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Superior Court - Criminal Matters

The Superior Court is made up of a judge and 12 jurors when it hears criminal cases. Exceptionally, a judge will hear a case without the help of a jury.

The Superior Court is the only place where certain types of accusations can be brought, such as murder, treason, and piracy. A person accused of one of these offences will automatically be judged by a court composed of a judge and jury.

Otherwise, for most offences considered "indictable offences" under the Criminal Code, the accused can have his trial either before the Superior Court, or before a judge alone. If he chooses to be heard by a judge alone, he will be sent before the Court of Québec, Criminal and Penal Division. Where the accused does not indicate his preference, he will be assumed to have chosen a trial by judge and jury in Superior Court.

In addition to hearing these trials, the Superior Court can also handle appeals of decisions made by the Court of Québec (for offences punishable on summary conviction) or the municipal courts, for certain types of offences.



Judicial characters and concept

Judge

I have been a judge at the Superior Court for almost 20 years now. I have always been assigned to criminal cases. Criminal law was my specialty when I practised as a lawyer. I was a Crown prosecutor for more than 10 years before being appointed as a judge. This allowed me to plead all kinds of cases, from shoplifting to murder. These years of legal practice prepared me well for serving as a judge of the Superior Court in criminal matters.

Right now, I am what they call an assizes judge, meaning that I preside over cases that are heard by a jury. Of course, this makes me different from the majority of my colleagues in that I am not the one who renders the verdict–it is up to the jury to do that. My role is more to be the “head organizer” of the trial. I am no more and no less than the person who makes sure that the rules of procedure are respected, and that the trial runs smoothly.

I also have a responsibility to the members of the jury. The 12 jurors have no legal training and the trial often represents their first contact with our justice system. It is therefore my duty to demystify this system. Throughout the trial I explain concepts of criminal law to them that might seem very dry at first glance. To do this, I use simple, accessible language and, if necessary, concrete examples so that they can better understand the concepts at issue. Because of the importance of the charges that the accused faces in this type of case, expert witnesses are often called to testify. Whether it is a forensic scientist, a ballistics expert or a psychiatrist, all of them use a specialized vocabulary that most people have difficulty understanding. This is why I translate the most complicated parts of the expert testimony into more “understandable” language.

At the end of the trial, when the arguments have all been made, I give my instructions to the members of the jury before they leave the room to deliberate. This is what is called the judge’s address to the jury and it must be done very delicately. I have to help my juror “colleagues” render their verdict without influencing them at all. In carrying out this step, I go over the evidence that was presented during the trial and I summarize the theories put forth by the Crown and defence. I also have to explain any concepts of law that apply to the case.

At this point in the trial, while I often have my own opinion about the guilt of the accused, I must never let the jury know what it might be. In some cases, this is not easy. Being a mother and grandmother myself, cases involving crimes against children are particularly disturbing for me, and I feel more emotionally involved. I have to be even more careful in preparing my instructions in these cases so as not to make my opinions known.

Even if I think that our justice system is one of the best in the world, there is always room for improvement. Jury trials are complicated, and the rules of evidence and procedure are complex. Simplifying these rules would allow the trial before jury to be heard more efficiently. Knowing that the people called to jury duty must make great sacrifices in terms of finances, work, and family, the length of the trial is very important. Accelerating the process and reducing the time commitment demanded of jurors is just one way to show our great respect for these men and women who represent society in the service of justice.

Many people imagine that the decisions that a judge makes reflect her personal opinion on the subject at hand. The media can sometimes feed this impression. To be honest, there have been cases in which I would have really liked to have had the chance to explain my decision publicly. In these cases, I had to apply the previous caselaw and the law in force, even if my personal convictions did not accord with the ultimate outcome of this analysis. I remember a euthanasia case where an elderly man put an end to his wife’s life when she was in the terminal stages of cancer and suffering tremendously. Despite the great sadness of the circumstances, and even though I would have preferred to have made a different decision, I had to convict this man of murder.

After all these years spent on the “bench”, I am still passionate about my work. I am still interested by each trial over which I preside. What’s more, to be assigned to the court of assizes allows me to be at the front line of events that greatly influence our society. Jurors are like a barometer for society; their decisions often result in important legislative changes.



Jury

I am one of the 12 members of the jury. I was chosen by the lawyers from a list of candidates picked at random from the voters list. My colleagues and I take on the role of judge during the trial; we have the important task of deciding the guilt or innocence of the accused. I consider myself privileged¾few people can say that they got to be a judge for a day!

Throughout the trial, I must listen carefully to the evidence presented because my decision on the guilt or innocence of the accused must be based on this evidence and nothing else. For this reason, I constantly take notes. This might seem unnecessary at first glance, but I was warned that jury trials can be long and it is difficult to pay attention the whole time. At any rate, I cannot forget that the fate of an individual is in my hands…

Up until now, the other members of the jury and I have been present for every day of the trial. However, so that we won’t be influenced by discussions between the judge and lawyers on questions of law, the judge has asked us to leave the room on a couple of occasions. At these times, we are not allowed to discuss the facts of the case that we have just heard. In fact, we have to wait until all the evidence has been presented before beginning our deliberations. This is made even more difficult by the fact that we are together during the whole trial, except when we return to our homes at night after a hearing day.

When all the evidence has been presented, we must complete the final step of our work as a jury: deliberation. We have to decide if the prosecution has proven the guilt of the accused beyond a reasonable doubt. We are not experts in law; this is why the judge must give us instructions and explanations of the rules of law that we have to take into account when deciding what our verdict will be. During this period, we will be “sequestered”. We will have to stay together for the entire deliberation period, without even being allowed to return home. Since we will have to give a unanimous verdict, it is possible that the deliberations will be long. The idea of spending several nights at a hotel, far from my family, doesn’t excite me much, but I realise that this isolation ensures that our discussions remain secret, and it protects us from outside influences.

