Nova Scotia Domestic Violence Action Plan Update 2012
Domestic Violence Action Plan
On Nov. 20, 2012, Justice Minister Ross Landry announced the Transgendered Persons Protection Act. This Act makes it clear that Nova Scotians cannot be denied a job, a place to live or service at a business because they are transgender. Nova Scotia is the fourth jurisdiction in Canada to include a specific reference to gender identity in its human rights legislation.
1. What is an investigation and laying a charge?
When a crime is reported to the police, they do an investigation to determine if there is enough evidence to be able to charge any person with the offence.
Once a criminal charge is laid at the court by the police, the person who is accused of the crime is referred to as the accused or the defendant. The person who reported the crime is referred to as the complainant. Sometimes the complainant is not the same as the victim who suffered injury or harm as a result of the crime.
Although individual citizens have the right to lay a criminal charge, this is unusual as s/he would be personally responsible for collecting evidence and presenting this private prosecution case in court.
2. Will the presenting accused be arrested?
The police may arrest the accused at the time of the incident or when they inform the accused of the criminal charge, or they may give the accused a summons which is an order to appear in court at a certain time to answer the charge.
The accused person is usually released from custody within 24 hours after arrest. The judge may not release an accused if either the public or the victim's safety is threatened or if there is a likelihood the accused may not appear for trial.
Sometimes the accused will be released on an undertaking or recognizance with conditions about staying in a particular area, having no contact with the victim or others, or not using alcohol or firearms. If the accused breaks any of the conditions, they can be charged with a breach and may be taken into custody.
3. Can charges laid by the police be dropped or changed?
Only the Crown attorney can withdraw charges. This may happen for a number of reasons but is usually because the Crown attorney determines that there is not enough evidence for the accused to be convicted (found guilty) of the charge. The Crown attorney may also reduce the charge by accepting a guilty plea by the accused to a less serious charge rather than proceeding with a trial on the more serious charge.
4. What are the steps in the court process?
The number of steps in the process depends on the seriousness of the crime and whether the accused person pleads guilty or not guilty. The entire process may be completed in a number of days if the accused pleads guilty, or it can take several months, or even years. There are often lengthy periods between each court hearing.
Arraignment - The charge is formally read to the accused in court. The judge asks the accused if they understand the charge and whether they plead guilty or not guilty. If the accused does not have a lawyer (defence counsel) the judge may adjourn (postpone) the arraignment to another date to allow the accused time to get legal advice.
If the accused is not pleading guilty and it is a very serious offence, they can elect (choose) that the case be heard in Provincial court before a judge or in Supreme court before either a judge alone or a judge and jury. If the accused chooses Supreme court, they may have a preliminary hearing.
If the accused pleads guilty at the arraignment, or any other court appearance, the judge may sentence the accused immediately or set a date for a sentencing hearing.
Preliminary hearing - The Crown attorney outlines the case to the judge who decides whether there is enough evidence to send the case to trial. The Crown may call witnesses, including the victim, to give evidence. The defence does not have to present any evidence.
Trial hearing - All of the evidence is presented to a judge alone or a judge and jury to determine the guilt or innocence of the accused. The judge or jury may take hours, days, or much longer to reach a verdict (decision of guilt or innocence).
Sentencing hearing - The judge determines an appropriate sentence for the offender (accused who has been determined guilty). The overall purpose of the sentence is the protection of society, not revenge. The sentence is intended to discourage the offender and others from committing crimes and to rehabilitate or reform the offender.
Appeal hearing - The defence or the Crown may appeal (challenge) the verdict or the sentence. The appeal hearing involves judges, defence counsel, and the Crown and is usually limited to a review of the law and written documents, including transcripts (written records) of the court proceedings. It is unusual for witnesses to be called to give evidence at an appeal hearing.
5. What is the role of the Crown Attorney?
As a criminal offence is viewed as an offence against the state or society as a whole, the Crown attorney (also referred to as the Crown or the Prosecutor) represents the interests of society not just the victim. The Crown attorney is not the victim's lawyer. It is the Crown attorney's job to seek the truth by presenting all of the evidence, even evidence that may support the accused. It is the Crown's responsibility to prove the guilt of the accused beyond a reasonable doubt.
6. What is meant by 'guilt beyond a reasonable doubt'?
Reasonable doubt refers to the level of proof that the judge or jury needs in order to find a person guilty. Although absolute certainty is not required, probable (likely) guilt is not enough to convict (find guilty). If the judge or jury has any reasonable doubt that the accused is guilty, based on the evidence presented in court, they must acquit (find innocent) the accused. Criminal courts demand the highest standard of proof because they can take away a person's freedom.
