Criminal Trials

Procedure Leading to a Trial

Following arrest, a person may appear in court on a number of occasions prior to an actual trial. First, although an individual the police have arrested and brought to a police station may then be released on an undertaking to attend court on a specified later date. Such an individual may also be held in custody and required to attend a bail hearing before a judge who decides whether the individual will be released or remain in custody. A bail hearing must be held as soon as practicable, and in any event within 24 hours. If the judge decides the person should be allowed to go free until the next court date there may be conditions imposed, such as having a third party promise to pay money if the person does not return as required. Conversely, an arrested individual that a judge decides should not go free is held in custody until trial, and brought to court in custody for required attendances in the interim.

The next of these attendances is generally to set a date for trial. In some cases, there may also be a preliminary hearing, at which the Crown must demonstrate to a judge that there is enough evidence of the crime alleged to hold the accused for trial.

In the midst of these court appearances, whether an accused is free or in jail, the accused or the accused's lawyer has the right to obtain disclosure from the Crown. Disclosure is the Crown's case in documentary form, including the anticipated testimony of the Crown's witnesses.

An accused may have been asked in court to plead either guilty or not guilty prior to receiving disclosure, but it is after receiving disclosure that this decision can most intelligently be made. If an accused pleads guilty, it means that everything the Crown is alleging is correct, and the judge will invariably enter a conviction and sentence the accused, subject only to whatever further comments the Crown and accused wish to make. If the accused pleads not guilty, it is not necessarily a statement of innocence, but simply that the charge as laid is not correct, and that the accused requires the Crown to prove it.

The Trial

Criminal trials in Ontario are held in either the Ontario Court of Justice or the Superior Court of Justice, depending on the offence a person is charged with. Generally however, more serious offences are heard in the Superior Court of Justice before a judge or a judge and jury, and less serious offences are heard in the Ontario Court of Justice before a judge only.

At trial, the Crown must prove beyond a reasonable doubt that the person charged is guilty. If there is any reasonable doubt, the person must be acquitted.

Even if an accused has pleaded not guilty before, the charges are usually read again at the beginning of a trial, and the accused is asked again to enter a plea. A plea of guilty can rarely be changed, but a plea of not guilty can almost always be changed to a plea of guilty, even on the day set for trial. The only consequence is that the judge may deal more harshly with a defendant who initially pleads not guilty and then changes the plea to guilty on trial day, because all the witnesses have been required to attend and the Crown has had to invest time in preparing its case.

If the defendant again pleads not guilty, the Crown will present its case first, and in the process of doing so will present evidence both in the form of witnesses and in the form of physical evidence, if any. As the Crown finishes examining each respective witness, the defendant may cross-examine that witness. However, it is usually unwise to ask Crown witnesses further questions without having a specific objective, because it may only give those witnesses the chance to reinforce or add to their evidence, to the accused's detriment. Only if a specific point that benefits the accused may come out of cross-examination should the accused ask a few questions, just to try to bring it out.

If the crown does not present enough evidence to show that the accused could be guilty, the judge may dismiss the case without having to hear from the accused. This of course is rare. Usually, the accused has to present a defence, including at least the oral evidence of the accused and any witnesses the accused calls, each of whom may be cross-examined by the Crown.

After both the Crown and the accused have presented their cases, each has the opportunity to briefly summarize it again for the judge. This is one time to point out weaknesses in the Crown's case, but only in a manner consistent with what was actually stated as each case was made. After each side has presented its summary, the judge will make a decision, and if that decision is to acquit the accused, the accused is free to go. If the decision is conviction, the Crown and the accused will again have the opportunity to take turns speaking, this time "speaking to sentence", which means making recommendations to the judge as to what an appropriate sentence would be. Naturally, the Crown and the accused usually differ in this regard, but it is the judge who makes the final decision, subject to appeal.

Sometimes, the judge may schedule sentencing for a later date and order a pre-sentence report, which is generally prepared by a probation officer. In determining the sentence, the judge considers factors such as the circumstances of the crime, as well as personal factors relating to the accused, such as age, marital status, and whether the accused is employed, attends school, has dependents, or has a criminal record. A pre-sentence report touches on similar issues, generally in more detail.

Sentences may include a fine, time in prison, probation, hours of community service, prohibition from possessing or participating in something, or some combination of these. As stated above, the judge has the final decision about the sentence, however either the Crown or the accused may be able to appeal either conviction or acquittal, as the case may be, or the sentence, within 30 days after each is imposed. There is no automatic right of appeal, and permission to appeal must often be obtained from the court. In order to be successful at appeal, the appealing party must show that the judge and/or jury made an error in law. Generally, an appeal court will not change a finding of fact made by the lower court, unless it is patently unreasonable. Of course, if a conviction is entered and not overturned on appeal, the convicted individual will thereafter have a criminal record, subject to the right to request a pardon at a later date.

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