When we meet for the first time in the deliberation room, after receiving our instructions from the judge, we will be able to choose a jury foreperson who will be our representative to the court and who will speak in our name. But note that during the deliberations, this person’s opinion will have no more importance than mine or that of any other juror.

During our time in deliberation, the judge will be available to answer our questions. These will be sent in writing and will be discussed with the lawyers in our absence. The judge will give us her answers in court, in the presence of the accused, the lawyers, and the public. When we come to an agreement on the verdict, the jury foreperson announces it to the court. After the verdict, my work as a juror will be done, since it is the judge’s job to sentence the accused.

Even if being chosen for jury duty turned my life upside-down, and I was not all that enthusiastic when I received my summons, I can now say that this was a unique experience for me. Having to judge one of my peers and being an essential actor in our justice system during the trial is certainly one of the heaviest responsibilities that I have ever had. I am proud to be able to say that my fellow jurors and I take the task that society has given us very seriously. We are convinced that because of our work, justice will be done.



Special constable

You will often see me in the courtrooms or patrolling the halls of the courthouse, and probably wonder: “Is he a police officer? A security guard?” I am both of these at once and more!

I am responsible for the protection of the public everywhere in the courthouse. Whether in a courtroom or anywhere else in the courthouse, my role is to make sure that order is maintained. A courtroom is not a recreation room; there is a certain decorum to uphold. When I am working in a courtroom, I make sure that the public respects certain rules. I have often had to tell people to stop talking, to not wear hats in court, and I have even had to eject people who were being too noisy.

Some criminal cases can give rise to a great deal of emotion. In a sexual assault or murder case, for example, feelings can run high. To avoid any unfortunate events, I make sure that the families of the victims and of the accused do not sit near each other. There are also trials where we can anticipate that there will be a confrontation. I remember one case of murder that involved two organized crime groups. My colleagues and I had to search every person who came to the courtroom to make sure that none of them were armed.

I have a special role during jury trials. I am the one who has to protect and escort the jury members. Being a juror can be a stressful experience sometimes. I am there to ensure that the members of the jury aren’t victims of threats or any outside influence. I am also responsible for keeping people from entering the room reserved for the jury. I am actually the only person who can have direct contact with the jurors. That is why I have to take an oath promising to keep their discussions a secret.

Aside from my work in the courtrooms, I am in charge of security and keeping order everywhere else in the building. A courthouse is not a place where people are always happy. Frustration, betrayal, and old grudges can sometimes lead to threats, vandalism and even acts of violence. To help me prevent such incidents, I have been given the same powers as a police officer inside the courthouse. This is why I am asked to carry a weapon. This way I can arrest certain people and search them just like a police officer.

So it is thanks to me and the other special constables that people can feel safe inside the walls of the courthouse. Through our work, my colleagues and I guarantee that no violence or intimidation in the courtroom will harm our justice system.



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--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 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. As soon as the judge arrives, I begin the recording. 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.



Defence lawyer

As the name indicates, it is my job to defend the interests of a person facing criminal charges. There is probably no experience more traumatizing for an individual than to have to go through all the steps of a criminal prosecution. Police investigation, arrest, appearance, trial – too often this process leads to feelings of self-doubt and powerlessness for the person who experiences it. It is at that time that I intervene to counsel and guide a person grappling with the justice system.

Often, and completely incorrectly, people believe that I spend a lot of time arguing sensational cases in which I successfully defend a person falsely accused of murder. This is supposedly done using surprise witnesses and arguments that make the members of the jury dissolve into tears. This perception can probably be explained by all the movies people see where defence lawyers have a starring role. The reality is usually less spectacular, but my role is also broader than what’s depicted by Hollywood; some aspects of my work are completely unknown to most of the public.

Generally, I come on the scene at an important and often stressful moment for an individual suspected of committing a criminal offence: the arrest. Any person arrested by the police must immediately be informed of the reasons for the arrest and of his right to contact a lawyer. “What do I do? What do I say? What will happen to me?” These are the questions that people ask themselves when taken to the police station. My role is to answer my client’s questions and also to try to reassure him. Usually, I inform him of his right to be silent and advise him about what to do later on. Since a police officer can arrest an individual at any time of day or night, you can contact me 24 hours a day. This sometimes makes for some very late nights…

During the trial, unlike the Crown prosecutor whose goal is not to win the case at any cost, my only objective is to get my client acquitted. I try to do this using all the legal means at my disposal.

People often ask me how I can defend someone properly if I doubt his innocence. I answer that it is not up to me but to the judge or jury to decide the guilt or innocence of an accused person. Besides, I like to believe in the great principles underlying our criminal law system, like the presumption of innocence and the right of each individual to make a full answer and defence, as well as the right to a fair trial. These grand principles outweigh my personal opinion.

Contrary to what some might believe, the majority of accused people whom I defend do not undergo a trial. In many cases, my work consists of negotiating with the Crown prosecutor to obtain the least severe sentence possible for my client, or to reduce the charges made against him in exchange for a guilty plea. Before beginning negotiations and making a deal with the prosecutor, I always have to consult with my client. My role is to defend his interests and, in the end, he always has the last word.

I hope that these few words have shown you the importance of my role as a defence lawyer, which really is to defend people’s individual rights.



Corrections officer

I am the one you always see beside a detained individual in a courtroom. It probably reassures you to see me guarding and watching over a prisoner during a trial. This part of my work is the most visible to the public, but my role actually involves much more than that; it includes aspects that are often overlooked by the public.

Anyone the judge has ordered to be detained while awaiting trial or sentencing must stay under guard 24 hours a day. When he is in prison, this is fairly easy: we place the person behind bars. But how can a person be constantly under guard when he is asked to come to court? We can’t very well move the cell, can we? This is where I come in. Whenever the detained person must travel outside prison, there will be an officer nearby to watch over him.

