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There are two main categories of offences:
◼︎ summary conviction offences; and
◼︎ indictable offences

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                                                                                                               INTRODUCTION

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                                                                                                               INTRODUCTION

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This document will give you an overview of the parts of the Canadian criminal legal system, but first there is some introductory information about the Canadian legal court structure, how the courts are organized in Ontario, and criminal procedure.

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The attached image gives an overview of the Canadian court system and is from the Justice Department website (https://www.justice.gc.ca/eng/csj-sjc/just/07.html).

While the Canadian Criminal Code is federal legislation, it is adjudicated in the provincial and territorial courts.

In Ontario, criminal matters are heard in the Ontario Court of Justice ("OCJ") and the Superior Court of Justice ("SCJ") depending on the offence or place in the legal proceeding.

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Criminal law has its own set of rules and procedures that must be followed throughout a proceeding. Criminal procedure governs how police may investigate a crime to how charges are laid to how a person will have their trial.

The rules dictate matters such as time to serve documents, the formatting of documents, material and evidence to be used on applications, pre-trial proceedings, attendance of the accused, attendance of prisoners, constitutional issues, hearing conferences, evidence, sand any other matters that pertain to the criminal courts.

For further reading on criminal procedure, you may review the following resources:

◼︎ The Canadian Encyclopedia: https://www.thecanadianencyclopedia.ca/en/article/criminal-procedure

◼︎ Ontario Court of Justice Criminal Rules https://www.ontariocourts.ca/ocj/criminal-court/criminal-rules/

◼︎ Ontario Court Criminal Procedures by Robichaud's https://robichaudlaw.ca/ontario-criminal-court-procedures/

◼︎ Guide for Accused Persons in Criminal Trials, Ontario Court of Justice

http://www.ontariocourts.ca/ocj/self-represented-parties/guide-for-accused-in-criminal-cases/guide/

You  may peruse the Criminal Proceedings Rules for the various provinces here: https://laws-lois.justice.gc.ca/eng/Court/. The purpose and importance of these rules is most clear when practicing criminal law.

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In Ontario, the province is divided into seven geographic regions, to assist with judicial administration.

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                                                                           PARTS OF THE CANADIAN CRIMINAL LEGAL SYSTEM

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                                                                           PARTS OF THE CANADIAN CRIMINAL LEGAL SYSTEM

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◼︎ More serious (i.e. murder, trafficking, extortion)

◼︎ A person charged with this offence will be arrested where the police have reasonable grounds to believe the person committed or is about to commit an indictable offence

◼︎ A person charged with this offence must show up in court, but may be represented by him/herself or a lawyer

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◼︎ Less serious (i.e. shoplifting, petty theft)

◼︎ A person who commits this offence is usually not arrested, unless found committing the offence

◼︎ A person is usually given a notice to appear in court at a certain date and time

◼︎ A lawyer or agent may appear on this person's behalf on the appointed court date

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◼︎ The accused shall be named and notified of the offence he/she/they is being charged with
◼︎ Variety of requirements regarding arrest, depending on if the arrest is with a warrant or not and what type of offence the person is accused of
◼︎ A peace officer or police officer may perform an arrest, but it depends on the offence
◼︎ Section 494 of the Criminal Code governs arrest without warrant by any person
◼︎ Issues of racial profiling come up too frequently during arrests

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The Crown can choose, based on factors such as the seriousness of the accused's action and the harm caused wth the offence, to proceed with either a summary conviction offence or an an indictable offence.

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Created using information from the following sources:

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Created using information from the following sources:

