previous chapter, crimes are offences against us all. Murder, assault, and other criminal acts are by their nature sensational and attract public attention, whether through media reports...

Chapter 7 When most people think of the law, they think of the criminal law and for good reason. As noted in the previous chapter, crimes are offences against us all. Murder, assault, and other criminal acts are by their nature sensational and attract public attention, whether through media reports of a high-profile trial or an episode of a television crime show. This is nothing new. Court proceedings have been a staple of media reports since lurid accounts of crimes and trials began appearing in England’s earliest newspapers in the 16th century. “The journalists who were feeding the early printing presses learned what all journalists have learned,” noted media historian Mitchell Stephens, “that crime news is prime news.”1 Given the media’s emphasis on criminal cases, it may come as a surprise to learn that civil cases—the bulk of which are private disputes between individuals and corporations—account for most of the workload in Canada’s courts. Accidents and fires lead to insurance disputes and lawsuits over who’s to blame; business deals turn sour; and the Canadian Charter of Rights and Freedoms continues to fuel an explosion of actions challenging laws and asserting minority rights. Often, these cases raise important public issues or modify the law and therefore deserve their share of media attention and scrutiny. To properly cover the justice system, journalists need to understand the basic elements of both criminal and civil law. This chapter examines each branch of the law and the procedure followed as cases make their way through the court system. 112 The Criminal Law What Is a Crime? For an act to be considered a crime, two features must be present. There must be a guilty act, known by the Latin term actus reus. For example, section 265(1) of the Criminal Code defines assault as the intentional application of force on another person or any attempt or threat to apply such force. Consider the following scenario: as two people pass on a crowded sidewalk, one inadvertently bumps into the other. The person struck is knocked to the ground, perhaps even injured. Should an incident like this be classified as a crime? Of course not. This person meant no harm to the other pedestrian. The second element of a crime, known as mens rea or guilty mind, is missing. If, however, there was evidence that the passerby was recklessly swinging their arms or had set out to knock down other pedestrians, a charge of assault could be laid. An intention to inflict harm is fundamental to our concept of what constitutes a crime. Society has no interest in seeing people punished for accidents or honest mistakes. For someone to be convicted of a crime, the Crown must prove that the person committed an illegal act and that the conduct was reckless or intentional. Who Can Be Charged with a Crime? Anyone over the age of 12 can be charged with a crime, with persons under the age of 18 dealt with using special procedures set out in the Youth Criminal Justice Act.2 In most cases, only the perpetrator is charged, but associates and those who provide help can also become entangled in the crime. An accomplice can be charged as a party to the offence. The most common example is the driver of the getaway car used to rob a bank, who can be charged with robbery even though they never set foot in the bank. Anyone who helps another person to break the law can be charged under section 21(1)(b) of the Criminal Code, which makes it an offence to aid in the commission of a crime. For example, a clerk who opened the back door of a stereo store to allow a thief to enter could be charged. But the assistance must be intentional—a clerk who left the back door open by mistake would not be found guilty if a theft occurred. It is also an offence to abet (encourage) someone to break the law (s 21(c)) and to counsel (advise) another person to commit a crime (s 22(1)). And anyone who helps the perpetrator of an offence escape or destroy evidence can be charged as an accessory to the crime (s 23(1)). Anyone who joins others in a common purpose or plan to commit one crime can be charged with any other crime committed by an accomplice (s 21(2)). For example, if three persons agreed to break into a house and one of them attacked an occupant, all three could be charged with assault because each one knew or should have known that there was a risk of encountering someone inside the house. A person can also be charged with conspiracy to break the law even if the crime is never carried out; the offence is established once the person agrees to commit an offence (s 465). It is also an offence to attempt to break the law (s 24(1)).3 Defences The Criminal Code sets out an array of defences that, if accepted by a court, entitle an accused person to an acquittal or lead to a conviction with a reduced charge. Someone who killed an assailant in self-defence would be found not guilty of murder (ss 34, 35). An accused murderer can raise the common law defence of drunkenness if they can present evidence that they were too intoxicated to have intended to kill. Likewise, someone provoked into lashing out at another person in a sudden, deadly fury can plead provocation as a defence to a charge of murder (s 232). actus reus Latin for “guilty act”; the essential element of a crime that must be proven to secure a conviction; almost always an act, but it can also be an omission to act mens rea Latin for “guilty mind”; another element for criminal responsibility; many serious crimes require the proof of mens rea before a person can be convicted party a person whose name is designated on record as a plaintiff or defendant; also a person who has taken part in a transaction such as an agreement or a contract abet the act of encouraging, inducing, counselling, or inciting another to do a certain thing, usually a crime counsel in a criminal context, the offence of a person who procures a criminal act performed by someone else—that is, counsels someone to commit a crime accessory someone who contributes to, or aids in, the commission of a crime 113 If a judge or jury accepts the defence of drunkenness or provocation, the person would be acquitted of murder but convicted of manslaughter, a less serious offence defined as an unintentional killing that resulted from an illegal act. Accused persons may also be able to put forward the defence of alibi, presenting evidence to show they could not have committed the offence because they were somewhere else when the crime occurred. Some persons who knowingly broke the law may be able to rely on the defence of necessity to escape conviction; a hiker caught in a blizzard could advance this defence to justify breaking into a remote cabin in search of shelter.4 Finally, persons found to be suffering from a mental disorder when they committed an offence would be declared not criminally responsible and detained, if necessary, in a psychiatric facility.5 Categories of Offences All crimes are not created equal. In Canada, there are three categories of offences: summary conviction, indictable, and hybrid. Summary Conviction The least serious crimes are known as summary conviction offences—acts such as shoplifting, vandalism, impaired driving where bodily harm does not result, thefts and fraud involving less than $5,000, and minor assaults that do not cause injury. Allegations such as these account for much of the workload of the criminal courts. Under the Criminal Code, the maximum penalty for these offences is typically a $5,000 fine and six months in jail. Provincial and territorial offences, such as illegal fishing or hunting, traffic violations, and liquor law violations, are summary conviction matters. Summary conviction charges under the Criminal Code must be filed within six months of the date that the offence occurred. Some provincial and territorial legislation provides for a limitation period of a year or more for the filing of summary conviction charges. Under US law, this category of minor offences is known as a misdemeanour. Indictable The most serious crimes—murder, manslaughter, armed robbery, violent physical and sexual assaults, thefts and fraud involving large sums of money—are classified as indictable offences. So are serious narcotics offences, such as the trafficking or smuggling of drugs. A conviction for these offences can bring a heavy fine and terms in custody that range from two years to life in prison. In keeping with the seriousness of these crimes and the potential for severe punishment, persons charged with an indictable offence have the right to a jury trial. No limit exists on when indictable charges can be filed, and there have been cases of persons being charged with murder and other serious crimes years or even decades after the offence occurred. A felony is the US equivalent of this type of crime. Hybrid Some offences fall into a third category known as hybrid offences (also called dual-procedure offences). As the name suggests, these crimes are a combination of summary conviction and indictable offences. The Crown attorney decides whether to pursue a hybrid offence as a summary conviction matter (known as proceeding summarily) or as an indictable one (known as proceeding by indictment). The route taken determines the severity of the punishment that the accused can receive if -convicted—a small fine or short jail sentence if the offence is prosecuted summarily, the manslaughter a homicide committed without the intent to kill summary conviction offences less serious criminal offences; both the procedure and the punishment for summary conviction offences tend to be less onerous than for indictable offences indictable offences more serious offences than those that can proceed by summary conviction; often tried by a jury hybrid offences crimes that can be treated as either summary conviction offences or indictable offences; the Crown attorney decides how to treat these crimes possibility of a longer prison term if the offence is prosecuted by indictment. A hacker who caused minor damage to a computer database, for example, would most likely be charged with mischief and prosecuted summarily. But if the owner of the database suffered serious loss or damage, the mischief charge could be pursued by indictment, and, under the Criminal Code, the hacker could face up