Certain conduct is considered incompatible with life in society and is punishable by law. The rules of procedure and the sentences applicable to adults who commit a criminal offence in Québec are set out in the Criminal Code.
• Commencement of proceedings
• Appearance in court
• Bail hearing (also called interim release hearing)
• Preliminary inquiry (also called preliminary hearing)
• Chart showing the stages in the judicial process
• For more information
Commencement of proceedings
After a complaint is filed, the police service will decide whether to conduct an investigation. Depending on the results of its investigation, the police service will submit a report to a criminal and penal prosecuting attorney (the "prosecutor"), who assesses whether there is sufficient evidence to lay a charge. If there is, the prosecutor determines the charge to be laid. If the prosecutor considers there is insufficient evidence, he or she may close the file or request further investigation.
If a police officer has released a suspect on an appearance notice, promise to appear or recognizance, the officer will ask a justice of the peace to confirm the notice, promise or recognizance when the charges are laid. If the police officer released the suspect without formality or if the suspect was not arrested, the prosecutor may ask a justice of the peace to issue an arrest warrant or a summons. The appearance notice, promise to appear, recognizance or summons states where and when the accused must attend for his or her first appearance in court.
If a suspect is not released by the police officer, the suspect will remain in custody until his or her appearance in court.
Appearance in court
When the accused appears in court, he or she is informed of the charge that has been laid. The prosecutor is required to disclose all the evidence in the case to the accused before the accused enters a plea.
An accused who appears for a serious indictable offence, such as aggravated assault, will usually not enter a plea at the first appearance. The accused will enter a plea at a later appearance after the accused, or his or her counsel, has examined all the evidence disclosed by the prosecution. For most serious indictable offences, the accused can choose to be tried by a judge or by a jury. Trials are generally conducted without a jury. The most serious crimes, such as murder or conspiracy to commit murder, however, must be tried by a jury.
For a less serious offence, such as theft under $5,000, the accused enters a plea at his or her first appearance. The judge will give the accused the opportunity to see the evidence before answering the charge. If the accused pleads guilty, the judge may pronounce the sentence but in most cases the judge will set a date for a sentencing hearing. If the accused pleads not guilty, the judge will set a date for the trial.
Bail hearing (also called interim release hearing)
If the accused is in custody at his or her first court appearance, the judge will immediately hold a hearing to determine whether the accused should be released. That hearing may however be postponed for up to three days, or longer if the accused consents. The accused must be released unless the prosecutor shows cause why the accused's detention is necessary to ensure his or her presence in court, or for the protection or safety of the public, or to maintain public confidence in the administration of justice. If the accused had outstanding charges against him or her at the time of the commission of the offence for which the accused is appearing, or if the accused is charged with a serious offence, such as murder or cocaine trafficking, the onus is then on the accused to demonstrate to the court that he or she should be released during proceedings.
The accused's release may be subject to conditions, such as the requirement to live at a fixed address, to refrain from communicating with the victim or to abstain from alcohol. The court could also require the accused to enter into a recognizance, with or without a deposit of money, to ensure that the bail conditions will be complied with and that the accused will attend court as required. The court may also require that a third person called a "surety", for example a member of the accused's family or a friend of the accused, enter into the recognizance.
An accused who does not comply with the bail conditions may face a new charge and the bail may be reviewed by the court. The money deposited under the recognizance by the accused, and if applicable the surety, could also be confiscated.
Preliminary inquiry (also called preliminary hearing)
For serious indictable offences, the accused or the prosecution may request that a preliminary inquiry be held before the trial. The purpose of the preliminary inquiry is to determine whether there is sufficient evidence for the accused to stand trial.
The party requesting a preliminary inquiry must produce a statement setting out the issues on which it wants evidence to be given and the witnesses it wants to hear. A preparatory hearing may also be held to determine the content and the conduct of the preliminary inquiry.
With the consent of the prosecutor, an accused may waive a preliminary inquiry, even after it has commenced.
The prosecutor presents the prosecution's main evidence. The accused may cross-examine the witnesses called by the prosecution and call his or her own witnesses. If the evidence is insufficient, the judge will discharge the accused. If there is sufficient evidence, the judge will order the accused to stand trial.
After the reading of the indictment, the prosecutor calls the prosecution witnesses and presents its material evidence. A pre-hearing conference may be held to determine the conduct of the trial.
The accused is presumed innocent. The prosecution must prove each element of the charge beyond a reasonable doubt. The accused is not required to testify in his or her defence, or to call witnesses. After the prosecution has presented all its evidence, however, the accused may choose to present a defence if he or she considers it necessary to raise a reasonable doubt. An accused who chooses to testify in his or her defence must then submit to cross-examination by the prosecutor.
Each party may cross-examine the other party's witnesses. During the trial, the judge decides any objections to questions put to witnesses and decides the admissibility of real evidence.
The defence counsel and the prosecutor then present oral arguments.
In trials before a judge and jury, the judge gives instructions to the jury before it withdraws to deliberate. The jury must return a unanimous verdict, without providing reasons. In a trial before a judge alone, after having examined all the evidence, the judge renders a verdict, stating the reasons for the verdict.
The sentence may be pronounced immediately after an accused pleads guilty or is found guilty, but the sentence is usually imposed at a subsequent hearing. The prosecutor and counsel for the accused may present evidence to assist in determining the sentence and may make submissions to the court regarding the sentence that should be imposed. Even when the verdict is rendered by a jury, the judge is the one who decides the sentence.
Before pronouncing the sentence, the judge may ask a probation officer to prepare a pre-sentence report. The probation officer will gather information about the accused, the accused's past, family history, criminal record and prospects for rehabilitation. The probation officer may also contact the victim to ascertain the nature and gravity of the wrong suffered by the victim. The victim may also submit a statement to the court describing the consequences of the offence.
For certain serious crimes, a minimum sentence of imprisonment is prescribed by law. If a judge imposes a sentence of imprisonment on an accused who has been in detention during trial, the judge may reduce the sentence to take into account the time already spent in custody.