This article is intended as a very basic introduction to the criminal law process in Canada. If you are charged with a serious offence, you need proper representation by an experienced criminal lawyer. This is someone you will either pay yourself or, if you are poor enough, may be paid by legal aid. If you don’t qualify for legal aid because you earn more than their (very low) maximum income limit, you may be able to persuade the court to appoint a lawyer for you, paid for by the state.

Generally the legal aid income limit is pretty close to what a person gets on welfare, so if you are what is sometimes called the ‘working poor’, you may be out of luck. In this case, ‘out of luck’ means being stuck representing yourself in court. Since most people don’t have a clue what that involves, this quick-and-simple overview of the system has been placed here to give a little guidance.

criminal procedureEach province in Canada has three levels of criminal court:

  • The lowest is the Provincial Court. This is where every criminal case starts out, and for the less serious cases, where the case goes to trial. It is relatively informal, and very busy.
  • Above the Provincial Court is the Superior Court of the province, which may be called the Supreme Court, or Court of Queen’s Bench (eg. Supreme Court of British Columbia). This is where trials of more serious criminal charges called indictable are held, and where appeals from trials in the Provincial Court are usually heard. It is more formal, the lawyers wearing a traditional uniform with white shirt tabs and black vests and gowns (you know, you’ve seen them, they look like they’re going to a vampire wedding).
  • Then there is, in each province, a Court of Appeal. This is where appeals from the Superior Court, and from indictable cases tried in the Provincial Court, are heard. The Court usually sits as a panel of three judges, and sometimes five.
  • Finally, of course, the Supreme Court of Canada in Ottawa, with its nine judges, hears appeals from provincial Courts of Appeal.

Every person accused of a crime is either brought to a courtroom in the Provincial Court, or ordered to come on a specified date. This person, either brought or ordered into court, is called ‘he’ in this article, because most people accused of crimes seem to be male, for some reason. He is also called ‘the accused’.

If he is brought, it is because he has been arrested, and not released, either by the police themselves or by order of a Justice of the Peace in a telephone bail hearing. If he is ordered to come at a later date, it is either through a paper given to him by the police (an Appearance Notice or Promise to Appear), or a Summons mailed to his home or delivered by hand.

The first appearance is NOT for a trial or anything of the sort (many people assume that the system moves much more quickly than it actually does). No witnesses, no police, just a crowd of people dealing with the early stages of their own criminal charges.

If the accused person is brought to court in custody, the first appearance is generally to see if the judge will allow him to be released on one of the forms of bail. There should usually be a lawyer known as ‘duty counsel’ available, at no charge, to help with this.

If the accused is not in custody, and comes in on the day he was ordered to do by one of the documents mentioned earlier, the appearance is very quick and simple. He will usually be given a bundle of material known as the ‘particulars’, which should include enough information for him to know exactly what he’s charged with, what evidence there is to back up the charge and—usually—some indication of what the prosecution (the Crown) would ask for by way of a sentence, if the accused were to enter a guilty plea.

No one expects any decision about a plea on that first date, though, and it is generally a rather foolish thing to enter any plea so soon. The normal and sensible thing to do, is to ask the Judge or Justice of the Peace in that First Appearance ‘remand’ courtroom for at least a couple of weeks to go over the particulars, talk to a lawyer or two, and think about all the options.

It is absolutely routine and expected that this will happen, and the accused will be given a date and time to return, usually to the same courtroom. This might even happen more than once.

Martin AllenEventually, though, the accused is expected to enter a plea to the charge, either ‘guilty’ or ‘not guilty’.

Do not think that a plea of ‘not guilty’ means literally that.

It really just means ‘prove it’.

The accused will have to go to a trial scheduler in the courthouse to find a suitable date to have a trial, at which the Crown will have to convince a judge of his guilt, beyond a reasonable doubt. If the Crown cannot do that with its own evidence, there is no requirement for the accused to put forward any evidence in his own defence, and is entitled to be acquitted (to have the charge dismissed).

A plea of ‘guilty’, on the other hand, really does mean just that. People sometimes plead guilty to a criminal charge out of impatience or indifference, or for convenience. Bad idea. It’s not uncommon to meet a person like that, facing new charges at some later date, complaining that the Crown is relying on prior convictions to argue against the granting of bail, or for a heavier sentence. "But I didn’t do those things," he says, "I only said I was guilty to get it over with quickly". Well, sorry, but when you tell a judge you’re guilty of a crime, you’re taken seriously, and it sticks.

A guilty plea in remand court can lead straight to a sentencing, or the sentencing hearing may be adjourned (postponed) to a later date. The sentencing hearing is where the judge, after hearing from both sides, decides on the appropriate punishment. The accused always has a chance to speak, describing his personal circumstances and perhaps expressing his feelings about what he did, or offering explanations or excuses. If excuses are offered, though, and go so far as to be a denial of guilt, or close to it, it is open to the judge to conclude that the guilty plea is not a genuine one, and cancel it. If that happens, there is no alternative but to move on—like it or not—to a trial.

Trial procedures are a bit too much to cover in this basic introduction, but suffice it to say that it is then that the accused gets to meet his accuser(s) and any other Crown witnesses, to hear their evidence and to question them about it. He will also have a chance to testify himself and call any other relevant witnesses and evidence he may have. At the end of the evidence part of the trial, the judge will hear arguments from both sides, and give a decision, or ‘verdict’.

If the verdict is ‘not guilty’, the accused is simply free to go. If it is ‘guilty’, then of course a decision about the appropriate sentence must be argued over.

It should be noted that in cases where the offence is charged by indictment, the accused usually has a choice, or ‘election’, at the early stages in Provincial Court. The choice is between a trial in Provincial Court, or in the Superior Court, and if in the Superior Court, whether in front of a jury or just a judge. If the trial is to be in the Superior Court, then there is also an option to have a sort of pre-trial in the Provincial Court, called a Preliminary Inquiry.

The rules and options and strategy surrounding elections, too, are more than can be dealt with here, and an accused person facing this kind of situation really does need a lawyer to help, if at all possible.

If that is simply not an option for you, read all the information at Bastion Law’s First Line Criminal Law Information web site, and if your question is still unanswered, please feel free to email the webmaster at bastionlaw dot ca. You might get more than an answer to your criminal procedure question—you may prompt the author to add a bit to the web site, and improve the chances of everyone who comes along behind.

REFERENCES or FURTHER READING:

The author, Martin F. Allen (pictured), is a criminal defence lawyer in Victoria, B.C., Canada. His www.bastionlaw.ca web site has a lot more information about the criminal legal process in Canada, as well as a growing menu of other criminal law topics.