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The Criminal Case: Step-by-Step

 

  1. Investigation
  2. Laying a Charge
  3. Deciding whether to prosecute
  4. Requiring the accused to attend court, entering a plea and bail
  5. Types of offences
  6. Choice of trial court and election by accused
  7. Preliminary inquiry
  8. Plea negotiations
  9. Trial
  10. The verdict
  11. Sentencing
  12. Appealing the verdict or sentence

A crime is committed.

Leads are followed, evidence is gathered, and a suspect is charged with the offence. The criminal legal process begins.

For the victims of crime, their families and the community, the complexity of the Canadian criminal justice system can often seem difficult and frustrating.

This page takes you step-by-step through a Canadian criminal case. It explains the process clearly and simply to help you to understand, in a general way, how a Canadian criminal prosecution works.

1. Investigation

The police conduct criminal investigations. Investigations begin when police witness behaviour or receive information about behaviour which may be a crime. Some criminal investigations are completed quickly. Others take weeks, months, or, in complex matters, years to complete.

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2. Laying a charge

The decision to lay a charge rests with the police. If, based on reasonable grounds, the police believe a person has committed a crime, they may lay a charge. They must consider all evidence against the accused, witness statements, case law, burden of proof and other variables.

When the police lay a charge, they complete an information package describing all the evidence and deliver a package to the Crown attorney. The accused person or, more often, the accused person's lawyer, also receives a copy of the information package. The court receives a list of charges against the accused person from the police.

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3. Deciding whether to prosecute

The Crown attorney is responsible for deciding whether to proceed with charges against an accused person. He or she is required to prosecute cases fairly and treat all parties in the case, including victims, witnesses and the accused, in a fair manner. He or she must also consider the public interest in making a decision. The Crown attorney must answer two very important questions:

  • Is there a reasonable likelihood of conviction?
  • Is it in the public interest to proceed?

If the answer to both of these questions is yes, the Crown attorney will prosecute. If the answer to either or both of these questions is no, the Crown attorney will not prosecute. In this way, the Crown attorney exercises prosecutorial discretion. Another element of this discretion is that the Crown attorney may decide that it is not beneficial to proceed with all the charges against the accused. In that case, some of the charges may be dropped.

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4. Requiring the accused to attend court, entering a plea and bail

Most people charged with a crime receive a document by the police advising them of the date and courtroom where and when they are required to appear to answer to the charge. Sometimes, the crime is very serious or the accused person has a criminal record. In these cases, the accused person may be held in jail until his or her first court appearance.

If the accused person is held in jail, there may be a bail hearing held to determine whether he or she should be released or held until trial. In determining whether to oppose the accused person's release on bail, the Crown attorney must consider the public interest and the need to promote confidence in the administration of justice. Before making this decision, the Crown attorney will consider all necessary and relevant information. His or her decision must be based on legal considerations, government policies and public safety. In most cases the Crown attorney must show cause why detaining the accused in custody is justified. If the judge decides to release an accused person, the accused may be ordered to obey certain conditions. For example, the accused may be required to follow a curfew or not have any contact with victims or witnesses. The accused person could be charged with a further offence if he or she fails to obey these conditions.

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5. Types of offences

Offences are set out in the Criminal Code and divided into two broad types: summary and indictable. In some cases, the Crown can decide whether to proceed summarily or by way of indictment. Summary offences tend to be less serious ones and indictable more serious.

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6. Choice of trial court and election by accused

If the accused is charged with a summary offence, his or her trial will be in the provincial court before a judge.

If the accused is charged with an indictable offence and the offence is not within the jurisdiction of the provincial court, the accused can choose which court will hear the case. The accused may choose to be tried by a provincial court judge without a jury and without a preliminary inquiry; by a Queen's Bench justice without a jury, or, by a Queen's Bench justice and jury.

