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Court of Quebec - Criminal and Penal Division

The Court of Quebec is made up of approximately 300 judges, including a chief judge, a senior associate chief judge, and four associate chief judges. The court is divided into several divisions: the Civil Division, the Youth Division, and the Criminal and Penal Division.

This section of Côtécour only deals with the Criminal and Penal Division, which, as its name indicates, hears criminal and penal cases.

In the Criminal Division, the court is always composed of a judge presiding alone. There is no jury at the Court of Quebec.

Criminal and penal law deals with forbidden acts called "offences". The person “suing” in criminal matters is the State and those found guilty of committing an offence are sentenced.

The Criminal and Penal Division of the Court of Quebec is called upon to apply a variety of laws, including:


Preliminary inquiries concerning criminal offences are also held at the Court of Quebec, even if they are eventually judged in Superior Court.



Judicial characters and concept

Judge

I have been a judge at the Court of Québec for almost 12 years now. I always wanted to be a judge. The job always attracted me because of the nobility of the judge’s mission: to find the truth and do justice. Criminal law is my specialty. Before being appointed, when I was a lawyer, I worked as a Crown prosecutor. I’ve argued all kinds of cases, from shoplifting to murder. These years of criminal law practice prepared me well for being a judge at the Court of Québec in this field. Since becoming a judge, I have been assigned almost exclusively to criminal cases.

Every day, my functions oblige me to make decisions. It’s a good thing that I am comfortable with decision-making. Obviously, some decisions are harder to make than others. For example, during a hearing for interim release, deciding whether to release or detain a person accused of a violent crime while he awaits his trial is difficult. The law provides that the accused is presumed to be innocent at this stage and if I have any doubt as to his dangerousness, I have to set him free. In these cases the difficulty is not in rendering the judgment, but in living with the consequences of that decision afterwards. Sexual assault cases involving young children often mean difficult decisions for me as well. During these kinds of hearings, it is important to stay calm and respect everyone present. By keeping control of the people in the courtroom, I encourage a respectful environment and this helps greatly with the administration of justice.

On the other hand, technical files like fraud or drug cases, which are usually less emotionally charged, touch me less on a personal level. These cases require a different approach and the arguments are based more on questions of law. The jurist in me finds these cases very interesting and intellectually stimulating.

When I put on my robe and bands, I try to detach myself from the normal me and adopt the role of judge. I have to leave my prejudices and personal opinions outside the courtroom and move beyond my moral opinions in order to judge in an impartial way, without taking sides. As a judge, I am not out to defend my interests, nor the interests of any other person or group. I apply the law. Paradoxically, I think that to judge well, it is important to have a certain amount of life experience as well as an open mind. My personality has to serve as a background for my role as judge, without distracting or influencing me when it is time to decide.

In certain cases over which I preside, I have to deal with the media following and reporting on the proceedings. The presence of the media doesn’t bother me and doesn’t influence my decisions. Still, the media only rarely take the time to really explain the principles underlying legal decisions. All the more reason why I should express myself as clearly as possible in my decisions. An important one hundred page judgment could be covered by a news report that lasts for only a minute and a half. Let’s be realistic: some legal ideas cannot be explained in just a few seconds.

Being well understood also becomes important when my decisions are contested on appeal. I can easily live with the possibility that an appeal court will tell me I made a mistake in a decision. But when a decision is reversed because I did not express myself well in the judgment and the appeal court is not able to understand my reasoning, that is a difficult pill to swallow. That is when I have the impression that I have not done my job well.

No matter what the downsides of my profession might be, I love being a judge. It is a fascinating job. I am very proud to have become a judge; in some ways it is the ultimate achievement in a jurist’s career. But I have to go now – they are waiting for me in the courtroom.



Court usher

I am the most senior court usher at the courthouse. Twenty-four years of service! People often ask me what exactly I do at the court. So here you have it – a little overview of my role during a trial.

The word “usher” was originally used to describe a servant who was in charge of doors and allowing people to pass through them. But I’m not just a doorman! One of my responsibilities is to make sure that the courtroom is ready for the trial. For example, I have to make sure that the judge, the lawyers, and the parties have water available to them during the proceedings. If the court file is large, I am the one who transports it from the judge’s chambers to the courtroom. In some important cases, I have seen files that filled up many boxes. I also make sure that any law books the judge will need are handy.

Once the room is ready, all we need are the lawyers, the parties, and the judge. It’s up to me to coordinate everybody, as the judge only makes his appearance once everyone else is present and ready for the trial to begin. When it’s time to begin the proceedings, I have to find the lawyers if they are not already in the room. Generally, they are not too far away, waiting either in the hallway or in one of the nearby conference rooms.

The hearing usually starts on time. The judge may nevertheless delay it to allow the parties time to negotiate an out-of-court settlement. In such a case, I act as the messenger and let the judge know how the negotiations are going. If the parties come to an agreement, everyone will meet in the courtroom where the judge will ratify the settlement by pronouncing a judgment that is in line with it. On the other hand, if no settlement is reached, the trial goes ahead as planned.

I make sure that decorum is respected in the court. When the judge enters, I ask everyone to stay quiet; once the judge sits down, I pronounce the famous line, “Court is now in session.” I then invite everyone to take their seats. During the trial, I often have to spend long hours seated and motionless. I spend the time listening to the testimony and to the lawyers’ arguments, while keeping an eye out for situations that may require my services. I might be called to go photocopy documents, to meet witnesses waiting in the corridor or, in hearings that are closed to the public, to ask people other than the parties or lawyers to leave the courtroom.

In my work, it is important to exercise a great deal of discretion. If I am ever assigned to a case that involves people I know personally, I ask another court usher to replace me. I am well aware that it’s difficult and intimidating enough to be in court, never mind also having to tell your story in front of an acquaintance.

Having attended so many trials during my career, I have picked up a lot about the law, but I have also learned about people’s lives and about human nature, in general. In the first few months of my work, I remember being quite affected hearing a woman recount how her child had died. I have listened to many sad stories, but I have also seen some pretty crazy situations.

So there you have it, that’s my role in court. The court usher is in some ways the person who makes the whole thing work. Discreetly, he makes sure everything is in order so as to make life easier for the judge, lawyers, witnesses, and parties.



Court clerk

They also call me the clerk or the legal secretary. Someone once asked me the origin of the word “clerk.” I told him that it was derived from the word “cleric.” During medieval times the clergy were some of the few who could read and write, and so were often employed to do bookkeeping and other similar work. Does this give you a hint about my job?

I work alongside the judge. I was her secretary when she was a lawyer and I followed her here when she was appointed. Part of my work involves writing her correspondence, typing her judgments, taking her phone calls, and organizing her schedule – in short, all the tasks that are assigned to a judge’s secretary. My training as a legal secretary helps a lot for this aspect of my job. The other part, really the essence of my role as a court clerk, I had to learn on the job.

