The
Courtwatcher’s
Manual
Fourth edition
Judith Blackwell, M.A., LL.B.
Law Courts Education Society of British Columbia
Legal Services Society of BC
Contents
I n t r o d u c t i o n. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
THE PURPOSE AND STRUCTURE
OF OUR COURT SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chapter One:
The Purpose of Our Court System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Why Do We Have Courts? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
W h e re Did Our Court System Begin? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
How Do Courts Make Decisions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statute Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
What Features Distinguish Our Courts? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Adversary System of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
What Kinds of Cases Appear in Court? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Civil Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Criminal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Our Constitution and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
Court Documents: From Paper to Computer . . . . . . . . . . . . . . . . . . . . . . . . 11
Chapter Tw o :
The Structure of Our Court System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3
Why Do We Have Diff e rent Levels of Court? . . . . . . . . . . . . . . . . . . . . . . 1 3
The Courts of British Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 4
Chart: Courts of British Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5
P rovincial Court: The Basic Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4
Criminal Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4
Family Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6
Small Claims Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6
Tr a ffic Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6
S u p reme Court of British Columbia:
The Second Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7
Court of Appeal of British Columbia:
The Province’s Highest Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8
Federal Court System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9
Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9
Federal Court of A p p e a l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9
S u p reme Court of Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0
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iii
SPENDING THE DAY IN COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3
Chapter Three:
W h o ’s Who . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Courtroom Setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chart: Supreme Court Criminal Courtro o m. . . . . . . . . . . . . . . . . . . . . . . . .
The Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judges .............................................................................
J u r i e s. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lawyers ..........................................................................
Court Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Wi t n e s s e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
24
26
25
25
27
28
29
29
Chapter Four:
What Happens in Civil Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Starting a Civil Court Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
P roving the Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Civil Tr i a l. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
31
32
32
Chapter Five:
What Happens in Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
First A p p e a r a n c e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Who Will Try the A c c u s e d ?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Guilty or Not Guilty? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Release from Custody. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
First A p p e a r a n c e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Preliminary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
P roving the Charg e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Criminal Tr i a l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
35
35
35
37
38
40
40
41
42
Chapter Six:
Conclusion ................................................................................. 46
Glossary ..................................................................................... 47
Resources ...................................................................................
Law Courts Education Society of British Columbia . . . . . . . . . . . . .
Courts ....................................................................................
Other Organizations in British Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Educational Materials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iv
50
50
51
51
53
The Courtwatcher’s Manual
Introduction
This booklet will introduce you to our court system, its special rules and
language, and the characters who play their parts in it.
Every time you pick up a newspaper or turn on the evening news,
you hear about cases being decided in our courts. The cases that make
the biggest headlines are murder trials or important decisions by the
Supreme Court of Canada. But the courts are involved in other cases,
including everything from family law to business law. Our courts have
a great deal of power and touch our lives in many ways. They are the
places where the laws of our country are applied or enforced.
Chances are that at some point in your life, you’re going to find
yourself inside a courtroom as a participant. You may be called for jury
duty. You may sue or be sued in a civil action. You may attend as a
witness. You may want a divorce or custody of your children. Or you
may be charged with a criminal offence. If
you don’t know anything about the courts
and how they function, the courtroom may
be a strange and intimidating place.
It’s best to get to know the courts as a
courtwatcher. A courtwatcher is a spectator,
someone who can take in all the action and
drama of the courtroom without having
anything at stake in the process.
In this manual, Themis the Greek
goddess of law, justice and order will
guide you through this process.
You will notice that Themis has
a scroll of paper, a scale and a
piece of cloth. Each of these items
represents an element of the
justice system. For instance, the
scroll of paper symbolizes the
written rules of law, the scale
symbolizes equal treatment of
all participants, and the piece of
cloth is usually placed across
her eyes to symbolize that justice
is blind.
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Introduction • v
Regardless of your race, age, ethnicity or economic standing, the justice
system aims to treat everyone equally.
This book is a basic guide to courtwatching. It takes a look at why
we have courts in the first place and reviews the structure of our court
system. Then it introduces you to the participants you will be watching
in court and the procedures that you will see unfolding before you.
If you have questions about the terms used in this book, or if you
want more information about a particular subject, turn to the back.
There, you’ll find a Glossary on page 47 and a list of Resources on page
50. Throughout the book, words that are highlighted in bold type will
be defined in the Glossary at the back.
After you’ve read this book, drop in to a local courthouse and
watch the system in action. Please keep in mind however, that the
courthouse is a very traditional, formal environment that warrants a
respectful, sensitive, and serious attitude from the pubic. To ensure that
the learning experience is a positive one for everyone, please follow the
following proper protocol:
•
If you are in a large group, please court watch in different
courtrooms in small groups of 4-8 people.
•
Time your exit from the courtroom 5 minutes after another
group has either entered or exited the courtroom.
•
Enter and exit courtrooms quietly and stand when a judge
enters or exits. You may enter the courts while they are in
session.
•
Talking is not permitted in courtrooms. Please do not discuss
trials in the halls. Please turn off all cell phones and pagers.
•
Gum, food, hats, weapons, recording devices, cameras , and
standing are not permitted. The courthouse is a non-smoking
building.
•
Once in a courtroom, stay at least 30 minutes before exiting as
that is the least disruptive to the court proceedings.
•
Large bags and backpacks are not permitted in courtrooms
where a Sheriff is using a metal detector. If the metal detector is
not in use, you can proceed through.
Thank you for your cooperation and we hope that this book will make
courtwatching a more interesting experience for you.
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• Introduction
The Courtwatcher’s Manual
THE PURPOSE AND STRUCTURE
OF OUR COURT SYSTEM
The Courtwatcher’s Manual
1
Chapter One:
The Purpose of
Our Court System
You may have some basic questions about our court system such
as:
• Why do we have courts?
• Where did our court system begin?
• How do courts make decisions?
• When people say we have a ‘common law’ tradition in
English-speaking Canada, what are they talking about?
• What’s the difference between common law and statute
law?
• What does an adversary system of justice mean?
• What is the difference between civil and criminal law?
Interested in getting some concise answers? This chapter
provides them for you.
Why Do We Have Courts?
As civilization developed and people began to live together in
large communities, conflicts were inevitable. In order to settle
disputes, shared values and rules of conduct developed from
mere custom into formal laws. In time, courts were established to
enforce those laws.
The development of laws, with courts to enforce them, meant
that similar actions came to be treated in similar ways. Therefore,
people could understand, ahead of time, what the consequences
of their actions might be.
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Where Did Our Court System Begin?
The model for our court system comes from feudal times in
England. Following the Norman Conquest in 1066, the King
began to hold court to listen to his subjects’ complaints.
Gradually, this responsibility was passed to his advisors.
They became judges in formal courts: the Court of the King’s
Bench (for criminal cases); the Court of Common Pleas (for
private conflicts); and the Exchequer Court (for monetary
disputes). These courts became the basis of the English court
system.
How Do Courts Make Decisions?
To decide a case, a court can use two kinds of law: common law
and statute law. Let’s look first at common law.
Common Law
When the King’s courts were established in the 12th century, the
King’s judges first decided individual cases on their merits and
local custom. However, in time, as the judges returned from their
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Chapter One • 3
areas and compared notes, they began to decide similar cases in
similar ways. They began to follow previous decisions. In this
way, the elements of uniformity, consistency, and predictability
were introduced into the judges’ decisions.
The law was no longer simply a matter of local custom. It
became a system “common” to the whole country. This is what is
meant by common law (see Glossary, page 47).
Common law is judge-made law. It is a set of rules, or
“precedents,” that have been extracted from hundreds of years of
cases. The decisions in these cases are published in books called
law reports. As these decisions mount up, they gradually form
principles of law. So it’s possible for a judge to go back to a case
decided in the 1840s, for example, to find the principle of law
that decides the outcome of a case today.
When a judge looks at past cases in order to decide a current
case, he or she is applying one of the most basic principles of our
legal system: like cases should be decided alike. This principle
remains essential for the law’s stability and predictability.
Statute Law
The other source of law that judges use to decide cases is statute
law (see Glossary, page 47). Statute law is the law created by our
governing bodies or legislature. The Canadian constitution
affirms the principle of parliamentary supremacy as: it is our
elected governments that enact laws. The Parliament of Canada
in Ottawa creates federal laws for the whole of Canada; the
provincial legislature in Victoria creates statutes for British
Columbia; and, at the municipal level, our local councils, using
powers given to them by the provincial legislature, enact laws
about local matters. The Canadian Constitution also allows some
influence by the courts to ensure that legislation protects the
rights of Canadians established under the Canadian Charter of
Rights and Freedoms.