to ten years in prison if convicted (s 430(5)). When deciding how to proceed, prosecutors consider the seriousness of the offence and whether the accused has a record of previous crimes. For example, while most shoplifting offences are treated as summary conviction matters, a Crown attorney may opt to proceed by indictment against an accused shoplifter who has a long history of theft. In the case of a charge of assault causing bodily harm, the Crown will assess the severity of the victim’s injuries in determining how to prosecute the offence. Arrest and Police Powers Citizens have the right to detain some offenders, but, for the most part, the investigation of crime and the arrest of suspects are matters handled by local and provincial police forces and the Royal Canadian Mounted Police. To place someone under arrest, a police officer must have reasonable and probable grounds to believe that the person has committed an offence or is attempting to commit an offence. An arrest must be based on more than suspicion, but police are not expected to have absolute proof of guilt before taking someone into custody. As noted in Chapter 6, in most jurisdictions, the charging decision is made by the police, usually after they have consulted a prosecutor about which charge is appropriate and whether there is enough evidence to support a prosecution. Suspects may be apprehended at the scene of a crime (see Figure 7.1) or picked up on an arrest warrant. Police officers have the right to search a person who is placed under arrest but, in most cases, can seize evidence only after obtaining the person’s consent or a court authorization known as a search warrant. To obtain a search warrant, investigators must take their suspicions to a judge or a justice of the peace, who will decide whether there is enough evidence of wrongdoing to justify a search. The Charter protects citizens from being arbitrarily detained, jailed, or searched by police (ss 8, 9). If an arrest is justified and conducted properly, a suspect who struggles or refuses to cooperate could be charged with resisting arrest. The Charter also requires the police to inform those arrested of the charges they face and to allow them an opportunity to speak to a lawyer (s 10(b)). Police must provide the names of state-funded lawyers who are on call to provide legal advice to those in custody. Charges under the Criminal Code and other statutes are set out in an information. This is a public document, filed with the provincial or territorial court, that discloses the name of the accused, the name of the victim (if there is one), when and where the offence allegedly occurred, and the precise section of the Criminal Code or other statute that the authorities claim has been breached. In most cases, there is no arrest; police file an information, and the accused is served with a summons to appear in court at a later date to answer to the charges. Legal Rights of Accused Persons The contest between the state and the individual accused of committing an offence is invariably an unequal one. No one, no matter how wealthy or powerful, can match the resources of the state. This is especially true for the large number of criminal defendants who cannot afford a lawyer and must rely upon legal aid to defend them. To provide a level playing field and to guard against a possible abuse of power by the authorities, the Charter and the common law afford a number of rights and safeguards to those accused of crimes. These rights are founded on the principle that no one should be convicted of a crime without due process—the right to be regarded as innocent until proven guilty, to remain silent, and to have a fair trial. When critics complain that the justice system puts the rights of the accused ahead of those of victims of crime, they overlook the importance of ensuring, as far as humanly possible, that only the truly guilty indictment a formal document, drafted after the preliminary hearing stage of a criminal case, outlining the indictable offence(s) an accused person will face at trial information the document that sets out the allegations in a criminal case due process the normal course of events in the administration of justice in which the legal rights of litigants and persons accused of crimes are upheld and respected 115 are convicted. It should be borne in mind, as well, that these are the legal rights of every citizen, not special rights created to shield criminals from the full weight of the law. FIGURE 7.1 Protesters under arrest as police in Ottawa take action in 2022 to end an occupation of the city that began as a protest against mandatory COVID-19 vaccine mandates. Presumption of Innocence and Burden of Proof on the Crown Every accused, at every stage of a prosecution, has the right to be treated as an innocent person until declared guilty by a judge or a jury. The media often lose sight of this crucial concept, producing news reports of arrests in which police officials or community members express relief that a crime has been solved even though the accused person has yet to face a court of law. The long-established common law right to be presumed innocent is enshrined in section 11(d) of the Charter, which encompasses the principle that the Crown must -present sufficient evidence to prove beyond a reasonable doubt that the defendant -committed the crime.6 The Right to Silence The burden on the Crown is consistent with the right to silence, which ensures that -defendants are not compelled to explain or justify their actions at any stage of a prosecution. From the moment of arrest, every citizen has the right to remain silent. Suspects must provide their name and address but are not required to answer questions or to give a statement to the police. Any additional information they provide can be used as evidence against them in court. The -Supreme Court of Canada has ruled7 that the right to remain silent upon arrest is protected under -section 7 of the Charter, which gives every Canadian “the right to life, liberty and -security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” 116 The right to silence continues in the courtroom. Section 11(c) of the Charter shields accused persons from being forced to testify at their trial. Nor are they required to prove their innocence by calling other witnesses in their defence. The right to silence is consistent with the presumption of innocence as well as the requirement that the Crown prove guilt. The Right to a Fair Trial Every defendant has the right to make a full answer and defence to criminal charges under the Charter’s guarantee of fundamental justice.8 Section 11(d) of the Charter affords accused persons the right to be presumed innocent “until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” This right enshrines the concepts of open justice—that the business of the courts is open to public scrutiny—and judicial independence that are cornerstones of our justice system. Evidence Most of the information presented in the courtroom is direct evidence—what a witness personally saw or experienced. The courts also accept circumstantial evidence—something that links the accused to the offence, such as clothing or belongings left at the scene of a crime. All evidence must be introduced through the use of a witness. Documents and photographs may be introduced as evidence if a witness is able to vouch for their origin and contents. Similarly, weapons, clothing worn by a victim or suspect, and other physical items that the Crown or defence seeks to introduce as evidence must first be identified by a witness. Evidence must also be relevant to the specific allegations before the court. With the exception of specialists in fields such as medicine, science, and forensic techniques, witnesses are not permitted to offer opinions on what may have happened. Once a judge reviews their credentials and accepts them as experts, these witnesses can present the results of scientific tests and may offer opinions that are based on the evidence before the court. Second-hand information, known as hearsay—what a witness overheard other people saying about a crime or the accused—is generally not usable in court. Accused persons cannot be forced to incriminate themselves or, in most cases, to testify against their spouse. These and other rules of evidence are set out in the Canada Evidence Act.9 The courts also closely examine any statement that an accused person makes to a police officer or other authority figure. Judges will investigate how the interrogation was conducted to ensure that the confession or other statement was made voluntarily. Statements made in response to promises or threats or as a result of prolonged or aggressive questioning may be ruled inadmissible as evidence.10 open justice a presumption in both civil and common law jurisdictions that court hearings are open to the public and media direct evidence evidence in the form of testimony from a witness who relates what they personally saw, heard, or experienced circumstantial evidence indirect evidence that links a person to the scene of a crime or creates an inference that the person was involved hearsay evidence of what someone else heard or witnessed and generally not admissible in court; also known as second-hand evidence CANADIAN LAW 101 Criminal Case Files An understanding of court files and what they contain is essential for any writer or researcher, whether they are a journalist looking for the details of a case, an author researching a true-crime book, an investigative reporter digging for information about a person or company, or an academic seeking the stories behind crime statistics. Below is a guide to tracking down files on criminal cases and what writers and researchers can expect to find. Provincial and Territorial Courts Charges are filed with the court registrar’s office in the city, town, or district where the offence -occurred. Files are indexed using the surname of the defendant. What’s on File Informations. These documents provide the name, address, age, and sometimes the occupation of the person accused of the offence. The date and place of the offence and the victim’s name are also disclosed. As a case proceeds, an information becomes the permanent record of the case. The judge or court clerk uses it to note the defendant’s plea, any conditions of release pending trial, whether bans on publication apply to the case, and the date of the next hearing. If the case remains in