A criminal prosecution can be long and complicated; not easily understood by those with little or no familiarity with the Canadian criminal justice system. Often, Canadians' ideas of how criminal cases are conducted come from what they've seen on American television. This gives way to false impressions and inaccuracies about criminal prosecutions in Canada. This page takes you—step-by-step—through a Canadian criminal case. It explains the process clearly and simply and will help you to understand how a Canadian criminal prosecution works.
Criminal investigations are conducted by the police. Investigations are started when police see behaviour or receive information about behaviour which may be a crime. Some criminal investigations are completed quickly. Other investigations take weeks, months, or, in complex matters, years to complete.
The decision to lay a charge is the responsibility of the police. The police may lay a charge if, based on reasonable grounds, they believe a person has committed a crime. To help them make this decision, the police sometimes ask a Crown Attorney for advice. But the decision to lay a charge is the responsibility of the police.
When the police lay a charge, they complete an information package describing all of the evidence and deliver the information to the Crown Attorney. This information package is also given to the accused person. The police deliver to the court a list of charges against the accused person.
In Canada, less serious charges are referred to as summary offences, while more serious offences are referred to as indictable offences. In the United States, less serious offences are called misdemeanors and serious offences are called felonies.
The Crown Attorney is responsible for deciding whether to go ahead with a prosecution. Sound knowledge of the law, experience and judgment helps the Crown Attorney to answer two very important questions:
If the answer to both of these questions is yes, the Crown Attorney will prosecute. If the answer to either or both of these questions is no, the Crown Attorney will not prosecute. In this way, the Crown Attorney uses what is called prosecutorial discretion.
A realistic prospect of conviction is based on the strength of the evidence. Whether a prosecution is in the public interest is based on a number of factors. For example, the crime may be a minor one, or the accused may be in poor health, or the accused may be very old, or the victim may not wish to go ahead, or the crime may have been committed a long time ago. In such a case, the Crown Attorney may decide it is not in the public interest to prosecute.
Most persons who are charged with a crime are given a written description of the charge by the police. This document also names a date and court for them to appear to answer to the charge.
Sometimes the crime is very serious or the accused person has a criminal record. In these cases, the accused person may be held in jail until his or her first court appearance. At the first court appearance, the charge is read to the accused by the judge. This act of reading the charge to the accused is the arraignment.
If the accused has been held in jail, the judge will usually hold a bail hearing to determine whether the accused should be released or held until trial. If released, the accused may be ordered to obey certain conditions. Such conditions may be a curfew or not having any contact with the victim or witnesses. The accused person could be charged with a further offence if he or she fails to obey these conditions.
If the accused is charged with a summary offence, his or her trial will be in the provincial court before a judge. This is the same court in which the accused appeared for arraignment.
If the accused is charged with an indictable offence, he or she will usually have the choice of a trial in Provincial Court or in Supreme Court. If the accused chooses a Supreme Court trial, he or she may ask the Provincial Court to hold a preliminary inquiry to decide whether there is enough evidence to have the case go to trial. When the accused chooses to have the trial in Supreme Court, he or she may have the trial with or without a jury.
When a person charged with an indictable offence chooses to have a Supreme Court trial, a preliminary inquiry is usually first held in the Provincial Court. Sometimes, an accused person will give up the right to a preliminary inquiry and go directly to trial.
The preliminary inquiry is held to determine whether the Crown has enough evidence to go to trial. The preliminary inquiry also gives the accused a chance to see and hear the Crown's evidence. In Canada, the Crown does not get the same chance to see and hear the defence's evidence before trial. At the end of the preliminary inquiry, the judge will decide whether the case will go to trial or end at that point.
On a summary offence, after the accused is arraigned he or she will be asked to plead. In Canada, an accused may plead guilty or not guilty. When the accused is charged with an indictable offence, he or she will make a plea in Provincial Court or Supreme Court - whatever court has been chosen for trial.
In Provincial Court, all trials are heard by judge alone, with no jury. In Supreme Court, the accused person has the right to choose a trial before either a judge alone or a judge and jury.
If the accused person chooses judge and jury, a jury of 12 Nova Scotians will be selected from a larger number of people, known as a jury panel. Individuals who are Canadian citizens and are 18 years of age or older may be chosen for jury panels from the current listing of those holding Nova Scotia Health Cards. The jury itself is selected from the panel through a process in which both the defence and Crown Attorney participate.
The trial determines whether the evidence proves beyond a reasonable doubt the accused is guilty of any or all of the charges. A basic principle of Canada's justice system is that the accused is innocent until proven guilty.
The Crown Attorney presents the evidence against the accused. This is done by calling witnesses and introducing materials as evidence to support the charges. A statement given to police by a witness is not considered evidence. The witness must testify in court.
Each witness called by the Crown Attorney is asked questions. This is called direct examination. The defence lawyer is then given the chance to dispute the Crown's evidence and bring out evidence favoring the accused. This is done by questioning the Crown's witness and is called cross-examination.
After cross-examination, the Crown is given a chance to question the witness again. This is done if the witness's evidence needs to be made clearer. This is called redirect examination. During redirect examination, the Crown may only question the witness on matters brought up by the defence during their cross-examination.
Once the Crown has presented all its evidence, the defence is given an opportunity to present its case. The defence may decide not to present any evidence at all. If the defence chooses to present evidence, they do so by calling witnesses just as the Crown did. The Crown is able to cross-examine the defence witnesses. And, the defence may redirect after the Crown's cross-examination.
After all the evidence is presented, both Crown and defence make their closing arguments. In their closing arguments, each side sums up their case.
Once the judge or jury has had the chance to consider all the evidence, three verdicts are possible: guilty, not guilty, or in the case of a jury trial, a "hung jury". A hung jury means the jury was not able to reach a unanimous decision. And, jury members do not believe one can be reached. In this case, the judge will order a new trial with a new jury. If the accused is found by the judge or jury to be not guilty, the accused is free to go and cannot be tried again on the same charge, unless the Crown successfully appeals. If the accused is found guilty, the judge may pronounce the sentence immediately or may set a later date for sentencing.
The sentence is decided by the judge. The Crown Attorney and defence lawyer may make sentencing recommendations. The judge considers these recommendations but he or she makes the final decision on sentence.
An appeal is a request to a higher court to change a verdict, a sentence or some other special order made by a lower court. The Crown may appeal a verdict of not guilty. The Crown may also appeal a sentence it believes does not fit the crime. The defence may appeal a verdict of guilty. The defence may also appeal a sentence it believes is too harsh.
Appeals cannot be made just because the Crown doesn't like the decision. Appeals must be based on errors made by a trial judge on a point of law.
In summary conviction cases, the appeal can be made to either a judge of the Supreme Court of Nova Scotia or the Nova Scotia Court of Appeal. But most summary conviction cases are taken to the Supreme Court of Nova Scotia.
Appeals in indictable cases must be taken to the Nova Scotia Court of Appeal. When appealing a verdict of not guilty, the Crown must show that the trial court made an error in interpreting or applying the law. And, the Court of Appeal must be satisfied the verdict might have been different if the error had not been made.
When appealing a sentence, the Crown must persuade the Court of Appeal that either the judge didn't correctly apply the sentencing principle or, that the sentence is clearly unreasonable. The Court will not change a sentence simply because it may disagree with the sentence.