A criminal charge sets off a complex court process. Its many steps, the court appearances and dealings with the various players in the criminal justice system raise many questions. Our criminal defence lawyers help you see things more clearly by summarizing these steps, starting with arrest by the police.
1. Arrest
The criminal process generally begins with an arrest by a police officer who believes, on reasonable grounds, that you have committed a criminal offence.
A police officer may also arrest you on the basis of an arrest warrant issued by a judge.
After your arrest, the police officer will generally release you with one of the following documents: an appearance notice, a promise to appear or a summons.
If the police officer gives you a promise to appear, it will set out certain conditions you must comply with throughout the court process (e.g., not communicating with the alleged victim, not using drugs or alcohol, or not going to certain places).
You must comply with these conditions. Otherwise, you could put your freedom at risk and face additional charges.
If the police officer keeps you in custody after your arrest, you will be brought before a judge as soon as possible for your first appearance.
2. Approval by a Crown prosecutor
Even though you were arrested by a police officer, the decision to lay charges is not up to the officer. It is made by a lawyer called a Crown prosecutor (in Quebec, a prosecutor of the Director of Criminal and Penal Prosecutions).
After reviewing the file prepared by the police and the evidence gathered, the prosecutor decides whether charges will be laid against you.
If the Crown prosecutor decides it is not appropriate to lay charges, you will not face prosecution.
If the prosecutor decides to lay charges, they will draft a document called an Information, which formalizes the charges by setting out each count against you. The prosecutor may decide to depart from the offences listed by the police officer at the time of your arrest. Depending on the evidence in the file, the prosecutor can amend, add or withdraw certain counts.
So it is quite possible that, at your first appearance in court, the counts will differ from those the police officer mentioned at the time of your arrest.
3. The appearance
In criminal law, the first appearance marks the start of the court process. Whether you were released or have been in custody since your arrest, this is your first date with the court. At this stage, you will be formally informed of the charges against you and the evidence gathered will be disclosed to you.
Please note: the trial does not take place at the first appearance.
At your first appearance, you can plead guilty right away. However, we recommend that you first review the evidence disclosed at the hearing before entering a plea of guilty.
To take the time to analyze the evidence, accused persons generally plead not guilty at the appearance stage.
The case will then be postponed to a later date, called a “remand for direction” or a “pro forma remand.” This postponement allows you to meet with your lawyer and review the evidence together.
For more details on the first appearance, see our article The first appearance in criminal law.
4. Interim release
If you are in custody at the time of your first appearance in court, the Crown prosecutor will state whether or not they consent to your release for the duration of the proceedings.
In many cases, the prosecutor and your lawyer will reach an agreement for you to be released, subject to certain conditions.
Objection to release
If, at your first appearance, the Crown prosecutor objects to your release, a judicial interim release hearing, commonly called a “bail hearing,” must be held within three clear days.
Generally, it will be up to the prosecutor to show, on a balance of probabilities (50% + 1), that your detention is necessary during the proceedings.
Under the Criminal Code, keeping an accused in custody during the proceedings is justified in the following cases:
- To ensure their attendance in court;
- For the protection or safety of the public, including where there is a substantial likelihood that the person will commit a criminal offence or interfere with the administration of justice if released;
- To maintain public confidence in the administration of justice.
For certain more serious offences, such as murder, the judge before whom you appear must keep you in custody. However, the defence can try to show that your detention is not required during the proceedings.
Release
If your detention is not justified for the duration of the proceedings, the judge will order your release, provided you undertake to comply with certain conditions.
Examples include the following conditions: keep the peace and be of good behaviour, not communicate with specified persons, notify the court of any change of address, not use alcohol or drugs, etc.
Sureties
The judge may require you to pledge a sum of money, which could be forfeited if you do not comply with the conditions (this is a personal undertaking without a cash deposit). At this stage, some of your family or friends could act as sureties, meaning they could also pledge a sum of money to ensure that you comply with your release conditions (this is a third-party undertaking, with or without a cash deposit).
5. The preliminary inquiry
Between the first appearance and your trial, a preliminary inquiry may be held if one of the parties requests it.
