The Canadian Criminal
Court Process
The Canadian
Adjudication Process
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Pre-trial procedures:
• first appearance (arraignment)
• bail hearing
• disclosure meeting
• preliminary hearing
• pre-trial
• plea bargaining
• trial players
• trial
Arraignment
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First Appearance (Arraignment): A criminal
hearing in which the indictment is read (i.e. the
accused's name is called, the charge is read, and
the accused is asked to plead:
i)
guilty,
ii) not guilty,
iii) or request an adjournment so as to seek
further legal advice.
Bail Hearing
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Bail Hearing: The hearing where it is determined
whether the accused should be kept in custody or
released on bail.
Onus is on the Crown Attorney to prove accused should
be kept in jail until the trial.
A date is set for i) Preliminary Hearing (Inquiry) or, if
they agree, for ii) trial.
Bail Enforcement link:
http://www.youtube.com/watch?v=7dmqO_h2SKg
Indictment
CANADA
PROVINCE OF ONTARIO
YOURTOWN REGION
IN THE SUPERIOR COURT OF JUSTICE
)
HER MAJESTY THE QUEEN
)
)
against
)
)
MARCEL(LE) LECOUTEAU
1. MARCEL(LE) LECOUTEAU stands charged that s/he, on or about the 1st day of October in the year 2012, at the
City of Yourtown in the Region of Yourtown, did use a weapon, to wit: an exacto knife, in committing an assault
upon Bulk Bogus, contrary to the Criminal Code;
2. MARCEL(LE) LECOUTEAU stands further charged that s/he, on or about the 1st day of October in the year
2012, at the City of Yourtown in the Region of Yourtown, did have in his/her possession a weapon, to wit: an
exacto knife, for a purpose dangerous to the public peace, contrary to the Criminal Code;
DATED AT YOURTOWN this 5th day of December, 2012.
.......................................................................
Assistant Crown Attorney and
Agent for the Attorney General of Ontario
Disclosure Meeting
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Disclosure Meeting: A meeting where the
Crown must present the defence with all
evidence that they intend to bring to trial.
While this protocol has existed for decades
(more or less as a gentleman's
agreement), it did not become mandatory
until R. v. Stinchcombe, 1992)
R. v. Stinchcombe, 1992
The Supreme Court stated that the Crown
has a legal duty to disclose all relevant
information to the defence.
“The fruits of the investigation which are
in its possession are not the property of
the Crown for use in securing a
conviction, but the property of the public
to be used to ensure that justice is done.”
Disclosed Evidence
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Disclosed evidence could include:
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statements obtained from persons providing
relevant information (even if they are not
proposed as Crown witnesses); and
notes taken from investigators;
lab reports; etc
Defence counsel must, at the earliest
opportunity, make the trial judge aware of any
failure of the Crown to disclose relevant
information.
Preliminary Hearing
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To determine if there is enough evidence
to have the case go to trial ~ at the end
the judge will either dismiss case or
commit accused to trial.
Crown has to show there is evidence on
each of points necessary for a conviction
at trial. (Does not have to prove entire
case)
Pre-Trial: Plea Bargaining
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Final chance to plea bargain (meeting with
judge, Crown and defence counsel).
Plea Bargaining: Negotiations can take place any
time up to commencement of trial date. Crown
may accept a guilty plea on a lessor charge
(saves time and money of conducting a trial).
Lawyers may make joint submissions on
appropriate sentence.
Plea Bargaining con’t
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Plea bargaining tends to occur when:
1) the defence attorney feels that the defence is not
'airtight', or
2) the Crown may perceive that its case is weak and
offer to reduce the charge(s).
Sadly, it is most commonly employed to simply save time
and money.
The forgotten party in all this is the victims. They
typically have no role whatsoever within plea bargaining.
The Trial
Court Players
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Judge: Decides on admissibility of evidence, rules on matters of
law, instructs jury, and determines the sentence for those accused
who are convicted.
Crown Attorney: A lawyer who represents, and is responsible to,
the state. Crown Attorneys are prosecutors; they argue against the
defence.
Defence Attorney: A lawyer who is responsible for protecting the
rights of the accused and attempts to refute the Crown's evidence
and discredit its witnesses.
Jury: Random members of the public, selected for duty. Must
deliver a verdict of “guilty” or “not guilty.”
Key Terms
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Trier of fact: The authority at a trial who decides what the truth is.
If there is a jury, it is the trier of fact. If there is no jury, the judge
is the trier of fact. The trier of fact makes “findings of fact” in a trial.
Findings of fact: Determining what evidence and testimony are
believable (that is, are facts) and which are not.
Trier of Law: Even in a jury trial, the judge is always the "trier of
law;" this is the person who makes rulings about how the law
applies to the facts.
Findings of law: A determination regarding how a specific statute
(ie. Criminal Code, Young Offenders Act, Canada Evidence Act, etc.)
or case law should be applied to a trial, either in process, or at
sentencing.
Trial Format
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Opening Arguments:
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Crown calls the witness(es):
• examination-in-chief (Crown)
• cross examination (defence)
• re-examination (Crown)
• re-cross examination (defence)

Defence calls its witness(es):
• examination-in-chief (defence)
• cross examination (Crown)
• re-examination (defence)
• re-cross examination (Crown)
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Closing Arguments:
Deliberation:
Verdict:
• Crown
• Defence
• jury, or
• jury, or
• Defence
• Crown
• judge
• judge
Law Joke of the Day
A surgeon, an architect an a lawyer are having a heated discussion
concerning which of their professions is actually the oldest profession.
The surgeon says: "Surgery IS the oldest profession. God took a rib
from Adam to create Eve and you can't go back further than that.“
The architect says: "Hold on! In fact, God was the first architect when
he created the world out of chaos in 7 days, and you can't go back any
further than THAT!“
The lawyer puffs his cigar and says: "Gentlemen, Gentlemen...who do
you think created the CHAOS??!!"
Homework
Read pages 290-293 of your textbook and
complete questions 1-5 on page 293.
Interesting links:
Virtual Courtroom: http://www.courtprep.ca/
Criminal law – Justice Wise:
http://www.courts.ns.ca/jwise/index.html
Sample Mock Trial:
http://www.youtube.com/watch?v=zd89JpoHePE