Being charged with a criminal offence can be traumatic and upsetting. For the accused and their family, Canada’s criminal justice system may seem complex and confusing. While seeking advice from an expert criminal defence lawyer is the best thing you can do, knowing about criminal trial proceedings can prepare you for what’s to come.
This post takes you step by step through the Canadian criminal trial process so you know exactly what to expect and when to expect it.
Criminal Case Proceedings – A Step-By-Step Approach
Your court proceedings depend on the nature of your offence and the seriousness of the charge. For example, a first-degree murder case may require a preliminary hearing to see if there is enough evidence to proceed to trial. The trial procedure for most criminal cases is somewhat similar and involves the same litigation process (investigation, summarizing witness testimony, and so forth).
Arrest
In Canada, the criminal trial process begins with criminal charges and usually an arrest. If the police believe you’ve committed a crime, they may lay charges and put you behind bars. However, they must have strong evidence, including witness statements and various reports, including police, medical or incidental.
Upon being arrested, the accused is either released with an appearance notice, a promise to appear, a summons, on a recognizance, or held in custody until they’re brought before a judge. The document should mention three things – the crime with which you’ve been charged; its nature and severity; and the date, time and place of your first court appearance.
Disclosure
The prosecutors – also known as Crown Counsel – must provide the accused with a copy of the evidence against them. This is called disclosure. It includes copies of police reports, witness statements, your criminal record and statements you made. It may also include relevant notes and pictures. If you don’t get all the documents, you can send a legal notice to the prosecutor asking for them. You can request that the judge at your trial confirmation order the prosecutor to give you the disclosure.
Once you’ve received them, read all the details carefully and decide if you agree with the charges laid against you. Remember that no one is guilty until their crime has been proven in court. Will pleading reduce your sentence? Or should you keep quiet? Only an expert criminal defence lawyer can help you in such situations. They’ll explain your charges, help you understand the disclosure, provide you with viable legal options, discuss sentencing possibilities (if you’re found guilty), and help you decide how to proceed. Never plead guilty or talk to the police without first consulting your defence lawyer.
Your First Appearance
Your first appearance is not a typical trial, and you do not have to provide evidence or prove your innocence in court. Typically held in Provincial Court, it allows you to tell the court how you wish to proceed with your case. You must then attend court at the time and date in your summons notice. Failure to appear means you will be charged with another offence. You may also be arrested and brought to court by police.
In your first appearance, you’ll state whether you need more time to review the evidence or speak to your lawyer. If that’s the case, you may be adjourned and your case rescheduled. If you plead not guilty, the court will set a trial date (for a Provincial Court trial) or a preliminary inquiry (for a Supreme Court trial). If you plead guilty, you’ll have an opportunity to make proper sentencing submissions to the court. Here, you’ll provide details about your background and the circumstances that caused you to commit the crime. For instance, you may explain that you murdered someone in self-defence or because you were threatened.
The Trial
Once all pretrial issues and formalities have been addressed, your trial should proceed on the scheduled date. The trial period will depend on the type and complexity of the offence, the number of witnesses and whether the case is being heard before a judge or jury. While simple low priority cases typically take one to two days, more serious and complicated matters may take days, weeks or even months. In Canada, court trials are open to the public, and a transcript is generated which becomes part of the public record.
On the day of trial, the Crown Prosecutor will summon their witnesses first. You will then have an opportunity to cross examine them to prove your innocence. Since the prosecution goes first, the Crown Counsel must prove to the judge or jury that the charges laid against you are true. To do that, they have to substantiate that:
- you were directly or indirectly involved with the crime.
- you intended to commit the crime.
- all the parts of the crime are true. (There are several parts to a crime.)
If the judge or jury is not convinced about any of these, they can’t find you guilty. In order to convict you, your charges should be proved ‘beyond a reasonable doubt.
Your Defence
Your chance to protect yourself is to cross-examine the prosecution witnesses and prove that their statements are not true or consistent. Here’s how you can do it.
- No-evidence: If the prosecutor fails to provide evidence of part of the crime, you can ask the judge to acquit you of that offence.
- Biased statements: If a prosecution witness is a friend or relative of the victim or doesn’t approve of you, you can argue that they may be lying to harm you.
- Difference in statements: If you have a written copy of the witness’s police statement and they tell a different story in court, you can point this out to the jury.
- Could not see clearly: You can also question the witness regarding whether they were inebriated, wore glasses, were close enough to the crime scene, or if it was too dark or bright for them to see well.
An experienced criminal defence lawyer knows the best line of defence and uses their skills to cross-examine prosecution witnesses. They also play an important role in final arguments and submissions to the court. Once the cross-examination is over, your lawyer can speak to the judge or jury to plead your innocence. They have the dexterity to back their plea with trial evidence or a lack thereof.
The Verdict
The jury or jury gives the verdict after hearing and considering all the evidence and submissions. If you are acquitted of your charges, you can leave the court, but if you’re convicted, you need to wait for the judge to sentence you. You’ll be held in custody until sentencing is decided and declared in court.
If the Crown or accused does not agree with the court’s verdict, they may appeal to a higher court. The higher court has the authority to dissolve the sentence altogether or confirm it. While no new trial is conducted in the higher court, it scrutinizes a case to see if the lower court made a mistake that calls for a new trial.