The wording of statutes is sometimes difficult to interpret,
and often judges must look at previous cases — the common law
— to help make sense of the law. Statute law may endorse,
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• Chapter One
The Courtwatcher ’s Manual
override, or vary common law. In areas where there is no statute
law, the courts can always look to the common law.
However, one thing is certain: laws, be they common law or
statute, can affect our lives from birth to death, from the
registration of our births to the distribution of our estates when
we die.
What Features Distinguish Our Courts?
When you enter a courtroom, especially one of the higher courts,
one thing that strikes you immediately is the formal, dignified
atmosphere. Not so long ago, judges and lawyers wore wigs to
court, just as dignified courtiers wore in the 18th century. Today,
judges and lawyers can still be found wearing flowing, black
robes. These formalities are meant to emphasize the seriousness
of court proceedings. Frivolity is out of place here.
Another main feature is the courts are generally open to the
public. You have only to think of the secret courts of military
dictatorships to appreciate how an open court system helps to
preserve fundamental human rights. Justice that is open to public
scrutiny and criticism must be fair and have the support of the
public. It is only in exceptional cases that the courts are closed to
the public to protect the rights of individuals. The trials of young
people are sometimes closed. The court can prohibit press
coverage of preliminary criminal hearings in order to prevent the
public, from which the jury will be selected, from prejudging an
accused person.
Another distinguishing feature of our system is its
independence, or impartiality. Once appointed, judges are
difficult to remove from office and therefore enjoy a security of
tenure (guaranteed permanent employment) that gives them
some immunity (protection) from threats and bribes. (For a more
detailed discussion of judges, see the section entitled “Judges” on
page 25.) Think of a judge as an impartial decision-maker who
comes to court with an open mind, ready to be persuaded by
either side of the case. The structure of legal argument that was
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Chapter One • 5
developed in our courts — the adversary system — allows the
judge to hear both sides argued vigorously.
The Adversary System of Justice
In the adversary system, a sort of competition takes place, with
each side rallying all its forces to convince the court that its
argument about guilt or liability should win out. Typically, the
evidence is presented and the arguments are put forward by
lawyers for each side.
The adversary system rests on the concept that justice can
best be served by having each side put forward the strongest case
it can. Unlike some European courts, where the judge may take
an active part in examining witnesses or probing to find guilt,
our adversary system leaves the presentation of the case and the
evidence to back it up in the hands of each side.
Our system is based on a belief that seldom can one person
be equally successful in searching out all the evidence or
arguments for both sides. It is better to let each side gather all the
evidence for its own position. Then each of them can present
their arguments, and the judge can decide.
Our judges only get involved in rare instances to resolve
differences between the opponents. The judge in our courts must:
• Ensure that all the procedures are properly followed;
• Listen to both sides of the case; and
• Decide the outcome, according to the law.
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What Kinds of Cases Appear in Court?
In Canada, laws are divided into two broad categories: civil and
criminal.
Civil Law
Civil law is clearly distinguished from criminal law. Civil disputes
always involve the private interests of individuals, groups, or
organizations, including the government. When they cannot reach
an agreement, one of them can ask the courts to decide.
It is important to realize that the courts only become involved
in civil matters because an individual, group, or organization has
asked them to. The role of the courts in civil disputes is to provide
a way of resolving conflicts. Therefore, the courts help to maintain
the rule of law not only in criminal matters but in civil matters as
well.
The participants in a civil suit are called “parties.” The party
making a claim or starting an action is known as the “plaintiff” or
“petitioner.” The party accused of causing the damage or injury is
known as the “defendant” or “respondent” (see the Glossary on
page 47 for more information about all four of these terms).
The judge’s decision in a civil suit always rests on the “balance
of probabilities.” For example, if the evidence shows that it is
more probable than not that Jones’s dog bit the plaintiff Smith, the
judge will order Jones to pay Smith compensation. In other words,
if the plaintiff Smith can prove that, on the balance of
probabilities, his evidence is stronger, he will succeed, and Jones
will be found liable.
Civil law describes a wide range of disputes. A dispute may
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Chapter One • 7
arise out of the common law, the interpretation of a particular
statute, or both. For example, a civil case might be about whether
a fence is on one neighbour’s property or another’s or about
whether a man will receive part of his dead sister’s estate. Other
civil cases may concern a businessman’s responsibility for
payments under a signed contract or a trucking company’s
obligation to pay for damage caused in a traffic accident.
Civil cases are generally identified by the names of the parties
involved, with the plaintiff’s, or petitioner’s, name first. A case
listed as Brown v. Schulz might mean that James E. Brown has filed
suit for compensation against Margaret L. Schulz, claiming that
Ms. Schulz has caused him damage or injury.
Criminal Law
In a criminal case, it is the state, representing the interests of the
whole community, that charges an individual (or, in some cases, a
company) of committing a criminal offence. All criminal offences
are specified by statute and only the federal Parliament, the
elected representatives of the whole community, can designate
what constitutes a crime. Provincial and municipal governments
can create “quasi-criminal” offences (see Glossary, page 47),
which impose less serious penalties.
Because the criminal law considers society as a whole injured
by a crime, criminal actions are conducted against the accused in
the name of Her Majesty the Queen, who, as Canada’s head of
state, represents the interests of society. So, if Ms. Schulz were
being charged with a criminal offence, the case would be known
as Regina v. Schulz. (Regina is the Latin word for “queen”. (See
Glossary, page 47.)
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The Queen’s representative is a lawyer who is called counsel
for the Queen, or Crown counsel (see Glossary, page 47), and who
performs the role of prosecutor. When the Crown counsel
organizes and presents the case against the accused, he or she is
representing the state — the whole community.
In a criminal case, the burden of proof is on the state. The
Crown counsel must present evidence that establishes the guilt of
the accused beyond any reasonable doubt. (This is different from
a civil action, where the plaintiff only has to prove his or her case
according to a balance of probabilities.) The accused person is
entitled to the benefit of any reasonable doubt, because the
consequences of convicting an innocent person are very serious
indeed.
Most criminal offences are set out in the Criminal Code of
Canada (see Glossary, page 47). Other federal statutes, such as the
Controlled Drugs and Substances Act and the Competition Act, also
create criminal offences. A person charged with a criminal offence
may be fingerprinted and will have a criminal record if convicted.
To complicate things further, certain provincial statutes (such
as the Liquor Control Act and the Motor Vehicle Act) and municipal
bylaws (such as parking regulations) create “quasi-criminal”
offences. Breaking a “quasi-criminal” law may result in a fine or
jail term even though the offender will not get a criminal record.
Criminal law and civil law often overlap. For example, driving
while one’s ability is impaired by alcohol is a common basis for a
criminal charge. If Ms. Schulz were found driving in this
condition and her driving had caused an accident, she might be
charged with the criminal offence of impaired driving, and she
might also be sued in a civil action by the victims of the accident.
Ms. Schulz might, therefore, end up in two different courtrooms
facing two different cases — one criminal and one civil — arising
from the same incident.
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Chapter One • 9
Our Constitution and the Law
In order to understand the structure of our legal system, you have
to know a little bit about the Canadian Constitution. A
constitution lays out the basic organizing principles governing a
country. Our constitution is not just one document. Instead, it is a
collection of statutes and customs handed down through the
years.
Under the original constitutional document — the British North
America Act, which dates from Confederation in 1867 — powers
were divided up among the federal government and the
provinces. Each division of government authority is called a
jurisdiction (see Glossary, page 47).
One of the jurisdictions given to the federal government was
the power to pass criminal laws and decide criminal court
procedure. This is why we have a single set of criminal laws for
the whole of Canada. By contrast, the constitution of the United
States gives each state some power to decide which acts are
criminal. One of the jurisdictions given to the provinces was the
power to pass laws concerning “property and civil rights.” That is
why the provinces pass laws about transferring the title of a
house, for example, and about human rights.
Another provision in the British North America Act gave the
provinces the responsibility for the administration of justice
within their own borders. (This is why, for example, you can see a
criminal offence being tried in Provincial Court.)
Under the British North America Act, power to amend the
constitution remained in the hands of the colonial power: the
Parliament of the United Kingdom. In 1982 the Constitution Act
was enacted to replace the British North America Act and to
repatriate power of amendment to Canada. Under the Constitution
Act, the British government ceased to have any role in Canadian
affairs. Now our constitution can only be changed if the federal
and provincial governments agree.
