Lesson 3 — Activity 4: Canada's Legal Process

Warm Up

It is very important to understand the criminal justice system if you are arrested or charged with an offence. This lesson will focus on the legal process in Canada.

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The Arrest

Your idea of what happens when someone commits a crime has probably been influenced by the movies you have watched. It is important to keep in mind that most of the situations in the movies occur in the United States, but there are similarities in the Canadian system.

For example, in both countries, persons who are arrested must have their rights read to them. The wording of this is different in each country, but the basic ideas are the same. A charge such as vehicular homicide can be laid in the United States, but in Canada, the same charge is worded as dangerous driving causing death.

In Canada, many police forces protect Canadians and enforce Canada's criminal laws. These may be community police forces, provincial police forces, or the RCMP, which provides services at the federal level and in areas of Canada that do not have their own police forces. Alberta, Calgary, Edmonton, Lethbridge, and Medicine Hat have their own city police forces. Several First Nations groups in Alberta have their own police services: the Blood Tribe, the North Peace, and the Tsuu T'ina Nations. In all other areas of Alberta, the RCMP serves as the law enforcement agency. Québec and Ontario have provincial police forces.

Anyone who is suspected of committing a crime will go through the same process and be protected by the same rights. This process involves deciding:

the charge a person should face if accused of committing a crime

whether the person is guilty of that crime

what consequences should be faced

An arresting officer must follow certain procedures to protect the rights of an accused person. The first step is to read the accused his or her rights, which include the right to refuse to provide information, access to a lawyer, and clear information concerning the actual charge that has led to the arrest.

Click here to see your rights if you are arrested or detained.

The other right that protects an individual accused of a crime is that the person must appear before a judge as soon as possible, usually within 24 hours. At that time, the judge makes a decision as to whether the accused should be:

released on condition of appearance on the trial date

released after bail is paid to guarantee appearance on the trial date

held in custody until the trial date

The last option is used only if there are strong reasons for doing so, such as concerns for the safety of others or a belief that the accused will not appear at the trial.

The basic premise of the legal system of a democratic country such as Canada is that a person is innocent until proven guilty. Even when a person is caught in the act, many variables affect the charge, the legal process, and the punishment.

The Trial

In Canada, there are two types of criminal charges: a summary conviction and a more serious indictable offence. After a person is charged with an offence, that person is referred to as the accused. Summary conviction offences are heard before a provincial court judge. If the person is found guilty, the maximum penalty is a $2,000 fine or six months in prison. In the most serious cases, a person could be sentenced to both of these.

A person accused of committing an indictable offence is represented by a lawyer. In Canadian courts, lawyers are sometimes referred to as attorneys. Lawyers are qualified to give legal advice.

There are two types of courtroom lawyers. One is the crown prosecutor who works for society. Crown prosecutors defend society's values. It is their job to determine charges, prepare the witnesses, present arguments to the courtroom, and try to get a guilty verdict. The other lawyer, referred to as the defence counsel, works for the person accused of breaking the law. This person's job is to protect the client's rights and ensure that a fair trial is conducted. This person aims to have the client found not guilty or, if guilty, attempts to get the smallest sentence possible.

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The other main person during a trial is the trial judge. Trial judges are always lawyers who have spent many years in courts defending and/or prosecuting those accused of crimes.

A trial judge has many tasks in the courtroom, such as:

upholding the rule of law

supervising the proceedings to maintain order in the courtroom

ensuring that the trial runs smoothly

When there is no jury, the judge listens to the evidence and then decides whether the accused is innocent or guilty and what the sentence should be if the person is found guilty. In the most serious cases such as very violent crimes, the trial will usually involve a jury. Regular citizens have a part in the justice system. Almost anyone can be called for jury duty, but the person must be a Canadian citizen, 18 years of age or older, and registered on the voters' list.

The Outcome

During a trial, all the people involved hear the evidence, listen to the witnesses, and learn about the circumstances surrounding the offence to determine a person's guilt or innocence. When a person is found guilty of committing a crime, several circumstances influence the sentence that the criminal will receive. For this reason, not every person who commits a murder will receive the same sentence. The court has several options to pursue. A judge can impose many kinds of sentences or a combination of penalties.

A criminal's punishment may include:

paying a fine

paying restitution for loss of or damage to property

being placed on probation

performing community service

serving time in prison

The judge must decide which of these punishments or combination of them is imposed, but consideration is given to:

the seriousness of the crime

the minimum and maximum sentences for the crime listed in the Criminal Code or other statutes

the purpose of discouraging the offender and others from committing similar crimes

the possibility for rehabilitation of the criminal

Canada's Court System

Canada has several levels of courts, and each has distinct roles and jobs as part of Canada's justice system.

Canada has four main divisions of Courts:

Supreme Court of Canada
provincial/territorial courts of appeal
provincial/territorial superior courts
provincial/territorial courts (lower courts)

Provincial and Territorial (Lower) Courts

These courts handle most cases that come into the system. They are established by provincial and territorial governments.

Provincial and Territorial Superior Courts

These courts deal with more serious crimes and also hear appeals from the provincial and territorial courts. The federal court is on the same level but is responsible for deciding civil matters such as immigration.

Provincial and Territorial Courts of Appeal

These courts hear appeals from the decisions of the superior courts and the provincial/territorial courts.

The Supreme Court of Canada

This is the final court of appeal for Canada. It has jurisdiction over disputes in all areas of the law.

Click on the Play button below to watch a video on the Canadian criminal trial process.