Criminal-Defense Articles > Bail, Defendant Protection and Pardon

Bail Procedure
In the whole of United States, the procedure in criminal cases is substantially the same. The person suspected of crime is taken into custody by a police officer, sometimes by service of a warrant of arrest. If the crime is serious, the case is first presented to a grand jury, which draws up an indictment if there is sufficient evidence to justify trial; otherwise it discharges the accused. While action is pending, the party charged may be released on bail. Trial is by jury or before a judge alone if a jury is not required, or if the defendant consents.

The government presents its case (i.e., attempts to prove the allegations of the indictment), through the public prosecutor, usually called the district attorney, while counsel that he or she has chosen or that the court has appointed represents the accused. The legal presumption of innocence puts the burden of proving guilt beyond a reasonable doubt on the prosecution, unless, of course, the defendant pleads guilty to the charge.

Defendant Protection
The Special rules restricting the introduction of evidence in criminal trials further protect the defendant. If the accused is found or adjudged innocent, he or she is discharged; if the accused is found guilty, the judge pronounces sentence. If the defendant is convicted, an appeal may be filed. However, the prosecution cannot appeal an acquittal.
This procedure is confined to felonies; misdemeanors, being relatively less serious offenses, are handled in a more summary fashion. It is generally accepted that no court will enforce the criminal law of another jurisdiction, but by means of extradition a fugitive from justice may be delivered to the competent authorities.

Criminal Records and Pardon
A criminal record is a serious concern if you're facing a criminal charge. A criminal record may affect your immigration status, an application for citizenship, employment, and international travel.

Remember, unless a Pardon is granted your criminal record is permanent. An application for a Pardon can be made three years after the completion of the sentence for offences those are considered less serious. For more serious offences, the waiting period is five years following the completion of the sentence.

The Pardon application process is long and can take over two years before a final decision is rendered. For offences those are considered less serious, once the pre-conditions are met, the Pardon must be granted. This is not so for indictable offences. In these cases, the granting of a Pardon is a discretionary matter. This discretion is exercised based on a finding of good conduct of the applicant.

Criminal records are not destructed along with the granting of a Pardon. The record of convictions is to be kept separate and apart from other criminal records upon the granting of a Pardon. The record shall not be disclosed nor shall the existence of the record or the fact of the conviction be disclosed.

Restrictions on Pardon
A Pardon has limitations too. First, the Criminal Records Act, the authority under which Pardons are granted, only applies to records of the RCMP, and departments or agencies of the Government of Canada. Therefore, records kept by other bodies such as municipal police forces may not be in compliance with the same restrictions.

Secondly, under certain conditions a Pardon may be revoked or cease. Thirdly, non-Canadian authorities are not obliged to recognize a Canadian Pardon. For instance, U.S. authorities at the Canada-U.S. border may disallow entry to the States based on a Canadian conviction despite the fact that it has been pardoned.

However, if a person has been granted a discharge, an application for a Pardon is not required. Following a finding of guilt by the court, a discharge may be granted. It can either be absolute or conditional.

Conditional discharges are accompanied by periods of probation. With a discharge, there is no conviction. Therefore, one can rightly state that he or she has not been convicted of an offence. However, the discharge does result in a criminal record.

Total Liberation
In the case of an absolute discharge, all reference to it is removed from the system after one year and its existence cannot be disclosed. For conditional discharges, the waiting period is three years. This is an automatic process and does not require a formal application.
Always consult a criminal lawyer to gain a complete and accurate understanding of how a criminal record may affect you.

Further reading resources

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