Another important change in 1982 was the addition to our
constitution of the Canadian Charter of Rights and Freedoms, which
guarantees certain democratic, legal, and equality rights for all
Canadians. Now any law that is inconsistent with the provisions
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Court Documents: From Paper to Computer
One of the first things that will strike you as a courtwatcher is how much
the legal system depends, from beginning to end, upon documents.
Without the right documents, the legal process would grind to a halt.
Written documents are a vital part of this process. Think, for example,
of a will, or a written contract, or a petition for divorce. In a civil action,
the plaintiff prepares documents detailing the claim and describing the
amount that he or she is seeking in compensation; the defendant likewise
produces a document, outlining his or her position about the claim. In a
criminal proceeding, too, documents are important. For example, the
accused may make a statement, which can be introduced as evidence in
court.
The documents enable everyone involved in a
case to have the same information. It ensures the legal
system’s consistency, objectivity, and rationality. It’s also
practical: it means that everyone involved doesn’t have
to gather in the same room every time one of them has
something to say.
Increasingly, paper documents are being replaced by
their electronic equivalents. Electronic access to the courts
makes participating in a court action much easier. Many
applications or other court documents can now be filed
online or by fax. Court forms are also often available on the
websites of the various levels of court and, once the case is
decided, reasons for judgment are freely available on the
Web.
When you attend court as a courtwatcher, you may
also see technology used in other ways. Court reporters
use laptop computers to record court transcripts. Video
cameras, televisions, and video players may be
present to allow a judge in one courtroom to
participate in a trial taking place in another
courtroom kilometres away or to present
videotaped evidence. In high profile cases, live
audio/video feeds may broadcast court
proceedings to overflow courtrooms.
All these advances expedite the paper
process of the law. Evolving with electronic
change, the legal system is keeping pace
with technological advances to maintain
the documentation process on which the
legal system depends.
The Courtwatcher’s Manual
Chapter One • 11
of the Charter can be declared invalid by the courts. Since the
Charter was introduced, the courts have been very busy deciding
which laws may actually come in conflict with it.
Under the Charter the courts continually assert their power
over decisions Parliament makes in the form of legislation. For
example, in 2003 Parliament proposed to enact federal legislation
extending the right to civil marriage to same-sex couples. This
proposed legislation also supported the freedom of religious
officials to refuse to perform marriages that they didn’t agree
with. In December 2004, the Supreme Court of Canada decided
that cabinet does not have the power to enact legislation that
interferes with equality rights under the Charter. This case
demonstrates the ongoing balance that must be struck between
the supremacy of the courts and the supremacy of Parliament.
◆
In this chapter, you’ve seen that when we talk about the courts
interpreting the law, we’re actually describing something quite
complex. “The law” is not a single entity. We have the common
law, which we’ve inherited from England. We have statute law,
those laws that are passed by legislation. Finally, we have the
constitution, which spells out the responsibilities of the federal
and provincial governments in passing laws and which, under the
Charter, guarantees us certain rights and freedoms.
Furthermore, you’ve seen that the law can be divided into two
broad areas: civil law and criminal law. Each area follows different
procedures in order to deal with different kinds of legal problems.
You’ve also seen that our courts use an adversary system of
justice: each side puts forward the best evidence and arguments it
can. Then the judge, acting as an impartial decision-maker,
determines the facts in the case and applies the law to those facts.
You’ve seen that our courts are open to the public, so that each
of us can go and see if the rights of the individual are being
protected. One of your rights as a citizen is to be a courtwatcher.
In order to really understand what’s going on in court,
however, you need to know something about the structure of our
court system.
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Chapter Two:
The Structure of
Our Court System
Before you go into a courtroom, you’ll want to know what kind
of court it is, and what kinds of cases you can expect to find it
handling. This chapter provides a quick tour of the court system,
looking at the different levels of courts and the work that they do.
Why Do We Have
Different Levels of Courts?
Our court system allows for the law to be interpreted with
uniform consistency across Canada. Generally speaking, most
cases are dealt with at the trial courts, and appeals of decisions
are heard by appeal courts. The top appeal court for all of
Canada is the Supreme Court of Canada. It unifies the
administration of our legal system: all the other courts are bound
to follow what it decides.
This process makes it possible to appeal a decision. If we had
only one level of courts, people who felt their cases had been
improperly decided would have nowhere else to go to seek a
better result. In our system, the higher courts can change a lower
court’s decision on appeal.
Each level of court has a specific area of authority, called its
jurisdiction (see Glossary, page 47). The procedures for deciding
which court has jurisdiction in a civil case have been set down by
the provincial legislature. The federal Parliament has decided
which courts will try the various kinds of criminal cases, and it
has established other courts to deal with matters within federal
jurisdiction, such as taxation and immigration.
Each level of court has its own rules for procedure. These
rules specify, for example, the kinds of documents that must be
The Courtwatcher ’s Manual
Chapter Two • 13
used to start an action, certain time limits that apply, and so on.
These rules are set out in legislation.
The Courts of British Columbia
In British Columbia, the court hierarchy has three levels. It can be
seen as a pyramid. The broad base of the pyramid is the
Provincial Court of British Columbia, which hears the majority of
cases. Next, going upward, is the Supreme Court of British
Columbia, and finally comes the highest court in the province,
the Court of Appeal of British Columbia. (The only higher court
is the Supreme Court of Canada, which we’ll talk about on
page 17.)
Provincial Court: The Basic Level
The Provincial Court of British Columbia was established in 1969
by the B.C. legislature and is divided into four divisions:
Criminal, Family, Small Claims, and Traffic.
Provincial Court judges, who are addressed as “Your,
Honour,” sit in 88 communities and are the only judges in our
system who are appointed and paid by the province. Before 1969,
Provincial Court judges were known as magistrates. In this court,
the judges sit alone as there are no jury trials in Provincial Court.
Criminal Division
The Criminal Division hears trials of crimes such as theft under
$5,000, mischief, and assault. The judges also conduct trials of
more serious crimes where the accused chooses to have his or her
trial in this court.
If the accused person is charged with a more serious crime
such as manslaughter, break and enter, or kidnapping, the
accused may have a right to choose to have a trial in Provincial
Court or Supreme Court. This is called an election.
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For a wall chart or print version of this diagram, visit
www.lawcourtsed.ca and click on Resources.
The Courtwatcher ’s Manual
Chapter Two • 15
If the accused elects to have a trial in Supreme Court, the
Crown counsel (government lawyer) needs to convince a judge of
the Provincial Court that there is enough evidence for a trial to be
held in the Supreme Court. This is done in Provincial Court at a
preliminary inquiry (see Glossary, page 47).
Murder trials are ordinarily heard in the Supreme Court with
a judge and jury.
Family Division
The Family Division deals with both civil and criminal matters. It
is the court that helps families solve some of their legal problems
arising from a family breakup and also hears criminal cases
involving family violence. Family Court judges can make orders
for custody, guardianship, child apprehension, maintenance,
visiting rights, and access. However, divorce and division of
family property cases are only heard in Supreme Court.
Small Claims Division
As of September 1, 2005 the Small Claims Division deals with
civil disputes involving $25,000 or less. This amount increased
from $10,000 to include cases that would otherwise have to
appear in the Supreme Court of British Columbia.
The advantage of the Small Claims Division is that it is
informal. The informal procedures of the court allow people to
argue their own claims without having to hire a lawyer. The
whole process is quick and inexpensive. There are no civil juries
in Small Claims Court and appeals from the cases heard here can
be made to the Supreme Court of British Columbia.
Traffic Division
Traffic offences (such as speeding and parking violations) are
heard here. This division also hears bylaw violations that are
prosecuted using municipal tickets (such as violations under the
dog bylaw or noise bylaw). These cases are heard by 33 Judicial
Justices of the Peace, rather than Provincial Court judges.
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Supreme Court of British Columbia:
The Second Level
The Supreme Court of British Columbia is the highest trial court
in the province. It was created in 1859, when British Columbia
was still a colony. Before 1990, “County Courts” were located all
over British Columbia, serving various “counties” defined by the
County Boundary Act. County Courts were eliminated in 1990,
and the counties became “Judicial Districts of the Supreme
Court.”
