Steps in the Criminal Justice Process

Being handcuffed and taken to jail can be terrifying, especially if it is your first time having that interaction with a police officer. While it is always recommended that you contact a lawyer as soon as you can. the following brief outline will explain what you can expect from the criminal justice system.

Arrest and Criminal Charges:

At this step, the police will detain you, handcuff you, and take you to a police station for processing. Afterwards, the police will either hold you in custody or let you leave the police station. If they decide to hold you in custody at the police station, they must bring you to a Justice of the Peace for a bail hearing within 24 hours (or as soon as possible) after you are arrested. You may be remanded into prison custody while you await your bail hearing.

Bail Hearing:

At the bail hearing, the Justice of the Peace will decide whether you should be released or held in custody until your trial. You are entitled to have a lawyer represent you at the bail hearing.
At the bail hearing, a prosecutor will summarize the nature of the alleged offence, the evidence against you, and the factors which they will present on your behalf for court consideration. At this stage, the court will consider the likelihood of you willingly attending further court hearings, public safety (including victims and witnesses), the maintenance of public confidence in the administration of justice given the gravity of the offence, and other various considerations. Based on these factors, the court will decide whether on not to release you on bail.

If you are released, then the Justice of the Peace may impose certain restrictions on your freedom and may require a surety to sign on your behalf. A surety is a person who will promise the Judge/Justice of the Peace to supervise you while you are out on bail. Furthermore, the surety might have to pledge a certain amount of money to the court as collateral for their promise.

At this stage you will be given some documents which will tell you when and where to be in court to set a date for your trial. It is important to note that you are entitled to full disclosure of the Crown’s case against you, and the order forms for disclosure must be completed.

However, if you are not released on bail then you will be held in a detention centre pending your trial. There is sometimes an opportunity to appeal this decision, and a bail review can be brought before a higher court.

Setting a Date for Court Appearance:

This will be your first court appearance. Generally, this is a short court hearing in which a Judge will set a future date for your trial. A full and complete disclosure must be received before a court date is set. The length of time this takes depends on the complexity of the case (i.e., full disclosure in fraud or murder trials, may take many months.)

Crown Pretrials and Resolution Meetings:

This step involves negotiating with the Crown Attorney. At this stage, the relaxing of bail conditions can be discussed. It is also possible, depending on the available evidence, to attempt to settle the case, or potentially drop some or all of the charges. In some cases, a discharge of the case can be earned if the accused attends a diversion program of counselling. This can include community service or the payment of money to a complainant.  

Judicial Pretrial:

This is much like the last step; except this time the discussion occurs before a Judge (either in chambers or in open court). At this stage, the Judge can aid in negotiations between the parties, indicate how he/she believes the court will rule on certain issues, and narrow down certain issues between the parties. It should be noted that the Judge at this portion of the process will not be the Judge at the trial.

Preliminary Hearing:

If you are charged with an indictable offence, a preliminary hearing is required. At this hearing, the Crown Attorney must present satisfactory evidence to commit the accused for trial. If there is not enough evidence to justify a trial, the court will dismiss the charges.

Judge or Jury trial?

All criminal charges are classified as:  i) summary conviction offences, ii) indictable offences, or iii) hybrid offences. Summary conviction offences are those that are less serious, whereas indictable offences are considered the most serious.  In hybrid offences, the Crown Attorney may “elect” to proceed either by indictment or summary conviction. This choice is completely discretionary, and can only be challenged in exceptionally rare cases.

Generally, in most indictable offences, you have the right to conduct or waive a preliminary hearing prior to a trial.  You may also choose to have the trial in the Provincial level of court without a preliminary hearing.

If you choose to proceed to the Superior Court, then you may decide whether you would like to have your trial before a Judge only, or a Judge and Jury. This choice has various strategic consequences depending on the factors of your case.

It should be noted that the Provincial court has “absolute jurisdiction” over certain offenses. This means that if the Crown proceeds by indictment, you will not be given the right to a preliminary hearing, jury trial, or to be tried in the Superior Court.

For the most serious offenses such as murder, treason, and terrorism, you must be tried by a jury unless the Crown Attorney consents to a Judge only trial.

Trial:

At this step negotiation has failed, and you must proceed to court. The Crown Attorney must prove beyond a reasonable doubt that you are guilty of the crime you were charged with, otherwise you will be released from custody. If you are found to be not guilty, you do not have to worry about the prosecution filing charges against you later for the same case. The length of the trial itself is based on the complexity of the case, the number of witnesses, experts, etc. It should be noted that this step has complex rules of evidence, court room decorum, and how/when questions can be asked of a witness. For this reason, a trained lawyer is highly recommended.

Appeal:

If either party disagrees with a Judge’s decision, they can seek an appeal. If the appellate court allows the appeal, it can reverse or change the Judge’s decision, or order a new trial or hearing.

Generally, appeals are heard based on either questions of law, or questions of fact. However, there are also special appeals regarding fresh evidence or conduct of your prior lawyer/paralegal.

The Crown can generally only appeal where there is an error in law.