The judicial process in criminal cases
If you have been charged with a crime, your case will be tried to determine if you are guilty or innocent of the crime.
Even though you have been charged, you are presumed to be innocent until found guilty.
A person who is a witness to, or the victim of, a crime allegedly committed by you can file a complaint with the police. The police will then decide whether or not to investigate.
Once the investigation has been completed, the police can arrest you if they have reasonable grounds to believe that you committed a criminal offence. They can deprive you of your freedom, in most cases temporarily. If you are under the age of 18, they can also apply extrajudicial measures against you.
The police then submit a report on their investigation to the criminal and penal prosecuting attorney, who will decide if there is enough evidence to charge you. You may be released at this point.
After your release
If the police decide to release you, they may also:
- give you an appearance notice;
- have you sign a promise to appear, and then give you a copy; or
- ask you to enter into a recognizance.
The documents all state where and when you must attend court, along with other information.
If the police do not give you any document when you are released, you may receive an appearance notice later, stating where and when you must attend court.
An arrest warrant may also be issued against you.
After consulting the investigation report and the evidence, the prosecuting attorney may:
- a non-judicial measure to your case, in other words give you a warning (applying to certain criminal offences only), or;
- an extrajudicial sanction, if you are under the age of 18;
- proceed with the charges against you.
The prosecuting attorney may, if the evidence is insufficient, decide to drop the charges against you or request a further investigation.
The prosecuting attorney, after determining the charges based on the evidence against you, lays an information, listing the offences you are alleged to have committed in relation to each charge. It is then submitted to a justice of the peace, who must sign it in order to charge you formally.
You must appear before the judge at the time and place indicated in the document you have received.
At your first appearance, you must be informed of the charges against you. For this reason, the appearance always begins with a reading of the charges laid in the information.
A the appearance, you may:
- plead guilty and receive your sentence immediately;
- plead not guilty, in which case the judge will set a date for the trial;
- ask to see the prosecution evidence and ask to postpone the date on which you enter a plea of guilty or not guilty.
In some cases, you may choose for your trial to take place:
- before a judge;
- before a judge and jury.
If you are held in custody until your first appearance, the judge will hold a hearing to determine if you are to remain in custody until your trial or if you may be released, sometimes with conditions.
The judge must hold the hearing not more than 3 days after your first appearance, except if you consent to a longer period.
Grounds for continued custody
The judge may remand you in custody if the prosecuting attorney proves that:
- you may fail to appear before the judge for the next step in the judicial process;
- you are considered dangerous, because the judge considers you may:
- commit other offences;
- destroy evidence;
- harass the victim or witnesses;
- custody is necessary in order to maintain public confidence in the judicial system.
The judge may order your conditional release. Depending on the offence with which you are charged, the conditions may involve:
- remaining at a fixed address;
- not contacting the victim;
- not consuming alcohol or drugs;
- not possessing a firearm;
- maintaining good conduct and not disturbing the peace;
- attending court when required.
You must comply with the conditions until the end of your trial. Breaching the conditions constitutes a new offence and you may be returned to custody.
You may also be required to post bail.
The judge may require you to post bail to guarantee that you will comply with the conditions of your release and attend court when required.
Depending on what the judge orders, you will be required to:
- deposit the amount of the bail at the court office;
- promise to pay the amount.
The promise to pay may be made by another person, who becomes your "surety". This may be a family member or friend.
If you fail to respect your bail conditions, the amount is confiscated. Otherwise it will be returned to the person who paid it once the judicial process is over, regardless of whether you are found guilty or acquitted.
Before the trial, the prosecuting attorney must disclose all the evidence held against you. This means that you will receive a copy of the following elements from the police investigation:
- witness statements;
- police reports;
- video or audio recordings.
The prosecuting attorney must also disclose all the other evidence gathered that will not be used at trial, regardless of whether it tends to show your guilt or your innocence.
In general, the evidence is disclosed at your first appearance, but it may be disclosed before or after you appear.
Once you have assessed the evidence against you, you may choose to negotiate a settlement, by meeting privately with the prosecuting attorney accompanied by your lawyer, if you have chosen to be represented.
In general, the settlement will involve pleading guilty in return for a reduced sentence.
If you are charged with a serious crime such as murder, a preliminary inquiry will be held before your trial if requested by you or by your lawyer, to establish if the evidence is sufficient to go to trial.
If the evidence is not sufficient, you will be released.
After the preliminary inquiry, the judge determines if you will stand trial for each charge against you. Some charges may be dropped, and others may be added based on the results of the preliminary inquiry.
You can waive your right to a preliminary inquiry with the consent of the prosecuting attorney.
The trial is a hearing during which the prosecuting attorney must convince the judge that you are guilty beyond a reasonable doubt. The prosecuting attorney will attempt to show that you committed the offence charged, for example by:
- calling witnesses, including the victim, and expert witnesses;
- presenting physical evidence.
You are not required to give evidence, or to present witnesses. However, you can do so in order to raise a reasonable doubt about your guilt. If you decide to give evidence, the prosecuting attorney will be able to cross-examine you. Both the prosecuting attorney and your defence lawyer can cross-examine the witnesses presented by the other party.
Once the evidence has been presented, your lawyer and the prosecuting attorney make their closing submissions. This stage in the trial gives them an opportunity to:
- highlight the key points in the case;
- present their arguments, based on legal reasoning, for your guilt or innocence.
If the trial is held before a jury, the jurors listen to the judge's instructions, and then withdraw to decide on a verdict of guilty or not guilty.
In other cases, at the end of the trial, the judge must decide if you are guilty or innocent of each charge brought against you. You may be found guilty on some charges, and not guilty on others.
In addition, the judge may find you guilty of a crime of lesser importance than the original charge. This may occur when the judge finds that you committed the offence, but has doubts about some of the evidence .
The judge may announce the judgment immediately, or take time to consider it at more length. It may be given orally or in writing.
The judge may sentence you:
- as soon as you plead guilty;
- as soon as you are found guilty.
However, sentencing normally takes place at another hearing. In the meantime, the judge may hold a hearing at which the prosecuting attorney and your lawyer can submit:
- relevant evidence to help the judge decide the sentence;
- observations on the sentence the judge should apply.
They can also call witnesses, including the victim, and expert witnesses who can provide information to help the judge determine the sentence.
The judge may ask:
- a probation officer to prepare a presentencing report;
- a youth delegate to prepare a pre-decision report.
This document will focus on your personality and criminal record, among other things.
If the victim has completed and submitted the form Victim Impact Statement, the judge must also take into account the victim's physical and mental injuries and financial losses.
Objectives of the sentence
The judge must render a sentence that is fair and reasonable and proportional to the nature and gravity of the offence committed. The purpose of the sentence is to:
- protect society;
- denounce unlawful conduct;
- deter other people from committing offences.
The judge may choose a sentence that will assist in your rehabilitation. You may also be required to provide reparation for the harm done to your victim, for example by paying an amount of money as compensation.
If you consider that the judge has made an error, you may appeal the judgment. In some cases, it is not necessary to apply for leave to appeal, since an appeal may lie from your case by operation of law.
The Court of Appeal agrees may confirm or strike down the judgment, or order the holding of a new trial.