The Supreme Court of British Columbia consists of the Chief
Justice of the Supreme Court, the Associate Chief Justice, and 97
other judges. They sit in the following Judicial Districts:
Victoria Judicial District
Nanaimo Judicial District
Vancouver and Westminster Judicial District
Yale Judicial District
Cariboo Judicial District
Kootenay Judicial District
Prince Rupert Judicial District
Criminal trials are heard in the Supreme Court of British
Columbia when the Criminal Code of Canada states that the offence
must be tried by a “superior court of criminal jurisdiction.” For
murder, skyjacking, and several other serious offences, trial in
Supreme Court is by judge and jury unless the accused and the
Crown counsel agree to trial by judge alone.
Civil cases in the Supreme Court of British Columbia usually
involve claims exceeding $25,000. A plaintiff in a civil case may
agree to reduce the amount of his or her claim to $25,000 in order
to have it heard in the Small Claims Division of Provincial Court,
which is quicker and less expensive than the Supreme Court of
British Columbia.
A few other types of cases involving any amount of money,
such as libel cases, must be heard in the Supreme Court of British
The Courtwatcher’s Manual
Chapter Two • 17
Columbia, and all divorce proceedings take place here. Some
appeals from the Provincial Court are heard in the Supreme
Court of British Columbia.
In court, Supreme Court judges, who sit alone or with juries,
are referred to as “My Lord” or “My Lady” or “Your Lordship”
or “Your Ladyship” — a tradition that dates back to early
England, where only members of the nobility presided over the
superior courts.
Outside of court, Supreme Court judges are referred to as
“Mr. Justice___” or “Madame Justice_____.”
Only the two higher courts, the Court of Appeal of British
Columbia and the Supreme Court of Canada, can overturn or
modify decisions of the Supreme Court of British Columbia.
Court of Appeal of British Columbia:
The Province’s Highest Level
The Court of Appeal of British Columbia, established in 1909, is
the highest court of the province. As its name suggests, the Court
of Appeal hears appeals from the lower courts. It hears civil cases
appealed from the Supreme Court of British Columbia and
criminal cases appealed from the provincial levels of criminal
trial courts.
In this court, at least three judges and sometimes five hear
appeals together. (This is different from the lower courts, where
there is always just one judge.) In this courtroom, you will
usually see only judges and lawyers, although individuals may
argue their own case. When an appeal is heard, the judges simply
review the written records of the original court and subsequent
appeals and listen to the lawyers for each side, who make
arguments based on these records.
The court is composed of the Chief Justice of British
Columbia and 20 Court of Appeal judges (five of whom sit parttime). All are federally appointed. They are referred to outside of
court, and addressed in court, in the same manner as Supreme
Court judges.
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The Court of Appeal of British Columbia is the final level of
the court process in British Columbia. However, a convicted
person or the prosecutor in a criminal case, or a party in a civil
case, may still believe that justice has not been done. Another
step remains — an appeal to the Supreme Court of Canada,
which sits in Ottawa. But before we look at that final step, let’s
examine the structure of the federal court system.
Federal Court System
Federal Court
Like most other federal agencies, the Federal Court is based in
Ottawa, but its judges travel around the country “on circuit.” At
present, the Court consists of a Chief Justice and 32 other judges.
These judges are appointed by the federal government and are
addressed in court as “My Lord” or “Your Lordship” or “My
Lady” or “Your Ladyship.”
The Federal Court deals with:
• Civil matters involving disputes by individuals or groups
with the federal government;
• Disputes by provincial governments with the federal
government; and
• Cases in specialized areas of federal law, including income
tax, patents, customs, and maritime law.
Federal Court of Appeal
Until 2003, the Federal Court was divided into a Trial Division
and an Appeal Division. These divisions have now become two
separate courts: the Federal Court of Appeal and the Federal
Court. The Federal Court hears the initial dispute, and, if either
The Courtwatcher ’s Manual
Chapter Two • 19
party is unhappy, the decision can be appealed to the Federal
Court of Appeal.
Federal Court decisions can be appealed to the Supreme
Court of Canada.
Supreme Court of Canada
The Supreme Court of Canada in Ottawa is where it all stops.
It was established in 1875 and is the final court of appeal for any
dispute — civil or criminal — decided in any court in Canada.
The Chief Justice of Canada and eight other judges head the
judicial hierarchy in Canada. They are appointed by the
Governor in Council from among superior court judges or from
among barristers who have practised for 10 years or more. At
least three of the nine judges must be from Quebec so that the
court can hear appeals from Quebec courts under the Quebec
Civil Code, which differs from the English tradition of common
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law found in the rest of Canada. Quebec’s Civil Code is derived
from the French tradition which, in turn, was based on the
Roman law.
Other judicial appointments to the Supreme Court of Canada
represent the Maritimes, Ontario, and the West. The Chief Justice
of Canada Beverley McLachlin sits on this court as a
representative of the West and as Chief Justice. She became the
first woman to be appointed Chief Justice of Canada when she
assumed her role on January 7, 2000.
Cases that go to the Supreme Court are heard by three, seven,
or all nine judges of the court.
The Supreme Court of Canada is very formal. The judges and
staff are specially gowned, as are the lawyers who appear before
the court. Similar to the Court of Appeal of British Columbia, it is
a lawyers’ court because the accused or the parties involved in
the dispute hardly ever present their own cases to the court or
are even present when the appeal is argued.
The Supreme Court of Canada hears only a limited number
and type of appeals. The court will normally choose to hear an
appeal if the case involves an important application of the law
that has national significance. Sometimes the court will hear
disputes between provinces or between the provinces and the
federal government.
The federal government can refer matters to the Supreme
Court of Canada. Most often, these deal with constitutional issues
concerning the validity of a particular piece of legislation.
The Supreme Court of Canada is the final arbiter of
constitutional questions and Canadian Charter of Rights and
Freedoms issues.
Supreme Court of Canada decisions usually establish legal
principles of national importance and must be followed by all the
other courts in Canada. Because their impact is far reaching,
Supreme Court of Canada decisions are widely published in law
reports.
The Courtwatcher ’s Manual
Chapter Two • 21
◆
In this brief court tour, you’ve reviewed our system’s basic
court structure. As you have seen, the provincial court structure
is like a pyramid that has three layers. At the bottom, there is
Provincial Court, with its four divisions: Criminal, Family, Small
Claims, and Traffic. The next level is the Supreme Court of British
Columbia. Both of these courts are trial courts. At the top of the
pyramid, on the third level, is the Court of Appeal of British
Columbia. It is not a trial court, but an appeal court, and it hears
appeals from both of the other levels of courts in this province.
The next stop on the tour was the federal court system. It
includes the Federal Court, Federal Court of Appeal and, at the
apex of the Canadian judicial system, the Supreme Court of
Canada. The Supreme Court of Canada is the final appeal court
for the whole country, and it can rule on all questions of law,
including constitutional issues.
The court structure may seem complex at first. But you don’t
have to know everything all at once, and you can refer to this
chapter if you have questions while courtwatching.
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SPENDING THE DAY IN COURT
The Courtwatcher’s Manual
23
Chapter Three:
Who’s Who
By now, you know something of the purpose and structure of the
court system, and you’re ready to spend the day in court. When
you get there, you’ll want to know who the participants are. This
chapter reviews the roles that the judges, juries, lawyers, court
staff, and witnesses play in court.
The Courtroom Setting
The basic courtroom has changed little over the years although,
in many places, sombre dark panelling and uncomfortable chairs
have been replaced by rooms and furniture of more modern
design. A courtroom is still a formal room where trials can be
heard in a dignified atmosphere. Judges sit at an elevated bench
at the front of the room. A picture of the Queen or the Royal Coat
of Arms behind the bench symbolizes the authority society has
given judges. In most courts, a railing separates the public gallery
from the area where the trial is conducted. The illustration on
page 26 shows a typical criminal courtroom. A civil courtroom is
arranged in a similar way, but with a jury box for eight people.
Seating arrangements differ between the Provincial Court and
the Supreme Court of British Columbia. This is mainly because
the Supreme Court of British Columbia must accommodate a
jury, in certain cases. But the basic shape of the courtroom has
developed so that the main participants — judge, jury, accused,
and witnesses — can face one another. Lawyers are placed in the
middle of the room so that they are free to question witnesses
and address remarks to the judge and jury. This arrangement also
permits everyone to hear what is being said and allows video or
tape recording devices and court clerks to obtain an exact record
of the proceedings.
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All B.C. courts are courts of record (see Glossary, page 47).
This means that it is possible to obtain transcripts of the
proceedings, in most cases. The press is normally permitted to
print the details of cases in the newspaper, but cameras of all
kinds (including television) are forbidden inside the courtroom.
