Although each province may have different procedures for the prosecution of criminal offences, the core elements of criminal proceedings are consistent across Canada. This article provides a general overview of the Criminal Court process in Canada, so that you can know what to expect if you or someone you know has been charged with a criminal offence.

Essential Elements of a Criminal Case

Before discussing the specific steps in the criminal court process, it is important to first establish the key elements that are relevant to the criminal proceedings:

The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms, or the “Charter” is a part of the Constitution of Canada. This document outlines the fundamental rights and freedoms that are protected for all individuals within Canadian society. The primary objective of the Charter is to safeguard individual rights and freedoms, ensuring that they are respected and upheld by the government and other authorities. It applies to all levels of government in Canada and protects individuals from infringement by state actors.

When you are charged with a criminal offence, you have certain rights under the Charter. These include the right to remain silent, the right to be presumed innocent until proven guilty in a fair trial, and the right to be tried within a reasonable time.

While the Charter provides extensive protections, it also recognizes that certain limitations may be justified in certain circumstances. These limitations are subject to the principles of proportionality, necessity, and justification, ensuring a delicate balance between individual rights and societal interests. The courts play a crucial role in interpreting and applying these limitations in a manner that upholds the core values of the Charter.

The Role of the Police and Prosecution

In the prosecution of criminal offences, the police and prosecution have different but related roles to play. The initial role of the police is to investigate suspected criminal conduct and gather evidence to support the placing of a criminal charge against an individual. Once this evidence has been gathered and the charge has been laid, the Crown prosecutor must determine whether it is in the public interest to carry out the prosecution in its duties to the administration of justice and to the individual charged. The prosecutor’s role is not to seek conviction at all costs, as some may believe, but is to instead provide the court with all available, relevant, and admissible evidence necessary to enable the court to determine the guilt or innocence of the individual.

The Steps in the Criminal Process

The Criminal process in Canada can often be long and complicated. It is important that anyone who is navigating the criminal justice system in Canada is aware of the numerous steps which are inherent to the criminal process, and to be informed of their rights at each stage:

From Charge to Trial

1. Pre-Charge Legal Advice

Pre-charge legal advice involves consultation with a criminal lawyer at the early stages of an investigation. If you have been involved in illegal activity, the police have identified you as a suspect of a crime, or someone has made allegations against you, you can expect to be contacted by the police.

You should not wait until you are arrested or attend the police station to speak to a lawyer. Rather, you should contact one of our experienced criminal defence lawyers immediately. Speaking to a lawyer at the early stages of an investigation, including before police have contacted you, can be highly beneficial to the outcome of your case. Our lawyers will provide you with a full explanation of your rights and obligations when interacting with the police.

2. Bail Hearing

If the police have charged you with a criminal offence, it is not uncommon for you to be immediately released on a release order. In this case, the police will provide you with a Promise to Appear document outlining your charges, and any required appearances you must make. This document may also include conditions that you are required to follow while on release.

However, a formal bail hearing may be required to secure your release, particularly if you have a criminal record, or if the allegations against you are more serious. This hearing is typically held within 24 hours of arrest, and involves a judge or justice of the peace determining whether you should be detained or released. Bail hearings are often complex proceedings, and it is highly beneficial to seek the assistance of an experienced lawyer to represent you. Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.

3. Election and Plea

Election refers to the ability of you or the Crown to choose which court will have jurisdiction over your criminal charge. Criminal offences are classified into three categories: summary, indictable, and hybrid. Summary offences are typically considered less serious and carry lower penalties. Indictable offences are more serious and carry higher maximum penalties. Hybrid offences allow the Crown the discretion to elect to try the offence either by way of indictment or summary conviction.

In the case of a hybrid offence, the Crown must make an election. If they elect to proceed via summary conviction, the matter will be heard before a judge at the provincial courthouse nearest you. If they proceed by way of indictment, you will have the choice to determine whether the matter will be heard by the Provincial Court, or your specific province’s superior court. If you elect to have your trial heard in the superior court, you will have the right to choose whether you would like the case to be heard before a judge and jury, or a judge alone.

