Despite seeing news relating to criminal law on a daily basis, most people who have never been charged have no idea how the court system works. The whole process can be overwhelming, but it helps to know what steps are involved. I find myself routinely sketching out this diagram with clients, so I decided I should share it here.
The first step of the process is the incident itself. A charge is laid by the police which sets the system in motion. The individual charged will then be compelled to appear in court by one of several means. If the police release the person from the scene, they may issue a summons or a promise to appear. If they are not released, they could be held for bail.
If someone is held for bail (or ‘show cause’) then they will be brought to court by the police. There, a Crown attorney will review the file and decide whether they will consent to the individual being released. If so, then the Crown and a defence lawyer will work together to draft conditions that the person must follow. These could include not attending certain locations or abstaining from alcohol. If the Crown does not consent, then we must set a bail hearing. This hearing might take place a couple of days later, and will involve presenting evidence to a justice of the peace about where the person might live and what supervision can be offered. A person may then be released on a recognizance and given a date to come back to court.
Once bail has been decided, then the individual will appear in remand court. Remand, or set-date as it is called in some courts, is used to set meetings and other court dates. No pleas are entered here. If a person does not have a bail condition to appear personally for remand, then a lawyer can appear on their behalf if they’ve signed a form designating them as counsel.
The next important step is to review disclosure. Disclosure is all of the evidence that the Crown has about the case, which they are obligated to give to the defence. The review of disclosure by a lawyer with a client is critical to assessing the strength of the Crown’s case and possible defences.
A lawyer will then meet with a Crown prosecutor in a counsel pre-trial (or CPT). This meeting is used to discuss where the file is going, either to plea or trial. A defence lawyer might bring information about a client’s background to pitch a more lenient sentence, or the lawyers might simply discuss length of trial.
Sometimes a case will warrant some further discussions with a judge. In this case, we would set a judicial pre-trial (or JPT). At this meeting, the investigating police officer might also attend to give input. A judge will give their opinion as to an appropriate sentence, or confirm how long a trial would take.
Once the case has been reviewed and discussed, it is then up to the client to decide whether they want to plead or go to trial. (Sometimes a case will resolve outside of these options, if for example the Crown decides to withdraw the charge, but these are the typical options.) The client gives their instructions as to how they wish to plead.
If someone pleads guilty, then they are taking responsibility for the facts that the Crown is alleging. In a plea court, the person is admitting to what they have been charged with and then are sentenced, which will be discussed below.
At a trial, a person is holding the Crown to their job of proving every charge beyond a reasonable doubt. The Crown will call witnesses to testify to prove their case and a defence lawyer will have the opportunity to cross-examine them. The individual may choose to testify at his or her own trial, but there is no obligation to do so. If the judge finds a person not guilty, then they are acquitted and the case ends there. If the person is guilty, then they proceed to sentencing.
At sentencing, a judge will decide the appropriate punishment for an offence. A sentence can range from an absolute discharge to jail, depending on a variety of factors. A judge’s ultimate job here is to balance aggravating and mitigating factors to decide the appropriate outcome.
Keep in mind that this is a very brief sketch of the typical case. While some files will deviate from this course, this is the routine path that criminal matter will take through the courts.