Radio reporters may not tape record the proceedings unless
they have special authorization from the court.
The Participants
Judges
As we mentioned in Chapter 1, “The
Purpose of Our Court System,” our judicial
system depends upon the ability of judges
to make independent, unbiased decisions.
For this reason, judges, once they’re
appointed, cannot become involved in
politics or private business. As public figures, judges represent
the justice system; if they did not maintain the highest moral
standards, the judicial system itself would be brought into
disrepute.
Judges are expected to be cautious when they discuss past
cases and outside of court do not comment on cases that are
going on before them. If judges are aware of information that
colours their attitude towards an accused in a criminal case or a
party in a civil case, they must disqualify themselves from trying
the case.
If a judge loses the ability to make impartial, independent
decisions, he or she can be removed from office.
In court cases where there is no jury, the judge is first the
“finder of fact.” This means that the judge has to decide what
really happened. Only when the judge has fulfilled the role of
“finder of fact” can he or she act as “finder of law.” This means
that the judge has to decide how the law applies to these
particular facts and then make a judgment.
The Courtwatcher ’s Manual
Chapter Three • 25
For a wall chart or print version of this diagram, visit
www.lawcourtsed.ca and click on Resources.
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Juries
Although the majority of cases in
British Columbia are decided by
judges alone, some cases are heard
by groups of men and women:
adult Canadian citizens who have
been selected for jury duty. Juries of
12 people sit on serious criminal cases, such as murder or
treason. There are other criminal cases in which the law says the
accused can “elect,” or choose, a jury. Civil juries are composed
of eight people and are asked for mainly in personal injury cases.
Similar to a judge, jurors are expected to make up their minds
independently and are not allowed to discuss the details of a case
outside the courtroom during and after the trial.
In court, the role of the jury is to act as the “finder of fact.”
The jury has to find out what, in fact, occurred by weighing the
evidence they have heard. The role of the jury as the “finder of
fact” reflects our society’s belief that the average adult has
learned, through experience, various things that indicate whether
or not another person is telling the truth.
The jury system allows people from the community to
participate in the court system and brings a necessary balance
and fresh point of view to legal decisions. Because it is sometimes
difficult for the average juror to understand complicated legal
proceedings, the jury system has been criticized for prolonging
court cases and wasting the court’s time. On the other hand,
juries ensure that the courts remain in touch with community
values and do not become the exclusive domain of legal experts.
In any event, the judge does assist the jury in understanding
the case. For example, a judge will sum up the evidence and
explain points of law that arise. Also, since the rules of evidence
are very complex, a judge will decide what evidence can be
placed before the jury and what evidence must be kept out.
Sometimes, in a criminal case, the judge will decide that the
Crown has not presented enough evidence on all the points
necessary to convict an accused and will actually dismiss the
The Courtwatcher’s Manual
Chapter Three • 27
charge before the jury has a chance to consider it. Finally, it is the
judge who decides what criminal penalty will be imposed.
Lawyers
Why do we need lawyers in a court case? It is
true that accused people may defend themselves
in criminal cases, and parties in civil disputes
may represent themselves in court. But most
people prefer to have a lawyer represent them in
court, in order to put forward the best case
possible.
In the previous chapters, we have seen how
the Canadian constitutional system has created a
complex network of laws — federal, provincial,
and municipal. Lawyers are often needed to sort out these
complexities. A lawyer has specialized knowledge to help clients
solve their problems. Often, these problems can be resolved long
before they reach the stage of a courtroom battle.
A lawyer has a duty to obey the client’s wishes, as long as
they are compatible with the standards of conduct set down by
the legal profession. In court, a lawyer has an obligation to
introduce all the evidence and all the legal arguments for the
client.
Besides serving the interests of their clients, lawyers are
officers of the court and are obliged to help the court reach an
honest and just decision. In the higher courts, lawyers wear black
robes to symbolize this role. In court, they refer to one another as
“my friend” or “my learned friend.” These terms of address
indicate that they recognize their kinship in the legal profession
despite the fact that, in the present case, they may be intense
adversaries.
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Court Staff
The people who are responsible for the dayto-day operation of our courts play an
important part in the administration of
justice. Court clerks assist the judge in the
conduct of a case, looking after documents
and records, calling the case, and swearing in
witnesses. In the higher courts, the court clerks wear robes that
are in tune with the more formal atmosphere. Court clerks make
sure that accurate records are kept of the court proceedings. In
some cases a court recorder will be hired to do the record using
special recording and video equipment. Sheriffs, who always
appear in uniform, are responsible for court security and look
after witnesses, juries, and prisoners.
Witnesses
One of the best ways to prove the facts in a
case is to “subpoena” (see Glossary, page
47) or summon a person who has special
knowledge of the case to attend court and
testify under oath. A subpoena is a court
order that compels a witness to attend.
Most witnesses are “compellable,” or
subject to this court order. However,
accused persons cannot be compelled to take the stand and
testify against themselves. Still, an accused does have the right to
attend court and hear all the witnesses and the other evidence
supporting the charge.
A witness must be competent. “Competent” means sound in
mind and sufficiently mature to be able to tell the facts to the court.
Very young children may not be considered competent to testify,
for example, about a criminal offence that took place in their home.
Certain rules have been established that restrict the kinds of
questions witnesses can be asked.
The Courtwatcher’s Manual
Chapter Three • 29
◆
When you go to courtwatch, it will not be difficult for you to
see the different participants although you may find them in
different positions depending on the courtroom layout. You may
also see more than one lawyer for each side as in bigger cases
there is usually a team of lawyers, and where there is more than
one accused person, each accused will have separate counsel. In
criminal cases the lawyer closest to the jury is usually Crown
counsel. In Supreme Court the accused sits in a prisoner’s docket
and not with his or her lawyer. Sometimes, a sheriff is in court for
the whole trial and in other cases is not there. Some trials have
special court recorders while all trials have a court clerk present.
Now that you’ve reviewed who’s who, you will want to
know what exactly they’re doing in the courtroom.
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Chapter Four:
What Happens
in Civil Court
The rules and procedures governing civil trials are complex. In
this chapter, we give you a summary of the general steps
involved in launching a civil action and in carrying it through to
trial in the higher courts.
Starting a Civil Court Case
In the beginning of a civil case, the parties exchange informal
letters, and, if the matter is not settled, various documents pass
through the court registry from one party to another.
Remember what we said about the “court documents” of the
law, at the end of Chapter 1, “The Purpose of Our Court System”.
The exchange of documents in the early stages of a civil case
allows each side to understand what’s going on and to weigh the
strength of the other side’s case. In fact, many civil actions do not
go beyond this exchange of documents.
Take the example of a plaintiff who claims $60,000 from an
insurance company for coverage of a fire that destroyed his
garage. The defendant’s insurance company may be willing to
pay part of the claim, but may argue that the garage was worth
no more than $30,000. At this point, the plaintiff may very well
decide to settle for the $30,000 rather than go to all the expense of
a trial. In fact, most often a compromise is reached before a civil
suit goes all the way to trial. (This is very different from a
criminal action, where the victim of a crime will probably appear
as a witness for the Crown, but has no personal control over the
proceedings and cannot discontinue them.)
The Courtwatcher ’s Manual
Chapter Four • 31
Proving the Claim
A plaintiff in a civil case does not have to prove the claim beyond
a reasonable doubt, as the Crown must do in a criminal case.
Instead, the court makes a decision on a “balance of
probabilities.” In other words, when the sides dispute what
actually occurred, the court must simply find which side’s
evidence is more probably the truth and apply the law to that.
You could think of it in terms of evidence being placed on a scale:
the court will find in favour of the side that weighs in with the
best evidence or more weighty evidence.
The Civil Trial
For courtwatching, you don’t need to know all about the complex
rules of evidence and procedure that apply to civil trials, but the
following brief overview will be useful.
Civil trials go something like this: The lawyer for the plaintiff
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makes an opening statement and brings forward witnesses to
support the plaintiff’s position. After each of them gives evidence
for the plaintiff, the defendant’s lawyer has a chance to crossexamine them. At the end of the plaintiff’s case, the defendant’s
lawyer can call witnesses in his or her favour who are, in turn,
cross-examined by the plaintiff’s lawyer. After closing statements,
the judge or jury renders a verdict.
A civil suit may be discontinued at any time, if the parties can
reach an out-of-court settlement. The role of the court is to look at
the areas of agreement between the parties and to state the issues
clearly. Having had the facts defined for them by the court, the
parties may be able to resolve the dispute between themselves.
