Chapter 3. The Roles of Criminal Justice System Participants

Self-represented accused persons often want to speak to someone in an effort to get help with the charges they are facing. But who should they speak to, and who can do what? Who can give them advice, and who has the power to make the charges go away? This chapter explains the roles of the justice system participants: the people impacted by the justice system, and the professionals working within it.

The Suspect A suspect is someone the police believe may have committed a criminal offence. Suspects have not yet been charged with a criminal offence.

The Accused The accused is the person who has been charged with a criminal offence by the police. The accused is often placed under bail conditions, is subject to the authority of the court, and must attend court when required to do so. The accused must go through the court process before the charges can be resolved.

The Victim, or Complainant The victim is the individual who has been allegedly harmed by the accused’s criminal act. Courts often prefer to call the victim a complainant, because the victim is often the person who made the complaint to the police. While most victims have told the truth to the police about what happened, sometimes the complaint is false.

Witnesses A witness is someone who saw, or has information about, a criminal offence. Witnesses can be required to come to court by a legal order called a subpoena. Witnesses are required by law to testify, which means giving their evidence in court, under oath, telling a judge what happened. Witnesses are obliged to answer questions from both the prosecutor and defense lawyer.

The Police The police are the investigators. In all but a tiny proportion of cases, the police investigate the offence, and decide whether to lay charges against an accused person. The police have a number of roles, including protecting the public, investigating offences, gathering evidence, and making decisions to arrest and charge people. The police, once they arrest an accused, have the power to release the accused on conditions. If an accused agrees to those conditions, he or she will be released, and is then legally required to follow those conditions. If an accused does not agree to those conditions, he or she will have to go to a bail court to seek release from custody before trial. The police do not manage the prosecution. Once a charge is laid, the police do not have the authority to decide what to do with the charges. They do not decide to continue or discontinue the prosecution, and do not decide how the prosecution is conducted. They do, however, work with another justice official: the prosecutor. An accused person who wants to make a criminal complaint of their own, would normally go to the police to do so.

The Prosecutor, also known as the Crown Attorney Prosecutors in criminal cases are lawyers who work for the government. Federal Prosecutors work for the Canadian government, and prosecute federal offences, primarily drug offences under the Controlled Drugs and Substances Act. Provincial prosecutors work for provincial governments like Ontario, and prosecute all offences under the Criminal Code. Provincial prosecutors deal with everything from homicide cases, to sexual assaults, to drinking and driving cases. They deal with every aspect of a criminal case, from bail hearings, to sentencings, to appeals. Prosecutors have several roles. They decide whether to continue with a prosecution once a charge has been laid, and have the power to ‘withdraw’ charges, which ends the case. They typically will proceed with a prosecution only where there is a reasonable prospect of conviction or substantial likelihood of conviction. Prosecutors will also only proceed with a prosecution if there is a public interest in doing so. They do not prosecute purely private matters. Private disputes, such as allegations that a business has breached a contract, or divorce matters, are dealt with by the civil courts and family courts, and not criminal courts. Prosecutors also have the power to decide what sentences (a sentence is a punishment) the government should ask for, but they cannot impose the sentence. Only a Judge has the power to decide what sentence should be imposed. Prosecutors are also responsible for conducting the case through the court system. They negotiate with defense counsel and self-represented accused to resolve cases. They are responsible for providing accused persons with ‘disclosure’ – which is a copy of all the evidence the Prosecutor has in their possession. They represent the state at every court appearance, including at guilty pleas, and at trials. Most importantly, the prosecutor bears the burden of proof. This means the prosecutor has to prove the case against the accused. Accused persons do not have to prove anything. The Prosecutor has to prove that an accused is guilty. The Accused does not have to prove that he or she is innocent. The Prosecutor’s role will be discussed in many chapters of this book. Self-represented accused persons may need to speak to the Prosecutor for a number of reasons, including: • Seeking the prosecutor’s agreement to amend bail release conditions; • Obtaining disclosure; • Trying to persuade the prosecutor to withdraw charges; • Negotiating a guilty plea or other resolution; • Discussing the issues to be raised at trial. The prosecutor and their staff cannot give self-represented accused legal advice. This is because the prosecutor is prosecuting the accused, and so would be in a conflict of interest if suggesting to the accused what the best course of action might be. They cannot advise self-represented accused about what to do, whether to plead guilty, or what evidence they might need to lead at trial. A prosecutor can give information to the self-represented accused about the legal process, but cannot advise the accused what steps to take.