Since the courthouse only has enough cells to detain an accused person at the time of his appearance before the court, one of my jobs is to accompany him from the detention centre to the courthouse where he has been summoned. Often, there are several detainees from the same prison who must go to court on the same day. This is why we have to use a bus to drive them there. Since we may have to transport up to 22 prisoners at once, there are always two officers in charge: one drives the vehicle and the other guards the prisoners. During these trips, I am allowed to carry a weapon. I have never had to use it–the prisoners are handcuffed and generally remain calm. But there is always the possibility of danger coming from outside the bus…

When we arrive at the courthouse, and after searching them, I escort the detainees to the cells that have been prepared for them. Every accused person who has to appear in court must be placed in a cell while waiting for his case to be called. During this time, I am there to guard them. When the moment comes for an accused to appear before the court, I accompany him to the courtroom so that he is never alone. He stays under guard like this until everything is over. Even if some of the people I have to bring to court are not angels, normally everything goes well, especially since detainees are normally in handcuffs. Forget the images of confrontations between the guard and the prisoner. You only see that in the movies. Once, though, a detainee I was guarding tried to leave the courtroom after being declared guilty of murder by a jury. He didn’t go far…It did give the people in the room a good scare. When the accused’s presence in court is no longer required, I bring him back to the cell so I can then take him back to prison the same way that he came. Unless of course he has been freed by the judge… In that case he will be very happy to return home on his own.

If you attend a criminal trial one of these days, know that your safety is not threatened at all. My colleagues and I will ensure that the accused is well supervised both in the courtroom and everywhere else in the courthouse.



Accused


My trial begins today. Several months have gone by since my arrest, and I had to go through all the steps of the legal process before coming to my trial. I can assure you that even though I am presumed innocent, it is really difficult for me to live with the weight of a criminal charge on my mind. I even spent a couple of days in prison after my arrest. The police and the Crown prosecutor were worried about the security of the victim if I were released. The judge eventually agreed to release me, under very strict conditions, while awaiting my trial date. Even out of jail, the wait was very long. At one point I actually thought about pleading guilty in order to end this nightmare as quickly as possible¾and to benefit from a more lenient sentence. But I am innocent! I cannot confess to a crime that I didn’t commit. So I chose to undergo a trial by judge and jury.

The reason why I am in this situation is simple: I am suspected of committing a serious crime: sexual assault. I said “suspected” because unless I am found guilty, I am still presumed innocent. This fundamental principle of Canadian law means that I will not have to prove my innocence during the trial. Rather, it will be up to the prosecution to prove beyond any reasonable doubt that I am guilty. If the jury has any doubt about my guilt, it must acquit me. It must be terrible to spend months, even years in prison when you are innocent. It is to avoid this very situation that the presumption of innocence exists. It is true that under this principle certain accused people may be acquitted even though they committed the crime, but our society has decided that it is better to free a guilty person than to imprison an innocent one.

Being accused of a crime can carry with it many very serious consequences. This is why, in addition to the presumption of innocence, the Canadian Charter of Rights and Freedoms guarantees several rights to protect me. One of the most important of these is the right to make full answer and defence. I can demand to have the help of a lawyer in making this defence. I am not an expert in law, and pleading my case on my own could be very complex and risky, so it makes sense to have an expert in the field come to help and advise me. This right also means that the prosecution must disclose all the evidence that it has against me, so that I can adequately defend myself. There is therefore no chance of surprise witnesses. What’s more, if the prosecution tries to present evidence that I did not know existed, this evidence will be rejected by the judge.

At the end of the trial, the jury must render its verdict. If I am unfortunate enough to be declared guilty, the judge will sentence me. He will have to take into account aggravating factors, like the seriousness of the crime I was found guilty of committing, as well as any mitigating factors, like the fact that I have no criminal record. The possibility of being found guilty and spending time in prison makes me nervous. Still, I have confidence in the good judgment of the jury and I hope that justice will be done. Often people say that the accused has too many rights, but imagine being in my place…an innocent person!



Investigator


I am the right-hand man of the Crown prosecutor in a criminal proceeding. While people associate me with being at his side in the courtroom, my work starts long before a file even makes it to the court.

I come on the scene the moment a crime has been committed. I am the police officer in charge of running the investigation aimed at gathering evidence in order to find the person or people guilty of the crime. In the course of this investigation, I meet potential witnesses and take down their statements. I also verify the existence of all other important evidence, like videotapes or photographs. A criminal investigation is not a simple thing to lead; I am assisted by a team of police officers. When I believe I have gathered enough evidence to identify a suspect and for him to be found guilty at trial, I am ready to submit the file to a Crown prosecutor.

It is the Crown prosecutor who decides the charges that will be made against the suspect, not me. All the same, since I know all the evidence, I often make recommendations to him. To help the prosecutor in this task, I put together a file in which he can easily find all the information related to the case. I also provide a summary of the facts, a list of witnesses, their statements, as well as any other relevant documents. In light of this information, the prosecutor makes his decision.

I also help the Crown prosecutor prepare for the trial, especially when the file is complex, as it can be in certain murder cases where the evidence can be extensive. I help him analyse and understand the evidence available to him. If he has questions or needs supplementary evidence, I am the one he asks.

I also play an important role with the prosecution’s witnesses. Often the Crown prosecutor asks me to be present at meetings with the witnesses and I have to pay special attention to some of them. I once had to reassure a victim of sexual assault who was particularly afraid of her aggressor. During the entire trial, I stayed at her side to keep the accused from trying to communicate with her.

During the trial, the Crown prosecutor often requires my services. For example, I can ensure that all of the witnesses are present and that they are prepared to testify by having them re-read their statements. I often have to testify in the case, as well. During the whole trial, I am at the disposal of the Crown prosecutor in order to answer his questions and help him if needed. This is why you always see me seated beside him.