It is not exaggerating to say that my role as court clerk is indispensable during the trial. I am the one who takes notes for the judge so that she can devote all of her attention to the lawyers and the witnesses. Even if I usually work for her, I am occasionally assigned to other judges. Today, for instance, I am the court clerk in a case presided over by another judge, who, while extremely polite, is very fussy about courtroom decorum. He also speaks very quickly when rendering decisions during the trial, to the point where I have had to ask him to slow down because I am sometimes unable to keep up when taking my notes. Like most court clerks, I wish I could remember my shorthand. But it’s not the end of the world, as I can always use the tape recording of the hearing to listen to what the judge said a second time.

A typical day as a court clerk begins with administrative tasks. Following that, I make my way to the courtroom with the file for the case that is to be heard. When there are many cases scheduled for the same day, I post a list at the entrance to the courtroom or I send a copy to the lawyers to let them know the order in which the cases will be heard. When the judge arrives, I ask by telephone that the audio recording be started. Then I formally open the proceedings by stating the number of the case, the names of the parties, and by asking the lawyers to identify themselves.

Once the hearing begins, I try to be as discreet as possible for the benefit of the lawyers, their witnesses, and the judge. I may look like I’m twiddling my thumbs, but don’t be fooled: I am listening attentively to everything that is being said in order to record the minutes of the hearing. Sometimes I interact with the witnesses and lawyers; this is the part of my job that I enjoy the most. At the request of the lawyers, I call the witnesses to the stand and have them sworn in. I am also the one who collects the documents and exhibits of evidence submitted to the court record by the lawyers. I write a reference number on each of these, which I record in the minutes of the hearing, and I later hand them over to the judge. One of the strangest items I have ever received was a half-burned fire log submitted as evidence in a sexual assault case.

The minutes of the hearing, which I keep mentioning, are a series of forms that I could probably fill in with my eyes closed because I know them so well. I take notes of the principal phases of the trial, such as the examinations and cross-examinations, the names of the witnesses, and the arguments of each lawyer. I also record each motion submitted to the judge and each objection raised by the lawyers, as well as the decision rendered by the judge. These minutes come to form a kind of roadmap of the trial. They make it easier to find particular parts of the trial on the audio tape recording, as the name of every speaker and the exact time at which he or she began speaking are recorded.

I have been doing this fascinating job for 10 years. During this time, I have seen all kinds of trials. Fraud cases, divorce hearings, disputes between multinational corporations; believe me, I’ve seen it all! So there you have it: that is what I do as a court clerk. It is definitely a job that requires a great deal of precision and attention to detail.



Crown prosecutor

My official title is Attorney General’s prosecutor. People use different expressions to refer to me: Crown prosecutor, the Crown, the prosecution or just, the prosecutor.

My title doesn’t say much about my role and functions. Briefly, I am a lawyer specializing in criminal law and working exclusively for the government. In court I prosecute people accused of committing criminal offences. In a way, I work for society at large. My role is not necessarily to win the case, but to try to uncover the truth.

Here is a general idea of what I do:

When the police have finished an investigation that concludes that a particular person has committed an offence, they bring me their investigation report. I study it carefully. I search the file for evidence of offences.

After studying a file, if the evidence does not seem complete to me, I ask the police to give me more details or to continue the investigation. If this is impossible and no other evidence is available, I reject the complaint, meaning I decide that there will be no prosecution against the suspect.

If, on the other hand, the evidence is sufficient, I authorize the laying of criminal charges. In practice, I decide what charges are supported by the evidence from the investigation file. After that, according to my instructions, an assistant prints the charges on the “Information,” the official document that is the starting point for any criminal accusation.

In the courtroom, I carry out several functions. My tasks depend in large part on the size of the office in which I work. I used to work in a sparsely-populated region where there were only two of us in the prosecutors’ office. I took care of about half the files, including all the procedural steps. In one week I could authorize charges in my office, then attend all of the appearances in court, the interim release hearings, the preliminary inquiries, the trials, sentencings, and appeals (for more details on these different steps, consult the “parcours judiciaire”). Now I am in Montreal. There are more than one hundred prosecutors here and I take care of specific tasks – each of the prosecutors is quite specialized.

I make important decisions under pressure on a daily basis, and, because I don’t always have the time I would like to be able to do it properly, I have to keep my mind sharp. There are definitely a lot of files to keep on top of: I easily deal with thirty files per day. For court appearances, there are sometimes more than one hundred files on the roll for a single day of hearings!

I often find myself between divergent and often opposing interests: of the victim, the accused, his lawyer, the police, the media (and public opinion), the judge, and my boss. In a certain sense, to keep my credibility, I have to be able to justify each of my decisions to all of these people.

I work at the heart of the action in a stimulating environment. I am never bored and the days go by at a crazy pace. Plus, I really have the feeling that I am performing a service to society.



Accused

About six months ago, I was arrested by the police. They brought me to the police station and searched me. A short time later, they released me and gave me a court summons. I then went to talk to a lawyer who explained the charges against me. I’ve been accused of assault, an offence under the Criminal Code.

Since then, I have been to court four times. I went through all of the steps of the legal process that lead up to the trial: appearance, disclosure of the evidence, and negotiations between my lawyer and the prosecutor. I assure you that I may be presumed innocent, but it is still difficult to live with the weight of a criminal charge on my shoulders. Fortunately, I am free right now. At one point, I considered pleading guilty so that I could obtain a lighter sentence and get this nightmare over with quickly. But I am innocent! I cannot confess to a crime that I didn’t commit. My lawyer explained that the judge wouldn’t accept it, anyway. So I took advantage of my right to have a trial.

My lawyer says that I have a good explanation to give to the judge. He called it “self defence.” We discussed my testimony, but not as much as I expected, “so that you won’t be influenced,” he explained. He told me about how the trial would work, how to act in front of the judge, how to answer questions, etc. He explained that the other lawyer, the prosecutor, would certainly ask me questions that I wouldn’t like. He insisted that I stay calm and just answer the questions asked. “All this is normal, don’t worry. This person has nothing to gain in this case – whether you are convicted or acquitted it is the same thing for her.”

The day of the trial, appearing at the courthouse made me scared! During the trial, I became furious whenever I heard witnesses say things that I didn’t like. My lawyer had told me to stay quiet and to wait for my turn to testify. The moment came, and I had a bad case of nerves. It felt like my entire destiny depended on my testimony. Luckily, it went fairly well and I had the time to explain myself to the judge.

At the end of the trial, the judge said that he wanted to take some time to reflect on the case before giving his verdict. The file was postponed to another date, in three weeks. I can’t wait to know the decision. The possibility of being found guilty or having to do time in prison makes me really nervous.



Investigator

Everyone knows about the aspect of the police detective’s job that involves catching suspected criminals. But few people realize that my job as an investigator does not end with the arrest of a suspect. My work continues at the court, in collaboration with the prosecutors.

During an investigation, I try to uncover the evidence that could identify the person or people who committed an offence. As part of this investigation, I meet witnesses who can give me information. When this information is important or relevant to the case, I ask the witness to submit his version of the facts or events in the form of a special document. This document is called a “statement”. I also verify the existence of other evidence, like video recordings, photos, or weapons used in the crime. All these objects that could help prove the guilt or innocence of an accused are evidence, also called “exhibits”.