After it is determined which court will have jurisdiction over your criminal matter, the possibility of entering into a plea becomes an important consideration. You may choose to plead guilty or not guilty. Pleading guilty is a formal admission of guilt to the offence charged. In other words, you are consenting to a guilty verdict and waiving the trial process. Pleading not guilty is upholding your right to be presumed innocent, and requiring the Crown to prove the charges laid against you beyond a reasonable doubt.

For more information on this subject, please see the general Election and Plea FAQ. 

4. Resolutions

There are two types of resolutions in the Canadian criminal justice system: criminal resolutions and non-criminal resolutions.

Criminal resolutions involve pleading guilty to the crime that you are charged with, often in exchange for a more lenient sentence. This form of resolution can be beneficial if you are offered a significantly mitigated sentence than what you may receive if proven guilty at trial, but it also involves giving up your right to be presumed innocent. Pleading guilty may also result in a conviction appearing on your criminal record, which is an important consideration. An experienced criminal defence lawyer will be able to discuss the potential benefits and consequences of a plea bargain, to determine if this form of resolution is right for you.

There are also several non-criminal resolutions that may be available to you. These resolutions involve diverting your charges outside of the criminal justice system, and are available under limited circumstances. A common theme amongst non-criminal resolutions is that it is in the sole discretion of the Crown Prosecutor to facilitate them. A few non-criminal resolutions are explored below:

5. Resolutions – Alternative Measures Program

The Alternative Measures Program (or “AMP”) allows you to take responsibility for your actions without being found guilty of a criminal offence. AMP is typically not available for serious violent offences such as using a firearm, domestic violence, and offences where the victim is a child.

If admitted into an AMP, instead of serving a sentence, you will typically engage in community service with non-profit organizations in your area. Once you have completed your community service, your lawyer will provide confirmation to the Crown, and then go in front of a judge to have your charge withdrawn.

6. Resolutions – Mental Health Diversion

Mental Health Diversion is similar to the Alternative Measures Program, but has a specific focus on the treatment of mental health issues as its core purpose. The Mental Health Diversion program is a positive initiative in Canada that helps address increasing criminalization of persons with mental illnesses. The overall goal of the program is to focus on rehabilitation, rather than punishment.

The diversion program is available for individuals charged with less serious offences where there is a reasonable belief that a person is suffering from a mental health disorder. However, because eligibility for mental health diversion is determined on a case-by-case basis, it is possible that in some unique circumstances, an offender will be found eligible for the program even when they have been charged with more serious offences

Admission into the program involves an evaluation by a mental health worker, and discussions with the Crown. If admitted into Mental Health Diversion, you will engage in regular treatment for your mental health issues in the community. After you have completed your treatment, your lawyer will attend court and ask that the charges against you be withdrawn or stayed.

7. Resolutions – Youth Extra Judicial Sanctions

The Youth Criminal Justice Act has special provisions that allow the police and Crown to address certain matters without using the formal youth criminal court system, known as extrajudicial measures. Extrajudicial measures were created with the intention of holding youth accountable, while encouraging them to repair any harm caused to the victim or community.

These sanctions can potentially involve: police warnings, cautions from the Crown, compensating or apologizing to the victim, writing an essay about the youth’s behaviour, doing community service, or referrals to Community Programs. All of these measures have the goal of preventing the youth from committing more offences in the future.

Like other non-criminal resolutions, extrajudicial measures and sanctions are only available to youth who accept responsibility for their offence.

8. Resolutions – Peace Bond

For accused persons charged with simple assault or domestic violence offences where there has not been serious injury, a peace bond may be available to them. If a Crown consents to doing a peace bond, the criminal charge will be withdrawn. When deciding whether to agree to a peace bond, the Crown will consider whether the offence involved a serious injury, whether there is a substantial history of abusive behaviour against the victim, the accused’s criminal record, whether the accused will admit what happened, and what conditions will be appropriate.