Defense Counsel The defense counsel is usually a lawyer, but can sometimes be a paralegal. The Defense lawyer’s job is to represent an accused person, to advise the accused about the legal process. Typically, the involvement of a defense counsel gives an accused a significant advantage in a criminal case. Defense lawyers can help the accused with: • Information about the court process; • Information about defenses that may be available; • Information about collateral consequences of a criminal charge, such as immigration and employment consequences; • Information about the likely outcome of a case; • Information about the likelihood of a conviction at trial; • Information about sentencing options, both on a plea, and after trial; • Information about alternatives to a guilty plea, such as diversion programs; • Advice about what course of action to take. In and outside court, Defense counsel may: • Appear instead of the accused for routine appearances • Make submissions on behalf of the accused to the judge; • Seek to obtain court orders that will help the accused; • Make applications to change bail conditions; • Bring applications on behalf of the accused, such as applications to exclude evidence; • Negotiate with the prosecutor on the accused’s behalf; • Interview witnesses before trial; • Question witnesses at trial; • Seek out evidence that may help the accused. Generally, the Defense lawyer has the authority to decide how to conduct the case. However, accused persons are the only people who can make some key decisions: only the accused can decide whether to plead guilty or not guilty; only the accused can decide whether to testify at trial. A self-represented accused would want to speak to a defence counsel if they wanted to: • Obtain representation in court; • Get advice about how to best conduct the case; • Obtain legal advice about the likely outcome of the case, and about the potential defenses available.

Duty Counsel Duty counsel are lawyers who attend court to help unrepresented accused persons, and to act as agents for other lawyers. They are paid for by the state, and typically provide summary legal advice to accused persons. They perform some of the functions of a defense counsel, but typically have much less time to spend with individual accused persons, and provide more limited services. As an example, duty counsel rarely interview witnesses, and many do not conduct trials. For many self-represented accused, their first contact with a lawyer will be with duty counsel at court.

Court Clerk The court clerk is a justice official whose job it is to manage the paperwork associated with court proceedings. The court clerk keeps the information (charging document), and any evidence associated with the case. The court clerk also prepares orders for judicial signatures. A self-represented accused would contact a court clerk or other court services official if they wanted to view court documents or evidence filed in court.

Court Reporter The court reporter is a justice official whose job is to keep a recording of everything that happens in court. Every word that is said in court should be recorded. The record that is created allows people to know exactly what happened in court. The recording is often turned into a transcript (a written copy of the recording), by a transcriptionist. A self-represented accused would contact a court reporter or other court services official if they wanted to order a recording or transcript of the proceedings.

Justice or Judge The Justice or Judge is the presiding officer in court, and is usually referred to as “Your Honor”, or “Your Worship”, though local practices vary. The Judge controls the proceedings and decides when matters will be scheduled. The Judge hears sentencing proceedings and trials. The Judge decides whether an accused person is to be found guilty or not guilty, after a judge-alone trial. On sentencing hearings, after hearing from the prosecutor, defence and accused, the Judge decides what the sentence will be. There are different levels of judicial officers. Their precise roles may vary from court to court. • Justices of the Peace are the lowest level of judicial officer. They often preside over provincial offences courts (such as traffic tickets), they preside over bail hearings in some jurisdictions. They also often preside over case management courts, in which accused persons must appear until they are ready to either enter a guilty plea, or enter a not guilty plea and have a trial. In some provinces, like Manitoba, justices of the peace do not preside over bail courts. • Provincial Court Judges are the next level of judge. These judicial officers are appointed by the province. They hear all except the most serious of criminal matters, both for guilty pleas and for trials. They also deal with child welfare matters and are also the Judges who hear “preliminary hearings” in serious criminal matters. Preliminary hearings will be explained later. • Superior Court Judges are the highest level of trial Judges in Canada, and are appointed by the Federal Government. They also hear some appeals from Provincial Court Judges’ decisions. An appeal is a claim that a judge has made a legal or other error in an accused persons’ case. Superior Court Judges may sit alone, or may sit with a Jury, and typically hear only the most serious criminal matters. • Court of Appeal Judges. The judges of the provincial courts of appeal hear all appeals from matters tried in the Superior Court. • Supreme Court of Canada Judges. The Supreme Court of Canada is the highest court in the land. The Supreme Court hears appeals primarily from the Courts of Appeal. As a self-represented accused, you are most likely to appear in front of Justices of the Peace and Provincial Court Judges. Very few self-represented accused have their trials or pleas heard in front of a Superior Court Judge and Jury. Judges only speak to self-represented accused, lawyers and prosecutors in court.

Jury Very few self-represented accused will appear in front of a Jury. In a Jury trial, the jury are considered the judges of the fact. Juries consist of 12 ordinary people, non-lawyers. They decide what witnesses to believe and not to believe, and they decide whether the accused is to be found guilty or not guilty. A Superior Court Judge instructs the jury on the law, and the Superior Court Judge will decide upon a sentence if the accused is found guilty.

Conclusion A self-represented accused may need to speak to a number of justice officials during the course of their case. They are likely to communicate with, duty counsel, defense counsel, prosecutors, as well as the judge. It is very useful to keep in mind what each justice official can, and cannot do, when speaking to them.