When I believe that I have collected enough information to prove that a specific individual committed an offence and to convict him or her, I complete an investigation report. This report includes all the steps that I took, a summary of the facts, a list of witnesses, their statements, a statement from the victim (as needed), the victim’s history, as well as any other relevant documentation. The report is then sent to an “Attorney-General’s prosecutor,” also called a Crown prosecutor. The Crown prosecutor uses this information to help decide whether or not to charge the suspect. Since I know the investigation report well, I often discuss it with him and make recommendations.

When a trial or a preliminary inquiry is planned, I help the prosecutor prepare adequately, especially if the file is complicated or long, as it can be in some fraud cases, for example. In that case, I help him to analyse and understand all of the evidence. If there are still questions, or any additional investigation becomes necessary, I take care of it. The day of the trial hearing or of the preliminary inquiry, the prosecutor often requires my services. During the whole procedure, I stay available to him in order to answer his questions and help him as needed.

I also play an important role with respect to the witnesses for the prosecution. Certain witnesses need more attention than others. Once I had to reassure a 12-year-old victim of a sexual assault who was very afraid of her aggressor. For the duration of the trial, I stayed at her side to keep the accused from trying to communicate with her.

At various stages in the proceedings, I can be asked to testify to explain to the judge the steps I took during the investigation, among other things. This might include the arrest of the accused, the discovery of evidence or the taking of statements from witnesses. My testimony is especially important when I have obtained admissions from the accused.

I do a demanding but very interesting job. Exposure to the court is very stimulating and over the years I have learned more and more about how the process works. I can better understand its logic as a consequence.



Witness


I am the witness and I am on the front lines of justice. Without witnesses, it would often be difficult, even impossible, to bring out the truth before the court.

Over a year ago, I was a witness to an assault in the street. Then, a few days ago, I received a summons to come testify in court. I came to the courthouse at 9:00 am on the scheduled day. The prosecution called me. Once at the courthouse, a police officer brought me to a little waiting room. Everyone who was called as a witness waited their turn. The police investigator in charge of the file came to meet me. He greeted me and gave me a copy of my written statement on the assault. I read it quickly because I remember that night very well.

A few minutes later, the prosecutor, a lawyer wearing a kind of black robe, introduced herself to me. She explained that she didn’t yet know when I would testify, and that she would do all she could to make it soon. It didn’t bother me so much to wait, even if I am taking a day off work at my own expense, but I still don’t understand why I have to come testify. I wrote everything I knew down in my statement. All they have to do is show it to the judge!

After lunch, it was our turn. I went and sat in the courtroom. Once everyone was present, the judge asked me to go wait in the hallway so that I wouldn’t hear the testimony of the other witnesses. It seems to be common practice to exclude people from the courtroom this way. An hour later, I was asked to enter. As I was testifying, I realised that what the lawyers and the judge wanted to know went far beyond the few lines of my statement, written at a table at the police station.

About twenty minutes into it, the prosecutor said she no longer had any questions to ask me. Phew! I was relieved – I thought it was over. Not at all! The accused person’s lawyer stood up and immediately began to ask me a ton of questions. After that, he showed me my statement, which I had unfortunately only read briefly before testifying. The lawyer constantly insisted on the differences between this written statement and my testimony. In answering these questions, I realised that I was missing some important details, such as the attacker’s eye colour. The lawyer seemed to imply that I was not telling the truth. What a horrible feeling! Suddenly, I wasn’t at all sure that I recognised the accused as the one who I saw in the street on the night of the attack. Memory plays tricks on us! Finally, I felt as if I had my back to the wall. I was wavering between saying that I was no longer certain about my version and hanging on to what I had said in order to save face. Even though the lawyer was very respectful toward me, I didn’t want him to win by making me look like an idiot. I had the impression – false of course – that it was my trial and not the trial of the accused. I decided to be a good person and stay honest: I admitted my doubt as to the identity of the aggressor.

Another thing was really difficult: the questions were asked by the lawyers (who were standing to my left and right), but I had to look at the judge when I answered. I had the tendency to look at the lawyer who was questioning me, but the judge brought me to attention a couple of times: “Look at me please, madam. I am the one who has to make a decision at the end of the trial, not the lawyers!”

After two hours of testifying, I was exhausted. Afterward, there were other witnesses, including the accused, who denied ever assaulting anyone. After hearing all the evidence, the judge had doubts and acquitted the accused.

Before leaving, I went to see the clerk to receive my compensation for being a witness. Witnesses receive a small amount of money for their presence in court.

Testifying is not an easy experience. If I am a victim of a crime one day, I would be happy to have a person like me there to see or hear what happened and to participate in letting the judge find the truth. I would be grateful to her for coming to court the way that I did today.



Public


I am the public, the people; I am you and me. Some decisions of the court can have serious effects on our lives. This is why I have the right to be present in courtrooms and to consult the court records. I may attend every case at the Court of Québec, Criminal and Penal Division if I want to. A few of us come to the court hearings regularly. Seated in the hearing room, we observe the dramatic spectacle that justice can be.

In the courtroom, besides curious observers, you will obviously find people who are waiting for their turn before the judge as well as witnesses, police officers, journalists, and even victims. The parents or friends of these people sometimes come to court as well to support their loved ones.

However, the judge may sometimes decide to conduct the hearing in camera, meaning that the public must be absent. In this case, I will be asked to leave the room. For example, this can happen in cases where the victim is a child who is intimidated by the presence of the public.

While the trial is in progress, I avoid entering or leaving the hearing room. If I want to read the paper or speak to another person, I go into the hallway. When the judge leaves the courtroom, I stand up and stay standing until she has left before moving from my place.

At the Court of Québec, Criminal and Penal Division, the files dealt with often raise fascinating issues and therefore often interest the general public. Journalists may attend hearings and, indeed, they are often present in the criminal court. Their role is to provide people with information about the proceedings that are taking place. They are forbidden from reporting what is said during the trial if the judge has ordered a “publication ban”. Orders of this kind are frequent in sexual assault cases.

Although in the United States the courts allow trials to be broadcast on television, here no television or still cameras can be brought into the courtroom. Even outside of the courtroom, journalists are allowed to film only in authorized areas. In addition, the media must respect the rule of sub judice and use restraint when reporting on a case that is before the courts. They break this rule if they take a side, make judgments about how the trial is being conducted or how the court has decided an issue, or pronounce on the quality of the evidence presented. In short, journalists cannot take the place of the judge; their role is limited to reporting the facts. Once the judgment is made, however, they can express themselves freely and the “critique” can begin. The media’s role is essential to keeping the public up to date on important trials and decisions rendered by our courts.

The public aspect of our system is of fundamental importance. Being able to be present in the courtroom and to watch trials in progress assures everyone that the rules of law are applied correctly and in the same way to everyone.



Recording


Every courtroom is linked to the courthouse’s central audio recording system, which consists of a network of microphones, tape recorders and speakers. The role of this system is to make recordings of each hearing, which are then available to judges, lawyers, journalists and the public. To do this, two independent systems are used at the same time – one makes a recording of each individual hearing, and the other makes a master recording.

