The Canadian criminal trial process varies somewhat from province to province and can be incredibly complex. In this article, we’ll provide an overview of the prominent components of a criminal trial in Ontario so you can be prepared for what to expect.
We will discuss the steps and components of a criminal trial, including:
- The detention and arrest process
- How bail hearings work
- What the first day in criminal court is like
- What you can expect during disclosure and charge screening
- Crown pre-trials and resolution meetings
- What different verdicts (guilty, not guilty, and stayed charges) mean
- Appealing sentences
And much more. So, whether you’re facing criminal charges yourself or are simply interested in how the Canadian criminal justice system works, read on for a comprehensive overview of the primary components of a Canadian criminal trial in Ontario.
When an individual is detained or arrested by police, they have certain rights that must be complied with according to the Charter of Rights and Freedoms in the Canadian Constitution:
“If you are arrested or detained, you must be:
- told why you have been arrested or detained, and why the police are investigating you,
- told immediately that you have the right to a lawyer,
- told about Legal Aid and your right to free legal advice, and
- allowed to speak, in private, to a lawyer of your choice, as soon as possible, if you ask to do so.”
It’s also important to note that arrest and detention are different. It’s possible to be detained without being arrested. The difference is that you are formally charged with a crime when you are arrested, whereas when you are detained, you may simply be held for questioning.
Next, we will move on to the Canadian process of issuing and screening criminal charges.
If the police decide to move forward with criminally charging someone, a peace officer will prepare and present what is called an Information. This document outlines the specific criminal charges being brought against the accused person. The officer will then swear or affirm that the Information contained in the document is accurate to the best of their knowledge, and a justice of the peace will review the information to decide if there are grounds to issue a summons or arrest warrant, or other next steps.
Upon being charged with most criminal offences in Canada, the police have the power to release the alleged offender with or without conditions.
The three forms of release are:
- An Appearance Notice (also called a form 9)
- A “promise to appear”
- An Undertaking which is given to a Peace Officer or Officer in Charge
These tend to fall under either an appearance notice (also called a form 9) or “a promise to appear” (also called a form 10).
Appearance notices are forms given to an accused person informing them that they are required to appear in court on a specific date and time—issued at the time of the alleged offence by a peace officer who was present.
- “(a) set out the name, date of birth, and contact information of the accused;
- (b) set out the substance of the offence that the accused is alleged to have committed;
- (c) require the accused to attend court at a time and place to be stated in the notice and to attend afterwards as required by the court; and
- (d) indicate if the accused is required to appear at a judicial referral hearing under section 523.1 for a failure under section 496.”
A promise to appear is similar, except a peace officer who was not directly involved at the scene can issue it. Further, a “promise to appear” is given once a person has been processed and formally charged. On the other hand, an appearance notice is given at the scene, and a person is released without needing to attend the police station.
In some cases, the police may release you from custody on what is called an Undertaking (also known as a form 11.1). This document requires you to comply with certain conditions, such as residing at a specific address or abstaining from alcohol, and failure to do so can result in criminal charges.
If you are charged with a crime and held in custody, you will have a bail hearing within 24 hours of your arrest (normally excluding weekends and holidays). A bail hearing aims to determine whether or not you should be released from custody until your trial.
At your bail hearing, the Crown prosecutor presents evidence supporting detention (keeping you in jail), and your defence lawyer presents evidence supporting release. The judge then decides whether or not to grant you bail.
If you are granted bail, this means you are released from custody until your next court date. You could have to pay (known as a “bail bond”) and agree to comply with certain conditions, such as abstaining from alcohol or drugs, residing at a specific address, or obeying a curfew.
If you cannot meet the conditions of your bail, or if you do not show up for your court dates, you may forfeit your bail bond, and a warrant may be issued for your arrest.
This is the first stage of the process, and it happens before you even step into a courtroom. Your lawyer will review the police’s disclosure—the evidence they have against you—to prepare your defence. The prosecutor will also review the disclosure to ensure enough evidence to proceed with the charges. If not, the charges may be dropped at this stage.
The next stage in Canadian criminal proceedings is a Crown pre-trial where your lawyer and the Crown discuss the case and see if there are grounds for a plea bargain.
A plea bargain is an agreement/arrangement between the accused and the Crown that involves the accused pleading guilty to a lesser charge to get a lighter sentence. For example, if you are charged with first-degree murder, you may plead guilty to second-degree murder and receive a shorter prison sentence.
The next step is a resolution meeting if no plea bargain can be reached. This is another meeting between your lawyer and the Crown, but a judge is also present this time. The purpose of these meetings is narrowing the issues in dispute and seeing if the case can be resolved without a trial.
Judicial pre-trials in Ontario are similar to Crown pre-trials, but this meeting occurs between your lawyer, the prosecutor, as well as a judge. The purpose of a JPT is to narrow the issues in dispute, identify what evidence will be necessary at trial, and discuss possible resolutions.
The next step is holding a preliminary hearing when a resolution is still not reached in severe cases.
You have the right to a preliminary hearing (PH) if you are charged with an indictable offence—the more serious offences in the Canadian criminal justice system. The purpose of a PH is to determine whether there is enough evidence to send you to trial.
The preliminary hearing is held in front of a judge, but no jury exists. Instead, the Crown presents its evidence first, and then your lawyer has an opportunity to cross-examine the witnesses. Once all the evidence has been presented, the judge decides whether there is enough evidence to send you to trial.