provincial or territorial court, the date of conviction and the sentence imposed are also recorded. Summonses, arrest warrants, undertakings, subpoenas. Some documents may be filed with the information, including a summons for the defendant to appear in court, an arrest warrant (if the defendant is at large or has failed to appear in court), any undertakings the defendant signed to gain release before trial, and subpoenas directing witnesses to testify. Search warrants. Once the police have completed a search, three documents become public (unless sealed to protect an investigation): - the warrant reveals the location searched and the evidence sought; - the information to obtain the warrant sets out the details of the investigation, the names of suspects, and the offences being alleged; and - the return lists the items and documents seized. Search warrant files may be stored in centralized registries or kept in the office of the judge or justice of the peace who issued the warrant. Practices vary from jurisdiction to jurisdiction. Superior Trial Courts Provinces and territories are divided into judicial districts, each with a superior court registry that is usually housed in the area’s main courthouse. Files are indexed by the surname of the defendant and are available for inspection at the registry office. What’s on File Indictments. This document, a redrafted version of the information, restates the charges once the case reaches the superior court level for the taking of a plea and the trial. A copy of the information drafted and used at the provincial or territorial court level will be included in the superior court file. Court orders. This file could contain a variety of orders, including the provincial or territorial court judge’s committal to stand trial, the exact wording of any bans on publication, and orders for the prosecution to disclose evidence to the defence. Transcripts. If the prosecution or defence has ordered a transcript of the preliminary hearing or any bail proceedings, a copy should be included in the file. If a publication ban has been imposed, the contents cannot be reported until the prosecution ends. Summonses, arrest warrants, undertakings, subpoenas. One or more of these orders may appear in the superior court file. Rulings. Most of the decisions that a judge makes as a case proceeds are delivered from the bench. Verdicts and rulings on sentence are usually produced in writing, but it may be weeks or even months before they are transcribed and added to the file or posted online. Pre-sentence reports. These reports are prepared by probation officers and outline the offender’s family background, employment history, criminal record, and other information. In some jurisdictions, judges reserve the right to seal these reports if they include sensitive medical information or psychological assessments. Procedure in Criminal Cases When a person is charged with a crime, they are brought before a judge, and the courts assume control of the process. The case will be dealt with swiftly if the accused person decides not to contest a charge and pleads guilty upon first appearing in court or if charges are withdrawn. 118 But, in fact, only one in five cases is dealt with in a single court appearance. It is more common for cases to take many months to make their way through pre-trial proceedings and trial. If a verdict is appealed in the higher courts, a case may take years to complete. The following is an overview of how a prosecution unfolds (see Figure 7.2). FIGURE 7.2 The procedure in criminal cases. Arraignment An accused person’s first appearance in court is usually for a hearing known as an arraignment, which is held before a provincial court judge or a justice of the peace. The case will likely be one of many brought before the court that day; as the names of the defendants are called, the judge or arraignment an accused person’s first appearance in court to answer to criminal charges 119 justice usually reads out the allegations against each one. Because defendants and their lawyers already have a copy of the information, they sometimes waive the right to a formal reading of the charges. It is common for defendants and their lawyers to seek an adjournment of a week or two, giving them time to examine the allegations and to formulate a response. Disclosure of Crown Evidence Before the accused person enters a plea or chooses a court for trial, the Crown must disclose the evidence that the police have gathered. The Supreme Court of Canada has ruled that defendants have the right to review the evidence against them. This prevents abuses such as the production of a surprise witness to “ambush” the defence at trial. The Crown attorney must divulge all police reports, witness statements, and any other relevant evidence known to the authorities. This includes information that may exonerate the accused as well as evidence that the Crown does not intend to put before the court.11 Judges are sometimes asked to settle disputes over how much information must be disclosed, and the courts have halted prosecutions in cases where the Crown’s withholding of information has violated the defendant’s Charter right to make a full answer and defence. Election and Plea “Election and plea” is the term for an accused person’s formal response to the charges, but it is a bit of a misnomer. The election—the defendant’s choice of which court will hear the trial— determines whether a plea is even made at this stage of a criminal proceeding. Pleas are entered before the court that will ultimately try the case. The classification of the offence—summary conviction, indictable, or hybrid—in turn determines which level of court can hear the trial and whether the defendant has the right to have a say in the matter. Summary conviction offences must be tried in a provincial court, so defendants have no right to elect a higher court for trial and must enter a plea upon their arraignment. If the defendant pleads not guilty, a date will be set for trial. If the defendant pleads guilty, the provincial or territorial court judge will either pass sentence immediately or set a date for a sentencing hearing. Persons facing most indictable offences have the right to choose which court will hear their trial. Indictable offences can be heard in a provincial or territorial court or in a superior court, the latter providing a defendant with the further option of trial before a judge sitting alone or before a judge and jury. Exceptions are first- and second-degree murder and rare offences, such as piracy and treason, which once carried the death penalty; these allegations must be tried in superior court. On all other indictable charges, an accused person who selects a trial before a provincial or territorial court judge will then enter a plea. If a plea of guilty is entered, the case advances to sentencing; if a plea of not guilty is entered, a date for trial is set. An accused person’s decision to face trial in superior court on an indictable charge, however, triggers a more complicated procedure. First, no plea is entered since the case is not yet before the trial court. (It is common for the media to report—erroneously—that a person facing an indictable offence was arraigned and pleaded not guilty.) Second, the judge sets a date for a preliminary hearing, an interim proceeding held in a provincial or territorial court to assess whether there is enough evidence to justify sending the case to superior court for trial. Third, at the preliminary hearing, the judge either orders the trial or discharges the accused. Finally, if the judge orders the trial, the accused is re-arraigned in superior court. In the case of hybrid or dual-procedure offences, the Crown’s decision whether to pursue the summary conviction or indictable route determines the election and plea options open to the defendant. Hybrid offences prosecuted as summary conviction matters remain in provincial court, whereas hybrid offences pursued by indictment give defendants the right to elect trial in adjournment the suspension of a trial, either for a fixed period of time or indefinitely plea the formal response of an accused person (guilty or not guilty)—or one made on behalf of the accused—in a criminal prosecution election for certain offences, an accused person’s choice to be tried by a judge and jury or by a judge alone superior court. Superior court trials tend to be more expensive and take longer to complete, particularly if a jury is hearing the case. The prospect of triggering elaborate and time-consuming trials to deal with relatively minor offences helps ensure that Crown attorneys do not misuse their power to pursue hybrid charges as indictable offences. Some accused persons who have elected trial in superior court may later re-elect trial in provincial court, a move that often signals an intention to forgo a trial and enter a guilty plea.12 Release Before Trial After a person has been arrested and charged with a crime, it must be decided whether they should be freed until a trial is held. The police release many accused persons on an -undertaking, a recognizance, or other written promise to show up in court to answer to the charge. A defendant may have to agree to have no contact with the victim or other people connected to the crime. If the defendant is considered dangerous, has a significant criminal record, or is accused of a serious crime, the authorities may seek to have the person kept in custody pending trial. Show Cause (Bail) Hearings Anyone denied release on a promise to appear in court has the right to be arraigned within 24 hours so that a judge or justice of the peace can deal with the person’s possible release on bail (also known as judicial interim release). Because everyone is presumed innocent until proven guilty, the Charter gives accused persons the right “not to be denied reasonable bail without just cause” (s 10(e)). This right to seek bail applies even to serious crimes such as murder, armed robbery, and violent sexual assault. For all charges other than murder, bail is determined at a hearing held before a provincial or territorial court judge. In the case of murder, a judge of the superior court—the court with exclusive jurisdiction over the offence—decides whether the person can be released while awaiting trial. A person who appeals a conviction for a crime is entitled to apply for release on bail until the appeal court makes a ruling. A bail hearing is known