The individual recording system is made up of a series of tape recorders, each of which is linked to a single courtroom. The court recorder starts the individual tape at the moment when the clerk of the court telephones him to say that the hearing is beginning. He stops the recording when the clerk lets him know there is a break in the hearing or that it has ended.

The master recording is a backup copy in case the individual system doesn’t work properly. The sound quality of this system is not as good as the individual system, but it allows the recording of sound in 20 courtrooms at once. It starts in the morning as soon as the courthouse opens, and doesn’t stop until the last hearing of the day ends.

Because the master system is constantly recording, private conversations, such as those between lawyers and their clients, may be picked up on it. For this reason, no one may listen to the master recording without the permission of the Chief Justice of the Court. This prohibition even applies to the court recorders.

Let’s come back to the individual recording system and how it can be used. Using the speakers in the courtroom, the judge and the people in the room can hear what had been said earlier in the proceedings, if needed. This can be useful when a witness says something and denies saying it a moment later. The clerk can rewind the tape to the right place at the request of the judge. Then, the court recorder plays the tape recording on the speakers.

In addition, the tapes are available at a certain cost to anyone who is interested. For example, sometimes journalists come to listen to a trial that they couldn’t attend in person. They can then report what happened, but they are not allowed to broadcast audio clips from the tapes. That being said, the public doesn’t have access to recordings of cases that happen in closed hearings, like those of the Family Division of the Superior Court, or those of the Court of Québec, Youth Division.

To use this service, all that is necessary is to give the date of the trial, the room number and the file number to the attendant responsible for the recordings at the courthouse. It is even possible to ask to hear exactly what was said at a specific time because there is a track that records the time on the tape.

It is also possible to obtain a written version of the recording. This is called a transcript. The tape is sent to an official stenographer who types out what is heard on the tape. This rather costly service can be useful when a person is involved in several legal proceedings related to the same events. For example, a person may be sued over a contract both in Small Claims Court and before a criminal court. During the criminal trial the person might say that the cat was red. In the Small Claims documents she said that the cat was blue. It could be useful to show the judge there are two versions of the story, in order call this person’s credibility into question.

If the recording system didn’t exist at the courthouse, the lawyers would have no choice but to hire an official stenographer to ensure that everything said during the trial was properly recorded. In fact, this was the method used in the past, before someone had the brilliant idea to install a tape recording system



Oath


When a person takes God as a witness that she is telling the truth in stating a fact or that she will fulfill a contractual promise, we call this an oath. In court, the oath takes the following form: “Put your right hand on the Bible. Do you swear to tell the truth, the whole truth and nothing but the truth? Say ‘I swear’.” The court clerk delivers these three little lines to every witness called during a criminal trial. Instead of swearing on the Bible, a witness may also ask to make a solemn affirmation. The clerk of the court will then ask the following question: “Do you solemnly swear that the testimony you are about to give will be the truth, the whole truth and nothing but the truth?” If the witness does not belong to a Judeo-Christian religion, she can take the oath according to her own religious convictions. Once the witness is sworn in, the court clerk asks her to state her name, birthdate, and occupation and then records this information in the minutes of the hearing. Since January 1, 1994, only the solemn affirmation is permitted before civil courts of Québec; other kinds of oath are no longer recognized.

The judge cannot hear a witness who has not first been sworn in except in special cases, such as when the witness is a young child. A judge can authorize the testimony of a young child who does not understand the nature of the oath but has the ability to explain facts. The judge has the child promise to tell the truth. Often, to make sure the youngster understands the promise and has the capacity to explain the facts, the judge has an informal conversation with him in his office, only in the presence of the lawyers. The judge wears no robe and does everything possible to make the child feel comfortable at this point.

The promise to tell the truth, in the case of young children, and the oath, for ordinary witnesses, encourage people to testify honestly. Most take this very seriously. In the olden days, the oath ordinarily included the administration of curses, by which the person who took the oath called the wrath of the heavens upon himself in case of perjury. Dealt with more modestly today, false testimony is an offence that may result in a fine or a stay in prison. But it is still an imperfect method of ensuring that the truth comes out. The lawyers and the judge pay close attention during the entire trial so as to evaluate the credibility of witnesses. The judge takes this into account in his decision, especially when several witnesses contradict each other.



Defense lawyer


I defend the accused. The role of a Court of Québec defence lawyer is nothing like what you see in American movies. It is not enough just to talk loud and be theatrical. Judges have seen it all and they prefer to rely on the evidence presented, instead of fiery speeches.

People often have the impression that every accused person I defend is guilty and that I am just there to help them construct a series of lies to get off. This is absolutely not the case. The legal system is based on a multitude of complex and important rules, each of which has a purpose. It is almost impossible for a person, left alone in this labyrinth, to find his way. My role is to ensure that my clients are informed about the rules of the game. As needed, I help make sure that the police, the prosecution, and the court all respect their rights. Without a lawyer, an accused person runs the risk of being wrongly convicted.

What’s more, even if many of my clients really did commit the crimes alleged against them, they still all have rights. Boiled down, I am like a shield or a wall protecting my clients, and people in general, against possible abuses of the legal system.

Come with me today and see what a typical day is like for a defence lawyer. Then you’ll understand…

8:30 am: I have a meeting at the office with Marcel, a client accused of assault and uttering death threats against his spouse. Marcel admits to having serious alcohol problems, which make him violent on occasion. He says he wants to start therapy for this problem. He admits to having “pushed” his spouse on the night of the alleged offence during a heated argument between them, but he denies threatening her with death. In her written statement, which she gave to the police the night of the incident, the victim is not clear on the question of the threats.

9:00 am: Upon my arrival at the courthouse, I go to the Crown prosecutors’ office, where the lawyers who take care of criminal prosecutions work, and ask to speak with the prosecutor in charge of Marcel’s file.

I tell the prosecutor about the discussion that I had with Marcel. We finally come to a compromise. The charges of uttering threats will be withdrawn – the prosecutor recognizes the victim’s uncertainty on that point in her statement. Finally, we agree that Marcel must plead guilty to assault and we will suggest to the judge a fine of $400 for the offence. On top of that, Marcel must undergo therapy for his alcohol problem.

9:22 am: I speak with Marcel about the settlement proposed by the Crown prosecutor. He’s the client and it’s up to him, not me, to decide whether to accept it or not! After asking me a few questions and weighing the pros and cons, Marcel follows my advice. He decides to accept the agreement and plead guilty.

9:30 am: In the courtroom, Marcel pleads guilty and I explain the agreement I made with the prosecutor to the judge. After giving it some thought, the judge finds our sentencing suggestion reasonable and accepts it. After finding Marcel guilty and imposing the sentence agreed upon, he wishes Marcel good luck.

