The criminal court process in Canada, step by step

Step 1: the first court appearance

Your first court date is printed on your release papers: the appearance notice, summons, undertaking or release order. It is usually a short appearance in a busy courtroom. Nobody decides guilt that day: the case is opened, you receive or ask for the evidence, and the case is put over to a new date.

Go, and arrive early. Free duty counsel works at most courthouses and can speak for you that day. For many charges, a lawyer you hire can appear for you so you do not have to attend every short date. You can find the address and phone of your courthouse, and the official way to check your court date, in our court directory.

Step 2: disclosure of the evidence

The Crown must give the defence all relevant information it has, whether it helps or hurts the case: police notes, witness statements, videos, phone extractions and expert reports. The Supreme Court of Canada set this rule in R. v. Stinchcombe (1991). Disclosure often arrives in stages, and your lawyer reviews it before any decision on a plea or a trial.

Step 3: how the case will be tried

• Summary or indictable: for “hybrid” offences, the Crown chooses. Summary cases are tried in provincial court and carry lower maximum sentences (generally up to two years less a day and a $5,000 fine).
• Your election: for most indictable offences you choose a trial by a provincial court judge, by a superior court judge alone, or by a judge and jury (Criminal Code s. 536).
• Some offences, such as murder, can only be tried in superior court; some minor indictable offences can only be tried in provincial court.

Step 4: resolution meetings and pleas

Before trial, the defence and the Crown usually meet (a Crown pretrial), and often a judge chairs a meeting too (a judicial pretrial). This is where charges can be withdrawn, reduced, sent to a diversion program or resolved with a peace bond. See what each outcome means for your record in charges withdrawn, stayed or dismissed.

A guilty plea is only valid if it is voluntary and unequivocal, and you understand what you are admitting, its consequences and that the judge is not bound by any agreement on the sentence (Criminal Code s. 606). Speak to a lawyer before pleading guilty: a conviction can affect work, immigration and travel to the United States.

Step 5: the preliminary inquiry

For offences punishable by 14 years or more, the accused or the Crown can ask for a preliminary inquiry in provincial court (s. 535). A judge hears some of the evidence and decides whether there is enough to send the case to trial. It is also a chance for the defence to test witnesses early.

Step 6: the trial

You are presumed innocent. The Crown must prove every element of the offence beyond a reasonable doubt; you do not have to prove anything and you cannot be forced to testify (Charter s. 11(c) and (d)). The Crown calls its witnesses, the defence cross-examines them, and the defence may call evidence. The defence can also ask the court to exclude evidence obtained in breach of the Charter (s. 24(2)).

The trial ends with an acquittal or a conviction. A judge can also stay the charge, for example for unreasonable delay.

Your right to a trial within a reasonable time

Charter s. 11(b) guarantees a trial within a reasonable time. In R. v. Jordan (2016) the Supreme Court set ceilings: 18 months from the charge to the end of trial in provincial court, and 30 months in superior court (or in provincial court after a preliminary inquiry). Delay caused or waived by the defence does not count. Past the ceiling, the charge is stayed unless the Crown shows exceptional circumstances.

Step 7: sentencing

If you plead guilty or are found guilty, the judge sets a sentence proportionate to the seriousness of the offence and your degree of responsibility (ss. 718 to 718.2). The court can order a pre-sentence report and hear victim impact statements. Sentences range from an absolute or conditional discharge (no conviction) to a fine, probation, a conditional sentence served at home or jail.

Appeals

Both the defence and the Crown can appeal a verdict or a sentence. The deadline is short, usually 30 days, and the rules are set by each court of appeal, so speak to a lawyer right away if you think the decision was wrong.