SUMMARY
In part 1 of a 5-part blog series, we discuss the major steps in the Criminal Justice System that you can’t learn online or in Law School.
Unless you are a Criminal Lawyer, the odds are you are oblivious to how the Criminal Justice System in Canada works. It isn’t even taught in Law School. There is no conveniently written out comprehensive step-by-step guide. Most people are aware of a small percentage of the system: charges are laid, someone pleads guilty, or they are found guilty or not guilty at trial. In Law School, you learn about the Criminal Code, you learn about the common law, and you learn some aspects of the system, but fall short of learning the system.
The Chart above provides a very general but comprehensive breakdown of how our Criminal Justice system works. Please note that this article does not provide an exact breakdown as to how a charge is handled. Each file is handled differently and can be taken in a different order than provided here. This article only provides a general and common example of how a criminal charge is handled in the justice system.
THE INITIAL STAGE
The first step in the process is the investigation, arrest, and the choice of the police and prosecutor of releasing or detaining you.
Once police suspect a crime has occurred, an investigation commences. Police investigations can be as short as a single witness statement, or can last months. For example, consider a robbery at a gas station. The police will begin their investigation. They may interview the gas station attendant and any other witnesses in the surrounding area. They may check surveillance footage inside and outside. If possible, they may scour the scene for forensic evidence.
Once they’ve identified who they believe committed the crime, they place that person under arrest and charge them with a criminal offence. At this point the police have the power to release you on a promise to appear in court, or to detain you and make you appear before a court to ‘show cause’ why you should not be released. This is where your lawyer speaks with the crown, negotiates for your release with the prosecutor, and argues for your release at a bail hearing if need be.
THE 'COURT PROCESS' PHASE
Once bail has been addressed the “court process” begins. You are now required to appear in court every couple of weeks to provide the court with an update on the progress of your case. What are the updates? As you see above, your lawyer is required to meet with the prosecutor to discuss the case. The Crown will provide a brief opinion on their thoughts of the case, what they would agree to as punishment if you plead guilty, and how long a trial would last if it got there. After this meeting, the same meeting occurs, but with a judge included. This is called a judicial pre-trial meeting. The case is discussed in more detail, and a judge provides their opinion on the proceedings. All of these things need to be reported to the court on a periodic basis. This means you literally show up to a courtroom, stand in court before a judge, and prosecutor, and explain what is going on with your case.
During these appearances, there is often discussions and negotiation with the judge and prosecutor on various matters. For example, you may advise the court you want two extra weeks before setting a trial date because you want to change lawyers. The prosecutor may push back and argue that the case needs to be moved along quicker. A judge may grant you the two weeks, or they may order you to set a trial date then and there.
Think of it like this. You may be on vacation with some friends and every couple of days you call your mom to update her on what’s going on. You let her know how everything is going. She finds out that you intend to stay longer than agreed and she demands you come back earlier. You two negotiate and settle. This is in essence how the blue section works. Meeting with the prosecutor to discuss the case, and occasionally updating the court on the process.
THE TRIAL PHASE
After all the evidence has been reviewed, resolution discussions have been unsuccessful, the matter no moves into the trial phase. The green section (preliminary inquiries) is a process that is being slowly eradicated from our criminal justice system.
Green: once the meetings with the Crown and Judge have concluded and you do not want to plead guilty, you may request a preliminary inquiry, only if you’ve been charged with a serious offence (an indictable offence carrying a minimum punishment of 14 years imprisonment). A preliminary inquiry is like a min-trial. The Crown must present the evidence that they have in court to a judge, and a judge must decide whether there is enough evidence to go to trial. At a preliminary inquiry, the Defence is allowed to cross examine the prosecutors witnesses and put forth arguments why the matter should not proceed to trial. A preliminary inquiry is an underappreciated aspect to criminal law because it allows all parties to have a better understanding of the Prosecutor’s case, where the strengths and weaknesses are, and to reignite resolution discussions.
If the Judge finds there is enough evidence to go to trial, the parties must set a trial date.
if there is no preliminary inquiry, the matter goes right from court appearances and meetings, to setting a trial date. During this phase, your lawyer will carefully review the evidence and decide if any pre-trial applications should be filed. This includes delay and evidence exclusion. The applications are filled and generally argued right before the trial commences. The judge may make an order following the motion that the charges be stayed due to delay, or that certain evidence cannot be introduced by the Crown. Following the conclusion of the trial, a verdict of guilty or not guilty is given. If found not guilty, the matter is over. No criminal record, everything from the matter is over. If found guilty, the matter moves to sentencing. A sentencing date is set and the Prosecutor and your Lawyer will argue on an appropriate sentence.
This is a very brief and general overview on the Criminal Justice system in Ontario.