10:30 am: I go to another courtroom where Paul, accused of impaired driving, is having his trial. Paul has a good defence: the night of the alleged infraction, he went to a party where he drank three beers. Five minutes before leaving the party in his car, one of his friends made him drink three “shooters” in a row. Paul was stopped by the police just a block away. Obviously, he had alcohol on his breath, but since the it hadn’t been in his system long enough to have been digested, he was not yet impaired by it. The police officers still arrested him and, an hour later at the police station, his blood alcohol level had increased and went over the legal limit. The result was that Paul failed the breathalyser test. At the trial, thanks to Paul’s testimony and with the help of an expert report, it was possible to show the truth about Paul’s state at the moment that he was driving. After hearing all the witnesses and the arguments, the judge acquitted Paul.

4:00 pm: After receiving Paul’s thanks, I leave for my office to prepare for tomorrow, which also promises to be busy. Indeed, just as I arrive, my secretary hands me a pile of telephone messages. I also have several letters to write and a few new judgments to read. Excuse me – I have a ton of work to do, and I have to get to it. Good bye.



Special constable


I am a special constable. In fact, I am a full-fledged police officer. I even carry a firearm on my belt. The courthouse is my territory. I make arrests and conduct investigations there when necessary, but general surveillance and keeping order are my main functions.

I work in the courtrooms as well as in the halls and the offices of the staff. Some people think that I don’t do anything, but this is not the case. A quiet morning can easily turn into a circus. Even if everything goes well most of the time, a day in criminal court is not exactly a gathering of the school chess club.

In the halls, interaction between witnesses, victims, and accused can sometimes lead to fireworks. Even if these situations are fairly rare, I stay vigilant to ensure that everything unfolds calmly.

In the courtroom, I make sure that the rules of the court are respected, like the rule prohibiting cameras, recorders, pagers, and cellphones. I also ensure that silence and decorum, necessary for the smooth running of the hearings, are maintained in the courtrooms. If a member of the public becomes agitated or talks during the proceedings, I intervene quickly but discreetly to put an end to this behaviour. You should know that chewing gum, sleeveless shirts, shorts, sandals, hats and caps, among other things, are not tolerated in the courtroom.

When a judge is about to send an accused into detention, he lets me know. With my colleagues, I come to the courtroom to help the corrections officers. We stay ready to step in in case of an escape attempt. When the judges move from one part of the courthouse to another, I escort them, especially when they have to travel through a hallway where members of the public may be present.

On occasion, the judge forbids the public from entering the courtroom. This is called an in camera hearing. In that case, I make sure that only people authorized by the judge enter the courtroom.

When an offence is committed in the courthouse, the special constables are the ones who investigate and make a report. I can also make arrests. But arrests always happen in the hallway–never in the courtroom–because this would unnecessarily disturb the hearings.

The next time you come to the courthouse, you should feel safe because I am there. Even if you have no problems to report, feel free to come and talk to me – it would be a pleasure to meet you.



The proceedings, step by step

This section is meant to introduce you to the main steps surrounding the presentation of a file in court. The idea is not to turn you into a legal expert, but simply to make sure you’re informed!


1. Arrest and appearance in court

An individual’s arrest for an offence often marks the end point of the investigative work of police officers. For an accused person, an arrest is also the entry point into the criminal justice system.

Arrest
Where police officers have reasonable grounds to believe that an individual has committed an offence, they have the power–but no obligation–to arrest that person. In this instance police are allowed, at least temporarily, to deprive the person of his liberty. The law requires a person to be released as soon as possible after an arrest. The police may give that person an appearance notice before releasing him if they intend to request that charges be laid against him. This notice can take different forms. The one that is given to an accused at the police station by the police is called an “appearance notice” or a “promise to appear”. If need be, the promise to appear can be subject to certain release conditions.

In other circumstances, the arrested individual may be released without any formalities and, if charges are laid later on, the court will send the accused a notice to appear by mail which is called a “summons” in this case.

This document sets out the alleged offence, as well as the date and place of the appearance. On the scheduled day, the individual must present himself in court for the first step in the judicial proceedings: the appearance.

In certain circumstances, the police have the power to keep the arrested individual in custody if they are unable to identify him. The police also have this power in cases where they are worried that the individual will not show up to court when summoned, will hide evidence, or commit other offences if released. The fear of retaliation against victims or witnesses could also be a reason for keeping the individual in custody. Lastly, some crimes are so serious that it is too risky to release the individual accused.

When the police decide to keep an individual in custody, they must bring him before a judge within 24 hours of the arrest. Failure to respect this delay can lead to a stay of proceedings, which means that the court proceedings against the accused must stop. For some time now, it has been possible to “appear” by telephone in many regions of Quebec. This makes it easier to respect the time limit in certain cases, such as if the person was arrested on a Friday night.

Authorization of the complaint: the decision to press charges
During an investigation, the police must prepare an investigation report if they find evidence that a person committed an offence. This report contains the facts and the evidence collected during their investigation. The police send the report to the regional office of the Crown prosecutor. In Quebec, it is traditionally not up to the police to decide whether to press charges or what offences will be charged against the arrested individual. The Crown prosecutors make these decisions.

In fact, in Canada neither the police nor the victim of the offence prosecute the accused in court (except in the rare case of private prosecutions). The victim is usually involved only as a witness to the offence. It is the Attorney General who takes charge of criminal prosecutions on behalf of the State. Given the significant number of files, the Attorney General delegates certain powers to Crown prosecutors – lawyers who work for the State and who are responsible for handling criminal prosecutions. In Quebec, there are over 300 Crown prosecutors.

Please note that Crown prosecutors are also sometimes simply called “prosecutors” or “the prosecution”. Éducaloi uses these terms interchangeably in the following text.

The decision of the Justice of the Peace
Once the prosecutor decides what offences will be charged, he prepares a document called an “information”. The police officer who is responsible for the file then takes this document and meets with a Justice of the Peace. The Justice of the Peace administers an oath to the police officer, which means that the officer swears to tell the truth. The police officer then signs the information.

The Justice of the Peace has the right to refuse to sign the information if, for example, he believes that the charges are not well-founded. Before deciding whether or not to sign the document, the Justice of the Peace may insist on hearing or seeing the evidence herself. This hearing, or pre-enquiry, would occur in private and is only held on very rare occasions.

Once the Justice of the Peace has signed the information, the accused is considered to be formally charged.



2. Appearance in court

The appearance is the first formal step of the criminal process. It is during the appearance that an individual accused of committing one or several offences comes before a judge for the first time. There, the accused either pleads guilty or not guilty to each of the charges listed in the information. If necessary, the accused also chooses the mode of trial.

The information
During the appearance, the court has the duty to tell the accused the offences with which he is being charged. The charges are written in a document prepared by the prosecution called an “information”. The clerk reads the information out loud in court. The information forms the basis for any criminal proceeding and every alleged offence is described in a separate charge.

Here is an example of a charge:

On or around January 22, 2003 in Montreal, you operated a vehicle while your capacity to do so was impaired by alcohol or a drug, thereby committing the offence set out in section 253(a) and 255(1) of the Criminal Code.

The defence may agree to skip the reading of the information in order to speed up the appearance. It would then be up to the defence lawyer to inform the accused of the charges he is facing. While an accused may defend himself, he is usually represented by a lawyer due to the importance and complexity of criminal proceedings.

