Understanding Canadian Criminal Law

Understanding criminal court procedure in Canada

Criminal Court Procedure

Generally, every person charged with a criminal offence in Canada will go through a similar court procedure. Outlined below is some of what you can expect to happen during the course of a criminal charge.

Frequently asked questions about what happens during the criminal court process:
What happens at my first court appearance?

Your first appearance is NOT your trial. None of the witnesses or police officers involved in your case will be there. It is NOT an opportunity to tell the judge your side of the story. The central purpose of your first appearance in court will be to obtain the details of the allegations against you.

Any evidence the prosecutor intends to use against you at your trial MUST be disclosed to you in advance. This procedure is called obtaining “disclosure”. Your disclosure package may include, police or other witness statements, surveillance videos, photographs or any other type of evidence that relates to your case.

The prosecutor must disclose ALL relevant materials to you, regardless of whether they assist the prosecutor’s case or not. Evidence in the possession of the prosecutor or police that points towards your innocence must also be disclosed to you.

Obtaining full disclosure in your case is crucial as disclosure will tell your lawyer almost everything they need to know about the strength of the prosecutor’s case against you and how to best defend against the charges you are facing.

Quite often, disclosure will not be provided on your first appearance in court. If disclosure is not available, you (or your lawyer on your behalf) will have to return to court on another occasion to obtain it from the prosecutor in court. The nature and complexity of the allegations will usually dictate how quickly disclosure is provided. The more serious or complex a case is, the longer it usually takes to obtain full disclosure of the case.

Do I need a lawyer to attend my first appearance in court?

Prior to your first appearance, you can retain a lawyer to attend court with you or even to attend your court appearances on your behalf, depending on your agreement with your lawyer. Your lawyer is there to speak for you, so you don’t have to worry about saying the wrong thing. In most courthouses, the Crown Attorney will give priority to the cases where a lawyer is present in court PRIOR to dealing with any cases involving unrepresented accused persons. Many accused persons retain lawyers prior to their first appearance in court.

What is a crown pre-trial/ resolution meeting?

The pre-trial/resolution meeting between your lawyer and the Crown Attorney usually takes place over the telephone after disclosure has been received and reviewed by your counsel and the prosecutor.

Typically what is first discussed at this meeting is whether or not the prosecutor intends to proceed on the charges as laid. In some instances, it is possible for the lawyer to convince the prosecutor not to proceed with the case at all. In the event they wish to continue the prosecution, the prosecutor and defence lawyer may discuss whether the accused person will be pleading guilty or not guilty. A not guilty plea will likely result in a trial.

If the accused person intends on pleading guilty, the Crown will usually outline the charge or charges they require the accused to plead guilty to, the facts surrounding the allegations to be accepted as part of the guilty plea and what the appropriate sentence may be. The types of charges an accused will plead guilty to and the type of sentence they will receive are things lawyers commonly negotiate.

If the case will be heading to trial, the prosecutor and defence lawyer may discuss which witnesses are required for trial and may estimate the length of trial time required to hear the matter so an appropriate trial date can be obtained.

Depending on the complexity of the case, or whether or not defence counsel and the prosecutor can agree on the resolution position for a guilty plea, one of the parties may request a judge to become involved in the pre-trial discussions and act as a mediator. This meeting with the judge is referred to as a judicial pre-trial.

What is a judicial pre-trial?

In some cases, either the prosecutor or defence counsel may request the assistance of a judge during the pre- trial discussions. A judge may give their opinion on the merits of the case in an attempt to sway one side or the other towards a fair compromise. A judge may also give their opinion on an appropriate sentence in the event of a guilty plea or assist with estimating the duration of time required should the case go to trial. It is often a strategic decision to involve a judge in pre-trial discussions. Every case is fact-specific. After a judicial pre-trial is completed and assuming Crown counsel wishes to continue the prosecution, an accused person will have to make the decision to go to trial or to resolve their matter by way of a guilty plea. A judge’s opinion presented during a judicial pre-trial is not binding on the parties.

Should I plead guilty?

A guilty plea requires admitting the facts that form the basis of the charge or charges before the court. Before you decide to plead guilty, you should understand what the crown is seeking on a plea. Do they want to send you to jail? Are they seeking a permanent criminal record? You should also be aware of any potential consequences pleading guilty will have on your ability to travel abroad and the potential consequences a finding of guilt would have on your immigration status or future employment opportunities. A finding of guilty may also be used in other types of court proceedings such as civil or family law cases arising out of the criminal law matter. All too often, people plead guilty without understanding the full implications of their decision.

Once you have decided to plead guilty, a date is scheduled for the guilty plea to take place. In some cases, the plea may take place before the judge who participated in the judicial pre-trial (if one has occurred) but this is not always the case, nor is it necessary. One of the most important aspects of a guilty plea is the sentencing hearing that occurs after the plea. In some cases, the prosecutor and defence counsel may jointly ask for the same sentence. In other cases the prosecutor and defence counsel may disagree on the appropriate sentence resulting in both parties asking the judge for completely different sentencing outcomes. Ultimately, it is up to the judge to impose the appropriate sentence based on the specific facts of each case and the details of the offender being sentenced. In the event that an accused person does not wish to plead guilty, a trial date is scheduled.

Should I take my case to trial?

A criminal case has usually gone through several stages before a trial date is selected. This includes the evidence gathering stage and the negotiation stage. A trial usually occurs several months (sometimes even a year or longer) after the offence was alleged to have occurred depending on the availibility of the court, witnesses and lawyers involved in the matter.

At trial, the prosecutor will lead evidence from witnesses and other sources to demonstrate that you are guilty of the offences before the court. Your defence lawyer will have an opportunity to question any witness called by the prosecution to undermine the evidence they are presenting. A defence lawyer may also try to prevent evidence from being heard in court on the basis that it was illegally obtained or unreliable. Once the Crown believes they have established proof of your guilt beyond a reasonable doubt, they will rest their case. At this point, you may choose to testify or call evidence on your own behalf to challenge the Crown’s case against you.

A decision to take a case to trial normally depends on the evidence presented against you, the potential consequences of losing a trial and the evidence available for you to present in your own defence.

Do I need a lawyer to assist me with my criminal case?

Hiring a lawyer to work with you through the entire court process will ensure that you are properly represented at each and every stage of the proceedings. A lawyer is not just for someone who intends on having a trial. Your lawyer is there to ensure that your interests are always protected. This is crucial to ensuring a winning strategy and a positive outcome in your case regardless of whether or not your case goes to trial or not.

To review your criminal case, Daniel Brown can be reached at (416) 297-7200.