Everyone is well aware of the aspect of my work that involves leading an investigation to catch the person who committed a crime. But few people know that my work as an investigator does not end with the arrest of the suspect. The Crown prosecutor and I form a team, with the lone goal of uncovering the truth so that justice can be done.



Witness


I AM A WITNESS FOR THE PROSECUTION…

…because I know about a fact that could lead to finding the accused guilty. One night, I saw him enter by the window of an electronics store and come out with several boxes. The Crown prosecutor asked me to come and testify. He read the statement that I made to the police and decided that my testimony would be very useful to his case. The prosecutor even told me I would be his most important witness because I was the only person who could correctly identify the accused. In this case, my role was more essential even than that of the victim, the store owner, because he was not there at the time of the theft. When my turn came to testify, I answered the Crown prosecutor’s questions as well as I could. Afterward, the lawyer for the accused had the chance to ask me questions in his cross-examination. This was not an easy experience because he tried to discredit me by looking for contradictions in my testimony. Still, I did not let myself get distracted and I kept to my version of the facts, telling nothing but the truth.

I AM THE VICTIM…

…because I had the misfortune of being the target of a criminal act. I was sexually assaulted by my boss. I made a complaint to the police and he was eventually accused of sexual assault. I was one of the witnesses for the prosecution because my testimony could help convict the accused. When I testified at the trial, the Crown prosecutor invited me explain what happened to me. Telling my “story” in front of my boss was really difficult. But I didn’t want this to happen to another woman, so I found the courage to come and testify. The defence lawyer asked several questions to try to prove to the court that it was possible that I had invented the whole story…but it didn’t work! The accused was found guilty. And as for me, I did all that I had to do.

I AM THE EXPERT WITNESS…

…and I was called before the court to give my opinion on a subject that requires particular knowledge and experience. I am a specialist in fingerprint identification. Unlike other witnesses at the trial who can only come and report the facts as they witnessed them, we expert witnesses can give our opinion on various elements of the case. In my career, I have been a witness in several trials, as many times for the Crown as for the defence. Recently, I had to give my opinion in a murder case where other expert witnesses were heard: a forensic scientist, a psychologist and a chemist. Our testimony allowed the jury to better understand different elements related to the victim, the crime scene and the personality of the accused. For my part, my expertise in fingerprints allowed me to determine that it was really the accused who entered the victim’s home on the night of the murder.

I AM A DEFENCE WITNESS…

…because I knew about a fact that could help acquit the accused. The defence lawyer sent me a “subpoena” so that I would testify to support the alibi defence of his client. I told the jury that at the time that it was committed, the accused was peacefully playing cards with me, so it would have been impossible for him to have commited the crime alleged against him. Since there was an error about the person involved, my testimony made it possible to prevent a serious injustice from being committed: I kept an innocent person from being convicted.

Now each of us has told you about our experiences as witnesses. Even if our roles differ, our testimony in each case is an important piece of evidence that could help bring out the truth and allow justice to be done.



Public


It is appropriate that every citizen has the right to be present at jury trials so that they can learn about how the justice system deals with those accused of committing crimes. The right to a public trial is a constitutional guarantee by virtue of the Canadian Charter of Rights and Freedoms.

For this reason, I can attend criminal trials, but I must respect decorum. The moment the judge enters the room, I have to stand and stay standing until she sits down. Afterwards, I must remain silent; I cannot express my approval or disapproval of the way the trial is going. This is important in ensuring that justice is done in an atmosphere of calm and impartiality. When the judge leaves the courtroom, I stand again and wait for her to leave before moving from my place.

Journalists may also attend trials in the part of the room reserved to the public. Their role is to report on what is said in court, unless the judge has ordered a publication ban. In Quebec, unlike in the United States, broadcasting trials on television is not allowed. Even outside of the courtroom, the law requires journalists to film only in areas authorized by the Chief Justice.

Certain information may not be divulged by the media if the accused requests a ban from the judge. This might include evidence presented to the court regarding his release on bail or that provided during the preliminary inquiry. The media is forbidden from making public this information in order to prevent the public from forming an opinion on the guilt or innocence of the accused based on incomplete knowledge. However, these barriers no longer apply as soon as the trial ends. In addition, the victim of a sexual offence can ask the judge to forbid journalists from publishing or broadcasting her name or any information that might identify her.

There is another important restriction on the work of journalists: the rule of sub judice. Under this rule, the media must exercise restraint when reporting on a case that is presently 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. Journalists cannot take the place of the judge; their role is limited to reporting the facts. However, once the judgment is made, they can express themselves freely.

For obvious reasons, the role of journalists is slightly more restricted in the Criminal Division than in the Civil Division. But, with respect to the freedom of the press, their presence in the courts is essential for people who are unable to attend themselves, but want to be informed about important trials in their community.

The public aspect of our justice system is of fundamental importance.



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.



Crown prosecutor


I am also called the Attorney General’s prosecutor, the public prosecutor or just the prosecutor. My role is to represent the State and to prosecute, in its name, any person who is suspected of commiting a criminal act. In Superior Court, I mainly plead cases of murder, attempted murder, or sexual assault.

In general, I come on the scene even before court proceedings have begun to examine the police investigator’s report. It is up to me to decide if there are sufficient grounds for a criminal prosecution, but in other Canadian provinces it is usually the police investigator who has this responsibility. I have to evaluate whether there is enough evidence to convince the judge or the jury of the guilt of the accused beyond a reasonable doubt. I have to choose the charge in accordance with the offence committed and cannot pick a less serious charge just because it would allow me to get a conviction more easily. For example, I could not submit a charge of criminal negligence if I had evidence that the accused committed a murder.