*Note: In the text that follows, the terms “the defence” or “the accused” mean either an accused representing himself or an accused represented by a lawyer.

The plea
After hearing the charges against him, the accused must indicate to the judge whether he is choosing to plead guilty or not guilty to each of the charges.

If the accused decides to plead guilty at this step, the judge must determine an appropriate sentence. The sentencing may be done immediately or at a later date.

The accused may also decide to plead not guilty, either because he is innocent or because he would like more time to consider whether or not to demand a trial.

It is important to note that any time before the judgment is rendered, an accused who has pled not guilty can change his mind and enter a guilty plea.

The accused can decide at the appearance whether he would like his trial to be held in French or English. The choice of language will determine what language is used for the other steps of the proceedings.

Indictable offences and summary convictions
Depending on the offence with which a person is charged, there are two main ways to prosecute that person: by indictment and by summary conviction. There is a subtle, but important, distinction between the two. For now, just remember that the procedure for summary convictions is simpler, quicker, and the sentences are less severe than for indictable offences.

Hybrid offences
The Criminal Code lists some offences that can be prosecuted either by indictment or by summary conviction, depending on the prosecution’s choice. They are referred to as “hybrid” offences (e.g. impaired driving). For these offences, the prosecution is expected to favour proceeding by summary conviction.

For example, suppose Pierre is charged with impaired driving for the eighth time. The last time, the Crown attorney proceeded by summary conviction. The judge sentenced Pierre to six months in detention, which is the maximum penalty for most summary convictions. This time, however, the prosecution wants Pierre to receive a stricter sentence (more than six months) if he is found guilty. For this to be possible, the prosecution will have to proceed by indictment.

Summary convictions are tried in the Court of Québec (or in some municipal courts). When the prosecution chooses this type of proceeding, the accused does not benefit from a preliminary inquiry or a trial before a jury.

Indictable offences
Depending on the offence and the choice of the accused, there are three types of proceedings for indictable offences. While the most severe offences (e.g. murder) are only tried in Superior Court, before a jury and following a preliminary inquiry, less serious offences (e.g. theft under $5000) are tried in the Court of Québec, without a jury or preliminary inquiry.

For some other indictable offences, (e.g. assault with a weapon), the accused has the choice of trial procedure. The accused has the following options:



The accused makes her choice at her first appearance in court. If the accused does not choose, the trial will be held before a jury in Superior Court following a preliminary inquiry. In certain cases and under certain conditions, it is possible for the accused to change her choice after the appearance.

Please keep in mind that in the present text, we only explain trials in the Court of Québec. For more information, consult the section Superior Court, Criminal Division in Côtécour.



3. Judicial interim release hearing (bail hearing)

This step only occurs if the accused appears while in custody (if the accused was not released before the first appearance in court). The interim release hearing generally takes place at the very beginning of the proceedings, just after the appearance. Its purpose is to decide if the person who was arrested and detained can be set free under conditions, or if the person must stay in custody until the trial. Even if the person is detained at this stage, it is only an interim detention and should not be confused with the sentence of detention that an accused might receive if convicted.

Crown privilege
When an accused who is detained appears before the court following his arrest, the prosecution can choose to oppose his interim release or release him subject to certain conditions. If the prosecution opposes the release, the accused can ask for an interim release hearing before a judge who will then decide whether to detain or release the accused.

The interim release hearing must take place within three days following the appearance.

Reasons justifying the detention of the accused
The goal of an interim release hearing (sometimes called a bail hearing) is to determine whether the accused must stay behind bars until the end of proceedings, a process that can take several months. The law states that the accused must be released unless there is evidence to show that he should be detained. The prosecution must convince the judge, using the evidence available, that it is necessary to detain the accused. At the end of the day, the judge must decide this important question. If the judge has a reasonable doubt about the necessity of detaining the accused, the release is granted, with or without conditions.

The reasons for which a judge can justify the detention of an individual are the same as those that apply to police who decide to detain someone they have arrested:


How the interim release hearing works
To prove the reasons for detaining the accused, the prosecution generally makes the police investigator responsible for the file testify before the judge. The victim of the offence may also testify at the hearing, but this is much more rare. These witnesses explain the facts that led to the judicial proceedings against the accused. They can also tell the judge about the general behaviour of the accused (for example, their violence, drug addiction, alcoholism, or access to weapons), his criminal record, or any other pertinent information. Instead of having these people testify, the prosecution will often simply read the police report and witness statements to the judge. The accused has the right to ask these witnesses questions in order to bring out elements that support his case.

Once the prosecution has finished presenting its evidence, the accused may respond. With his testimony, the accused can try to put his personal situation in a different light in order to, for example, raise a doubt as to the danger he poses or his eventual presence in court if released. He can also reassure the judge that he will not bother the victims or the witnesses. At this stage, the accused is not obliged to testify regarding the alleged offence and no one can ask questions regarding the offence. However, if the accused decides to talk about the circumstances of the offence, the prosecution then has the right to ask him questions on this aspect of the file.

The accused can also call witnesses to testify. For example, a member of his family can testify that the accused could live with them and also be supervised by them to some extent.

If the judge remains convinced of the need to keep the accused in detention, the accused may end up staying behind bars for a fairly long period. Do not forget that an accused is innocent until proven guilty. This means that an accused in pre-trial detention is an innocent person who is in prison. Consequently, an accused who is held for preventive reasons can demand that the proceedings be sped up in order to shorten the length of detention.

Conditions of release and the surety
Whether the accused is released by the prosecution at the time of appearance or by the judge at the bail hearing, the release will generally be subject to certain conditions.

These conditions, which the accused must respect, are aimed at ensuring his presence in court on the day he is summoned, and at discouraging him from continuing or repeating the offence, destroying evidence or bothering the witnesses or victims. Every file is unique, and the conditions have to be tailored to suit the circumstances.

For example, Paul, while he was intoxicated, had an argument with his neighbour Martin. Things got heated and in a fit of rage, Paul struck his neighbour with a baseball bat.

If Paul is released, he might be subject to the following conditions:


These conditions would remain in effect until the end of the proceedings and Paul would have to respect all of them. If he violates one of the conditions, this constitutes an offence. Ultimately, a violation of the conditions can lead to an arrest by the police and a return to detention.

The accused may be asked to provide certain guarantees to ensure he will respect the conditions of release. The accused may, for example, have to deposit a sum of money in order to be released. The deposit can also be made by another person, such as the parents or friends of the accused. In these cases, the person who deposits the money is called a “surety”. In other situations, the accused or the surety can simply make an “undertaking” for a certain sum without actually depositing the money with the court.

In all of these cases, if it is proven that the accused failed to respect one of the conditions for release, the prosecution can request that the money deposited or the amount of the undertaking be confiscated. On the other hand, if at the end of the proceedings the accused has respected all of the conditions, he or the surety can either get the money back or be freed from the undertaking. Regardless of whether the accused is found innocent or guilty.



