Criminal and Penal Cases in the Court of Quebec: Procedure

This article explains the main steps in a criminal or penal court case in the Court of Quebec.

 

1. Arrest and Appearance in Court

An arrest often marks the end point of the investigative work of police officers. For a person accused of a crime, an arrest is the entry point into the criminal justice system.

 

Arrest

When police officers have reasonable grounds to believe that someone has committed a crime, they have the power, but not the obligation, to arrest that person.

The law requires that the police release this person as soon as possible after an arrest. The police can give that person an appearance notice before releasing him if they intend to request that criminal charges be brought against him. This notice can take different forms. The one given to an accused at the police station by the police is called an appearance notice or a promise to appear. The promise to appear can mention certain conditions that the person must respect after release by the police.

In other circumstances, the person arrested might be released without any formalities and, if charges are laid later on, the court will send the accused a notice to appear by mail. This notice is called a summons. This document mentions the crime the person is being charge with, as well as the date and place of the appearance. On the scheduled day, the individual must come to court for the first step in the court case: the appearance.

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

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

 

Decision to Press Charges

During an investigation, the police must prepare an investigation report if they find evidence that a person committed a crime. This report mentions the facts, and evidence collected during their investigation. The police send the report to the regional office of the prosecutor. The prosecutor is the government lawyer. In Quebec, it is not up to the police to decide whether to bring criminal charges or what crimes someone arrested with be charged with. The prosecutors make these decisions. 

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

Note that prosecutors are sometimes referred to as the prosecution.

 

The Decision of the Justice of the Peace

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

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

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

 

2. Appearance in Court

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

 

The Information

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

Here is an example of a charge: 

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

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

*Note: In the rest of this article, the terms the defence or the accused mean either an accused representing himself or an accused represented by a lawyer.

 

The Plea

After hearing the charges, the accused must tell the judge whether he pleads guilty or not guilty to each of the charges.

If the accused decides to plead guilty at this step, the judge must decide on an appropriate sentence (penalty). The sentencing can be done immediately or at a later date.

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

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

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

 

Indictable and Summary Prosecutions

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

 

Hybrid Offences

The Criminal Code lists some crimes that can be prosecuted either by indictment or by summary conviction, depending on the prosecution's choice. They are referred to as hybrid crimes (e.g. impaired driving). For hybrid crimes, the prosecutor has to choose to proceed either by summary conviction or by indictment.

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

 

Indictable Crimes

There are three types of proceedings for indictable crimes. While the most serious (e.g. murder) are only tried in Superior Court, before a jury and after a preliminary inquiry (unless the parties agree otherwise), less serious crimes (e.g. theft under $5,000) are tried in the Court of Quebec, without a jury or preliminary inquiry.

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

  • a trial before a jury in the Superior Court, following a preliminary inquiry
  • a trial with no jury in Superior Court, following a preliminary inquiry
  • atrial in the Court of Quebec, with no jury and no preliminary inquiry

If the accused does not choose, the trial will be held before a jury in Superior Court after a preliminary inquiry. In certain cases and under certain conditions, it is possible for the accused to change the choice of type of proceeding. 

This article only deals with trials in the Court of Quebec. To learn more about caes in Superior Court, see our article Criminal and Penal Cases in the Superior Court.

 

3. Judicial Interim Release Hearing (bail hearing)

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

 

Prosecution Can Object to Release or Request Conditions

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

The interim release hearing must take place within three days following the appearance unless the accused consents to a longer delay.

 

Reasons Justifying the Detention of the Accused

The goal of an interim release hearing (sometimes called a bail hearing) is to determine whether the accused must stay behind bars until the end of proceedings, a process that can take several months. The law states that the accused must be released unless there is evidence to show that he should be detained. The prosecution must convince the judge, using the evidence available, that it is necessary to detain the accused. At the end of the day, the judge must decide this important question.