as a “show cause” hearing because the Crown attorney must establish that there is cause or reason to keep the person in custody. Defendants do not have to prove that they deserve to be released. The Crown presents a summary of the evidence gathered by the police—to illustrate the strength of its case—as well as information about the person’s record of violence or past crimes. The grounds for denying bail are limited. A judge must be convinced that the accused person, if released, will flee the jurisdiction, commit more offences, or try to intimidate witnesses. If the allegations are serious, a judge can deny bail if they determine that detention is justified to maintain public confidence in the administration of justice. Where there is evidence of mental instability, the accused may be remanded to a psychiatric facility for up to 30 days, where doctors will determine whether the person is capable of instructing a lawyer and therefore fit to stand trial. If the judge rules that the accused can be released, the person may be freed with or without conditions. Release may be conditional on the accused’s observing a nightly curfew, not consuming alcohol or illegal drugs, or agreeing to stay away from certain places or anyone who will be a witness at the trial. Accused persons also may be required to deposit a sum of money with the court. If the defendant does not have enough resources to post bail, a relative or friend may be able to act as a surety, offering their own money to meet the bail requirement or pledging their home or other property as security. If the accused fails to return to court as directed, the money or property may be forfeited to the state to cover the value of the bond. A judge’s refusal to grant bail can be appealed to a higher court for review, as can the terms of the bail imposed, such as the amount of money to be posted. Some defendants who are granted bail remain in custody because they are unable to find a surety or raise the money needed to post bail. undertaking a promise or stipulation in legal proceedings that creates an obligation bail in criminal law, a court’s release of a person being held in custody on criminal charges; also known as a judicial interim release judicial interim release see bail surety security in the form of money or property that supports someone’s release on bail; it is forfeited to the Crown if the accused person fails to appear in court 121 CANADIAN LAW 101 Plea Negotiation Defendants can plead guilty at any point during a prosecution. If they do, it is often as a result of a plea negotiation between the defence lawyer and the prosecutor. Such agreements are common, and a typical agreement may see some charges withdrawn in exchange for a guilty plea to other charges or the substitution of less serious charges. The defendant may agree to testify against a co-accused or provide information about other offences. There is usually an agreement on a suggested sentence that may well be lighter than normal. Although judges usually accept such recommendations on punishment, they are free to impose any other sentence that the law provides for the offence. Plea negotiation is popularly known as plea bargaining, a term that suggests an accused person is getting a break or special treatment. But these agreements can play an essential role in keeping the court process running smoothly, saving the justice system the cost of conducting trials, and sparing victims the ordeal of testifying in court. While plea negotiations occur in private, any agreement that results must be revealed in court and is ultimately subject to public scrutiny and the approval of a judge. The Preliminary Hearing Also known as a preliminary inquiry, the preliminary hearing is a pre-trial proceeding held to assess the strength of the Crown’s case when a person charged with an indictable offence elects trial in superior court. Preliminary hearings act as a filter, enabling the courts to stop prosecutions based on flimsy allegations and sparing citizens the expense and anxiety of an unnecessary trial. The hearing also offers the defence a chance to review the evidence gathered by the police and to challenge Crown witnesses. An accused person has the right to skip the preliminary hearing and proceed directly to trial in superior court. Many defendants do this for various reasons: the prosecution’s duty to disclose evidence often provides the information needed to assess the strength of the Crown’s case, the person may want to avoid paying legal fees for two proceedings, or the person may have decided to plead guilty. A preliminary hearing unfolds much like a trial. The Crown presents its evidence, and the defence has an opportunity to question each witness. Legal arguments over the admissibility of evidence are also dealt with. The defence also has the right to present evidence, but it is rare for an accused person to testify or call witnesses. Although a preliminary hearing resembles a dry run for a trial, it is not a test of whether an accused person is guilty. The hurdle facing the Crown is low—the judge only needs to be satisfied that there is some evidence that could lead a jury, if it accepts the evidence as true, to convict. (This test is applied even if the trial is slated to be heard only by a judge.) The Crown is usually able to establish that there is some evidence of guilt, so most preliminary hearings end with a committal—an order for the accused to stand trial. But the judge may rule that the Crown’s case is so weak that no trial is warranted. If so, the accused will be discharged. A discharge is like an acquittal, and it ends the prosecution. A defendant facing multiple allegations could be ordered to stand trial on some charges and be discharged on others. The judge also has the power to amend charges or add new ones, as the evidence dictates, before sending the case to trial. Preferred Indictments The Crown has the right to issue a preferred indictment (also known as a direct indictment) to take an accused person straight to trial, a procedure that can be exercised only with the approval of the attorney general or justice minister. Indictments can be preferred at any stage of the pre- trial process, but they tend to be used after an accused person has been discharged at a preliminary hearing if the Crown still believes that there is enough evidence to secure a conviction at trial. plea negotiation agreement between the Crown and defence on a charge to which the accused will plead guilty or on the sentence to be recommended to the judge; also known as plea bargaining plea bargaining see plea negotiation preliminary hearing the hearing before a provincial or territorial court judge to determine whether there is enough evidence to send an accused person to trial committal a judge’s referral of a case to trial following a preliminary hearing discharge a court order ending a prosecution at the preliminary hearing stage if there is not enough evidence to warrant a trial; also a form of sentence that leaves an offender without a criminal record preferred indictment a procedure that enables Crown prosecutors to bypass the preliminary inquiry and take a case directly to trial or to reinstate the prosecution of an accused person who was discharged at a preliminary hearing 122 Pre-Trial Motions Legal arguments over the admissibility of evidence and other legal issues are usually dealt with during the trial. However, superior courts often hold pre-trial hearings weeks or months before the trial to deal with lengthy and complicated matters such as Charter motions and defence applications to stay charges. The Trial With the exception of the special procedures required if a jury is hearing the case, trials unfold in essentially the same fashion at all levels of court. Superior court trials begin with the reading of the indictment, followed by the accused person’s plea of not guilty. In jury trials, lawyers select the jury first, and the accused enters a plea in the jury’s presence. A more streamlined approach is taken at the provincial or territorial court level. The case is called, and, because the accused has already entered a plea on arraignment, the prosecutor simply calls the Crown’s first witness. CANADIAN LAW 101 Withdrawing and Staying Charges A Crown attorney has the discretion to withdraw charges or to offer no evidence at any time as a case proceeds. This must be done in open court, and a judge will be asked to dismiss the charges, ending the prosecution. Charges may be dropped because the prosecution’s case is weak, evidence has been lost, or a key witness refuses to testify. Such decisions are final—the charges cannot be revived. The Crown also has the power under section 579 of the Criminal Code to stay a prosecution temporarily, shelving the case for up to a year to give the police more time to investigate. Unless the prosecution is reinstated within a year, however, the charges lapse and can no longer be pursued. As well, judges have the power to impose a stay of proceedings to end a prosecution before or during a trial. This form of stay may be imposed if a court finds that an accused person has suffered a serious violation of their rights under the Charter of Rights and Freedoms or if the Crown or police have abused their powers. A judicial stay is permanent, and the prosecution can be revived only if an appeal court overturns the stay. The Crown’s Case The Crown presents its case first. Before calling witnesses, prosecutors usually make an opening statement to the jury that outlines the evidence against the defendant, but they are not obliged to do so. Prosecutors must not ask leading questions, which suggest the answer. This rule ensures that witnesses describe, in their own words, what happened. The defence has the right to cross- examine the witnesses to challenge their testimony or to draw out information favourable to the accused. Defence lawyers tend to focus on the loose ends of an investigation—the unanswered questions and missing evidence that may raise the reasonable doubt needed for an acquittal. The prosecutor can ask further questions on redirect examination but only to explore new information brought out under defence questioning. The Case for the Defence Once the Crown rests its case, the defence has the right to call its own witnesses. If the prosecution’s case appears weak, the accused person may ask the judge for a directed verdict of not guilty, but such motions rarely succeed. While