4. Disclosure of the evidence, the pro forma and the negotiation of a settlement between the parties

Between the first court appearance and the actual trial, the prosecution discloses the evidence to the defence. Often, negotiations between the defence and the prosecution also take place at this time.

Disclosure (communication) of the evidence
Accused people have the right to make a full answer and defence against the charges that they face. This right is guaranteed under the Canadian Charter of Rights and Freedoms. The accused has the right to know, and have access to, all the evidence that the prosecution has on the case. This means that the prosecutor must, for example, give the accused a copy of the witness statements, police reports, photos, and any videotape or audio recordings from the police investigation.

The rule applies even if the prosecutor does not intend to use this evidence during the trial. If the police uncover evidence that favours the accused, the defence must be informed and given access to the evidence.

In general, the disclosure of the evidence takes place at the appearance, but it can also happen before or after the appearance, depending on when the evidence is available.

The negotiation of a “settlement” of the file
In light of the strengths and weaknesses of the evidence, the parties can meet in private and try to negotiate a settlement to avoid the high costs of a trial that may be useless or unnecessary.

It can sometimes be to the prosecution’s advantage to negotiate with the defence, and vice versa. The prosecution may be stuck with evidence of poor quality, such as a victim who is reluctant to testify, or weak evidence identifying the accused. The prosecution may also be anticipating an excellent defence. The prosecution will sometimes prefer a less severe sentence rather than risk a finding of not guilty. When the accused knows the weaknesses of the prosecution’s case, she can try to play on this to obtain a lighter sentence.

The defence also has an interest in negotiating a settlement, particularly when the proof is overwhelming and the chances of success at a trial are almost nonexistent.

For example, imagine that the prosecution thinks the accused deserves a prison sentence for having assaulted another person. The accused is ready to plead guilty if the sentence is a simple fine. After discussions with the defence lawyer and the victim of the offence, the prosecution is convinced that the evidence is not as good as she thought it was initially. The prosecution may then be open to recommending to the judge that a fine be imposed.

In the courtroom, the parties would then suggest to the judge the sentence they have agreed upon regarding one or more of the charges set out in the information. If sentencing negotiations fail, the accused can still plead guilty. The parties would then debate the issue of the sentence before the judge.

*Note: When both the prosecution and the defence are referred to, we often use the term “the parties”.

The pro forma
After obtaining the evidence from the prosecution, the defence has a certain period of time to examine and consider its value. The defence lawyer must discuss the evidence with her client. It may be necessary to meet witnesses or get expert reports, or negotiate with the prosecution. In all of these cases, a pro forma date is set. On this date, the file goes before the court but no proceedings take place. The court simply asks the defence if it wants to keep the same plea or not. Unless an additional delay is necessary, the accused has the choice of pleading guilty or demanding a trial. If the accused has not already done so, he can also ask that the trial take place in his choice of either English or French at this time.



5. Preliminary inquiry

The preliminary inquiry is a hearing with a judge that takes place before the trial, at the request of the prosecutor or the accused. In Quebec, the preliminary inquiry almost always takes place before a judge of the Court of Québec.

At the preliminary inquiry, the judge does not determine the guilt or innocence of the accused. At this stage, the prosecutor presents evidence to the judge to prove each essential element of the offences charged in the information. This evidence could include witness testimony, documents, or any other evidence. Usually, not all of the available evidence is presented at this stage. The party who asks to have a preliminary inquiry must specify the questions which need to be addressed and the witnesses or evidence that the party would like to have heard.

The quality of the evidence is not weighed during the preliminary inquiry. Instead, the point of this proceeding is to evaluate whether there is any evidence in the first place. The preliminary inquiry makes it possible to avoid a trial where there is no evidence on one or more elements of the offence(s) charged.

Take, for example, the case of Jean who is charged with impaired driving causing death. The “driving” of the vehicle by Jean is one of the essential elements of the offence with which he is charged. In the courtroom on the day of the preliminary inquiry, André, the only witness who could have seen Jean driving the vehicle on the night of the offence, is unable to identify Jean as the driver. This means that the prosecution cannot prove that Jean was driving that night. As a result, the judge may decide that the evidence is insufficient for a trial and that the proceedings against Jean must stop. Jean is therefore cleared of the charges without there having to be a trial.

Aside from these rare cases, the preliminary inquiry is usually an important opportunity for the accused to evaluate and study the available evidence without risking a conviction. The accused can ask the prosecution’s witnesses to explain their version of the facts by posing many questions but without actually confronting them. This allows the accused to evaluate their credibility and prepare for the trial.

Defence evidence: voluntary examination
Since the goal of a preliminary inquiry is to determine whether the prosecution has enough evidence, only rarely will the accused testify at this stage. Usually, the prosecution will choose to only show the evidence that is strictly necessary in order to get past the preliminary inquiry stage.

If that is the case, the defence may want to explore the additional evidence that is not presented to the judge. During a “voluntary examination”, which also takes place before a judge, the accused may call witnesses that the prosecution has chosen not to call.

For example, suppose the prosecution has three witnesses to the offence but decides to only have one of them testify at the preliminary inquiry. During the voluntary examination, the accused can take the opportunity to call to the stand the two other witnesses. This way, the accused can evaluate their credibility, consider their version of the facts, and detect the potential contradictions between the stories of the different witnesses.

The judge’s decision
After hearing the evidence, the judge decides if the accused will be tried on each charge. She has to ask herself the following question:

“If a trial was held on this charge, could a reasonable jury find the accused guilty?”

The judge can drop any charges against the accused for which there is a complete lack of evidence. If no charges need to be dropped, the judge will commit the accused to trial, which means she will order that a trial be held on the charges.

The judge can also add charges if the facts uncovered during the preliminary inquiry justify additional accusations.

Take, for example, the case of an individual accused of committing armed robbery in a bank. During the preliminary inquiry, a witness explains that she saw the accused steal a car to get away from the scene. The information (the document where the charges are written) does not contain a charge of theft of a vehicle. Despite this, the judge can add the theft charge to the armed robbery charge already in the information. The accused will then be tried for the two charges, even if the prosecutor did not accuse him of stealing the car originally.



6. The trial

The trial is the hearing during which the prosecution tries to convince the judge, using the available evidence, that the accused is guilty beyond a reasonable doubt.

How the trial unfolds
There are generally three steps in a trial: the prosecution’s evidence, the defence’s evidence, and the pleadings.

One at a time, the prosecutor calls each witness that he has summoned up to the stand and examines them on what they know about the case. When the prosecution has finished questioning a witness, the defence has a chance to “cross-examine” that witness. The goal of a cross-examination can be, for example, to undermine the credibility of the witness or to bring out elements that are favourable to the accused.

Once all the witnesses summoned by the prosecution have been questioned by the parties, the prosecution “rests” (is finished) and the accused decides whether or not he wants to present a defence. The accused is never obliged to testify or present a defence. If the accused does decide to present a defence, he can call witnesses to the stand and he can testify himself. If the accused testifies or calls any witnesses, the prosecution is allowed to cross-examine the accused and/or his witnesses. If the witnesses use a language that the accused or his lawyer do not understand, an interpreter is provided free of charge.

