If you are charged with a criminal offence in Ottawa, it helps to know what to expect from the Ontario criminal justice process.
While the circumstances of every case are different, most criminal charges follow the same basic pre-trial and trial processes.
Following is an overview of the main steps you will encounter. The details of your case will dictate the exact process but the following information provides a good idea of what is around the corner if you or a loved one faces a criminal trial.
Before your Ottawa criminal trial date
Ideally, you will have engaged a criminal defence lawyer as soon as possible after your arrest and charge.
That generally enables a smoother release process as you await a trial date – and should also help you understand your legal options, the legal processes, and the possible consequences of a conviction.
If you have not already hired legal representation at that stage, you should do so as soon as possible so that we can begin working on your defence.
The basic steps before your trial and court appearance include:
The Crown prosecution must pass on relevant information about the charge to the accused, such as:
- Police notes
- Witness statements
- Photographic or video evidence
We will use this information to help build your defence as it will reveal what evidence the prosecution holds against you.
We will also point out anything that we think is missing – either bringing it up directly with the prosecution in court or by writing to the Crown Attorney’s office.
Organizing an interpreter (if necessary)
If your first language is French, you can request that your trial is in French. Similarly, if you or a witness requires an interpreter for a scheduled court date, advise the appropriate court of this requirement.
An interpreter should be provided free of charge by the court office.
Subpoena of witnesses
If witnesses do not volunteer to give evidence in your defence at your trial, you may be able to subpoena or “summons” them via court order.
This obligates the person to attend the trial on a certain date and provide testimony.
The Charter of Rights and Freedoms entitles every Canadian to certain rights by law. If any of these rights were violated during the stop, arrest or charge process, the trial judge may either:
- “Stay” the charge against you, resulting in the case being dismissed, or
- Rule that evidence obtained from the breach of your Charter rights cannot be used in court (which often damages the prosecution’s case)
Breach of charter rights is a common defence for a criminal charge and includes actions such as:
- Failure of law enforcement to follow proper search and seizure protocols
- Failure to be tried within a reasonable timeframe
To claim either a breach of charter rights or that the law under which you have been charged is unconstitutional, a written Notice of Application and constitutional issue must be sent to the appropriate Crown Attorney’s office.
For constitutional issues, the Attorney General of Canada and the Attorney General of Ontario must also receive written notice at least 15 days before your trial date.
What if you can’t attend court on the scheduled date?
The courts in Ontario are busy places and they run on tight schedules.
It is important to attend court on time for your trial as postponements (“adjournments”) are rarely granted – only in exceptional cases or where an application is made well in advance.
Even if you have no legal representation, you will be expected to attend court in person at the allotted time. If you cannot make it, an explanation for your absence from somebody on your behalf will be necessary.
Your trial may proceed without you and, if you are found guilty of the original offence or the new offence of “failing to appear”, a warrant for your arrest may be issued immediately.
With representation from a lawyer from Friedman Law, you will prevent this from happening.
Can you plead guilty after your trial date is set?
Generally, people charged with a criminal offence go to trial if they plead not guilty. Even after the trial date is set you can change your appeal to guilty by notifying the Crown Attorney’s Office in writing.
Your lawyer can advise you whether this is an appropriate step to take in your case.
Essential elements and reasonable doubt
A document known as the “Information” will detail the criminal offence(s) that you have been charged with. A copy can be retrieved from the court office where your trial is to be held.
Essential elements of the offence
To convict you of a criminal offence, the Crown prosecution will need to prove each essential element of the charge(s) against you (as laid out in the “Information”) beyond a reasonable doubt.
Remember that you are presumed innocent until proven guilty of each of these essential elements.
Proof in Ontario does not require absolute certainty – only “beyond a reasonable doubt”. However, this is still a much higher standard of proof than that required in civil cases (“balance of probabilities”).
Who will be present in the courtroom?