However, if they continue to be unable to agree, the court will
decide the matter for them.
Some civil actions do not proceed to trial:
• In certain emergencies;
• When the opposing side fails to put up a defence; or
• When the opposing side consents to this measure, the
court can look at the documentation presented by the
plaintiff’s lawyer and grant an order or give judgment
without a trial (these cases include some applications for
foreclosure orders or the sale of someone’s property to pay
a debt).
Certain cases, however, require a trial, even if the other party
does not dispute the claim. If, for instance, under the Divorce Act,
the divorce is asked for on the grounds of adultery, physical
cruelty, or mental cruelty, the judge may require a trial if the
sworn statements are suspect.
There are certain civil cases where, once the court has become
involved in the action, an agreement by both sides may not be
enough. These are cases where the public has an interest in the
outcome. For example, child custody and maintenance
settlements may be reviewed by the court to ensure that the
arrangements agreed to by both sides are adequate.
The Courtwatcher ’s Manual
Chapter Four • 33
◆
Would you like to know more about the civil court process?
School groups, community groups, and individuals can visit their
local courthouse to courtwatch. Courts are open Monday to
Friday from 9 a.m. to 4 p.m., and the public is welcome. Please
contact the local office of the Law Courts Education Society of
British Columbia or your local courthouse for more details (see
Resources on page 50).
The Civil Trial
1. The plaintiff’s lawyer introduces evidence and calls
witnesses.
2. The defendant’s lawyer cross-examines the plaintiff’s
witnesses.
3. The defendant’s lawyer introduces evidence and calls
witnesses.
4. The plaintiff’s lawyer cross-examines the defendant’s
witnesses.
5. Each side makes closing statements.
6. In the few civil cases that use a jury, the judge instructs
the jury on the points of law heard in the case.
7. The judge or jury renders a verdict.
8. The judge decides the outcome. For example, the judge
may find the defendant not liable and dismiss the case.
Or the judge may find the defendant wholly or partially
liable and order him or her to pay damages.
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Chapter Five:
What Happens
in Criminal Court
The complicated rules and procedures covering criminal and
“quasi-criminal” cases are found in both common and statutory
law. If you want to learn more about criminal law, a good place
to start is the Criminal Code of Canada, which is a federal statute.
Several editions of the Code are available, but annotated Codes,
such as Martin’s Criminal Code, contain not only the wording of
the offences and procedures but also short descriptions of how
the law has been applied in specific cases.
First Appearance
In most cases, a person charged with an offence first appears in
court before a Provincial Court judge.
At a first appearance, the accused is formally charged with
the offence. At this stage, the court is concerned primarily with
three issues:
1. If a choice is possible, which court will hear the case?
2. How and when will the accused plead to the charge?
3. If the accused is in custody, should he or she be released
while awaiting trial?
Who Will Try the Accused?
The Criminal Code sets out the procedure that determines which
courts have jurisdiction to try each type of offence. It establishes
The Courtwatcher’s Manual
Chapter Five • 35
three categories of offences: summary conviction offences (less
serious crimes), indictable offences (serious crimes usually
carrying heavier penalties), and what are known as “mixed” or
“hybrid” offences (see Glossary, page 47). In order to deal with
these differences, the Criminal Code outlines different procedures
for summary conviction and indictable offences.
The so-called “mixed” offences are ones in which the Crown
counsel, or prosecutor, can proceed either way — by summary
conviction or indictment (see Glossary, page 47). The choice is up
to the prosecutor; the accused has no say in it even though the
consequences of proceeding by indictment can be very severe. (In
Chapter 1, “The Purpose of Our Courts,” we discussed how the
Crown counsel, who is also known as the prosecutor, represents
the state, or “the Crown.”)
The provincial “quasi-criminal” offences we mentioned in
Chapter 1, such as speeding or drinking under age, are tried in
Provincial Court. All Criminal Code summary conviction offences,
such as disturbing the peace, and a few “mixed” offences, such as
public mischief or assault, are also tried in Provincial Court.
At the other end of the scale of seriousness, there are offences
that the Criminal Code says must be tried in Supreme Court.
These include such offences as treason, piracy, and murder. In the
broad middle range of the scale are the “mixed” offences that do
not fall into the absolute or sole jurisdiction of either the
Provincial Court or the Supreme Court. Once the Crown counsel
has decided to proceed by way of indictment in this broad
middle area, the accused has a choice of courts. This choice is
known as an “election.” An accused who is charged with assault,
for example, has the choice of three court formats:
1. Trial by a Provincial Court judge;
2. Trial by a superior court judge; or
3. Trial by a superior court judge and jury.
If a Provincial Court judge is chosen, the entire trial will be
heard in Provincial Court. But if the accused chooses options 2 or
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3, there will normally be a preliminary hearing in Provincial
Court to determine whether there is sufficient evidence to send
the case on to a higher court.
Guilty or Not Guilty?
Whatever the appropriate court may be, there comes a point
when the charge is read and the accused faces a major decision:
to plead guilty or not guilty. If the trial is to proceed in Provincial
Court, the accused may be asked to make this decision at the first
appearance in court. Often, however, the judge does grant an
adjournment of one or two weeks to allow the accused to seek
the advice of a defence lawyer.
If the plea is guilty, the Crown counsel and the defence
lawyer usually make recommendations about an appropriate
sentence. For example, the Crown counsel may ask for a harsher
penalty if the accused was uncooperative during the arrest or has
a previous criminal record. On the other hand, the defence may
ask for a minimal penalty, pointing to extenuating circumstances
or the fact that the accused has made some personal progress
since the offence occurred, such as joining Alcoholics Anonymous
or starting a job.
Sometimes a judge will refuse to accept a guilty plea if it
appears that the accused does have a defence. In such cases, the
The Courtwatcher’s Manual
Chapter Five • 37
judge will enter a plea of not guilty and set the case down for a
preliminary hearing or trial.
If the plea is not guilty, the judge sets a trial date, which is
usually some months later. An accused who is not in custody is
free to go about his or her business until that court date.
Release from Custody
Most people charged with minor criminal offences are not
arrested by the police or are released shortly after their arrest on
condition that they attend court at a later date. If the accused has
been arrested and kept in jail, it is the Provincial Court judge
who rules on bail or release from custody in all but the most
serious crimes.
An accused person in custody has the right to a “show
cause” hearing, which determines whether and on what terms
release can be granted before trial (see Glossary, page 47). The
judicial interim release laws (see Glossary, page 47) set out in
the Criminal Code give the court guidelines for the release of
prisoners awaiting trial. Generally speaking, the judge must
order release unless the Crown counsel can show why the
accused should be detained. There are exceptions to this basic
rule, however. People charged with very serious crimes, for
example, or people already facing other charges, have to
convince the court that they should be released.
In a “show cause” hearing, a deputy-sheriff will conduct the
prisoner into the courtroom from the holding cells and stand by
the prisoner’s dock to ensure there is no attempt to escape.
Sometimes the Crown counsel looks at the case, decides not to
object to the release, and therefore does not “show cause.” The
judge will release the accused on an undertaking to appear (see
Glossary, page 47).
Crown counsel will go ahead with a “show cause” hearing if
continued detention or more stringent conditions for release are
necessary to protect the public from further crimes or to ensure
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that the accused shows up for trial.
In a “show cause” hearing, for example, Crown counsel may
argue that the accused is unemployed, has no family or roots in
the community, and has a previous criminal record or history of
failing to show up for court.
In response, the defence may emphasize the good points of
the accused, perhaps arguing that the accused has a job starting
next week, actually does have parents living just outside the city,
and has not had a brush with the law for several years. The judge
balances public risk against the principle that an accused, who is
innocent until proven guilty, should, if possible, retain his or her
freedom until conviction.
Often, the accused is released on an undertaking to appear or
a recognizance (see Glossary, page 47), with certain conditions
attached. The accused may be ordered to report to the police or
bail supervisor at regular intervals, to avoid contact with certain
people, to remain in the court’s jurisdiction, and so on. A surety
(see Glossary, page 47) may be required.
If the accused cannot meet the conditions of release, then
custody continues until the trial date. Under these circumstances,
the court and the defence lawyer will attempt to get the earliest
trial date possible in order to shorten the waiting period in jail.
