Department of Justice
www.justice.gc.ca
Common menu bar links
A Crime Victim's Guide to the Criminal Justice System
Going to Court
The Crown Prosecutor
Crown prosecutors are government lawyers who prosecute criminal cases. To prosecute means to lay a charge in a criminal matter and to prepare and conduct legal proceedings against a person charged with a crime. In Canadian law, crimes are dealt with as wrongs against society as a whole, not simply as private matters between two people, even though individuals often suffer injury or damage. A Crown prosecutor is therefore not the victim's lawyer, but is acting on behalf of all members of the public.
The Crown prosecutor prepares the case by researching the law, gathering and reviewing evidence, exhibits, and paperwork for court and interviewing witnesses. The Crown prosecutor decides whether to lay a criminal charge in some jurisdictions, and whether there is enough evidence to justify taking the case to trial. The Crown prosecutor's role is to prove, beyond a reasonable doubt, that the offence was committed by the accused. (The notion of reasonable doubt is discussed in more detail under Proof of Offences.)
The Defence Lawyer
A lawyer who represents a person charged with a criminal offence is known as a defence lawyer. It is the defence lawyer's job to ensure that the rights of the accused are protected throughout the criminal process. An accused person has a right to full disclosure of the case against them, including evidence that will be produced in court and statements of witnesses and victims. The defence lawyer may negotiate to have the charges withdrawn or to allow the accused to plead to a lesser charge. They may also explore the possibility of alternative measures for their client.
At trial, a defence lawyer must question the evidence put forward by the prosecution, examine the importance or relevance of that evidence, and explore other possible interpretations. The defence lawyer must do so within the limits of the law and according to ethical standards.
Witnesses
Witnesses and victims have a vital role to play in the administration of justice. Their testimony is a very important part of the Crown's case against the accused. To ensure that all the facts in a case will be presented to the court, witnesses and victims may receive a subpoena to testify in court. A subpoena is an order of the court requiring a person to appear in court and give evidence. Witnesses and victims should read the subpoena carefully.
Witnesses must take an oath or solemnly affirm to tell the truth. Witnesses whose mental capacity is challenged may give evidence if they understand the nature of an oath or solemn affirmation and can communicate the evidence. If they do not understand the nature of the oath or the solemn affirmation, but can communicate the evidence, they may give evidence on promising to tell the truth.
Witnesses under the age of 14 years may testify on a promise to tell the truth if they are able to understand and respond to simply framed questions. As with other witnesses, the judge will determine what weight to give to the child’s testimony.
Witnesses and victims may have fears and concerns about testifying in court. They may be worried about giving personal information. They may be unsure about understanding and answering questions well. They may be worried about not remembering important dates, times or other details. These concerns are normal. The Crown prosecutor and provincial victim/witness services can provide witnesses and victims with information about what to expect in court and options that may make testifying easier.
It is important for witnesses and victims to get the assistance they need to enable them to appear and testify in court as required. Anyone, including a witness or victim, who ignores a subpoena can be arrested and brought before a judge. A witness or victim who refuses to testify could be held in contempt of court and face a fine, or jail, or both. Witnesses and victims should ask the Crown prosecutor or victim services personnel to help them prepare to testify in court.
Levels of Court
Although the criminal court system is basically the same across the country, different provinces have different names for the different levels of court. Generally, provincial court systems are divided into provincial courts and superior courts. Provincial courts may include special youth courts. All criminal cases begin in provincial court and most are dealt with there. More serious matters may be heard in a superior court. Superior courts include a trial court or division, as well as an appeal court or division. Criminal matters that will be dealt with at the superior court level must first have a preliminary inquiry in provincial court to ensure there is sufficient evidence to proceed to trial. (Preliminary inquiries are discussed later in this booklet.)