After the defence’s presentation, each party delivers their pleadings to the judge. During this step, each party draws the judge’s attention to the important facts of the case or presents arguments on a legal or procedural question.

The burden of proof
The presumption of innocence is a fundamental principle of Canadian criminal law. This principle flows from the premise that it is better to acquit ten guilty people than to convict one innocent person. As a consequence:


For example, if the judge believes the accused, or if the accused’s version of events raises a doubt as to his guilt, the accused must be acquitted. If the judge is incapable of separating fact from fiction in the file, the accused must be acquitted. If on the other hand, the evidence presented convinces the judge beyond any reasonable doubt of the guilt of the accused, she must convict the accused.

The judgment
After the pleadings, the judge must decide whether the accused is guilty or not guilty of the alleged offences. The judge can render a judgment immediately: this is referred to as a judgement “from the bench”. The judge may also take some time, anywhere from a few minutes to several months, to reflect upon the case. This stage is called the “deliberation”. The judgement can be given in writing or from the bench, meaning verbally.

The judgment has to address each charge for which the accused was tried. This means that the accused may be acquitted on one count but convicted of another. The judge may also render a guilty verdict on a charge of a “lesser offence” than the one originally charged.

For example, imagine an accused is tried for assault with a weapon. The judge is convinced beyond a reasonable doubt that the accused committed the assault, but she has doubts regarding whether a weapon was used during the assault. The judge can convict the accused of assault instead of assault with a weapon.

At the end of the trial, if the judge is not convinced beyond a reasonable doubt that the accused is guilty, she must deliver an acquittal (a verdict of not guilty).



7. The sentence

The accused will receive a sentence if she is convicted by a judge following a trial or if she pleads guilty.

Sentencing principles
The judge must respect certain principles when determining a sentence. In particular, sentencing has the following objectives:


A sentence must be proportionate to the gravity of the offence, as well as to the degree of responsibility of the offender.

The judge must take into account all of the aggravating or mitigating factors in the case. The offender’s motives, the fact that the victim was a child or a member of his family, and repeat offences are all aggravating factors meriting a more severe sentence. It is also an aggravating factor if the offence was motivated by prejudice such as sexism or racism.

Some mitigating factors that may lead to a lighter sentence are the minimal involvement of the offender in committing the offence, the lack of any previous convictions, the relative seriousness of the crime, and the low chance of a repeat offence. There are a variety of other sentencing principles. To know more, consult the Infosheets entitled Sentencing and Sentencing in Canada, in La loi vos droits.

Sentencing hearing
Before imposing a sentence, the judge holds a hearing where the lawyers of the two parties present the mitigating or aggravating factors of the case. They can also call witnesses to the stand. The accused himself can take the stand.

For example, the defence might call to the stand a director of a drug treatment center that is ready to accept the convicted person for treatment. This type of treatment can, in some circumstances, be a possible alternative solution to prison.

Negotiating a sentence
The prosecution and the defence often agree, outside of the courtroom, on a particular sentence to suggest to the judge. The judge must consider this suggestion and will generally respect it unless it is unreasonable.

Possible sentences
With the exception of the rare cases where the law sets out a minimum sentence, the judge has a lot of room to manoeuvre in deciding what sentence to impose. The judge can impose a sentence that is more or less severe depending on the circumstances of the case and the convicted person, so long as it is also within recognized sentencing principles. The sentence may range from a fine or a probation order to detention.

When a judge decides that an accused should be detained, the length of the prison sentence must not exceed the maximum length set out by law. For example, an individual found guilty of sexual assault cannot be sentenced to more than 14 years of detention. In certain cases, the law establishes a minimum sentence. For example, a murder conviction carries with it a minimum sentence of life imprisonment. The minimum sentence for a first-time conviction of impaired driving is a fine of $600 and a prohibition from driving for one year.



8. The appeal

The appeal is a way to contest a judge’s decision when one of the parties believes that there has been an error in the judgement.

Appeal of a conviction or acquittal
The appeal of a conviction or an acquittal is a procedure used to contest the judge’s decision when one of the parties believes that he committed an error in determining the guilt of the accused. There are various reasons that allow a party to appeal. These reasons depend on whether it is the accused or the prosecution that wants to appeal. On appeal, the court can either uphold (agree with) or overturn (disagree with) the decision of the first judge. In some cases, a new trial may even be ordered by the court.

The goal of an appeal is to establish that the first judge made a mistake in applying the law. For this reason, the questions generally debated on appeal are of a legal nature. It is not a question of retrying the case. Only in exceptional cases will witnesses be heard or evidence presented during an appeal. To do this, a motion must be made to present new evidence to the judge.

Depending on the type of offence, the appeal can take place either before the Superior Court or the Court of Appeal. Whoever wants to appeal a judgment must do so within thirty days following the contested decision.

Appealing the sentence
If the trial ends with a guilty verdict, the judge imposes a sentence on the offender. If one party disagrees with this sentence, they can ask the Court of Appeal to review it. In the majority of cases, a sentence will not be changed unless it is unreasonable, either because it is too severe or too lenient. It is also possible to ask for a review on the basis that the judge relied on incorrect principles in rendering his decision.

The court hears the arguments of both parties and can either reject the appeal and uphold the sentence imposed, or accept the appeal and impose an appropriate sentence.



9. Penal procedure

The preceding text explains the criminal process. It covers offences set out in the Criminal Code and the Controlled Drugs and Substances Act, among others. These two laws apply across Canada.

In Quebec (as with the other provinces), however, there exists a penal system in addition to the criminal process. The rules for the penal system are set out in the Code of Penal Procedure, a Quebec law. It deals with charges brought under Quebec laws such as the Highway Safety Code, the Act respecting the protection of non-smokers in certain public places and a number of other laws that happen to qualify certain acts as offences.

Penal procedure is relatively simple and the sentences imposed are generally less severe than those imposed under criminal law. The procedure generally begins when the individual is served with a notice of the offence, often called a ticket. This service happens when a police officer or another agent of the State hands a person a ticket. The ticket forms the basis of any penal proceedings.

The plea
After receiving the ticket, the accused has thirty days to tell the court whether he is pleading guilty or not guilty. In order to do this, he simply has to send to the court, by mail or otherwise, the response section attached to every ticket. This step is called the “plea”.

If the accused does not tell the court his plea, a judge can render a decision in the absence of the accused and convict him without any other notice or delay.

The trial
If the accused pleads not guilty, the court will send him a notice of hearing. The trial takes place on the hearing date. In Quebec penal law, the available defences and the rules of evidence and procedure are very similar, if not identical, to the rules applicable in criminal law. However, there is one thing that is particular to penal law: in certain cases, the prosecution is not obliged to summon the police officer as a witness. In fact, the law allows the prosecution to submit the police report in the place of the police officer’s testimony under oath. If witnesses other than the police officer are needed to prove the alleged offence, they must be summoned to testify. To find out more, please consult the Infosheet entitled Contesting a ticket in La loi vos droits.