In the event the judge decides there’s enough evidence, you will be committed to stand trial in superior court. If the judge decides there isn’t sufficient evidence, the charges against you will be dismissed.
If you plead not guilty and the trial continues, you and your lawyer will need to decide whether you want to be tried by a judge alone or by a judge and jury.
When you are charged with an indictable offence, you have the right to choose between a trial by judge alone or by judge and jury. There can be some exceptions to this, however, which you can read about here. If you are charged with a summary offence, you will be tried by a judge alone unless you request a trial by jury.
(Learn more about the differences between summary and indictable offences in this post)
For example, if you are accused of a serious crime, you may want to be tried by a jury because they are more likely to be swayed by emotion than a judge. On the other hand, if the evidence against you is purely circumstantial, you may want to be tried by a judge because they are more likely to weigh the evidence objectively.
There is no right or wrong answer when it comes to choosing between a judge-only trial and a jury trial. This is a decision that you and your lawyer will need to make based on the unique circumstances of your criminal case.
As such, you should discuss this decision with your lawyer, as each option has pros and cons.
This is a brief overview of the different components of a Canadian criminal trial.
The criminal trial process in Canada is long and complex and can be very confusing for those who are not familiar with it. If you are facing criminal charges, it is imperative to speak to a lawyer as soon as possible so that they can explain the process to you and help you navigate through it.
If you are committed to stand trial, your case will be heard in either provincial court or superior court. This depends on how serious the offence is. For more serious offences, your case will be heard in superior court.
In both courts, your trial will begin with a voir dire—a hearing (considered a trial within a trial) to determine the admissibility of specific evidence. Once that evidence has been determined to be admissible, the Crown will present its case first.
After the Crown has presented its case, your lawyer will have an opportunity to cross-examine the witnesses. Once all the evidence has been presented, the judge or jury will retire to deliberate and reach a verdict.
When there is a guilty verdict, the judge sentences you. However, you will be acquitted and set free if you are found not guilty. The sentencing process will be discussed in more detail below.
Once bail has been set, your first appearance in criminal court will be your “first appearance” or “arraignment.”
As we mentioned, courts across Canada vary depending on the province wherein they are located and other factors. However, when it comes to the first day in court in Ontario, there are a few things you can expect to happen.
First, the clerk will call everyone in the courtroom to stand, and the judge or justice of the peace will enter. The clerk will then ask everyone to state their name and spell it for the record. Once this is done, the accused will be asked to plead guilty or not guilty to the charges against them. Finally, if you have not yet retained a lawyer, the court will ask if you need more time.
If you plead guilty or the charges are withdrawn, the case is over, and sentencing can occur immediately. If you plead not guilty, the clerk sets a date for your trial and gives you a copy of the disclosure (we’ll talk more about those in a moment).
The court may also ask if you want to have a trial by judge or jury. If you are not sure, the court will explain the difference between the two and how to make your decision.
The court sets a date for your next bail hearing if you are being held in custody.
When a verdict is reached in a Canadian criminal trial, it can come back as one of three possible outcomes: guilty, not guilty, or stayed charges.
A guilty verdict means that the accused has been found guilty of the crime(s) they have been charged with. A not guilty verdict means the accused has been acquitted of all charges. A stayed charge means that the case has been dismissed, and the accused is no longer facing any charges concerning the case.
Once a verdict is reached, sentencing can take place. The judge will decide on an appropriate sentence if the accused is found guilty.
If the accused is sentenced to jail time, they may be eligible for parole after serving a certain amount of their sentence. For example, when an accused is sentenced to four years in jail, they may be eligible for parole after one year.
Alternatively, the accused may be given a probationary sentence. This means they will not have to serve any jail time, but they will be required to adhere to certain conditions set by the court. These conditions can include attending counselling, abstaining from drugs and alcohol, or completing community service hours.
Depending on the case, there are many other sentencing options a judge may choose from.
Sentencing will sometimes take place immediately after a verdict is reached. But often, it does not take place immediately after a verdict is reached. Instead, there will be a period of time between the verdict and sentencing (which could be up to six weeks). Often, in criminal cases, this is so victim impact statements can be prepared and presented to the court.
Victim impact statements are written submissions from the victim or victims of a crime, outlining how the crime has impacted their lives. The judge considers these statements when deciding on an appropriate sentence.
In addition to victim impact statements, the accused may also give a statement during sentencing. This is an opportunity for the accused to express remorse for their actions and ask the court for leniency.
The judge may also order what is known as a Pre-Sentence Report. This report is prepared by a probation officer and contains information about the accused, such as their criminal history, financial situation, family life, and employment history. The report is used to help the judge determine an appropriate sentence.
If you are unhappy with the decision in your Canadian criminal trial, you may have the option to appeal the decision. However, the appeals process is complex, and you should discuss it with your lawyer before taking any action.
There are two types of appeals: an appeal of conviction and an appeal of sentence. An appeal of conviction challenges the trial’s verdict, while an appeal of sentence challenges the sentence that the judge imposed.
You may also have the option to seek a pardon if you have been convicted of a crime. A pardon is granted by the government of Canada. They can only be given in some instances.
The Canadian criminal trial process is long and complex—this discussion just scratches the surface. However, it is vital to understand it if you or someone you love is up against criminal charges. With the help of a lawyer, you can ensure your rights are protected throughout the process and that you have the best possible chance of achieving a favourable outcome in your case.
Remember, the contents of this article are for informational purposes only and should not be taken as legal advice. Contact the Ontario criminal lawyers at KIVLaw today if you are facing criminal charges.