A peace bond generally lasts between 6 and 12 months. The main condition of a peace bond requires that the individual “keep the peace and be of good behaviour”. The accused will be required to follow this condition, and any other condition set out by the Crown, to ensure that they are not charged with another criminal offence or forfeit the money that they pledged when entering the peace bond.

Criminal Trial & Sentencing

9. Trial

The purpose of a criminal trial is to have a judge or jury determine your legal guilt or innocence, and is governed by three fundamental principles:

  1. The presumption of innocence ensures that you are innocent until proven guilty by the prosecution. In practice this means that everyone has a right to a trial if they want one.
  2. You have the right against self-incrimination. This means you do not have to speak to the police or give testimony in court. The judge or jury are not allowed to weigh the fact that you did not testify against you.
  3. The ultimate burden is on the crown to prove guilt beyond a reasonable doubt. It is not necessary to prove your innocence at trial, only that you are not guilty beyond a reasonable doubt.

A trial will begin with the Crown prosecutor presenting his or her case to the judge. This includes calling all the Crown’s witnesses and introducing evidence. The Crown will attempt to prove guilt beyond a reasonable doubt. Your criminal defence lawyer will then have an opportunity to cross examine witnesses to cast doubts about on the Crown’s evidence.

The Defence then has the option to call their own witnesses and evidence. This will typically include the defence lawyer calling your witnesses (and maybe you) to tell the story of what happened. The Crown will get an opportunity to cross examine any witnesses the Defence calls, including you.

Final arguments are made by both the Crown and the defence lawyer, at which point the judge may make his or her decision immediately. Often however, the judge will require some time to make his or her decision, and will adjourn the trial until he or she is ready. A decision may be spoken by a judge or given by writing.

If you are proceeding to a criminal trial, it is highly recommended that you seek the assistance of an experienced lawyer to assist you with your case. Our criminal trial lawyers are guided by the core values of service, results, integrity, teamwork, drive, and strategy, and we are ready to help.

10. Sentencing

If a judge or jury finds you guilty of an offence after a criminal trial, your criminal matter will proceed to sentencing. During the sentencing process, the judge will hear submissions from both the Crown prosecutor and your defence lawyer as to what the appropriate sentence for your conviction should be. In assessing the positions put forward by Crown and Defence, the Judge must keep in mind all the principles of sentencing set out in the Criminal Code, as well as any minimum or maximum sentence set out in the Criminal Code for any particular offence.

Below are a few of the different types of sentences that you may face if convicted of a criminal offence in Canada:

11. Sentencing – Fine

When you are convicted of an offence that is relatively minor in nature or where your prior criminal record is insignificant, a fine may be deemed an appropriate sentence. If you are ordered by the court to pay a fine, you will be provided with a reasonable amount of time to pay the fine (usually anywhere from 1 month to 1 year). The judge will also apply a 15% Victim Fine Surcharge on the fine you receive, unless you can convince the judge that paying this extra amount would be an excessive financial hardship.

It is important to note that the maximum fine for a summary conviction offence under the Criminal Code is $5,000. If you fail to pay the fine, you are subject to arrest and will have to serve a jail sentence proportional to the amount of fine outstanding at the time of arrest.

12. Sentencing – Discharge

In rare cases, you may be granted a discharge. If you receive a discharge, you will be found guilty of your offence, but a conviction will not be imposed on your criminal record. Below are three types of discharges:

  • Absolute Discharge: An absolute discharge allows for your conviction not to be imposed on your criminal record. It is only available for offences where there is no minimum sentence specified in the Criminal Code.
  • Conditional Discharge: This form of discharge requires a term of probation (which typically involves counselling and community service) as a precondition for the conviction not being imposed on your criminal record. Similarly to an absolute discharge, it is only available for offences where there is no minimum sentence specified in the Criminal Code.
  • Curative Discharge: Curative discharges are applicable only in impaired driving cases. They are usually only available where the accused has significant alcohol problems, a willingness to change, and a high likelihood of success.