And if, while waiting in custody, the accused changes his or her
mind and decides to plead guilty after all, the defence lawyer
will attempt to obtain an early date for sentencing. The time
spent in custody is also used to reduce the amount of time spent
in prison if the accused is sentenced to incarceration.
The Courtwatcher’s Manual
Chapter Five • 39
First Appearance
1. The accused is formally charged with the offence.
2. The judge asks the accused if he or she is ready to enter a
plea. The accused can:
•
Plead guilty;
•
Plead not guilty; or
•
Ask for an adjournment, to seek legal advice.
3. If the accused:
•
Pleads guilty, the judge will send him or her to
another court for sentencing, or sentence the accused
right away; or
•
Pleads not guilty, the judge will set a trial date;
•
Asks for an adjournment, the judge will set another
hearing date, in the near future.
4. If the accused is in custody, the first appearance will
include a “show cause” hearing.
The Preliminary Hearing
A preliminary hearing takes place when an accused who is
charged by way of indictment (see Glossary, page 47) chooses a
trial in the higher courts. Although it may seem that the accused
has already gone through a great deal by this stage, the
preliminary hearing is nevertheless what its name implies — the
first real presentation of the Crown’s case.
It resembles a trial in that the Crown counsel presents the
basic elements of its case against the accused. Because the
accused is innocent until proven guilty, the onus or responsibility
rests with the Crown to establish that it has enough evidence to
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justify a trial in a higher court. The accused does not have to
enter a plea unless and until the case does go to the higher court
for trial. Similarly, the judge does not have to decide whether the
accused is guilty or innocent at this stage. The defence is not
obliged to call evidence and rarely does so.
If there is simply not enough Crown evidence, the accused is
discharged and free to go. Even if it is clear from the start that the
Crown will be able to prove its basic case, the preliminary
hearing is a useful opportunity for the accused to find out the
strengths and weaknesses of the Crown’s case. For the Crown, it
is a kind of dress rehearsal for the later, full-scale trial.
The preliminary hearing has replaced the old system of using
a grand jury to determine if a case should go to trial. (Grand
juries are still used in some countries, including the United
States.) In certain serious cases, the attorney general of the
province can decide to proceed by way of a direct indictment. In
such instances, there is no preliminary hearing and the case goes
directly to trial.
Proving the Charge
At the trial itself, it is up to the Crown to prove guilt beyond a
reasonable doubt. If the Crown counsel fails to present the
necessary evidence, or if the defence succeeds in challenging the
Crown’s evidence, a judge or jury cannot convict.
A finding of not guilty may be based on the facts (for
example, the accused was somewhere else) or on a legal defence.
A basic concept underlying our criminal law tradition is the
principle that a guilty act must be accompanied by a guilty mind.
A common legal defence, therefore, is the argument that insanity
or intoxication made the accused not responsible for his or her
actions. In most first-degree murder trials, for example, the
Crown must prove that the accused planned and intended to
murder the victim. But the defence lawyer may argue
successfully that the accused was so drunk that he or she was
The Courtwatcher’s Manual
Chapter Five • 41
unable to form an intention or plan to murder. Such a defence
will not necessarily exonerate the accused, but may result in a
finding of second-degree murder or manslaughter and a milder
penalty.
Second-degree murder and manslaughter are called
“included” offences to the charge of first-degree murder. An
“included” offence is a lesser offence that forms a portion of the
larger or more serious offence that an accused person is charged
with.
The Criminal Trial
To make its case, the Crown introduces evidence that is governed
by strict procedural rules. Certain types of evidence are
specifically excluded; other types are excluded under particular
circumstances. The presiding judge may exclude evidence
because it is not relevant to the charge or because it is hearsay
(see Glossary, page 47). If either side disputes what information
should be presented, the judge may hold a “voir dire,” which is a
trial within a trial to decide whether to allow the information as
evidence. In a jury trial, the jury will be sent out of the room
during the voir dire and will only hear the evidence if the judge
finds it acceptable as evidence.
Criminal trials are similar to trials in civil court. The Crown
counsel calls witnesses to prove its case against the accused, and
the accused or the defence lawyer has a chance to cross-examine
them to bring out evidence in favour of the accused.
Both the Crown counsel and the defence must follow the
rules of evidence when questioning witnesses. Neither the Crown
nor the defence can ask leading questions of witnesses for its
own side. For example, a witness subpoenaed by the Crown in a
robbery case could not be examined by the Crown in this way:
“Did you see the accused go up to the bank teller and demand
the money?” This is called a leading question because it suggests
its own “yes” or “no” answer. Leading questions cannot be asked
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by the side that called the witness to testify in its favour. Instead,
the Crown counsel might ask the witness, “Where were you and
what did you observe on the afternoon of May 20, 2005?” This
kind of question allows witnesses to put their observations into
their own words.
But leading questions are allowed when they are asked by the
opposing side. In the example, the defence lawyer could now ask
the witness: “I put it to you that you could not possibly have
seen a robbery because at the time you were in the loan
manager’s back office absorbed in a discussion about your
mortgage renewal, were you not?”
When the Crown has finished presenting its case, the defence
can make a procedural motion asking the court to dismiss the
charge altogether because there is no evidence on one of the
eventual elements of the offence. Alternatively, the defence can
ask the court to find the accused not guilty because the evidence
is insufficient to establish the guilt of the accused beyond a
reasonable doubt. In the latter case the judge denies the motion,
the defence may call its own witnesses and the Crown, in turn,
may cross-examine them.
After the Crown and defence have finished presenting their
evidence, the presiding judge will hear closing arguments about
which facts are true and what law applies to the case. If the
accused has entered a defence by calling witnesses or testifying,
the closing arguments for the defence must be presented first and
the Crown has the last word. If the accused has not presented
evidence, the Crown’s argument is first and the defence follows.
Finally, the trial reaches the conclusion that everyone has
been waiting for: the verdict. If it is a trial by judge alone, the
judge, after considering the evidence, must do one of the
following:
•
Decide that the accused is guilty as charged;
•
Decide that the accused is guilty of a lesser, “included”
offence; or
•
Acquit the accused.
The Courtwatcher’s Manual
Chapter Five • 43
If this is a jury trial, the judge sums up the case and instructs
the jury on the law. Then the jury retires to decide the verdict.
If the accused is found guilty, the judge must then consider
what sentence or punishment to impose. Broad guidelines for
sentencing are set out in provincial statutes and in the Criminal
Code. The judge also has the assistance of precedents — the
sentences other judges have passed in similar cases. Within these
guidelines, a judge can hand out a wide range of sentences.
Before deciding the sentence, the judge will hear submissions
from both the Crown and the defence about what punishment is
appropriate. In addition, the judge may delay the passing of
sentence until a pre-sentence report, another assessment is
prepared by such specialists as probation officers, or both.
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The Criminal Trial
1. The Crown counsel introduces evidence and calls
witnesses.
2. The defence lawyer cross-examines the Crown’s witnesses.
3. The defence may ask for the case to be dismissed by
making a “no evidence motion” Or an “insufficient
evidence motion.”
4. If the judge refuses the latter motion, the defence may
introduce evidence and calls witnesses.
5. The Crown counsel cross-examines the defence witness.
6. Each side makes closing arguments.
•
If the accused has entered a defence, the defence goes
first.
•
If the accused has not entered a defence, the Crown
goes first.
7. A verdict is reached.
•
If the trial is by judge alone, the judge reaches a
verdict.
•
If the trial is by judge and jury, the judge instructs the
jury on the evidence and the law then the jury reaches
a verdict.
8. The outcome.
•
If the accused is found not guilty, he or she is free to
go.
•
If the accused is found guilty, the judge hears
submissions from the Crown and the defence. The
judge may order a pre-sentence report. The judge
gives the sentence.
The Courtwatcher’s Manual
Chapter Five • 45
Chapter Six:
Conclusion
The court system in British Columbia is the product of centuries
of legal decisions and traditions. It is not a simple system; no
system that deals with all the rules and regulations governing
our lives could be simple. The complexity of the system does not
mean you cannot understand it. The
courts invite you to come in and
learn how they work so that you
can see for yourself how the court
system functions. The staff at the
courts are public servants so when
court is not in session, ask them
what is happening.
We hope that this booklet has
given you the background
information that will make your
courtwatching more meaningful
and enjoyable. If you want further
information, contact the Law Courts
Education Society of British
Columbia. See the Resources on
page 50 for a list of our locations
and telephone numbers.
Enjoy watching!
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Glossary
bail This is the old term for a recognizance, the money an
accused promises to pay if he or she does not appear for trial.