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◼︎  "Canadian Criminal Procedure and Practice/Arrest and Detention/Warrantless Arrests": https://en.wikibooks.org/wiki/Canadian_Criminal_Procedure_and_Practice/Arrest_and_Detention/Warrantless_Arrests
◼︎  Dart Joe. 2019. "Civil and Criminal Jury Trials: 5 Key Differences". Bergeron Clifford LLP, June 6, 2019: https://www.bergeronclifford.com/2019/06/06/civil-and-criminal-jury-trials-5-key-differences/
◼︎ "Criminal Offences", Department of Justice: https://www.justice.gc.ca/eng/cj-jp/victims-victimes/court-tribunaux/offences-infractions.html)
◼︎ "Entering a plea and plea agreements", Department of Justice: https://www.justice.gc.ca/eng/cj-jp/victims-victimes/court-tribunaux/plea-accusation.html
◼︎ "Gladue Sentencing Principles: Key Factors Relevant to Aboriginal Sentencing Considerations", Gladue Principles: http://www.gladueprinciples.ca/module-2/key-factors-relevant-to-aboriginal-sentencing-considerations
◼︎ "How sentences are imposed", Department of Justice: https://www.justice.gc.ca/eng/cj-jp/victims-victimes/sentencing-peine/imposed-imposees.html
◼︎ "The Judicial Structure", Department of Justice: https://www.justice.gc.ca/eng/csj-sjc/just/07.html
◼︎ "The Role of the Public", Department of Justice: https://www.justice.gc.ca/eng/csj-sjc/just/12.html
◼︎ "What are my rights if I'm detained or arrested?", Steps to Justice: Your Guide to Law in Ontario: https://stepstojustice.ca/questions/criminal-law/what-are-my-rights-if-im-detained-or-arrested

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◼︎ These begin the trial process with the accused appearing in court for the first time along with his/her/their legal counsel and the prosecutor

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◼︎ These steps happen during the process between the first appearance and trial
◼︎ The major parts of pre-trial procedures are in this document, but it is not an exhaustive list

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◼︎ Crime scene is processed
◼︎ Physical evidence is gathered
◼︎ Specific protocols must be followed to ensure all evidence's admissibility

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◼︎ To be told why the accused is being detained or arrested
◼︎ To be searched in a reasonable manner
◼︎ To remain silent
◼︎ To talk with a lawyer (in most circumstances)

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◼︎ Did the police officer from a subjective perspective, have reasonable and probable grounds for arresting the suspect?; and
◼︎ Could a reasonable person in the position of the officer conclude there were reasonable and probable grounds for an arrest?

See: R v. Warford 2001 NFCA 64: https://www.canlii.org/en/nl/nlca/doc/2001/2001nfca64/2001nfca64.html.

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◼︎ On the first appearance, the accused is told what offence he/she/they is accused of and enters a plea of guilty or not guilty

◼︎Diversion may be offered.

--> this is a consequence given by the police or Crown like counseling, community service, anger management counselling, letter of apology, or a combination of these items

--> once consequence is fulfilled charges may be withdrawn or stayed (on hold, and not pursued at that time)

◼︎ A plea agreement may also be involved and entered into

◼︎ Accused enters a "guilty" or "not guilty" plea

--> If "not guilty" plea entered, proceed with next steps towards trial

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◼︎ A trial is not necessary if a guilty plea is entered
◼︎ The Court will sentence the accused person at that time or shortly thereafter

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◼︎ The Court will set a trial date
◼︎ If the crime is an indictable offence, the Court may also set a date for a preliminary hearing (if one has been requested)

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Methods of ensuring an accused person appears in court

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Methods of ensuring an accused person appears in court

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Sometimes the court has to take measure to ensure an accused person appears in court when the accused is supposed to. Some of these methods include:
◼︎ appearance notice
◼︎ summons
◼︎ promise to appear
◼︎ recognizance
◼︎ judicial interim release (a.k.a. bail)

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◼︎ An agreement between an accused and the prosecutor where the accused agrees to plead guilty or no contest to a particular charge in some concession from the prosecution

◼︎ A plea agreement could occur at the first appearance or plea bargaining may occur during the period between the accused's first appearance up to the beginning - or even in the midst of - trial.

◼︎ If the case involves (a) murder or a serious personal injury offence or (b) an indictable offence with a maximum punishment of 5+ years, the Court must ask the prosecution, after a guilty plea has been accepted, if the prosecutor took reasonable steps to inform the victims of the plea agreements.

◼︎ In some cases, prosecutors are not able to tell the victim(s) about the plea agreement before it is accepted by the Court. Once accepted, the prosecutor must take reasonable steps to inform the victim as soon as they can after that point.

