Normally the Canadian criminal legal process begins once a crime is committed and investigated by police. Police will investigate the crime, speak with witnesses, and gather evidence that will later be disclosed (see Disclosure) to the accused. After police have conducted an investigation and reasonably formed the belief that a person has committed a crime they may lay a charge. That decision rests with the police. The police must consider all evidence against the accused prior to the laying of a charge. The complexity of the crime and investigation will influence when a person is charged and when they will receive disclosure. Some complex criminal investigations can take weeks, months or even years to complete.
Arrest & Bail
Once arrested and the charges are laid the police must decide whether to release an accused person or bring that person before a Justice of the Peace for a Bail Hearing. If the charges are not serious, and the accused is not already on bail, the police may decide to release the person from the scene or from the police station. If the charges are serious and the police have reasonable concerns, or the accused is already on bail, that person can be held by police and taken to court for a bail hearing.
At court the Crown Attorney must make the decision to consent to a person’s release or show cause as to why the accused should be held in jail until trial. A person can be held in custody until trial if there is a concern that they will not attend court, if there is a concern the person will continue to commit criminal offences, if there are public safety concerns, or if it is believed that the accused will interfere with witnesses while on bail. Finally, and this rarely applies, if the Court believes the public’s confidence in the administration of justice will be compromised if the accused is released from custody.
If the Court decides to release an accused on bail that person will be ordered to obey certain conditions. The accused may be ordered to abide by a curfew, or house arrest and not to have contact with victims or witnesses.
Disclosure and Pre-trial Conferences
After laying a charge the police must complete an information package describing all the evidence and deliver that package to the Crown Attorney. The Crown will then disclose all relevant information to an accused person through their trial lawyer.
The Crown Attorney will review all the information received from police and decide whether to proceed with the prosecution, if applicable, decide to proceed either Summarily or by Indictment. The Crown must prosecute cases fairly and treat all parties (victims, witnesses, accused) with honesty and impartiality. When deciding to prosecute an accused the Crown must consider the public interest in proceeding with a prosecution and must fairly evaluate if there is a reasonable likelihood of conviction.
In Canada, criminal offences are divided into two broad types: Summary and Indictable. Depending on the circumstances the Crown can decide whether to proceed summarily or by way of indictment. Summary offences tend to be less serious and indictable more serious.
If the Crown proceeds summarily then the accused will have a trial in the Provincial Court of Justice. If the Crown elects to proceed by way of indictment an accused person will have the choice of a Preliminary Inquiry and to have a Trial before a Judge and Jury or Judge alone.
After receiving disclosure and prior to setting any trial dates, the Crown and criminal defence lawyer will meet to discuss trial issues. These meetings are often referred to as Crown Pre-trial Meetings. Depending on the issues identified in the Crown Pre-trial Meetings it may be necessary for the Crown and criminal defence lawyer to meet with a Judge to review the case. These are referred to as Judicial Pre-trial Meetings.
A Preliminary Hearing (a Preliminary Inquiry) is an important step in the criminal court process. A Preliminary Hearing can help determine if there is enough evidence to go to trial. It can help to determine what possible defences are available to an accused person. It allows the accused person to hear the prosecution’s case and understand the strengths and weakness of the case. At the Preliminary Hearing the Crown and criminal defence lawyer may call and cross-examine witnesses. If the Judge sitting at the Preliminary Hearing is satisfied that sufficient evidence exists they will commit the accused to stand trial at the Superior Court of Justice. If the Judge is not satisfied by the evidence they may discharge the accused and the case is closed.
After a preliminary hearing the case moves from the Ontario Court of Justice to the Superior Court of Justice. Once again there will be a number of court appearances to determine issues, have pre-trial meetings with the Crown and a Judge, and to set trial dates.
Pre-trial applications are attempts to set the parameters for trial and deal with some of the contested issues that will arise. Applications prior to trial can be brought seeking further disclosure from the Crown and Police, requests to adjourn trial dates to changing venues to Constitutional Applications.
At Trial is when the Crown must prove their case against an accused person. They will present the evidence through their witnesses that they believe proves an accused’s guilt. The defence will have an opportunity to test that evidence through cross-examination of the Crown’s witnesses. At the close of the Crown’s case the defence may choose to present their own evidence.
Once all the evidence has been presented the Judge (and/or Jury) will then weigh everything they have heard and give a verdict. If the Crown has proven their case beyond a reasonable doubt the Judge (and/or Jury) may find the accused guilty. If the accused is found not guilty, the accused is free to go and cannot be tried again on the same charge, unless the Crown attorney appeals and a new trial is ordered.
If found guilty, the Judge may sentence the accused immediately or adjourn the matter to a later date for sentencing. The judge decides the sentence. When doing so the Judge will consider the facts of the case, all the mitigating and aggravating factors, the background of the accused, as well as the sentencing recommendations of both the criminal defence lawyer and Crown.
Appealing the Verdict or Sentence
The trial verdict or sentence can be appealed by the Crown or the accused. The Crown may appeal a verdict of not guilty or a sentence if they believe that it does not fit the crime. The defence may appeal a verdict of guilty or a sentence if they believe it’s too harsh. Appeals must be based on errors made by a trial judge on a point of law.