defence lawyers may opt to call no evidence, usually some defence witnesses are put forward. If the Crown has established a prima facie case—evidence sufficient, on its face, to meet the burden of proof beyond a reasonable doubt—a defendant who offers no evidence to contradict those facts is almost certain to be convicted. stay of proceedings a court order permanently halting a criminal prosecution as a result of an abuse of the legal process; Crown attorneys also have the power to issue a stay to temporarily halt a prosecution for up to one year directed verdict a situation in which a judge instructs a jury as to what its verdict must be; usually arises when the party with the burden of proof fails to present a prima facie case prima facie case a case supported by evidence sufficient, on its face, for it to be taken as proven in the absence of defence evidence to the contrary The defence can make an opening statement that outlines its position and introduces the witnesses to be called. Although the right to silence means that accused persons are under no obligation to testify, they often do—particularly in a jury trial, where a dozen citizens inundated with Crown evidence may be eager to hear the defendant’s explanation. The Crown attorney has the right to cross-examine all defence witnesses, including the defendant. Voir Dire Hearings At any point during the trial, the Crown prosecutor or defence lawyer may ask that a voir dire hearing be convened. The judge will hear legal arguments from both sides and make a ruling on any matter that is in dispute, such as whether evidence is admissible or a question posed to a witness is proper. In jury trials, jurors will be asked to leave the courtroom during this “trial within a trial” so that they are not exposed to information that is not admissible in court or that could prejudice the accused’s case. Rebuttal Evidence If the defence has called evidence, the Crown attorney has the right to call rebuttal evidence. This is not a chance for the prosecutor to get a second kick at the can—rebuttal evidence must relate to new information introduced as part of the defence case. The defence, in turn, has the right to introduce its own rebuttal evidence but only on subjects that arose from the Crown’s rebuttal evidence. Mistrials At any point during a jury trial, the judge may declare a mistrial if it appears that the accused person’s right to a fair trial has been compromised. Mistrials are usually declared if jurors have been exposed to inadmissible evidence or prejudicial information about the accused person, either through media reports or improper statements made in the courtroom. If a mistrial is declared, the accused person will be required to stand trial before a new jury at a later date unless the prosecution decides not to pursue the charges. Closing Arguments and Charge to the Jury Once the evidence has been presented, lawyers for each side present a closing argument or summation—a speech analyzing the evidence and suggesting how it supports the accused person’s guilt or innocence. In jury trials, the next step is for the judge to deliver the charge to the jury. The judge reviews the evidence for the jury and explains how the law applies to the allegations before the court. At the conclusion of these instructions, the jurors file out of the courtroom to discuss the evidence in private and to try to reach a verdict. Verdict The judge or jury must assess whether each witness was believable and, where there are two versions of events, decide who is telling the truth. This is known as finding the facts of a case. These findings will be applied to the law to determine whether the accused person is guilty or not guilty. If there is no jury, the judge may adjourn the case for days or weeks before reaching a verdict. The defendant’s guilt or innocence will be announced in the courtroom, and the judge may provide written reasons for their decision. Jurors deliberate in secret, and the Criminal Code (s 649) forbids them from revealing what has been discussed in the jury room. They may return to the courtroom to ask the judge for further instructions or to hear a replay of the taped testimony. Jurors are allowed to return home during the trial, but, once deliberations begin, they are sequestered and billeted overnight at a hotel, if necessary, until a verdict is reached. Jurors must return a unanimous verdict; a deadlock—known as a hung jury—means a new trial will be held unless the Crown decides to withdraw the charges. voir dire hearing a trial within a trial, usually on the admissibility of contested evidence; in jury trials, juries are excused during a voir dire mistrial an order ending a trial when the accused person’s right to a fair trial has been compromised; the Crown has the right to put the accused person on trial before a new judge or jury closing argument a speech analyzing the evidence and suggesting how it supports the accused person’s guilt or innocence summation see closing argument charge to the jury the final address by the judge to a jury before a verdict is delivered; the judge sums up the case and instructs the jury as to the rules of law applicable to various issues finding the facts a conclusion reached by a court after due consideration; a determination of the truth after considering statements from opposing parties at trial 124 Several outcomes are possible. The judge or jury may find that there is not enough evidence to prove guilt beyond a reasonable doubt. Or the evidence may support a conviction on some charges and not others. Or an accused person may be acquitted of a charge in the indictment but convicted of an included offence, an offence that forms part of a more serious one. A person found not guilty is free to go and can be tried again on the same charges only if an appeal court overturns the verdict and orders a new trial. If the accused is convicted, the final step in the trial process is for the judge to pass sentence. CANADIAN LAW 101 Young Persons and the Criminal Law In April 2003, the federal government introduced the Youth Criminal Justice Act to govern how the justice system deals with young persons who break the law. The Act’s objective is to ensure that young persons who break the law are dealt with in a fair and consistent fashion, while recognizing that they may lack the maturity and insight to fully understand the consequences of their actions. It also recognizes that most youth crime is non-violent—shoplifting, other minor thefts, failure to appear in court, or breaching a probation order. Minor assaults account for almost half of all offences involving violence. Under the Act, persons between the ages of 12 and 17 who are charged with crimes are dealt with in a separate court system. Those incarcerated for their crimes are held in special youth facilities apart from adult inmates. Publication bans and strict control over court records are used to shield the identities of those charged. The legislation emphasizes non-custodial punishments for theft, break-ins, and other offences involving property and reserves jail time for offences of violence and repeat offenders. The restorative justice model of convening a conference, where justice officials and community members confront an offender and recommend punishments, is also encouraged. However, in cases of murder and other serious crimes of violence, the Act enables youth court judges to punish offenders with the same sentence that an adult would receive. Sentencing and Parole When an accused person pleads guilty or is convicted at trial, it is the judge’s duty to impose punishment. The Criminal Code dictates the maximum custodial sentence for each offence and, for some offences, a minimum amount of time that must be served behind bars. Maximum sentences range from up to six months in jail for minor offences such as shoplifting and vandalism to terms of 10 years, 14 years, or life in prison for serious, violent crimes such as armed robbery, aggravated assault, manslaughter, and murder. Maximum penalties are rarely imposed and are reserved for the most heinous acts and the most incorrigible offenders. Sentences of less than two years in custody are served in jails operated by provincial or territorial governments, which is why judges sometimes impose a sentence of “two years less a day.” Judges can direct that offenders serve jail terms of less than 90 days on an intermittent or part- time basis, usually on weekends. Those sentenced to two years or more are held in federal prisons under the jurisdiction of the Correctional Service of Canada. Their applications for early release are heard by the Parole Board of Canada. Federal inmates may ask to be released on day parole after six months and can seek full parole once they have served one-third of their sentence. Most of those denied parole at these early stages are released automatically after they reach the two-thirds mark of their sentence. Those considered dangerous and likely to commit further crimes may be kept in custody until they complete their full sentence. The courts sometimes face public criticism for their early release policies, but judges have no say in the granting of parole and must ignore the possibility of early release when deciding on an appropriate prison term. 125 Judges have an array of other sentencing options, some of which may be imposed in -combination. The offender can be required to pay a fine to the state that could reach into the thousands of dollars, and they may face a jail term if the fine is not paid by a certain date. The judge may order an offender to pay restitution to the victim to compensate for injuries or the loss of money or property. Offenders may be placed on probation for up to three years. During a probationary term, they must report to a probation officer and may have to fulfill other requirements, such as observing a nightly curfew, abstaining from the use of alcohol or illegal drugs, completing community service work, or undergoing treatment or counselling. Breaching a condition of probation is a criminal offence. In some cases, a judge also has the option of imposing a -suspended sentence. Instead of passing the sentence, the judge places the offender on probation; if the offender violates the terms of the probation, the judge may then impose the penalty for the original offence as well as an additional penalty for breaching the probation. When the crime is minor, first-time offenders who are