The Crown prosecutor’s goal is not to win the trial at all costs but to bring out the truth. If I find any evidence that clears the accused of wrongdoing in the period leading up to the trial or afterward, I must tell the court and drop the charges. This is not always easy to do when you have a competitive nature like mine. So that I never lose sight of the objectivity demanded by my role, I often read and re-read a quote from a judgment of the Supreme Court of Canada, written in 1955:

“It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.”

In addition to objectivity, my role also demands transparency. Before the trial, I have to communicate the evidence that I plan to present to the jury to the defence lawyer and I also have to give him the names of all of my witnesses. Sometimes it is possible for me to exclude the name of a witness from the list if I am worried about the person’s safety. This obligation of transparency even demands that I give to the defence any evidence that weighs in favour of acquitting the accused.

During the trial, my role is similar to that of the defence lawyer, but with an important difference: the burden of proof! The accused is presumed to be innocent, so I have to prove his guilt beyond a reasonable doubt. If the judge or jury has the least doubt as to his guilt, the accused will be acquitted. I therefore have to present very convincing evidence. The defence lawyer only has to raise a reasonable doubt to obtain an acquittal for his client.

The result of a trial is often uncertain. In order to resolve the file without having to go to court, the defence lawyer and I will often negotiate. The popular term for these negotiations is “plea bargaining”. The accused can plead guilty in exchange for a less severe sentence. As a result of negotiations, the accused could also plead guilty to a less serious charge than the one initially brought. For example, I have sometimes agreed to reduce a murder charge to a manslaughter charge. When there is a negotiation for a guilty plea, I will generally take into account the opinions of the police investigator and victim.

Recommending a sentence to the judge is one of the most difficult aspects of my work. The Criminal Code gives a great deal of latitude concerning the choice of sentence for each offence. In my recommendation, I take into account the point of view of the victim, as well as the report from the probation officer. This report gives me an idea of the personality of the accused and the danger that he represents for society.

Even if I ask for the conviction of the accused, I am still sensitive to the effects that this could have on his personal life. I remember a man who killed his father but had psychological difficulties. During the trial, despite the seriousness of the act, I asked for a lighter sentence. Because of the care he had received after the crime, I knew that he was no longer a danger to society. The judge accepted my recommendation. Obviously, I would have proposed a different sentence for a hired killer who was a member of an organized crime ring!

Those, in a few lines, are the various responsibilities and challenges that I have as a lawyer for the prosecution. It is a difficult job, even stressful on occasion, but it is very exciting! What could be more fulfilling than searching for the truth and defending the interests of society?



The proceedings, step by step

This section explains the main steps in presenting a case in court. The idea is not to turn you into a legal expert, but simply to make sure you’re informed!


1. Arrest

The legal process begins with an arrest. At this time, a decision is made about whether the accused will be detained until appearing before a judge, or be freed.

In general
Whenever a person is arrested, the rule is that he must be set free following the arrest. When the suspect is freed, he is given a document indicating the date when he must appear in court. The suspect then does not need to wait in detention until his appearance.

In some situations, however, the police officer believes that it is better not to allow a person to go free immediately. For example, suppose a suspect is arrested for conjugal violence and is highly aggressive at the police station. After looking at his file, the police realize that he has a record of violent crimes. The police can decide to keep the suspect in detention until his court appearance because they are worried that if he is freed, he may harm his alleged victim again. In this case, the person will be brought before a judge as quickly as possible, generally within 24 hours of the arrest. For some time now, it has been possible to ‘appear’ by telephone in many regions of Quebec. This makes it easier for the authorities to abide by the deadline for appearing when, for example, the person is arrested on a Friday night.

Crown privilege
When an individual appears while he is in detention, the Crown prosecutor can choose to object to his release before trial or ask that he be released, subject to certain conditions. If she decides to object to his release, there must be an interim release hearing, or bail hearing, before a judge within three days of the first court appearance.



2. Appearance

The appearance is the first step in the legal process. During the appearance, a person suspected of committing a crime, or several crimes, comes before a judge for the first time. Here, the person is officially accused of the crimes, pleads guilty or not guilty to each of the charges, and chooses the mode of trial.

Charges
One of the fundamental principles of our criminal law system is that a person suspected of committing a crime (or crimes) must know all of the accusations made against her. On the day of the appearance, the court reads a document, called an “information”, to the suspect. The information lists all the charges made against that person.

An example of a charge might look like this:

“On or about January 22, 2005 in Montreal, you drove a vehicle while impaired by alcohol, contrary to s.253 of the Criminal Code.”

After each of the charges are read, the person appearing in court officially becomes “the accused.” The accused is then asked to plead guilty or not guilty.

Usually the lawyer for the accused, if there is one, will allow the court to skip reading the information in order to speed up the process. If this happens, the lawyer is responsible for informing the accused of the charges against her.

Plea (guilty or not guilty)
After hearing the charges made against her, an accused must choose whether to plead guilty or not guilty to each charge and tell the judge this choice.

Generally, the accused pleads not guilty during the appearance. After the plea, the accused’s file is usually set aside to be taken up at a later date. This gives the accused and her lawyer more time to study the evidence that the prosecution has collected against her. They can then begin to think of defences against these accusations. They may also begin negotiations with the prosecuting lawyer, who could agree to drop some charges in return for a guilty plea to others. After studying the file carefully, the accused can always change her plea and admit guilt.

If the accused decides to plead guilty at the first appearance, the case is finished and the judge decides on a sentence for her.

Choice of mode of trial
For most criminal offences, the accused is allowed to choose whether to be tried before the Superior Court or the Court of Québec.

However, there are some crimes for which the accused is not allowed to choose the mode of trial. When a person is accused of a serious crime like murder, the trial must occur in the Superior Court before a jury of 12 people.

