The Court Process

Here is the website link for Canada’s Court System.

As well, all 13 provinces and territories maintain websites for their courts.


Understanding the adversarial system

Canada’s justice system is based on the “adversarial system” meaning that two sides (being the accusor (Crown prosecutor) and the accused (defence lawyer))debate and battle about the guilt or innocence of the accused. The judge is expected to listen to the arguments unfolding before him/her and it is expected that the “truth” will emerge from the clash of positions. The judge is the “referee” who will clarify what the law is and what the rules are for the lawyers making their arguments.


Court rules

  • Arrive to court on time.
  • Be sure all cell phones and pages are turned off in the courtroom.
  • Do not talk in court, unless your lawyer is quietly speaking with you. In those situations, be sure you whisper.
  • Do not wear a hat in the courtroom – it is considered to be disrespectful.
  • Do not eat or drink in the courtroom.
  • Do not chew gum.
  • Do not communicate with anyone who is testifying on the witness stand – either verbally or non-verbally.
  • Always rise when the judge enters or leaves the courtroom. You must also rise if you are asked to speak to the judge directly.


Court process

  • The subpoena
    Your child will likely receive a subpoena indicating that he/she will be required to testify in court. Often the date given is the first date of the trial – the Crown prosecutor will likely advise you later of a more specific date and time.

  • The preliminary inquiry
    • The formal purpose of a preliminary inquiry is to determine if the Crown has enough evidence to justify a trial.
    • It is a safeguard that’s built into the system to ensure that people are not put in jeopardy of being convicted in a trial without the Crown having sufficient evidence to prove the case.
    • If, after hearing the evidence the judge is satisfied that there is enough evidence that the person could be convicted, then the person is committed to trial at Superior Court.
    • The purpose of the preliminary inquiry for the defence is to explore the case so that they get to know what the evidence is before trial.
    • The preliminary inquiry is similar to a trial in that witnesses are examined, and cross-examined under oath.
    • The Crown prosecutor will decide whether the child witness will testify at both the preliminary inquiry and the trial. Generally, the child should be prepared to testify at both. The advantage to doing so is that the child gets a “rehearsal” of the experience before having to testify at trial.
    • The defence does not present their case at a preliminary inquiry.
  • The trial
    • The trial determines whether the evidence proves beyond a reasonable doubt the accused is guilty of any or all of the charges. A basic principle of Canada's justice system is that the accused is innocent until proven guilty.
    • The Crown prosecutor calls witnesses and presents the evidence against the accused.
    • Each witness responds to questions asked by the Crown prosecutor during “direct examination”.
    • The defence lawyer is then given the chance to argue or disprove evidence introduced by the Crown and to bring out evidence favoring the accused. This is done by questioning the Crown's witness and is called cross-examination.
    • After cross-examination, the Crown is given a chance to question the witness again during “redirect examination”. This is done if parts of the witness's testimony needs to be clarified. During redirect examination, the Crown may only question the witness on matters brought up by the defence during their cross-examination.
    • After all the evidence is presented, both Crown and defence make their closing arguments and summarize their case.
  • Adjournments
    • An adjournment is re-scheduling of a court appearance. The granting of an adjournment is at the discretion of the judge, but in practice is a frequent occurrence. Some of the reasons for adjournments include that an accused is not represented by a lawyer, when the defence has not had enough time to prepare their case, when witnesses are missing or occasionally when trials in court have been “double booked”.
  • Outcomes
    • Acquittal
      • An acquittal is a decision by a judge that a person accused of a crime is not guilty.
    • Stay of proceedings
      • Generally, a stay of proceedings is appropriate when the case is being discontinued and the public interest requires that the Crown retain the right to potentially recommence those proceedings within one year, although they rarely are.
      • When deciding whether to enter a stay of proceedings, the Crown considers the following factors:
        • the circumstances of the case and the reason for the inability of the Crown to proceed with the trial;
        • the merits of the particular case (including the sufficiency of evidence and the likelihood of conviction);
        • the relative importance of the case;
        • the likelihood of recommencement
    • Findings of guilt
      • Usually a trial ends with a finding of either “guilty” or “not guilty”.
    • Sentencing
      Judges may impose many different kinds of sentences or a combination of penalties that may include such penalties as:
      • A fine (a sum of money),
      • Restitution (an order requiring the offender to compensate for injuries or to pay compensation for loss of or damage to property as a result of the offence),
      • Probation (release of the offender on the conditions prescribed), which may include community service,
      • Community service (an order that the offender perform a certain number of hours of volunteer work in the community),
      • Imprisonment (confinement in a prison or penitentiary).
    • Appeals
      • The Crown may appeal against a verdict of acquittal on a question of law alone. A case CANNOT be appealed simply because there is a disagreement about the outcome. The accused may appeal on a question of law, fact or mixed law and fact. Either party may appeal a sentence unless the sentence is one fixed by law.