unlikely to commit further crimes may be granted a discharge, leaving them without a criminal record. There are two types: absolute discharges, which come with no strings attached, and discharges that are conditional on the offender completing volunteer work in the community or other requirements. In 1995, Parliament amended the Criminal Code to require judges to consider alternatives to incarceration whenever possible, a measure intended to reduce the number of persons behind bars and to help control the cost of operating the prison system. Judges may impose conditional sentences to be served in the community under house arrest if a jail term of less than two years would have been appropriate and the offender is not considered a danger to others (s 742.1). These sentences come with strict conditions—the offender usually can leave home only to go to work, to attend religious services or medical appointments, or to run brief errands. Violating any of these conditions could result in the offender being ordered to serve a jail term. Public and media outrage often greet a sentence of house arrest, and judges often endure most of this criticism even though Parliament, not the courts, decided it is an appropriate form of punishment. Sentencing is an art, not a science. In crafting the appropriate punishment, a judge must consider a host of factors, including the circumstances of the offender and the gravity of the offence. A number of principles are brought to bear on the sentencing decision. The fundamental purpose of sentencing is to promote public safety and to foster respect for the law. To this end, the penalty must be severe enough to deter the offender from committing further crimes while making it clear to other persons that there are consequences to breaking the law. The punishment must reflect society’s denunciation of criminal acts, particularly crimes of violence and exploitation. The punishment selected must be in keeping with the seriousness of the crime and its prevalence. Justice, too, must be tempered by the need to rehabilitate offenders; it is in the long-term interest of society to help criminals become law-abiding, productive citizens.13 Sentences are formulated on a case-by-case basis. Judges review sentences that other courts have meted out for similar offences to ensure that the sentence is consistent with these previous sentences and that the punishment fits the crime. They also take into account aggravating factors. For example, if the offender held a position of authority or trust or if a weapon was used to commit the offence, a harsher sentence may be warranted. On the other hand, mitigating factors such as an offender’s age or lack of a previous criminal record often result in a lighter sentence. Judges may also direct probation officers to prepare a pre-sentence report, which outlines an offender’s background, work history, prospects for rehabilitation, and any prior record of crimes. These reports help the judge formulate an appropriate sentence. As well, the victim or members of the victim’s family may present a written statement describing the impact of the crime, which provides more information for the judge to consider in arriving at a suitable sentence. restitution the act of restoring something to its owner, or the act of making good probation a form of punishment in which a judge orders a person to report regularly to a probation officer and to observe conditions, such as abstaining from alcohol suspended sentence a sentence that is not imposed; instead, the offender is placed on probation; failure to abide by the conditions of probation may lead to the sentence being imposed conditional sentences sentences served in the community that are subject to conditions (often referred to as house arrest); if the conditions are not met, the offender may be jailed 126 If an offender is sent to prison for more than one offence, the judge has two options. In the first option, the sentence for each offence is rolled into one and served concurrently. For example, if a judge imposes a sentence of four years for one offence and a sentence of six years for another offence, the offender will serve six years. In the second option, the sentences are served consecutively, one after the other. If consecutive sentences are imposed, judges must ensure that the total sentence is not unreasonable given the nature of the crimes and the circumstances of the offender. An exception is made for multiple convictions that arise from the same event or a “single criminal enterprise,” which are punished with concurrent sentences.14 In certain cases, the Criminal Code requires judges to take special note of the nature of the crime or the circumstances of the victim. Stiffer penalties are to be imposed where the crime is motivated by racial hatred or an intolerance of minorities; where the victim is the offender’s spouse or child; or where the offender is a teacher, counsellor, or other authority figure who held a position of trust in relation to the victim (s 718.2). Sentencing of Indigenous Offenders Judges have a duty to consider non-custodial sentences for Indigenous offenders, who have traditionally accounted for a disproportionately high number of prison inmates. The Supreme Court of Canada, in the case of an Indigenous offender named Gladue, ruled in 1999 that judges may consider “the broad systemic and background factors affecting aboriginal people” when passing a sentence “and of the priority given in aboriginal cultures to a restorative approach to sentencing.”15 A pre-sentence report, known as a Gladue report, is compiled to inform the judge of the offender’s background, what brought them before the courts, and whether the person’s Indigenous heritage or connection is relevant when determining the proper sentence. Judges are also free to impose a shorter prison term than might be meted out to a non-Indigenous person for a similar offence.16 Alternative Sentencing Alternative means of punishing offenders have also been developed to deal with minor crimes. Diversion programs bypass the courts and enable the police to refer first-time offenders who readily admit their guilt to a probation officer, who will direct the person to undertake counselling or perform community service. Those convicted of minor offences may be candidates for restorative justice programs. Based on the sentencing circles of Indigenous cultures, these programs enable a judge to seek input and advice from the community on the appropriate sentence. Typically, the judge, Crown attorney, defence lawyer, and offender will meet in private with police officers, social workers, and the victim to discuss the offence, why it happened, and how it should be punished. Often, the consensus will be some form of restitution to the victim or community service, coupled with treatment or counselling. However, the group may suggest a jail term as the proper punishment. The judge has the final say on the sentence imposed and is not bound to accept the recommendations of the group. Appeals Appeals are the justice system’s mechanism for correcting the mistakes that are bound to occur in any system subject to human error and lapses in judgment. A judge may misinterpret how the law applies to a case before the court or incorrectly explain a legal principle to a jury that then finds a defendant guilty. Because it would create an injustice to allow such verdicts to stand unchallenged, appeals can be made to a higher court. A person convicted of a crime has the right diversion programs a form of sentencing under which first-time offenders who plead guilty are dealt with and punished outside the normal court process restorative justice programs programs that enable the victim of a crime, the offender, and members of the community to discuss an appropriate sentence for the offender; commonly used for young offenders 127 to appeal both the conviction and a sentence that appears too harsh for the crime. Likewise, the Crown has the right to appeal the acquittal of a defendant or a sentence it considers too lenient. Appeals, for the most part, focus on the trial judge’s rulings on legal issues as they arose: were Charter rights breached? Was certain evidence inadmissible? Was the jury properly instructed about how the law applied in the case? It is the role of trial judges and juries to determine what happened and to assess whether witnesses have told the truth. Thus, appeal courts rarely disturb such findings of fact. But in extreme cases, an appeal court may find that an error is so serious that the judge or jury has reached erroneous conclusions about the facts. If so, it is proper for the appeal court to intervene. As we have seen, trials are heard in either provincial or territorial court or superior court depending on the seriousness of the crime. For summary conviction matters dealt with in provincial or territorial court, appeals are heard by a judge at the trial level of the superior court. These decisions, in turn, can be appealed to the next level—the court of appeal of the province or territory. -Challenges to the outcome of all other criminal cases heard in provincial or territorial court, as well as of trials heard in superior court, go directly to the court of appeal. Only the Supreme Court of Canada can overturn the decision of a court of appeal. At the appeal stage, each side puts its arguments into writing and has an opportunity to make a presentation at a hearing. If the issues are not complex, the judges may retire briefly and return to announce their ruling. But it is more common for the court to reserve its judgment and to release a decision in writing at a later date. Courts of appeal in each province and territory have established rules that set out the process to be followed for appeals. Nova Scotia’s Civil Procedure Rules, for example, require that written notice of an appeal be filed with the court within 30 days of the date of the verdict or, if the penalty is being challenged, no more than 30 days after the sentence was imposed. If the appeal court finds that a legal error has been made, it has the power to overturn a conviction and to order a new trial. The court may also rule that the error was not serious enough to have affected the outcome and allow the verdict to stand. If the court finds that there was not enough evidence to support the conviction, it has the power to acquit the defendant. But if the Crown is appealing a verdict of not guilty, the