For less serious crimes, like theft or fraud worth less than $5,000, the accused has no choice: the trial must take place before a judge at the Court of Québec. There will be no jury and no preliminary inquiry. Aside from these exceptions, the accused often chooses to be heard before a judge of the Court of Québec and to have a preliminary inquiry.

If the accused makes no choice, she is tried at the Superior Court before a jury. The accused can also choose a trial in English or in French. This choice will apply to all other necessary proceedings, such as the bail hearing and the preliminary inquiry.

In this section, Éducaloi discusses the cases that go before a judge and jury at the Superior Court.



3. Bail Hearing

The goal of a bail hearing is to determine if the accused can be freed, subject to certain conditions, while awaiting the end of criminal proceedings, or if he must stay behind bars. The judge must decide this important question after listening to the evidence presented by both parties.

How the Bail Hearing Works
In general, the prosecution will call the investigating police officer as a witness, and this person will relate the facts and events that led up to the arrest of the accused. Usually, the prosecution uses the following reasons to justify keeping a person in detention:

a) The accused is not trustworthy. If he is released, he would not return to court for the rest of the criminal proceedings. For example, an accused person who has no fixed address, or who has already failed to show up in court in the past, may be detained for these reasons.

b) The accused is dangerous and will likely commit other crimes if released on bail. For example, a person accused of committing a serious crime, or who has a long criminal record could be detained for these reasons.

When the Crown has finished presenting its evidence, the accused can defend himself against the prosecution’s arguments. He will try to show the judge that there is no risk of danger if he is released, and that he will show up to court when necessary.

Conditions of Release and Bail
During a bail hearing, the prosecution and the defence often suggest a series of conditions that the accused must respect if he is freed. These conditions are imposed on the accused to ensure that he will come to court when required or that he will not commit any crimes once released.

For example, Victor was drunk one evening and had an argument with his neighbour, Martin. Things became heated and, in a rage, Victor hit Martin on the head with a baseball bat. If the judge decides to release Victor after the bail hearing, there is a strong chance that Victor will have to respect the following conditions:

1. Present himself in court when summoned;
2. Not communicate directly or indirectly with Martin;
3. Not drink alcohol;
4. Not possess firearms.

Victor will have to respect these conditions until the end of the legal proceedings, or else he could be sent back to jail.

Sometimes a judge will ask an accused to give certain guarantees to ensure that he will respect the release conditions. For example, one of these guarantees could require the accused or another person to deposit money. If the accused breaks one of the release conditions, the state can confiscate this money. At the end of the proceedings, if the accused person has respected all the conditions, the money will be returned, whether he is found innocent or guilty.

Please note that in practice the prosecution and the defence will often come to an agreement on release conditions, and the accused person will be freed without having to go to a bail hearing.



4. The "pro forma" hearing

This step is also called “disclosure of evidence,” because it is here that the Crown must show the accused all the evidence that it has collected against him. At this stage, negotiations often begin between the lawyers in an effort to settle the case.

Disclosure of evidence
As part of the right to make a full answer and defence to criminal charges, an accused has the right to know all of the evidence that the Crown has against him. During a criminal trial, the prosecution is not allowed to use the element of surprise or hide any evidence from the defendant. For this reason, the Crown prosecutor has an obligation to show the accused or his lawyer all of the evidence that will be used during the trial. This means, for example, that the Crown must give the accused a copy of witness statements, police reports, and any video or audio recordings. The prosecution is generally expected to give these items to the accused or his lawyer during the “pro forma” hearing. The Crown does this by sending a copy of the case file to the defence.

When the parties are satisfied with the disclosure of evidence and state that they are ready to proceed, they appear before the court to ask the judge to schedule a date for the preliminary inquiry (if there is to be one) or for the trial. At the pro forma hearing, the accused can also choose to have proceedings in English or French, and can decide whether or not to have a preliminary inquiry. If they are not yet ready to proceed, another “pro forma” hearing will be scheduled.

Negotiation of a settlement
After the lawyers become familiar with the strengths and weaknesses of the evidence, they can meet to try to negotiate a settlement of the case. This could avoid the high costs of a possibly unnecessary trial.

Following negotiations, the parties come before the judge and can submit their settlement agreement, suggesting a solution that satisfies them both. However, the judge is the one that must decide the appropriate sentence. That means that he is not obliged to follow the parties’ suggestion.

If negotiations fail, the parties will ask the judge to schedule a trial date. The witnesses will be called to appear in court on that day.



5. Preliminary inquiry

The preliminary inquiry is the step that precedes a trial. The point of the preliminary inquiry is to determine whether there is enough evidence available to bring the accused to trial.

Prosecution evidence
The preliminary inquiry is a hearing before a judge prior to the actual trial, that takes place if either the Crown prosecutor or the accused asks for it. In Quebec, the preliminary inquiry always takes place before a judge of the Court of Québec.

At the preliminary inquiry, the judge does not decide on the guilt or innocence of the accused. At this stage, the prosecutor presents evidence needed to prove each of the essential elements of every charge made in the information (the document listing the charges). This evidence can include witness statements, documents, or any other material. Not all of the available evidence is presented at this point in the proceedings. The party that asks for the preliminary inquiry must specify on which elements the inquiry should focus, and which witnesses or other evidence should be heard.

The quality of the evidence is not considered at 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 accused of 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 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 versions of the facts by posing many questions, without actually confronting them. This allows the accused to evaluate their credibility and prepare for the trial.

Defence evidence
Since the goal of the preliminary inquiry is to evaluate whether the Crown has enough evidence, only rarely will the accused present a defence at this stage. The judge will also only consider a defence in very rare cases. The role of the defence at the preliminary inquiry is above all to cross-examine the prosecution’s witnesses effectively in order to evaluate the evidence that the Crown will be able to present at the trial.

