How a Criminal Trial Works

The primary reason for Canada's criminal justice system is to protect society from those who violate the law and punish those found guilty of a crime. At the heart of our system is the Criminal Code that: defines the conduct constituting criminal offences; sets out the rules defining how people can be guilty of crimes; sets out defences that an accused can raise; establishes the punishment to be imposed upon conviction; and describes the procedures to be followed in an investigation and prosecution of an offence. If you have been charged with a criminal offence, you are presumed innocent until proven guilty. You also have several rights under the Canadian Charter of Rights and Freedoms. These include the right to be informed of the offence, the right not to be denied reasonable bail, the right to be tried within a reasonable time, and, for more serious charges, the right to a trial by juryA group of people who decide guilt in some criminal trials.. There are four levels of criminal courts in Canada, including provincial and territorial courts. These handle the majority of cases. Next are provincial or territorial Superior courts, which deal with the most serious criminal charges. Above those are the provincial and territorial courts of appeal and, finally, the Supreme Court of Canada. Your arrest starts the criminal trial process, which has several components.

If you have been arrested, you may wonder what comes next. The Charter allows all Canadian citizens to remain silent and contact a lawyer. You are not obligated to speak to the police or answer their questions. 

Release or Custody

Depending on the charge, you could be released on a recognizance or on a promise to appear notice. However, if you have been charged with a serious offenceAn indictable offence with a maximum punishment of five years or more. or have a criminal record, police may feel you should remain in custody until your trial, and you will be held for a hearing to determine if you are eligible for a judicial interim release, also known as bail.

Types of Offences

There are two types of criminal offences. Summary convictionLess-serious criminal offences offences are less serious offences. Unless another law provides a different penalty, the general maximum for a summary-conviction offence is a $5,000 fine, imprisonment for two years less a day, or both. Indictable offences are more serious and the maximum penalty can be life in prison for serious offences such as first-degree murder. Those charged with an indictable offence may choose to be tried by a judge or a jury.

Right to Bail

Under s.11(e) of the Canadian Charter of Rights and Freedoms, you have the right to judicial interim release following your arrest. The Criminal Code also states you have the right to have a timely bail hearing within 24 hours of your arrest or as soon as a justice is available. Some of the facts of your case will be heard during your bail hearing. However, it is not a trial of the charges, and no determination will be made regarding your innocence or guilt. You can retain a criminal defence lawyer to represent you at a bail hearing.

Before you appear in court for your first appearance, you have the right to disclosureRelevant, non-privileged case information the Crown must provide to the defence. from the Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public.. This is the evidenceInformation presented in court to prove or disprove facts. that will be used against you and typically includes statements you made, witnessA person who gives evidence in a case. statements, police reports and any other information pertinent to your case.

The Right to Disclosure

According to the Government of Canada, disclosure “is a fundamental element of the fair and proper operation of the Canadian criminal justice system.” In a unanimous decision, the Supreme Court of Canada ruled the Crown is obliged to disclose all evidence to the defence that could be relevant to the case, regardless of whether the prosecution plans to call that evidence at trial or whether it helps or harms the prosecution’s case. If you feel you are not getting all the disclosure in your case, you can send a legal notice to the Crown requesting it or seek a judge’s order. After examining this evidence, you may decide to enter a guilty plea in return for a lesser sentence. Or you could choose to proceed to trial. If you have retained a lawyer, they can help you make a decision.

Plea Options

Your options will be discussed during your first court appearance. This is typically held in provincial court, and the judge will ask if you want the charge read out to you. You will also be asked if you understand the charge and how you plead. You can request more time to review your evidence or consult with your lawyer. Your case would then be adjourned, and you will be given your next court date.

If you plead guilty, the Crown will lay out the facts you are admitting to, and you will have the chance to make submissions, including explaining what led you to the offence. You could be sentenced immediately if you and the Crown agree upon a penalty. Your sentence hearing may also be put over for further submissions.

If you plead not guilty, the court will set a date for your trial or a preliminary hearing (which determines whether there is enough evidence to send the case to trial).

Your case could be heard by a judge or a judge and jury, depending on the seriousness of the charge. It is your option to be tried by a jury of your peers for an indictable offenceA more serious type of Canadian criminal offence.. At trial, the Crown and the defence are given an equal opportunity to present evidence and the judge or jury decides whether the charges against you have been proven.

The trial length will vary depending on the case's complexity, the amount of evidence presented and the number of witnesses who are testifying.

Key Players

In court, you will notice several key players, starting with the trial judge, considered an impartial judicial officer. 

The Crown is the person who prosecutes the charges against you. It is their responsibility to prove the essential elements of the offence beyond a responsible doubt. 

The court reporter makes a record of what is said during the trial. 

Court trials are open to the public in Canada, and the generated transcription becomes part of the public record. There is also a court clerk who sits in front of the judge. The clerk swears in or affirms witnesses and takes care of exhibits.

When the trial begins, an exclusion order can be made. This prevents witnesses from sitting in the courtroom while other witnesses are testifying.

Trial Process

The Crown will present its evidence first. After each prosecution witness testifies, the defence can cross-examine in an effort to point out inconsistencies.

When the Crown has completed its case, you can present a defence. The Crown must demonstrate that you were directly or indirectly involved with the crime, that all parts of the crime actually occurred and that you had the criminal intent. You do not have to prove you are innocent. If you feel the prosecution has failed to prove your guilt you can ask for a directed verdict, requesting the dismissal of the case.

Your lawyer can present evidence to counter the prosecution's case, and the Crown has the right to cross-examine your witnesses. After you have closed your case, the Crown and the defence can make closing remarks. If there is a jury, the judge will give final instructions to the panel, who will then meet privately to reach a verdict.

Court Decision

The judge or jury will decide whether the Crown prosecutor has proved you are guilty beyond a reasonable doubtThe high standard the Crown must meet to prove guilt..

You could be acquitted of all charges, convicted of some of them, or be found guilty of a lesser charge. If convicted, you could be held in custody pending sentencing or told to return later. If you are acquitted, you are free to leave.

The Right to Appeal

The accused or the Crown prosecutor can appeal the decision on guilt or innocence, but only if there is a legitimate legal reason.