To set your expectations accordingly, it helps to be aware of the various court personnel who will be present at your trial in addition to your criminal defence lawyer:
- The trial judge (“Your Honour”) – an impartial judicial officer who presides over your trial, ensures that proceedings are conducted fairly and makes the final verdict. The judge is not permitted to provide legal advice.
- Trial Crown Attorney (“the Crown” or “the prosecutor”) – the party responsible for proving all the elements of the charge(s) against you beyond a reasonable doubt.
- Court clerk – the assistant to the trial judge, reading charges, requesting a plea, announcing and swearing witnesses, and looking after exhibits.
- Court reporter/monitor – a court official who creates a record of everything said during the trial.
Following is a summary of the various stages in a criminal trial once it enters the courtroom.
Arraignment and election
Assuming there are no problems with starting your trial at the appointed time, the first step is the arraignment.
This stage involves:
- Confirming your name
- Reading the charges against you
- Entering a plea
For certain offences, you will be able to choose between the following:
- A trial by a provincial court judge (often the same day)
- A trial by a superior court judge alone, or
- A trial by a superior court judge and jury
If you plead not guilty or refuse to enter a plea, your trial will proceed to the next stage. If you plead guilty, the judge may sentence you immediately or schedule sentencing for another date.
However, the judge must first be satisfied that:
- You are making the guilty plea voluntarily
- You understand what a guilty plea means – and its consequences
The judge may not accept your guilty plea if there are doubts about the above issues. A new trial date may be set to give you time to prepare a defence.
The case for the prosecution
The Crown prosecution starts by presenting their case to the judge/jury in the following stages:
- Crown opening statement: an overview of the allegations against you and the evidence that will be presented.
- Examination-in-chief: the Crown calls and questions its witnesses (note: “leading” questions can be objected to by the defence).
- Cross-examination: the defence team questions each Crown witness, in turn, usually to demonstrate inconsistencies or to bring into question the reliability of the witness or elements of the prosecution’s case.
- Re-examination: after your cross-examination, the Crown can re-examine the witness, if necessary.
This overview of events for presenting the prosecution’s case is greatly simplified. Depending on circumstances, multiple technical issues may be raised by either legal team – for instance, regarding statements you made when you were arrested and charged.
Mini-hearings may be held within the trial itself. Your lawyer may be required to make submissions to the judge if matters between the prosecution and defence need to be resolved before the trial can continue.
The case for the defence
The next stage of the trial is where you present your defence. Evidence may include your testimony, testimony from witnesses, documents, photographs, and so on.
Defence witnesses will be subject to the same examination processes as the prosecution’s witnesses.
The Crown can call “reply evidence” (also known as “rebuttal”) if there are matters raised by your defence evidence that were not covered by the previous submissions from the prosecution.
If you do not wish to testify or call any defence witnesses, you can remain silent and the trial will move to the next stage.
The final stage in the trial requiring major input from the prosecution and defence (until sentencing) is the closing submissions.
The judge invites both parties to put forward summaries of the reasons why you should be found guilty or not guilty. No evidence can be introduced at this stage and all arguments must be based on evidence already presented to the judge.
Judgement and sentencing
Your judgement may take place on the same day as your trial or at a later date, depending on the judge’s decision.
All decisions made will be explained in full by the judge. If you are found guilty, your punishment will be decided after a sentencing hearing. At this hearing, your defence lawyer and the prosecution will have an opportunity to provide opinions on what an appropriate sentence would be. Evidence can be called and submissions made to back up your case.
Following this hearing, the judge may order a Pre-Sentence Report before passing sentence. This is likely to delay your sentencing for several weeks at least.
The judge has sole discretion with the sentence and it need not follow any agreements made between the prosecution and the defence.
Facing a criminal charge?
The lawyers at Friedman Mansour, LLP in Ottawa are committed to protecting your rights and freedoms and reducing the consequences of a criminal charge for your future.
Start by arranging a free case evaluation: call 613-223-4089.