Let’s imagine you’ve been charged with an indictable offence under the criminal code of Canada.
All offences under the Criminal Code of Canada are defined as either summary, indictable, or hybrid offences. Summary offences are generally less serious both in terms of crime and penalty. Indictable offences cover more serious crimes and carry more severe consequences.
A hybrid offence is an offence where the prosecutor can choose, based on factors such as the seriousness of the accused’s actions and the harm caused, to proceed with the offence as either a summary conviction offence or as an indictable offence.
Preliminary Hearing
After someone has been charged with a crime, a preliminary hearing is held by the Court to decide whether there is enough evidence to send the case to trial. Preliminary hearings are only held for indictable offences. At the preliminary hearing, the prosecutor presents the most important parts of the evidence against the accused. At this stage, witnesses may be called to give testimony against the defendant. Typically no defence is offered at this stage, but it is an opportunity for the defence to evaluate the case and formulate a strategy.
If there is not enough evidence to convince a judge or jury of guilt, you will be discharged and the case will be dismissed. However, if the prosecutor presents enough credible evidence, and if you plead not guilty, the Court sets a trial date.
The Trial
Trial is where the prosecutor and the defence lawyer present evidence and call upon witnesses to support their case. If you’ve made it to the trial stage as a guest inside the justice system, this is when you know, you effed up. But, depending on the evidence against you and the skill of your defense lawyer, hope may not be completely lost. Persons charged with a crime are presumed innocent until they plead guilty or they are proven guilty in court, and the burden of proof is on the prosecutor.
At trial, the prosecutor goes first and will try to prove beyond a reasonable doubt that you committed the crime that you were charged with. If the prosecution’s witnesses have already testified at the preliminary hearing, they are still required to testify at the trial. But this time, the defence attorney will have the opportunity to cross-examine the witness about what they said at trial and during the preliminary inquiry.
As an accused person, you have the right to remain silent and do not have to give evidence at trial. But remember, if you decide to give evidence, you’ll likely be cross-examined by the prosecutor and have to answer their questions.
Unfit to Stand Trial
“Unfit to Stand Trial” is a term that refers to the state of mind of the accused at the time of trial. In determining whether or not an accused persons is unfit to stand trial, the Court will consider if the accused person is able to:
- understand the purpose of the trial;
- understand the potential consequences of the trial; or
- meaningfully instruct their lawyer.
What Does A Prosecutor Do?
To prosecute means to lay a charge in a criminal matter and pursue legal proceedings against the accused. As agents of the Attorney General, prosecutors exercise considerable prosecutorial discretion. Their role is quasi-judicial and as such, they have a duty to be objective and dispassionate. Prosecutors present all available, relevant, and admissible evidence necessary to enable the court to determine the guilt or innocence of the accused. They prepare for Court by researching the law, reviewing evidence & exhibits, and interviewing witnesses.
What Does A Defence Lawyer Do?
A defence lawyer represents a person charged with a criminal offence. It is the defence lawyer’s job to make sure the rights of the accused are protected throughout the criminal process. At trial, a defence lawyer:
- Questions the evidence introduced by the prosecution.
- Examines the relevance of that evidence.
- Explores all possible interpretations.
The Public Prosecution Service of Canada (PPSC) is a national, independent and accountable prosecuting authority whose main objective is to prosecute federal offences and provides legal advice and assistance to law enforcement.
What does a Judge do?
The judge is a public official appointed to decide cases in a court of law. They are the person in charge of the Court, and are impartial decision-makers in the pursuit of justice. Judges listen to what is presented by both the prosecuting and defence attorneys in Court and, unless there is a jury to make this decision, they decide whether there is proof beyond a reasonable doubt, in criminal cases, that the suspect is guilty. In our adversarial system of justice, legal cases are contested between two opposing sides. This means that evidence and arguments will be fully and forcefully presented. However, the judge remains above the fray to provide an independent and impartial assessment of the facts, and interpret how the law applies to the facts.
What does a Jury Do?
If you are convicted of a crime and facing five years or more in prison, you have the right, under the Charter, to request a jury trial. Usually made up of 12 members of the public, the jurors become the “triers of fact” and assess the presented evidence while the judge takes on the role of legal advisor, clarifying and explaining the law to the jurors. After all evidence has been presented, and both prosecution and defence have argued their cases, the jurors retire to deliberate on a verdict. In criminal cases the jury’s verdict of “Guilty” or “Not Guilty” must be unanimous. If the defendant is convicted of a crime, the judge passes the sentence, imposing a penalty that, depending on the severity of the offence, can range from a fine to a prison term.
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