outcome will be a ruling that either upholds the acquittal or orders a new trial. An appeal court does not have the power to convict a person who has been acquitted of a crime at trial. CANADIAN LAW 101 Appellate Court Files The Supreme Court of Canada and provincial and territorial courts of appeal hear both criminal and civil cases. Only one appellate court exists for each jurisdiction, so all files are housed in a central registry office located in the provincial or territorial capital; the Supreme Court of Canada’s registry is in Ottawa. Files are indexed by the names of appellants and the names of respondents. What’s on File Trial documents. An appeal court file includes copies of all the documents filed with the court at the trial level. Transcripts and exhibits. A complete transcript of the trial—testimony, legal arguments, and -rulings—is prepared for appellate judges to review. Bound volumes containing the transcript and copies of all the documents and photographs presented as trial exhibits are filed. Factums. These are written submissions in which the lawyers for each side review the evidence and put forward the legal arguments to support their positions. Rulings. Most appeal court rulings are produced in writing and posted online; those delivered from the bench are transcribed and added to the file. The Civil Law The civil courts provide redress for injuries or losses that an individual or corporation has suffered at the hands of another party through an accident, a business transaction, or a malicious act that falls short of a crime. Most civil cases are of little interest to anyone other than the parties, which explains their lower profile in the media. Examples include disputes over the sale or location of property, complaints of patent infringement, claims of wrongful dismissal from a job, construction liens filed by tradespeople or contractors seeking payment for work done, and divorces and other family law disputes. Most of the civil actions that make headlines deal with controversial or politically charged issues, such as medical assistance in dying, or they involve high-profile litigants. Some civil cases may alter the legal rights of all citizens—for example, an action may lead to a new interpretation of child custody rights or spousal support laws. The line between criminal and civil actions is not always well defined. A person convicted of theft or fraud in the criminal courts, for instance, may be ordered to pay money to the victim as restitution—in effect, a form of damages. Likewise, a judge hearing a civil case may award punitive damages to the plaintiff as a way of punishing a defendant whose conduct has been flagrant or high-handed. And while imprisonment is never imposed on the losing side in a civil case, a person involved in a lawsuit could be found in contempt and jailed for failing to obey a court order. To further complicate matters, some conduct can be both a crime and a civil matter. A punch to the face that broke a person’s jaw, for example, would be prosecuted as the offence of assault causing bodily harm under the Criminal Code (267(b)). But the victim would also have the right to file a lawsuit to recover the cost of medical bills and any income lost due to an inability to work. Torts Most well-publicized civil actions fall into a wide category known as torts. A tort is any wrong that one party suffers as a result of the actions or omissions of another. (An omission is something left out or not done.) In a complex modern society, where people and businesses interact in innumerable ways, conflicts and losses are inevitable. As society and technology change, the courts are called upon to develop new torts. For example, in 2021, the Ontario Superior Court adopted the tort of Internet harassment, which was developed in US courts and allows victims subjected to online abuse and bullying to sue their tormentors for damages.17 CANADIAN LAW 101 Criminal Versus Civil: Using the Correct Terminology When civil actions make the news, reporters and editors often make the mistake of applying the terminology they have learned in the criminal courts. Defendants on the losing end of a lawsuit are erroneously reported to have been charged, found guilty, and sentenced. Some terms are, in fact, interchangeable, so this confusion is understandable. But each branch of the law has its own expressions for the parties involved, the types of cases heard, the outcome, and the penalty imposed. The party bringing a civil action or lawsuit before the courts is the plaintiff, an individual, a corporation, a government, or a government actor that claims to have suffered damages because of the conduct of another. The Crown may pursue a lawsuit on the government’s behalf but otherwise plays no role in the civil courts. The party alleged to have caused the damage is the defendant, not the accused, and civil defendants are sued, not charged or prosecuted. As in criminal law, the judge makes a finding—but the defendant is not found guilty or convicted in the criminal law sense. Instead, the losing party is found to be negligent, to have breached a contract, or to be liable to pay damages. Finally, an award of damages is not a fine, and judges order civil defendants to pay damages, they do not impose a sentence. tort any wrong that one party suffers as a result of the actions or omissions of another plaintiff the person who brings a lawsuit against a defendant or respondent; also known as a claimant, a petitioner, or an applicant defendant the person, company, or organization that defends a civil action taken by the plaintiff; also a person facing criminal charges finding the result of a court’s or jury’s deliberations 129 Several major types of tort exist. Nuisance is a claim that can be made against someone who interferes with a person’s right to enjoy their property. Homeowners living beside a business that operates around the clock or produces a stench could sue for damages or for an injunction to stop the disruptive noise or odour. Battery is the tort of assault and enables someone who is beaten to seek damages for actions that would also support a prosecution under the criminal law. Defamation, a tort with a direct impact on writers and their work, enables persons who have been maligned in print or in a broadcast to sue for the alleged damage to their reputation (Chapters 2, 3, and 4 examine defamation law and its implications for journalists). Most torts are based on acts of negligence that cause personal injury, such as traffic accidents and medical malpractice. The courts will assess a defendant’s conduct against the standard of care that is reasonable in the circumstances to determine whether the plaintiff’s claim is valid. Insurance covers most successful claims for negligence, so, although lawsuits may be filed in the names of the individuals involved in a traffic accident or other incident, the legal battle is usually waged between insurance companies. Contracts Whereas tort law applies to everyone, the law of contracts is concerned with the promises and duties that have been agreed to between parties. By one definition, a contract is “an agreement giving rise to legally enforceable obligations binding the parties to it. The factor which distinguishes contractual obligations from other legal obligations is that they are based on the agreement of the contracting parties.”18 So, if Company A agrees to buy a certain quantity of goods from Company B, and Company B fails to deliver, Company A has the legal right to sue the supplier for breach of contract. Most contracts are set out in writing, but the courts will enforce the terms of a valid verbal contract. Remedies The usual outcome of a successful civil action is an award of damages—money to compensate for the injury. Defendants may be found to share responsibility for their own injuries, reducing the amount they can recover as damages. For example, a driver who was not at fault in a car accident will have their damage award reduced if they were not wearing a seat belt to protect themselves. In actions for breach of contract, the defendant is usually ordered to pay damages for the plaintiff’s losses. However, in certain cases, a court may grant the remedy of specific performance, which requires the defendant to fulfill the terms of the contract. Punitive damages may be awarded to punish a party who has acted maliciously or abused the court process. The losing party is usually ordered to pay a portion of the other side’s legal bills, known as an order for costs. Other remedies that a court can impose include an injunction—an order that restrains the defendant party from taking an action likely to cause an injury—and writs of certiorari and mandamus, which are used to review the decisions of officials, administrative tribunals, and lower courts. nuisance excessive or unlawful use of one’s property that causes inconvenience to neighbours or the general public; nuisance is a tort battery intentional, wrongful physical contact with a person without their consent; battery is a tort defamation a tort arising from a false or malicious attack on the reputation of a person; an intentional false communication, either published (libel) or publicly spoken (slander) negligence the tort of neglecting to do something that a reasonable and prudent person would do or doing something that a reasonable and prudent person would not do contract a legally binding agreement between parties obliging each party to do or not do a certain thing damages compensation ordered by a court to someone injured or suffering a loss because of another’s fault or negligence specific performance a court order to fulfill contractual obligations CANADIAN LAW 101 Civil Case Files Small Claims Courts The registry for these courts, which hear disputes involving relatively modest amounts of money (-typically less than $25,000), is usually in the same building as the provincial or territorial court. 