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◼︎ A hearing where the Court hears the evidence and decides if there is enough evidence to send the case to trial

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◼︎ Determines which court will hear and try the case

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◼︎ This is a conference between a judge (who will not be hearing the case at trial), the prosecution, and the accused and his/her/their legal representative. Nobody else is allowed in without the judge's permission. Those who attend must have the authority to make binding decisions about the case.
◼︎ The purpose is to discuss resolution options (i.e. withdrawls or guilty pleas); estimate the length of trial accurately; and review procedural and evidentiary issues that promote the proper use of trial time
◼︎ There may be more than one judicial pre-trial before trial

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◼︎ The Crown MUST provide the accused with all materials the Crown will use against the accused in the criminal proceedings. This may include police officers' notes, witness statements, a copy of the accused's criminal records, a screening form (Crown completes and briefly details the charges against the accused and the punishment sought)

◼︎ Disclosure includes paper and electronic copies of documents (ie. emails, etc.), video, audio, photographs, and any digital evidence

◼︎ The obligation to provide disclosure is ongoing

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See "Plea agreement", above.

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◼︎ Cases are usually tried by a judge or a jury, although in some cases a judge and a jury try a case together.
◼︎ The Criminal Code, particularly section 536, governs the procedure for electing trial by jury.

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◼︎  People who are eligible to serve on a jury are put on a list of potential jurors called the "jury roll".

◼︎ The jury roll includes the names and addresses of potential jurors.

◼︎  Jurors attend at court on an appointed date for jury selection.

◼︎ Jurors are selected at random to serve.

◼︎  In Canada, lawyers and accused persons are not provided more information than a person's name, place of residence, and occupation on the juror list.

◼︎ Unlike what you see in American television or movies, Canadian jurors cannot be questioned about their backgrounds, politics, or views.

◼︎ In criminal cases, jurors can be "challenged for cause", where counsel for the defence or Crown may question a juror on their ability to remain impartial between the government and the accused, particularly on a characteristic of the case or juror (i.e. race of the accused).

◼︎ Depending on the seriousness of the case, both the Crown and defence counsel are entitled to a set number of peremptory challenges to strike jurors of their choice. This number can range from four (in less serious matters) to twenty (in a first-degree murder case).

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◼︎  Each side is permitted to make an opening statement to the court.
◼︎  The defence may open its case at this time or wait until the prosecution is finished presenting its case.
◼︎ Opening statements cannot be argumentative or inflammatory. They can also not include evidence.

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◼︎  The Crown will call its witnesses and perform examination-in-chiefs and possibly re-examinations.

◼︎  The defence has the opportunity to cross-examine all witnesses the Crown presents.

◼︎  When the Crown is done presenting evidence, it will close its case.

◼︎  The burden of proof is on the Crown to prove its case BEYOND A REASONABLE DOUBT (BARD)

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◼︎  The defence will call its witnesses. It will perform examination-in-chiefs and re-examinations, if necessary.

◼︎ The Crown will have the opportunity to cross-examine all defence witnesses.

◼︎  The accused does not have to testify.

◼︎ The defence can choose to call no evidence if it believes the Crown has not proved its case beyond a reasonable doubt

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◼︎  The defence has an opportunity to close its case before the Court after it has presented its evidence.
◼︎  The Crown provides its closing statement to the Court after the defence.
◼︎  In closing statements, counsel typically reviews the evidence that has or has not been presented and how the law applies to the evidence and facts.
◼︎  This is the opportunity for each side to explain why the trier-of-fact (jury, judge, or both) should decide in its favour.

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◼︎ After considering the evidence, the judge or jury will deliver his/her/their/its decision on the offences, based on the evidence presented and the judge's instructions.
◼︎ If an accused is acquitted of the charge, they are free to go
◼︎ If an accused if found guilty, then a sentence is imposed, usually at a later date.

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◼︎  The legislation that governs evidence in criminal and civil proceedings.
◼︎ This provide the rules for what evidence is admissible and how it needs to be disclosed before and during trial.

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An accused may appeal his/her/their conviction using the appropriate methods and grounds available to him/her/them.