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7. Preliminary inquiry

A preliminary inquiry (or preliminary hearing) may be held before the trial to find out if there is enough evidence to go to trial. Preliminary hearings allow the defence to hear the prosecution's case. During the hearing, the Crown attorney and the defence lawyer may call and cross-examine witnesses. If the court is satisfied that sufficient evidence exists, a trial date is set. If not, the accused is discharged and the case is closed.

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8. Plea negotiations

The outcome of a trial is never certain. Each case has strengths and weaknesses. The Crown and defence may agree on a charge to which the accused will plead guilty or the sentence that will be recommended to the judge. This process is referred to as plea negotiation. The victim benefits from a plea negotiation because a conviction is assured and the victim is spared the emotional trauma of testifying and being cross-examined by the defence. These are important considerations for the Crown attorney in negotiating with the defence. A plea can be made at any time up to and during the trial. The judge makes the final decision to accept or reject any pleas that has been negotiated.

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9. Trial

A trial gives the prosecution and the defence an equal opportunity to present their evidence. The judge decides whether the evidence proves beyond a reasonable doubt that the accused is guilty of any or all of the charges. A basic principle of Canada's justice system is that the accused is innocent until proven guilty.

The trial begins with the prosecutor presenting the evidence against the accused. This is done by calling witnesses and introducing materials as evidence to support the charges. Each witness called for the Crown is asked questions by the Crown attorney. This is called direct examination or examination-in-chief. The defence is then given an opportunity to question the prosecutor's witness and present evidence favouring the accused. It is called cross-examination.

After cross-examination, the prosecutor may question the witness again. This is done if the witness's evidence needs to be clarified or if a new issue has been raised by the prosecutor and could not have known about before the trial. This is called redirect examination. During redirect examination, the prosecutor may only question the witness about matters brought up by the defence during cross-examination.

Once the Crown has presented all its evidence, the defence presents its case. The defence may not present any evidence at all. If the defence chooses to present evidence, witnesses are called. The Crown can cross-examine the defence witnesses and the defence may redirect after the prosecutor's cross-examination based on the evidence.

After all witnesses for both sides have given their evidence, the prosecutor and defence counsel may sum up their case. Each side gives reasons why the accused should or should not be convicted. The court then decides to convict or acquit the accused.

In a jury trial, the judge decides what evidence the jury will hear and instructs the jury on the law that applies to the case. The jury decides on the facts and determines guilt. In trials without a jury, the judge applies the law and decides whether the accused is guilty or not guilty.

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10. The verdict

Once the judge or jury has considered all the evidence, three results are possible: guilty, not guilty or, in the case of a jury trial, a hung jury. A hung jury means the jury was not able to reach a unanimous decision and jury members do not believe one can be reached. In this case, a judge may order a new trial with a new jury or without a jury.

If the judge or jury find the accused not guilty, the accused is free to go and cannot be tried again on the same charge, unless the Crown attorney appeals and the appeal court orders a new trial. If the accused is found guilty, the judge may sentence the accused immediately or set a later date for sentencing.

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11. Sentencing

The judge decides the sentence. In making the decision, an independent assessment of the background of the case or a pre-sentence report may be asked for by the judge. The Crown attorney and defence lawyer may make sentencing recommendations. The judge considers these recommendations but it is the judge who makes the final decision on the sentence.

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12. Appealing the verdict or sentence

An appeal is a request to a higher court to change a verdict, a sentence or some other decision made by a lower court. For more information on courts in Manitoba click here. The Crown attorney may appeal a verdict of not guilty or a sentence he or she believes does not fit the crime. The defence lawyer may appeal a verdict of guilty or a sentence he or she believes is too harsh. Appeals cannot be made just because the Crown attorney or defence lawyer doesn't like the decision. Appeals must be based on errors made by a trial judge on a point of law.

It is important to note that the minister of justice and attorney general for Manitoba cannot change a court decision. A court decision can only be changed by an appeal to a higher court.

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