The word “bail” is also commonly used to refer to the
conditions that an accused person promises to obey, from the
time he or she is released after arrest until the trial.
common law The law embodied in judicial decisions; originally,
it was the law based on the customs “common” to all
England.
court of record A court in which all proceedings are recorded,
word for word, in a way that permits everything to be put
into a written record called a transcript.
Criminal Code The collection of federal statutes that define
what crimes are, the maximum punishments for those crimes,
and the legal procedures for dealing with those crimes. The
laws that constitute the Criminal Code are passed by federal
Parliament in Ottawa.
Crown counsel A lawyer who conducts prosecutions of offences
on behalf of the Crown (the government).
defendant The person sued or accused in a court of law.
hearsay Information that is given to a witness by another
person, but that the witness did not see or otherwise
experience first-hand. The witness does not have personal
knowledge of the original event.
indictable offence A serious offence that is proceeded with by
indictment.
indictment This is a formal document used to deal with the
more serious charges. It allows for, or forces, a judgment in a
higher court. Because of the more serious penalties for an
indictable offence, the accused is granted wider protections,
such as a trial by judge and jury.
The Courtwatcher’s Manual
Glossary • 47
information The written charge, based on the knowledge of an
informant (a person with knowledge of a crime who reports
it), that accuses a person of an offence.
judicial interim release The legal procedure by which an
accused who is in custody is released until trial, unless the
Crown counsel can “show cause” why the accused should be
detained.
jurisdiction The range of powers and/or territory over which a
body may act. In the case of a court, jurisdiction concerns the
type of case and the physical area over which the court has
legal authority.
“mixed” or “hybrid” offences Criminal offences that may be
proceeded with as either summary or indictable matters.
Crown counsel decides which way to proceed, considering
the seriousness of the offence.
petitioner The person filing a civil action in court. Also, the
person who appeals the judgment of a lower court.
plaintiff A person who brings a civil case against another in
court.
preliminary inquiry A pre-trial hearing that determines whether
or not there is enough evidence to warrant having an accused
person stand trial.
“quasi-criminal” offences Provincial offences not covered under
the Criminal Code. Examples are offences under the provincial
Liquor Control Act and Motor Vehicle Act. (Quasi is Latin for “as
if.”)
recognizance The accused person’s promise to pay a specific
amount of money if he or she fails to comply with certain
conditions laid down by the court. This debt would be added
to any further charges for failing to appear.
Regina Latin for “Queen,” our country’s head of state and so
the party bringing charges against the accused in a criminal
case.
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respondent The person sued in a court of law, especially in a
civil appeal or divorce case. An accused person could also be
a respondent in an appeal.
“show cause” hearing The Crown or the defence have to give
the judge reasons for either detaining the accused in custody
or for releasing the accused before trial. In most case the
Crown will have to show why the accused should not be
released.
statute law The laws enacted by legislation, as opposed to
common law.
subpoena A writ issued by a court or other authorized body
requiring a person to attend a stated time or place, usually to
testify or present evidence, subject to penalty for noncompliance. A subpoena may summon a person to appear in
court as a witness. It may also require evidence to be brought
by a witness so that it may be presented in court.
summary conviction offence An offence under a provincial
statute, or a less serious crime designated in the Criminal Code
as one to be dealt with by way of a summary court
procedure. These matters are dealt with in Provincial Court.
surety A person who enters into a bond for a certain amount of
money before a court, on behalf of another person. The court
makes this person responsible for ensuring an accused person
appears in court; and abides by the other conditions of
behaviour imposed by the court. If the accused person
doesn’t comply, the surety forfeits all or part of the bond.
undertaking to appear A document signed by an accused person
in which there is a promise to appear in court at a specified
time and place. It may contain other promises, too (such as
requiring the accused to remain in the area, to report to the
police at specific intervals, or not to communicate with
certain people). Breaking any of these promises may result in
a further criminal charge.
The Courtwatcher’s Manual
Glossary • 49
Resources
Courtwatching
School classes, community groups and individuals can visit their local
courthouse to courtwatch. Courts are open Monday to Friday from 9:00
am to 4:00 pm., and the public is welcome. Please contact the local office
of the Law Courts Education Society or your local courthouse for more
details.
Law Courts Education Society of British Columbia
Provincial Head Office
260-800 Hornby Street
Vancouver, BC V6Z 2C5
Phone: 604-660-9870
Fax: 604-775-3476
Email: info@lawcourtsed.ca
Web: www.lawcourtsed.ca
Vancouver Law Courts Region
Phone: 604-660-2919
Fax: 604-775-3476
Email: vlc@lawcourtsed.ca
Lower Mainland West Region
Phone: 604-775-2524
Fax: 604-660-2465
Email: lmwest@lawcourtsed.ca
Lower Mainland East Region
Phone: 604-572-2276
Fax: 604-572-2264
Email: lmeast@lawcourtsed.ca
Okanagan District
Phone: 250-470-6965
Fax: 250-470-6939
Email: okanagan@lawcourtsed.ca
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• Resources
The Courtwatcher ’s Manual
Northern Region
Phone: 250-614-2736
Fax: 250-614-2798
Email: northern@lawcourtsed.ca
Victoria Region
Phone: 250-387-3303
Email: victoria@lawcourtsed.ca
Thompson District
Phone: 250-828-4662
Fax: 250-828-4338
Email: thompson@lawcourtsed.ca
Courts
Courts of BC
www.courts.gov.bc.ca
Supreme Court of Canada
www.scc-csc.gc.ca
Other Organizations in British Columbia
British Columbia Courthouse Library Society
Vancouver Courthouse Library
800 Smithe Street
Vancouver, BC V6Z 2E1
Phone: 604-660-2841
Toll free: 1-800-665-2570
Email: bccls@bccls.bc.ca
Web: www.bccls.bc.ca
Canadian Bar Association, BC Branch
10th floor, 845 Cambie Street
Vancouver, BC V6B 5T3
Phone: 604-687-3404
Toll free: 1-888-687-3404
Email: cba@bccba.org
Web: www.bccba.org
The Courtwatcher ’s Manual
Resources • 51
CBA - Dial-A-Law
Phone: 604-687-4680
Toll free: 1-800-565-5297
Web: www.cba.org/bc/public_media/dal/default.aspx
CBA - Lawyer Referral Service
Phone: 604-687-3221
Toll free: 1-800-663-1919
Email: lawyerreferral@bccba.org
Law Centre
1221 Broad Street
Victoria, BC V8W 2A4
Phone: 250-385-1221
Web: www.thelawcentre.ca
Legal Services Society
Legal Aid: 604-408-2172
Toll free: 1-866-577-2525
Web: www.lss.bc.ca, www.familylaw.lss.bc.ca, www.lawlink.bc.ca
People’s Law School
150–900 Howe Street
Vancouver, BC V6Z 2M4
Phone: 604-331-5400
Web: www.publiclegaled.bc.ca
Simon Fraser University Centre for Education, Law and Society
Faculty of Education, Simon Fraser University
Burnaby, BC V5A 1S6
Phone: 604-291-4484
Web: www.educ.sfu.ca/cels
University of British Columbia Law Students’
Legal Advice Program
Faculty of Law
158–1822 East Mall
Vancouver, BC V6T 1Z1
Phone: 604-822-5791
Fax: 604-822-1661
Web: www.lslap.bc.ca
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• Resources
The Courtwatcher’s Manual
Educational Materials
The Common Law in Your Life (free)
Online booklets from the People’s Law School
Web: www.publiclegaled.bc.ca - click on “Publications”
The Law Connection: Current Issues in Law (free)
Website from the SFU Centre for Education, Law and Society and
Law Courts Education Society of BC
Web: www.lawconnection.ca
Legal Quest
New Directions in Youth Justice
Advanced Mock Trials
Booklets. For pricing and to order, contact:
Law Courts Education Society of BC
260–800 Hornby Street
Vancouver, BC V6Z 2C5
Phone: 604-660-9870
Web: www.lawcourtsed.ca - click on “Resources”
Let’s Talk About Law in Elementary School
Book from the SFU Centre for Education, Law and Society.
For pricing and to order, contact:
Detselig Enterprises Ltd./Temeron Books Inc.
210, 1220 Kensington Road NW
Calgary, AB T2N 3P5
Email: temeron@telusplanet.net
Fax: 403-283-6947
Web: www.temerondetselig.com
The Courtwatcher’s Manual
Resources • 53
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58
• Notes
The Courtwatcher’s Manual