A preliminary inquiry is only available for the most serious charges under the Criminal Code (e.g., aggravated assault, sexual assault of a person under sixteen, fraud over $5,000, murder, etc.).
The main purpose of this inquiry is to assess the evidence related to the criminal offence alleged. The defence then has the chance to hear some of the prosecution’s witnesses for the first time. As a general rule, the defence lawyer does not call any witnesses at this stage.
At the preliminary inquiry, the judge must inquire not only into the charge already laid, but also into any other indictable offence arising from the same transaction.
At the end of the preliminary inquiry, the judge can order you to stand trial for the offence originally alleged and/or for any other offence revealed by the evidence at the hearing. If the evidence presented by the prosecution is insufficient, the judge must discharge you, which means the charges against you will no longer stand.
6. Negotiation
At any point in the court process, you or your lawyer can begin negotiations with the Crown prosecutor assigned to your case. For example, when the accused wants to plead guilty, the parties can reach an agreement on the sentence.
In that case, a joint submission on sentence will be presented to the judge. The judge should not reject the sentence jointly proposed by the parties unless it would bring the administration of justice into disrepute or is otherwise contrary to the public interest.
Negotiations can also cover other aspects of the court process, such as release conditions, the withdrawal or amendment of one or more counts, or a conditional or absolute discharge to avoid a criminal record.
7. The trial
The burden of proof
At this stage, the Crown prosecutor must prove your guilt beyond a reasonable doubt on each count against you. The burden of proof is on the prosecutor because you are presumed innocent. The presumption of innocence is guaranteed by the Canadian Charter of Rights and Freedoms.
The prosecution’s evidence
First, the prosecution presents its evidence to convince the judge that you committed the criminal offence alleged. The Crown prosecutor can file physical or documentary evidence and call witnesses, who can then be cross-examined by the defence after their testimony.
The defence’s evidence
Second, once the prosecution has closed its case, it is up to you to present your evidence, if you consider it necessary. The defence strategy that you or your lawyer have put in place must raise a reasonable doubt about your guilt. If it does, you will be acquitted.
Did you know? If the prosecutor fails to prove beyond a reasonable doubt that you committed the offence, you could be acquitted without even presenting a defence.
Closing arguments
Finally, once each party has completed its evidence, the trial ends with closing arguments. At this stage, each party presents its arguments to show guilt or innocence, as the case may be, and to convince the judge that its position is well-founded.
8. The verdict
After the trial, the judge delivers a verdict of guilty or not guilty on each count.
The judge may also find you guilty of a lesser offence than the one originally charged (e.g., you could be found guilty of assault when you were charged with assault causing bodily harm).
Note that the judge can give a decision immediately at the end of the trial or at a later date. The judgment can be delivered orally or in writing.
9. Sentencing
If the judge finds you guilty, a sentence will be imposed. Each party will then be asked to propose the sentence it considers appropriate in the circumstances. As at trial, the parties can call witnesses and file evidence to convince the judge to accept their proposed sentence.
The hearing where these submissions are made can be held on a later date than the verdict. The time between these hearings allows the parties to prepare properly before arguing for the appropriate sentence.
What is the appropriate sentence?
Sentencing must meet the objectives and principles set out in the Criminal Code. The sentence must always be proportionate to the gravity of the offence and the offender’s degree of responsibility. Your criminal defence lawyer has the training and tools needed to assess this proportionality.
The judge can impose the following sentences:
- Absolute or conditional discharge;
- Suspended sentence (probation);
- Restitution;
- Fine;
- Conditional sentence (imprisonment served in the community);
- Intermittent sentence (commonly called “weekend” imprisonment);
- Imprisonment;
- Various other orders and sentences.
10. Appeal
When a party believes that the verdict or the sentence contains certain errors, it can appeal the case.
Sometimes the appeal requires leave from a higher court, and sometimes it can be brought as of right, without the need for leave. In all cases, the deadline to appeal is 30 days after the date of the judgment.
Contact us
If criminal charges are laid against you, you now have a better idea of the court process you are facing.
Do not hesitate to contact one of our criminal defence lawyers as soon as you are arrested. Our team will give you the best possible defence and guide you every step of the way.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