Judge’s decision
The judge will decide if the accused should be tried on each of the charges. After hearing the prosecution’s evidence, the judge must study each charge and ask the following question: “If there was a trial on this charge, could a reasonable jury find the accused guilty?” The judge can then drop charges for which there is not enough evidence. If no charges need to be dropped, the judge will commit the accused to trial, which means he will order that a trial be held on the charges.

The judge can also add charges if new crimes related to the case are discovered during the course of the preliminary inquiry. Take, for example, the case of an individual accused of committing armed robbery in a bank. During the preliminary inquiry, a witness says she saw the accused steal a car to get away from the scene. But the original information 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 listed. The accused will then be tried for the two charges even if the prosecutor did not accuse him of theft originally.



6. Pre-trial conference

A pre-trial conference happens before a jury trial. It is a meeting between the judge and the lawyers to settle the most important issues of the trial before jury.

Deciding the mode of trial
A jury trial is very expensive and involves many people, so it is important to prepare properly. During the pre-trial conference, the judge and the lawyers meet to evaluate, amongst other things, how long the trial will be, how many witnesses to call, and what questions of law will be debated. The parties can also make preliminary motions at this stage. The language in which the trial will take place, and the possible need for an interpreter for the accused or the witnesses can also be discussed. The lawyer for the accused will also give an idea of the defence she plans to present. After this meeting, it is usually time to schedule a date for the trial.

Negotiations
The pre-trial conference often simplifies the trial, or even settles the case without going to trial at all. The judge and the lawyers can discuss the possibility of admitting certain facts in order to streamline the process. For example, if a person is accused of incest with his daughter, the defence lawyer can admit that the victim is really the daughter of the accused. It would then not be necessary to prove this fact with expert testimony and DNA testing, or by presenting medical or other certificates.

The conversations between the lawyers and the judge can also result in a settlement without a trial. Although an agreement can be made at any time before the end of the trial, the pre-trial conference is often a good place to begin negotiations. After the questions and comments of the judge, the lawyers in a trial for premeditated murder could, for example, agree that it is best for the accused to plead guilty to manslaughter (unintentional killing) instead, because the proof of premeditation is not very convincing. It is always the accused, however, who decides whether or not to accept the agreement. If the accused accepts, then he will be convicted without a trial and the jury will not be called unnecessarily.



7. Jury selection

Every jury trial begins with the selection of the jury. At this stage, the lawyers for the Crown and the defence choose 12 citizens who will have the important task of deciding the guilt or innocence of the accused.

Summoning the jury
The morning of the first day of the jury trial, the 150 citizens who have been summoned arrive in court. Chosen randomly from the voters list, they are all eligible to become jurors; they are called candidate jurors. The clerk calls them one by one to ensure that they are present. When this is finished, the judge enters the courtroom and speaks to the jurors. The content of this conversation can vary, but each judge is expected to read the charges and explain to the candidate jurors how they will be chosen. The judge must also name the accused, the Crown attorneys, and the defence lawyer, as well as the potential witnesses for the Crown and the defence.

Exemptions
Certain candidate jurors can be freed from their obligation to be jury members.

Some people are not allowed to be jurors, for example:


It is also possible for some people to ask to be excused from jury duty, for example:


All other candidate jurors must sit on the jury if they are chosen. However, candidates can ask to be exempted by the judge for a serious personal reason. An example of such a reason could be that the candidate personally knows the accused, one of the lawyers, a witness, or the judge. The judge can also excuse a juror who has a personal interest in the trial. Outside of these examples, it is rare for a candidate to be exempted from their jury duty. Absence from work is rarely accepted as a reason for exemption.

Selection by the lawyers
The lawyers for the prosecution and the defence choose the members of the jury. In Canada, we assume that each candidate juror is impartial. For this reason, the lawyers are not allowed to ask the candidate jurors questions without the permission of the judge.

The jury candidates, who are picked randomly, state their name, age, and profession. This information forms the only basis on which the lawyers may make their choices. Depending on the crime for which the accused is being tried, each lawyer has the right to reject a certain number of potential jurors without having to give reasons for doing so. For example, in the case of a premeditated murder trial, the Crown and the defence will each be able to reject 20 potential jurors without giving a reason. Each lawyer can also reject a potential juror for a valid reason–for example, if she knows the person or if she believes that the potential juror is not impartial.

The potential jurors are called randomly, one by one, and each lawyer announces in turn if she accepts the person called. If neither lawyer rejects the person, he will become a member of the jury. If one of the lawyers rejects him, with or without a reason, he is free to go. This process is repeated until 12 jurors are selected.

Once the jury is formed, the trial can begin.



8. The Trial

The trial is the hearing during which the Crown tries to prove to the jury that the accused is guilty beyond a reasonable doubt.

Burden of Proof During the Trial
The presumption of innocence is a fundamental principle in Canadian criminal law. Under this principle, it is the prosecution that must prove that the accused committed the crimes alleged, rather than the accused having to prove that he is innocent. To guard against the possibility of convicting an innocent person, the Crown must also convince the jury that the accused is guilty beyond a reasonable doubt. It is not enough to prove that he is probably guilty. If the jury has a doubt about the guilt of the accused, it must acquit him. This doubt must not be frivolous or imaginary; it must be based on reason and the facts of the case.

How the Trial Unfolds
Generally, a jury trial begins with arguments on questions of law. These arguments happen before the judge presiding over the case and without the jury present. Here, the parties discuss legal questions such as the admissibility of certain evidence or questions about the Canadian Charter of Rights and Freedoms. Afterwards, they begin presenting the evidence to the jury. As the Crown has the burden of proving the guilt of the accused, it is the Crown that calls the first witnesses. Each witness is cross-examined by the defence lawyer, who attempts to create doubt about their credibility or to bring out facts that help the accused person.