The accused has the right to full answer and defence against criminal charges, including the right to legal representation, full disclosure of the Crown case, and cross-examination of witnesses. The accused may represent him/herself in the proceedings or have a lawyer. The defence ensures that the rights of the accused, who is presumed innocent unless proven guilty by the Crown, are protected. The accused is not required to prove his or her innocence. The Provincial Victim Services Program, Nova Scotia Department of Justice, provides information and assistance to victims of crime. This is a no-cost service.
The Crown must disclose (share) with the accused all relevant information gathered in the investigation so that the accused can fully defend him/herself against the charges.
Accused persons are assumed to be innocent at all stages of the criminal justice process unless they admit guilt or are proven guilty by the Crown. This means that the accused has the same rights (for example, the right to freedom rather than being held in custody) as any other citizen until s/he is determined guilty in court of the offence.
10. What is the role of the judge?
The judge has authority over the courtroom and the proceedings. Based on the evidence presented in court, the judge decides whether the Crown has proven the charge against the accused. In a jury trial, the judge instructs (gives direction to) the jury on what they should consider in determining the guilt or the innocence of the accused. It is the judge who decides the appropriate sentence for offenders.
The jury, which consists of 12 members of the public, listens to the evidence, applies the law (as stated by the judge) to the facts of a case and makes a decision on the guilt or innocence of the accused.
The court clerk or court reporter makes sure that everything necessary for the trial is in place. S/he reads the charge and gives the oath or affirmation (promise or declaration to tell the truth) to witnesses before they testify.
The sheriff has the responsibility for the security of the courtroom. The sheriff may sit close to the accused during court proceedings and may also bring the witnesses into the courtroom when it is their turn to testify (give evidence).
Witnesses are persons who testify in court because they have some information about the case. A witness may volunteer to testify or may receive a subpoena (a legal document which orders him/her to come to court at a certain time to testify). A witness who does not obey a subpoena may be arrested and held in custody. Usually a witness is only permitted to be in the courtroom to hear the testimony of other witnesses once his or her own testimony has been completed. This is to ensure that one witness is not influenced (affected) by what another witness says in court.
Court hearings are to be fair and open to public examination; therefore, hearings are rarely closed. The public and media may sit quietly in the seats behind the rail that divides the public section from the court section.
Television and still cameras and tape recorders are allowed in the courthouse but they are not allowed in the courtroom unless the judge agrees. Sometimes the judge will order a publication ban which does not allow some of the information presented in court to be published in the media.
13. Can the media publish the identity of victims and witnesses?
Yes, unless a ban on publication has been ordered by the judge. In sexual assault cases, victims and witnesses under the age of 18 have the right to a publication ban upon request. Although an application can be made to the judge for an order to ban publication of the identity of other victims or witnesses, these orders are rare as the judge must be satisfied that the order is necessary for the proper administration of justice.
The Crown attorney presents his or her case first and calls all witnesses for the Crown. The Crown attorney will be the first to ask Crown witnesses questions. The defence lawyer can then cross-examine (question) the witness. The Crown attorney has the right to redirect (ask further questions to clarify).
The defence may present its case after the Crown has presented all its evidence. The defence does not have to present any evidence for the accused. If the defence does present evidence, the Crown attorney may cross-examine witnesses called by the defence.
The Crown and the defence will make an opening statement before they call witnesses, if it is a jury trial. Both the Crown and defence will give closing arguments.
If you are a direct victim of the crime, the Crown attorney will usually call you as a witness against the accused, even though you have provided a written or video-taped statement to the police. If you receive a subpoena, you must testify in court even if the accused is your spouse. If you are the victim of a sexual assault and the accused or defence counsel makes an application for production to see private records about you (for example, personal journals, counselling or medical records, social service or employment records), you must be informed of the application and are permitted to speak, or have a lawyer speak for you, at the application hearing.
Victims of crime have the right to have a Victim Impact Statement considered by the judge when deciding a sentence for the offender. It is a written statement, in your own words, describing how the crime has affected you. You can present it in writing only or read it at the sentencing hearing. You can be questioned in court on any of the information in the statement.
If you are not a witness in the court proceedings, you can attend all court hearings. If you are expected to be called as a witness, you usually will be asked to stay outside of the courtroom until after you have completely finished giving your evidence.
The accused and the witness for the defence may also be in the waiting area. If you are uncomfortable or feel unsafe, arrangements can be made for you to wait in a separate area.
Information in this pamphlet is not meant to replace legal advice. If you have a specific legal problem, you should talk with a lawyer.