Categories of Criminal Offences
The main categories of criminal offences in Canada are summary conviction offences and indictable offences. Generally speaking summary offences are less serious and indictable offences are more serious. Many offences can be prosecuted as either a summary offence or an indictable offence — the Crown prosecutor makes this choice. These offences are called dual offences or hybrid offences. Usually, Crown prosecutors prosecute the less serious of these as summary conviction offences, but they may choose to treat them as more serious indictable offences when, for example, the accused person has a criminal record or where the circumstances make the crime more serious. Court procedures and possible sentences vary according to the category of the criminal offence.
“Summary” means in a quick and simple manner. A judge hears summary conviction cases in provincial court. There is no choice of court, and the accused does not have a right to a jury trial. Usually, a person charged with a summary conviction offence is not arrested, but given a notice to appear in court on a certain date at a certain time. The person must be charged within six months of the offence. After this time a person cannot be charged with a summary conviction offence.
A person charged with a summary conviction offence does not have to appear in court personally. A lawyer or an agent may appear in court on that person's behalf, unless the judge asks the person charged to appear in person. An agent may be a friend or relative or a person hired to appear in court. The maximum punishment is a fine of $2,000 and/or a jail term of up to six months, except for a few specified offences, for example sexual assault where the maximum jail sentence is 18 months.
Very few offences in the Criminal Code are only summary conviction offences, although many dual offences end up being prosecuted as summary conviction offences.
Indictable offences are more serious crimes than summary conviction offences. There is more than one procedure for indictable offences. The procedure that applies depends on the seriousness of the offence.
Some indictable offences must be tried by a provincial court judge. No jury trial is available for these offences. A number of very serious indictable offences, such as murder, must be tried by a judge and jury, unless both the Attorney General and the accused person agree to a trial without a jury. For all other indictable offences, the Criminal Code gives the accused person a choice, called an election. In these cases the accused person can choose to be tried by a provincial court judge, by a superior court judge, or a superior court judge and jury.
A person charged with an indictable offence must personally show up in court. He or she may represent him or herself or be represented by a lawyer. There is no limitation period for indictable offences. This means that the police can charge a person years after the offence occurred.
Proof of Offences
Persons charged with a criminal offence are presumed innocent until they plead guilty or are proven guilty in court. The Crown prosecutor must prove that an accused person is guilty. Accused persons do not have to show that they are innocent. Accused persons are entitled to know the case against them.
If there is a trial, the Crown prosecutor must have evidence to present in court. Evidence is something that tends to prove the elements of the offence. Witnesses give evidence personally by testifying in court. Often there is also physical evidence — that is, an object that the Crown prosecutor shows in court and enters as an exhibit.
At any criminal trial, the Crown prosecutor must prove beyond a reasonable doubt that the accused person committed a criminal offence. The judge or the members of the jury cannot find the person guilty if they have a reasonable doubt about the accused person's guilt. Reasonable doubt exists if, after considering all the evidence, they are not completely sure whether the accused person committed the offence. To convict, the judge or jury must believe that the only sensible explanation, considering all the evidence, is that the accused person committed the crime.
Victims of crime may be the only witnesses to the crime, and are always critical witnesses. Their evidence may be crucial in proving the case against the accused. Victims may have concerns about giving evidence in court, and should discuss these concerns with the Crown prosecutor. A witness in any proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
Provincial victim/witness services can also provide assistance to witnesses who may have difficulty participating in the court process because of language difficulties, or physical, mental or age-related disabilities.
Answering the Charge
In court, the accused person, sometimes called the defendant, is told what offence he or she is accused of and enters a plea of either guilty or not guilty if the matter is to be heard in provincial court. An accused person who has an election, and who chooses to have a preliminary inquiry and be tried by a judge alone or a judge and jury, does not make a plea until after the preliminary inquiry.
If the accused pleads guilty, a trial is not necessary and the judge will sentence the defendant either immediately or at a later date. (Sentencing is discussed more fully later in this booklet.)
If the accused person pleads not guilty, the judge will set a trial date and, where applicable, set a date for a preliminary inquiry.