13. Sentencing – Probation

Probation is a community-based sentence which is often used as an alternative to being placed in jail or prison. If you are sentenced to probation, you will be ordered by the court to abide by certain conditions over a period of time. These conditions include keeping the peace and being of good behavior and attending court when asked, and may also prohibit you from consuming alcohol or drugs, or carrying weapons. You may also be asked to perform community service or refrain from contacting certain people as part of your probation order. In most instances, the judge will also require you to regularly report to a probation officer.

15. Sentencing – Conditional Sentence Order (“CSO”)

A conditional sentence, known as “house arrest”, is a jail sentence that a judge allows the offender to serve in the community. If you receive a conditional sentence, you can expect to be on house arrest 24 hours a day. This will require you to stay home at all times, with certain exceptions for attending school, employment, medical appointments, and other limited purposes. If you breach the terms of your CSO, a judge will consider sending you to jail for the remainder of your CSO term.

15. Sentencing – Jail Sentence

Jail is a sentence of last resort. When no other sentence is appropriate, either because of the nature of the offence, or because of your particular circumstances, a jail sentence will be imposed. A jail sentence will be served in either a provincial jail if there is less than two years left to serve on the day of sentence, or in a federal penitentiary for any sentence of two years or more.

If the jail sentence is 90 days or less, the judge has the discretion to allow you to serve it intermittently. This means that you can go to jail on weekends, and will still be able to go to work or take care of your children during the week until your sentence is served.

The current system allows for automatic parole after two thirds of the sentence is served. That means that if a 1 year jail sentence is imposed, you have a good chance of being released after completing 8 months. Both the provincial and federal systems have early parole options.

16. Post-Trial and Sentencing – Appeal Process

In any Canadian province, you can appeal your criminal conviction by appealing a finding of guilt, by appealing the sentence you received, or both. However, the appeal process in Canada is complicated and requires strict compliance with rules and procedures. As such, it is very important that you immediately seek the assistance of a criminal defence lawyer if you think you would like to appeal your conviction or your sentence. Immediately finding and hiring a lawyer who regularly conducts appeals is of utmost importance, particularly since you will have only 30 days from the date of your conviction to file your notice of appeal with the court.

Roles of Key Participants in the Court Process

The prosecution of criminal offences includes the participation of several key parties, and it is paramount that anyone facing criminal charges understands the role of these parties:

1. The Judge and Jury

In a criminal trial, the judge and jury have important roles in assessing evidence. A trial judge is required to explain to the jury the critical evidence and the law that is relevant to the essential issues in the case. The jury then has the task of considering the evidence that they have heard to determine whether they believe, beyond a reasonable doubt, that the accused committed the offences that they have been charged with.

For criminal trials where no jury is present, the trial judge will be the one who assesses the evidence and determines the guilt of the accused.

2. The Defence Lawyer and Prosecution

In order to find an accused guilty, it is always the Crown who must prove that the accused committed the crime that they are standing trial for. The reasonable doubt standard requires the Crown to always prove their case in full, whether or not the accused chooses to give any evidence. For this reason, the role of the prosecution is to provide the court with the evidence necessary to enable the court to determine the guilt or innocence of the accused.

The role of the defence lawyer, meanwhile, is to advocate for the best possible outcome at trial, and to protect the rights of the accused under the Charter. The defence lawyer advises the accused throughout the trial process, and challenges the prosecution’s case and evidence. Hiring an experienced and reputable criminal defence lawyer can make all the difference in a criminal prosecution, due to the defence lawyer’s crucial role in the outcome of the accused’s case. Our lawyers at Strategic Criminal Defence exclusively practice criminal law, and we will use our knowledge and experience to build a strong defence to the charges laid against you.