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

  • The accused, if released, will not show up to court for the rest of the proceedings. For example, the accused has no fixed address or in the past he has been convicted of not showing up to court.
  • The accused represents a danger. If he is released, there is a good chance he will commit offences, destroy evidence, or bother the victims or witnesses. For example, an accused may be kept in detention because it is the third time in a month that he has assaulted the same victim.
  • The detention of the accused is necessary in order to maintain public confidence in the judicial system.
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How the Interim Release Hearing Works

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

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

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

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

 

Conditions of Release and the Surety

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

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

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

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

  • to show up in court when summoned
  • not to communicate directly or indirectly with Martin, or go near his house
  • to not consume alcohol
  • to not own weapons
  • to be on good behaviour and avoid disturbing the peace

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

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

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

 

4. Disclosure of the Evidence, the Pro Forma and the Negotiation of a Settlement

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

 

Disclosure (communication) of the Evidence

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

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

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

 

Negotiation of a Settlement

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

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

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

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

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

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

 

The Pro Forma

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

 

5. Preliminary Inquiry

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

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

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

 

Defence Evidence: Voluntary Examination

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

 

The Judge's Decision

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

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

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

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

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

 

6. The Trial

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

 

How the Trial Unfolds 

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

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

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

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

 

The Burden of Proof

The presumption of innocence is a fundamental principle of Canadian criminal law. This principle flows from the premise that it is better to acquit ten guilty people than to convict one innocent person. Here are some things that flow fromr this principles

  • The prosecution has the burden of proving that the accused committed the alleged offence.
  • The accused does not have to prove his innocence.
  • The evidence must convince the judge that the accused is guilty beyond any reasonable doubt. It is not enough to prove that the accused is probably guilty. The judge must have a very high degree of certainty. Consequently, if the judge has a reasonable doubt as to the guilt of the accused, she has to find the accused not guilty.

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

 

The Judgment

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

The judgment has to address each charge for which the accused was tried. This means that the accused may be found not guilty on one count but guilty of another. The judge can also find the accused guilty of a less serious charge than the original one.

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

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

 

7. The Sentence

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

 

Sentencing Principles

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

  • to denounce unlawful conduct
  • to deter people from committing crimes
  • to separate offenders from society, where necessary
  • to rehabilitate offenders
  • to repair the harm done to victims or to the community
  • to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community

A sentence must be proportionate to the seriousness of the crime, as well as to the degree of responsibility of the offender. 

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

Some mitigating factors that could lead to a lighter sentence are the minimal involvement of the offender in committing the crime, the lack of any previous convictions, the relative seriousness of the crime, and the low chance of committing other crimes

 

Sentencing Hearing

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

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

 

Negotiating a Sentence

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

 

Possible Sentences

Aside from cases where the law sets out a minimum sentence, the judge has a lot of room to manoeuvre in deciding what sentence to impose, as long as the sentence respects recognized sentencing principles. A lighter sentence could be a fine or order of probation. A more serious sentence could be prison. In all cases, the judge must impose a victim surcharge fine over and above any other sentence.

When a judge decides that an accused should be sent to prison, the length of the prison sentence cannot be more than the maximum length set out by law. In certain cases, the law establishes a minimum sentence.

In every case, the judge must consider whether the victim should receive financial compensation for the harm suffered.

 

8. The Appeal

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

 

Appeal of a Conviction or Acquittal

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

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

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

 

Appealing the Sentence

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

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

 

9. Penal Procedure

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

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

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

 

The Plea

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

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

 

The Trial

If the accused pleads not guilty, the court will send him a notice of hearing. The trial takes place on the hearing date. In Quebec penal law, the available defences and the rules of evidence and procedure are very similar, if not identical, to the rules applicable in criminal law. However, there is one thing that is particular to penal law: in certain cases, the prosecution is not obliged to summon the police officer as a witness. In fact, the law allows the prosecution to submit the police report in the place of the police officer's testimony in court. If witnesses other than the police officer are needed, they must be summoned to testify. To find out more, see our article Contesting a Ticket.

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.

Articles in the category "Criminal and Penal Division"