How a Criminal Trial Works

Criminal Charges
Depending if you were arrested or not and charged with a crime, you may receive an appearance notice, a promise to appear, a summons, recognizance, or a government document called Information. No matter which document you have, it will tell you:

  • what you’ve been charged with,
  • what kind of offence it is, and
  • the date, time, and place of your first court appearance.

The prosecutors – called Crown Counsel – must give you a copy of all the evidence they have about the charges against you. This is called “disclosure”. Crown must disclose copies of police reports, witness statements, your criminal record, and statements you made. This may also include pictures, notes and names.

If you don’t get all the documents, send a letter to the prosecutors asking for them. Crown is required to disclose all evidence to you in a timely manner. You can also request a copy of Crown Counsel’s sentencing position – this is what the prosecutor will ask for if you plead guilty to the charges.  If necessary, you can ask the judge at your arraignment or trial confirmation hearing to order the prosecutor to give you the documents.

Read all of the documents carefully. Decide if you agree with the charges or the evidence that will be used against you. Remember that you are innocent until PROVEN guilty.  Do you have evidence to support your position? Write a detailed summary of the events that lead to the criminal charges against you – include information about time, date, witnesses, etc.

Talk to a Lawyer
It’s important to talk to a lawyer as soon as you have been charged with a crime. There are a range of options for you to be able to receive legal advice. A lawyer will explain the charges against you, will help you understand Crown’s evidence, will provide you with legal options according to your situation, will discuss sentencing possibilities if you are found guilty and will help you decide how you should proceed. Never plead guilty without talking to a lawyer first. Call legal aid immediately to find out if you qualify for a free lawyer: 1-866-577-2525.

First Appearance
You must go to court at the time and date the notice says. This will be your “first appearance” and it is typically in Provincial Court. You are being charged with each of the crimes listed – each one is called a “count”. If you don’t go to court when the document tells you to, the judge can order the police to arrest you and bring you to court. You can be charged with another offence if that happens, called failure to appear.

At your first appearance, you do not have to present evidence or prove your case. Crown Counsel must prove that there is enough evidence to move the case to a trial. If Crown is successful and the criminal charges involve “indictable offences” – like murder, manslaughter, aggravated assault, bank robbery, or major drug cases – the case will be heard in Supreme Court.

Start of a Trial
After you plead not guilty, the prosecutor explains the case against you and then brings in their witnesses and asks them questions to prove you are guilty. The witnesses testify by telling the court what they know. Then you can cross-examine (see below) each of these witnesses. When the prosecutor and you have questioned all the prosecutor’s witnesses, the prosecutor has finished making the case against you.

Crown Counsel’s Job
Crown Counsel must convince the judge or jury that you committed each of the crimes that are charged against you. To do that, the prosecutor has to show that:

  • you committed the crime, and
  • all the parts of the crime actually happened (there are usually several parts to a crime), and
  • you intended to commit the crime.

If the judge or jury have doubt about any of these, they can’t convict you of the crime. In criminal court, defendants must be proven guilty “beyond a reasonable doubt”.

Innocent Until Proven Guilty?
Yes, absolutely. If you are charged with a crime and go to trial, the law requires a judge or jury to consider you innocent unless the prosecutor proves that you are guilty beyond a reasonable doubt. You do not have to prove that you are innocent. Your task is to raise doubt for the judge or jury regarding the evidence presented against you and where possible, to provide evidence that you did not commit the crime.

Your Defence
Since the prosecution goes first, your first chance to defend yourself is to cross-examine the prosecutor’s witnesses—to show that their stories are not true or reliable (See below).

  • No-evidence motion—if the prosecutor has no evidence on an element of the crime, you can ask the judge to dismiss that offence.
  • Insufficient evidence—if you think that the prosecutor has not proven you committed the crime—and if you are sure the judge or jury don’t think you are guilty—then you do not need to present your defence. But if the judge or jury do find you guilty, then you cannot re-open your case. It is impossible to be sure what the judge or jury think, so it is a serious decision not to defend yourself.
  • Call your witnesses—if you choose to present your case, call your witnesses into the courtroom, one at a time, and ask them questions to explain your side of the story. Then the prosecutor will cross-examine each of them.
  • Decide whether to testify yourself—you do not have to testify (tell what happened), but you may want to—so that you can directly tell the judge or jury what happened. If your version of what happened is important, you must tell it at this time, under oath (because later, when you make your final arguments, you can only use evidence that you or your witnesses presented.)
  • If you testify, the prosecutor can cross-examine you to try to show that you are not being honest or that you have changed your story. You will have to answer all the questions that the prosecutor asks you. This cross-examination may include bringing out your criminal record to test your credibility. The prosecutor may get evidence from you that can hurt your case, but the prosecutor cannot cross-examine you if you do not testify. Deciding whether to testify is often the most important decision you can make in your case.

Cross-examining Witnesses
This is a type of questioning during a trial when you ask questions to the prosecutor’s witnesses. You can cross-examine Crown witnesses, and Crown can cross-examine witnesses that your witnesses. You can use cross-examination to try to show the following:

  • That the prosecutor’s witness is not believable or reliable. For example, you may be able to force the witness to admit that he or she:
  • Is biased—if the witness is a friend of the victim or holds a grudge against you, you can argue that the witness may not be fair.
  • Told different stories—if you have a copy of the witness’s police statement in writing and the witness now tells a different story, you can point this out to the court.
  • Could not see clearly—you can question the witness about whether they wore glasses, drank alcohol, were close enough to see clearly, or whether it was too dark for them to see well.
  • That the prosecutor’s witness has evidence to support your case.
  • That the story of a witness is different from the story that you will present:
  • If a witness says something you disagree with, then you must question the witness about it. If you don’t, the judge will wonder why you did not ask such questions at the time and may not believe your evidence later.

Admissibility of Evidence
Sometimes a judge will not allow certain kinds of evidence to be used. There are a number of reasons that evidence may be inadmissible. For example:

  • Hearsay—if someone said something to you that you want to use as evidence, you must have the person come to court to repeat it – you cannot just repeat it to the court yourself.
  • Voir dire—if the prosecutor wants to use unusual evidence, the judge may stop the trial to decide whether it can be used. If you think the evidence should not be used, you can tell the judge why not.

Final Arguments
Submissions are the final arguments that both you and the prosecutor make to the court. After all the evidence is presented (above), you can now speak to the judge or jury to persuade them that you are not guilty. Your arguments must be based on the evidence or lack of evidence presented during your trial—you cannot use new evidence. If you presented evidence for your case, you will make your Submissions first, and the prosecutor will go second.

The Verdict
The judge or jury decides if you are guilty after hearing all the evidence and the submissions. In most cases, it will take some time to decide the outcome of the case. When you hear the verdict, if you are not guilty (acquitted), you can leave. But if you are guilty (convicted), then you must wait for the judge to sentence you. Guilty parties are held in custody until sentencing is determined and pronounced in court.