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◼︎ Negating defences: an element of the offence is missing

◼︎ Affirmative defences: justifiable defences

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◼︎ Mistake of Fact
ex. Receiving stolen goods when you honestly thought they were not stolen = mens rea is not present

◼︎ Automatism
See R v. Parks
[1992] 2 SCR 871

◼︎ Intoxication
See R v. Daviault
[1994] 3 SCR 63

◼︎ Not criminally responsible by reason of mental disorder (NCR)
See R v. Daley 2007 SCC 53

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◼︎ Self-defence
Ex. See R v. Lavalle
[1990] 1 SCR 852 (Battered Woman Syndrome)

◼︎ Compulsion

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◼︎ A group of citizens who try an accused charged with a criminal offence.
◼︎ After all evidence is called and both sides present their cases, the judge instructs the jury on the law and what they must take into account when making their decision.
◼︎ In criminal trials, juries consist of 12 people selected from among citizens of the province or territory in which the court is located.
◼︎ The decision of a jury in a criminal case must be unanimous.
◼︎ After a trial, jurors are not permitted to tell anyone else about the discussions that took place in the jury room.

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With rare exceptions, all evidence must be entered into court via a witness.

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"The main purpose of sentencing is to contribute to respect for the law and to a just, peaceful, and safe society by imposing fit sentences that have one or more of the following objectives:

denounce the unlawful conduct and harm to the victim;

deter (discourage) the offender and others from committing such crimes;

separate offenders from society when necessary;

assist in rehabilitating the offender;

provide reparations for harm done to the victim and the community; and

promote a sense of responsibility in offenders and acknowledgment of the harm done.

The sentence should match the offender's degree of responsibility for the offence."

From: https://www.justice.gc.ca/eng/cj-jp/victims-victimes/sentencing-peine/imposed-imposees.html

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There are varying types of sentences that may include, but are not limited to:

◼︎ absolute or conditional discharge

◼︎ suspended sentence (but still criminal record) or probation

◼︎ fines, financial restitution

◼︎ conditional sentence

◼︎ imprisonment

◼︎ intermittent sentence

◼︎ indeterminate sentence for dangerous offenders

◼︎ life sentences

◼︎ victim surcharge

◼︎ community service

◼︎ restraining order

◼︎ discharge (guilty, but no criminal record or punishment)

◼︎ suspension (i.e. of driver's license)

◼︎ deportation

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◼︎ Most adults are sentenced using the same guidelines

◼︎ Indigenous peoples have other considerations that are taken into account at sentencing, as they are over-represented in Canadian prisons and there are systemic factors for why they came before the courts.

◼︎ Youth sentences are governed by the Youth Criminal Justice Act

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◼︎ Section 718.2(e) of the Criminal Code also addresses Indigenous sentencing

◼︎ May present a Gladue report (See R v. Gladue [1999] 1 SCR 688).

◼︎ A judge is to consider "the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts".

◼︎ A judge should also consider all possible sentencing options available, which may be appropriate because of the offender's Indigenous heritage, as traditional sentencing does not often accord with the understanding of sentencing held by Indigenous offenders and their community.

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Rights of the accused going through criminal legal proceedings

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Rights of the accused going through criminal legal proceedings

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◼︎ Be tried within a reasonable time

18 or 30 months, depending on level of court (R v. Jordan) Check out this article if interested in more details.

◼︎ Not required to testify against yourself

◼︎ Innocent until proven guilty

◼︎ Not to be denied bail without just cause

◼︎ Trial by jury if the offence committed has a possible sentence of five (5) years or more in prison

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HOW TO USE THIS PADLET: On the left hand side of the screen is the part in the legal proceeding (i.e. "Criminal Offence Committed"). On the right hand side are the details and steps in each part. 

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HOW TO USE THIS PADLET: On the left hand side of the screen is the part in the legal proceeding (i.e. "Criminal Offence Committed"). On the right hand side are the details and steps in each part. 

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Criminal Code of Canada (R.S.C. 1985, c. C-46) sets out what behaviour is threatening, harmful or endangers property, health safety and/or welfare of people

Laws clearly set out in writing and made by elected officials

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EXTRA!: Types of Offences (aka levels of crime) 

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EXTRA!: Types of Offences (aka levels of crime) 

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Levels of Crime: How to Identify and Understand Classifications of Crime

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Check out this flowchart (by Lightning Law Moments) to find out!

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In R. v. Lifchus [1997] 3 S.C.R. 320 (SCC) the majority at the SCC explained at 321:

"[T]he jury should be instructed that a reasonable doubt is not an imaginary or frivolous doubt, nor is it based on sympathy or prejudice. A reasonable double is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to absolute certainty. Such a standard of proof is impossibly high…The word “doubt” should not be qualified other than by way of the adjective “reasonable”."