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.

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. Generally this choice is made at the appearance.

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. During the appearance stage, the accused can 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.

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.

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. 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.

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.

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 in the judge’s chambers 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.

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:

• Judges, lawyers notaries and their spouses;
  
  
• Candidate jurors who cannot express themselves correctly in the language in which the trial will be held;
  
  
• Citizens who are facing charges or who have already been convicted of a crime;
  
  
• Police officers and firefighters.

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

• A person 65 years or older, and that person’s spouse;
  
  
• A member of the Canadian military;
  
  
• A person who has been a juror in the last five years;
  
  
• People whose health or domestic duties prevent them from being able to act as a juror, for example a mother who needs to care for her children.

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.

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.

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.

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.

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.