When the prosecutor states that she is finished presenting her evidence, the accused decides if he will present a defence. The accused is never obliged to make a defence, since it is up to the prosecution to prove his guilt beyond a reasonable doubt. If he decides to present a defence, he can call witnesses and even testify himself. If the witnesses or other people involved in the trial use a language that the accused does not understand, he will be provided with an interpreter. If he testifies, the accused and all of the witnesses are then questioned by the Crown attorney. At the end of the trial, each party makes arguments during which they bring to the attention of the jury the most important facts in the case.

The Judge’s Instructions
The jury has the heavy responsibility of deciding whether the accused committed the crimes alleged beyond any reasonable doubt. To help with this difficult task, the judge gives the jury explanations and directions on the rules of law that they must follow to arrive at a verdict. For example, the judge explains what a reasonable doubt is and what evidence can be used to arrive at a decision. The judge also lists the kinds of verdicts that are legally possible for the jury to give. The judge will tell the jury that the accused, for example, can be found guilty of assault, sexual assault, or that he can be acquitted. When the judge has finished giving instructions, the jury retires to deliberate until they arrive at a unanimous verdict.



9. Verdict

The verdict is what ends the trial. The jury must decide unanimously whether the accused is guilty or innocent of the crimes alleged.

The jury verdict
At the end of the trial before jury at the Superior Court, it is the jury and not the judge who decides whether the accused is guilty or not of the crimes alleged. After hearing all the evidence and then the judge’s instructions, the 12 members of the jury retire to begin deliberations. They must decide if the guilt of the accused was proven beyond a reasonable doubt. The verdict of the jury must be unanimous: the 12 jurors must all agree with the decision.

If the jury is unable to agree on a unanimous verdict after several days of deliberations, a new trial with a new jury will be held. When the jurors reach a verdict, the foreperson announces this decision to the court. This decision cannot be contested. The judge, the accused, and the lawyers for the prosecution and the defence must accept the verdict given by the jury, as long as the verdict is one of the possibilities listed by the judge in her instructions.

The directed verdict
Sometimes the jury will not make the final decision in a trial. The judge can decide that there is absolutely no evidence against the accused on a charge. The judge alone will then render a verdict of acquittal on the charge, without any need for the jury to deliberate. The judge, however, can never oblige the jury to render a guilty verdict.



10. Sentence

At this stage, an accused who has plead guilty or been convicted receives a penalty for the crimes that she has committed. It is always up to the judge to decide the sentence, even in a trial by jury.

Principles of sentence determination
While the judge deciding the convicted person’s sentence has a great deal of discretion, he must still base his decision on certain principles. A sentence is generally supposed to promote respect for the law so that all people can live in a just and safe society. The sentence must, however, be just and reasonable for the person who is convicted. The judge must take into account all of the aggravating or mitigating factors in the case. If the convicted person committed a serious crime and has a long criminal record, these might be considered aggravating factors. Further aggravating circumstances might include the finding that the crime was motivated by prejudice such as sexism or racism, or that it was committed against a child.

Mitigating factors (which may lead to a less severe sentence) could include the convicted person being only slightly involved in the crime, the fact that the person has no criminal record, the minor nature of the crime, or the small chance that the person will reoffend. During the sentencing hearing the lawyers for both parties make arguments to bring out aggravating and mitigating factors and they can even call witnesses to testify about these elements.

Possible sentences
The judge has wide discretion for sentences related to indictable offences. She can give a less severe sentence, such as a fine or probation, or impose a heavier penalty of imprisonment. When sending someone to prison, the judge can never assign more than the maximum sentence length prescribed by law. For example, a person found guilty of sexual assault cannot be sentenced to more than 14 years in prison. In some rare cases, there is a minimum sentence required by law and the judge cannot impose a sentence less than that. A well-known example of a crime having a minimum sentence requirement is the charge of murder, for which a convicted person must be sentenced to a minimum of life in prison.

Negotiation of a sentence
Often, the Crown and the defence will arrive at an agreement about the sentence. In this situation, the judge ultimately still decides the sentence but the lawyers can make suggestions on what they feel would be reasonable. Unless the judge thinks that this suggested sentence is unreasonable, she will respect the lawyers’ proposal.



11. Appeal

After the trial, if one of the parties believes that the judge has made a mistake, making an appeal is the way to have that decision reviewed. It is first brought before the Court of Appeal of Québec and from there it can go to the Supreme Court of Canada.

Appealing a decision made during the trial
The jury’s verdict is final and without appeal. It is therefore impossible for the prosecution or the accused to ask for a review of the decision. Only decisions made by the judge during the trial can be appealed. The parties can also appeal based on any errors the judge might have made in giving her instructions to the jury at the end of the trial. The Crown and the prosecution can have the Court of Appeal review any errors that they believe the judge made and that might have influenced the jury.

The appeal is heard by the Court of Appeal of Québec. During the hearing, no witnesses will testify because this is not a re-trial. The party who appeals tries to convince the three presiding judges that the first judge made a mistake. After hearing the arguments of both parties, the Court of Appeal can confirm the first decision made in the Superior Court, modify it, or order that a new trial be held. If one of the parties disagrees with the decision of the Court of Appeal, the party can ask permission to appeal to the Supreme Court of Canada, the highest court in the country.

Appealing the sentence
If the trial of an accused ends with a guilty verdict, the judge must pronounce a sentence against him. If a party disagrees with the sentence, they can ask the Court of Appeal to review it. The Court of Appeal, however, is usually very respectful of the trial judge’s decision. For this reason, a sentence will only be changed if it is clearly unreasonable–either because it is much too severe or much too lenient. It is also possible to appeal the sentence by arguing that the judge based the decision on incorrect principles of law.

In general, no witnesses testify during the appeal hearing. The court hears the arguments of both parties and can reject the appeal and keep the sentence given by the trial judge, or accept the appeal and pronounce what it feels is a more appropriate sentence.