Chapter 7

Pretrial Criminal
Procedures

Copyright © 2004 Nelson, a division of Thomson Canada

Why are pretrial
procedures important?
 Popular media focuses more on
trials than on pretrial activities.
 Most criminal cases do not go to
trial.
 Pretrial procedures describe the
experience of the vast majority of
people involved in a criminal
event.
 Right to privacy is not addressed
in the Charter of Rights and
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Charter of Rights and
Freedoms (1982)

 How do we balance police

protection of the society with
suspect’s right to privacy?

 Privacy is not addressed in the

Charter.

3
Investigative
Detention
 Person may be held for questioning
without grounds for an arrest.
 Legality depends on
– Importance of the issue.
– Amount of intrusion.
 Used to
– Get evidence which will allow for
warrantless search.
– Stall for time to get warrant.
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Arrest
 Restraint of liberty.

 Suspect must be informed.

 Police must have reasonable or

probable grounds.

5
Arrest Without a
Warrant
 May be used if
– Crime is in progress.
– Suspect is about to commit an indictable offence or
– Has an outstanding warrant or
– Is known to have committed an indictable offence.

 Suspect must be brought before a justice of

the peace
– Within 24 hours if possible.

 Most suspects are not arrested.

– Given a notice to appear or summonsed.

6
With a Warrant
 A warrant is used if appearance of the
suspect cannot be compelled by a summons.

 Police must lay an information with the

justice of the peace to obtain a warrant.

 Suspect must be brought before a justice of

the peace without “unreasonable delay”
(normally 24 hours).

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Custodial Interrogation
 The suspect must be
informed of right to
remain silent and
retain counsel.
 Most give
statements to police,
both verbal and
written, if asked.
 Voluntary
statements may be
used as evidence. 8
Interrogation
Strategies
 Conditioning strategy
– Encourage suspect to trust
questioner.
 De-emphasizing strategy
– Focus on empathy for
victim, rights are
unimportant.
 Persuasion strategy
– Encourage suspect to talk
so that his side can be
heard.
May result in false
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Right to Counsel
 Suspect has right to retain
and consult privately without
delay.
– Applies only if person is under
arrest, not if person goes
voluntarily.
– Police may continue innocuous
questioning while waiting for
counsel.

 Right to counsel may be

waived. 10
Lodging a Complaint
 Suspect
– Is taken to police station for indictable
offences; otherwise released on own
recognizance.
 Police
– Record criminal charges and other
information.
– Swear it before justice of the peace (if
arresting without warrant).
 Justice
– Assesses worthiness of the charge.
– Mainly rubber-stamped.
 Suspect may be photographed and
fingerprinted.
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Interim Release
Suspect may be
 Released on own recognizance
(especially for summary offences).

 Placed in jail cell.

 Referred to remand centre.

If suspect pleads guilty, sentencing date
is set, otherwise trial preparations
begin. 12
Detention
 In most cases, the prosecution must
show why person should be held.
– E.g. Ensure suspect will show up, public
protection.
 Detention is required for:
– Current and past bail violations.
– Suspect who is not a resident.
– Drug violations.
 To avoid detention in these cases, the
suspect must show cause.

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Surety and Bail
 Surety
– An individual agrees to
monitor suspect, forfeit a
sum of money if suspect
fails to appear.
 Bail
– Money is left with the court
to ensure the suspect
appears for trial.
 Continued detention must
be justified. 14
 Bail Reform Act (1972)
 Response to studies showing that
– Bail discriminates against the poor.
– Most people do show up as required.
 In most cases, police must
– Summons rather than arrest.
– Release on own recognizance, promise to
appear, etc.
 Unsecured bail
– Payable upon default.
 Secured bail
– Full amount up front to be refunded.
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Research on Bail
Practices
 Amount of bail may be equal to a
detention order.
 Aboriginal people (Manitoba) are more
likely to be placed in detention and for
longer periods.
 Blacks in Ontario are more likely to be
remanded to custody.
 Negative personality assessments by
Toronto police increase denial of bail.

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Search and Seizure
 Search of a place
– Requires a warrant, except when arresting
suspect.

 Search of a person
– Is covered by common law.

 Invasive search
– Requires special authorization.
– E.g. blood sample.

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Search Warrants
 Warrant
– Obtained from justice of the peace.
– Contains list of items.
 Police may seize items not listed but
related to offence.
 Law Reform Commission found that
– Few guidelines were followed for warrants.
– Justification was mainly after the fact.
 Searches must be reasonable and
specific.
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Warrantless Searches
 Warrantless searches may be okay in
exigent circumstances if
– There is compelling evidence of crime.
– The source is credible.
– The police investigate the information.
– The suspect’s past record and reputation
are considered.
– To prevent death or bodily harm.
– To prevent imminent loss or destruction of
evidence.
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Searches During Arrest
 May be conducted for
– Protection of police.
– Protection of evidence.
– Minor detail.
– Could be searched at police station.

 Search must not be humiliating or

abusive.

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Other Warrantless
Searches
 Motor Vehicles may
be searched if related
to arrest.
 “Plain view” (e.g.
drugs, weapons, stolen
goods).
 Consent searches
must be voluntary and
based on informed
consent.
Searches must be based
on “reasonable
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Electronic Surveillance
 Includes wiretapping, hidden
cameras, etc.

 Applications are rarely rejected.

 Most deal with conspiracy to commit

drug offences.

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Stay of Proceedings
 May be ordered by a judge in
cases where
– There is a significant time lapse
between the offence and the laying
of charges.
– The Accused's rights to fundamental
justice are jeopardized.

 Does not apply to sexual 23

Legal Aid

 First legal aid

program, Ontario
1967.
 Federal programs
began in 1973.
 Most rapidly
increasing cost of
the criminal
justice system.
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Who is eligible for
legal aid?
 Limited to
– On social assistance or below
poverty line.
– Indictable offences or loss of
livelihood.
 Eligibility
– Varies by province.
– Less representation for native
people who are more often charged
with minor offences. 25
Types of Legal Aid
 Judicare model
– Legal aid certificate to select own lawyer.
– Results in more jail or absolute discharges.
 Staff System
– Public defender program.
– Salaried lawyers, often just out of law
school.
 Mixed approach
– Select private or staff lawyer from a panel.
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Research on Legal Aid
 Type of legal aid does not affect
conviction rates or severity of
sentence.
 Public defenders tend to encourage
guilty pleas.
 Limited access means no real
choice over representation.
 Aboriginal clients feel inadequately
represented.
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