130 What’s on File Forms. Forms outline the plaintiffs’ claims and the ruling of the adjudicator. Superior Trial Courts As with criminal cases, documents are filed with the superior court registry in the area where the lawsuit’s allegations occurred. A civil action based on events in more than one jurisdiction may be filed where the plaintiff or defendant resides. Files are indexed under the names of the plaintiff and defendant or, in the case of an application, under the names of the applicant and respondent. What’s on File Statements of claim or originating notices. These documents set out the plaintiff’s version of events, the allegations against the defendant, and the court order or damages sought. Demands for particulars. Before responding to a lawsuit, a defendant may formally demand more details of the plaintiff’s allegations. Statements of defence. Defendants have a deadline for filing a defence, which refutes the allegations and provides their version of events. Counterclaims. Defendants may countersue plaintiffs, alleging wrongdoing and seeking their own order or damages. Lists of documents. As part of the civil trial process, each side must disclose all documents relevant to the claim. Lists of these documents are filed with the court in some provinces, but the documents themselves remain private until produced as evidence at trial. Affidavits. These are the sworn statements of witnesses, setting out the facts as the witnesses see them. Transcripts of examinations for discovery. Although discovery hearings are held in private, transcripts may be filed with the court to support an application for an order forcing a witness to answer questions or to produce documents. Motions. This type of application is made to a chambers judge to resolve legal disputes that may arise during the pre-trial stage. Rulings. In most civil cases, the judge will hand down a written ruling, which will be incorporated into the file and, in most cases, posted online. Once a verdict has been reached, the judge may be asked to make a further ruling on the legal costs that the successful party is entitled to recover from the losing side. Procedure in the Civil Courts The rules that determine how a lawsuit unfolds are complex and vary from jurisdiction to jurisdiction. The following is an overview of the major stages of a civil case (see Figure 7.3). Pleading Stage All civil actions start with an exchange of documents known as pleadings. In the movie A Civil Action, actor John Travolta portrays a plaintiff’s lawyer who likens a lawsuit to a battle and observes that all battles start with a declaration of war. The document in which a plaintiff launches a lawsuit, and declares war, is known as a statement of claim. It names the plaintiff (or plaintiffs, if there is more than one), identifies the defendants, sets out the facts and allegations that form the basis for the claim, and indicates the types of damages or other remedies sought from the court. Those named as defendants face a deadline for filing a statement of defence. This document recites the plaintiff’s allegations, denying some or all of them, and may set out the defence’s version of events. Failure to file a defence may lead a judge or court official to grant an order known as a default judgment, which requires the defendant to pay damages to the plaintiff. A defendant may also file a demand for particulars, a notice calling on the plaintiff to provide punitive damages damages awarded in civil cases to punish a defendant whose actions have been found to be malicious or high-handed; also known as exemplary damages costs a court can order legal costs to be paid by the loser to the winner after a civil trial is concluded; the court has the final say on costs and may decide not to award costs injunction a court order prohibiting a party from doing something (restrictive injunction) or compelling them to do something (mandatory injunction) pleadings the part of a civil case in which the parties set out, in writing, the facts and legal arguments that support their position statement of claim the plaintiff’s pleading in an action; the statement of claim outlines the plaintiff’s allegations against the defendant as well as the relief the plaintiff seeks statement of defence the defendant’s pleading in an action in response to the plaintiff’s statement of claim default judgment judgment entered against a party who fails to defend against a claim brought by another party— for example, a defendant who fails to submit a statement of defence 131 further information about the allegations before a defence is filed. A defendant may file a counterclaim that seeks damages from the plaintiff for alleged wrongdoing, launching a parallel lawsuit in which the defendant is the plaintiff. A defendant who contends that another person or company is fully or partially to blame for the plaintiff’s loss would file a third-party action, a lawsuit bringing those parties into the litigation. FIGURE 7.3 The procedure in the civil courts. Civil cases take one of two routes: trial or application. The procedure for each is outlined below. Trial Route Most civil cases are set for trial in the superior court, where there is no limit on the amount or type of damages that can be awarded to a successful plaintiff. (Small claims courts, in contrast, hear actions involving smaller amounts of money—less than $25,000; the limit varies depending on the jurisdiction. Lawyers act as small claims adjudicators, there is little paperwork involved in pursuing a claim, and most parties argue their case without lawyers.) At the superior court level, after the pleading stage, the two sides exchange documents relevant to the claim, such as letters, internal memos, and experts’ reports. Although a description demand for particulars a formal request from lawyers for further and better details of an allegation of fact made in a pleading counterclaim a defendant’s claim against a plaintiff, served at the same time as the defendant’s statement of defence; the counterclaim, however, asserts an independent cause of action and doesn’t act as a defence against the original claim third-party action an action by a -defendant against a person who is not already a party to the action of these documents may be filed with the court, the documents themselves usually remain private unless they are produced during the trial. Each party has the right to question the opposing side’s witnesses at examinations for discovery—private sessions usually held in a law firm’s boardroom. Witnesses testify under oath, and the examinations are transcribed. However, the transcripts remain private unless they are produced at trial or filed with the court as part of a pre- trial motion. Examination for discovery is the fact-finding stage of a lawsuit in which parties and their lawyers can assess the strength of each side’s case. Although some lawsuits proceed to trial, most are withdrawn or end with an out-of-court settlement. The facts that emerge at discovery, mounting costs and legal fees, and the prospect of losing at trial—all are factors that bring litigants to the negotiating table. Only a small percentage of lawsuits go to trial. Courts in some provinces require litigants to take part in pre-trial conferences, chaired by a judge, to explore the possibility of a settlement. In addition, mediation may be used to resolve the dispute. Details of an out-of-court settlement may be filed with the court, but it is more common for both sides to agree to keep the terms confidential. If there is no settlement, the case will proceed to trial. Civil trials follow the same pattern as criminal ones: the plaintiff’s case is presented first, the defence has an opportunity to cross- examine each witness, and the roles are reversed once it is the defence’s turn to call evidence. Judges alone preside over most trials, but civil juries must be empanelled to assess certain claims, such as defamation, malicious prosecution, and false imprisonment. Verdicts can be appealed to the provincial or territorial court of appeal, and a further appeal to the Supreme Court of Canada may be possible if the case raises an important legal issue. Application Route Application is the simpler of the two procedures and arises when the party launching the application (the applicant) seeks a declaration of a right or entitlement, the enforcement of a Charter right, or an interpretation of a statute. This route is also used in emergencies when a swift decision is needed to prevent irreparable damage, such as the demolition of a heritage building or the broadcast of material alleged to be defamatory. In such cases, the court may agree to hear the initial application ex parte—without the party being sued (the respondent) being notified or present. In applications, the focus is on legal issues, not facts. Legal arguments are presented to the court in written briefs, called factums, and lawyers usually confine themselves to a brief review of their positions when the application is heard. Evidence is presented in the form of affidavits— written statements of witnesses sworn under oath. The affidavits set out information relevant to the application and are filed with the court. If the opposing party challenges statements made in an affidavit, the person who swore it may be required to face cross-examination in court. Superior court judges hear applications in chambers, a courtroom proceeding that is open to the public. Because the issues are usually straightforward and the parties are anxious for a resolution, judges may deliver an oral decision and release a written version at a later date. The losing side has the right to appeal a chambers ruling to the court of appeal. Applications may also arise in the course of litigation bound for trial. Either side involved in a lawsuit may file an interlocutory application asking a chambers judge to resolve a legal dispute. For example, a defendant may seek to quash a lawsuit as frivolous or either side may ask a judge to require disclosure of certain documents or to order a reluctant witness to answer questions at discovery. Criminal and Civil Law: A Summary The civil law deals with private disputes that may ultimately be resolved in the courtroom and, in some cases, have the potential to affect the rights of all Canadians. Criminal cases attract greater public attention because of the sensational nature of acts of violence and the wider impact of 133 crime on society. The next chapter focuses on how journalists can ensure that news reports on the criminal justice system are accurate, fair, and properly reflect the legal and constitutional principles involved. In the 1920s, British lawyer and politician Gordon Hewart observed that “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”19 To this end, Canada’s courts are exposed to media and public scrutiny so citizens can monitor the conduct of judges and juries, prosecutors and police officers, and lawyers, witnesses, and defendants.