Chapter 8: The Courts and Criminal Trial Procedure
• The function of the courts
• The Due Process Model
• Primary focus of our criminal justice system is to protect individual citizens from the unfair
advantages held by agents of the state.
• This model emphasizes a neutral and impartial judge to make the decisions, the
prosecution and defense have an equal chance to present evidence, and a highly
constructed set of procedures that must be followed during the trial.
• The Crime Control Model
• Protecting individual liberties is important, but protecting society from criminals is also
• The police are not aloud to use abusive techniques, but the courts do allow them to utilize
devious techniques to outwit offenders.
• This model emphasizes punishment and it is the courts responsibility to do so.
• The main goal of the courts is not to ensure that the accused is given a fair chance, but
rather to achieve justice through deterrence and harsh punishments.
• Constitutional rights are there to protect the law abiding citizen not the accused.
• The Bureaucratic Function Model
• Stronger focus on the day to day operations of the courts.
• Punishing criminals and protecting rights are still important, but the main focus is the
bureaucratic process, or the speed in which the courts can work.
• In this model, success for judges and the court system is measured in terms of the speed
at which cases are moved along rather than if justice has been served.
• The Organization of Canadian Criminal Courts
• There are 14 different court systems at work in Canada: 13 provincial/territorial and 1
• Each court has geographical jurisdiction: provincial and territorial courts are responsible for
cases arising from their boundaries and the Supreme Court of Canada has jurisdiction
over the entire country.
• Provincial courts are divided into courts of limited jurisdiction and and courts of general
• Courts of limited jurisdiction specialize in certain areas such as motor vehicle violations.
• The proceedings are presided over a single judge who makes the decisions.
• In most jurisdictions the justice of the peace provide law enforcement agents with search
and seizure warrants, summonses, and subpoenas.
• Courts of general jurisdiction deal with the most serious criminal offences.
• Depending on the case, it may be decided by a judge or a jury.
• In appeal courts, judges hear and decide on cases where the convicted individual or the Crown prosecutor is appealing a decision made by the lower courts.
• The Supreme Court of Canada is essentially an appeal court because it has authority over
all provincial/territorial appeal courts as well as those cases originally heard by the federal
• The Supreme court has final authority over all public and private law in Canada.
• The Supreme Court creates criminal justice policy in two different ways: The first is known
as judicial review where the Court’s power to decide whether a law or policy created by a
province/territory is constitutional. The second area is the Supreme Court’s authority to
interpret the law.
• Provincial courts try all provincial and summary convictions.
• Superior and higher hear indictable offences.
• Appeal courts are known as the courts of last resort.
• The Court System
• The only proof required prior to a criminal trial is probable cause; in order to convict a
defendant in a criminal case, a higher standard of proof beyond reasonable doubt must be
• This is meant to ensure that those who are found guilty are punished not those who are
though to be guilty.
• The key people in the courtroom are the defendant, Crown prosecutors, defense counsel
juries, victims and witnesses.
• Only a court appointed official can decide whether to detain an accused prior to a trial and
can decide the individual’s guilt or innocence.
• The court must also decide the appropriate type and length of sanction.
• The duties of a judge include deciding which evidence will be admitted in trial, which
questions are appropriate to ask, and how procedural issues are being settled.
• In a jury trial, the judge also has to instruct the members of the jury about the evidence and
charges before they go to the jury room to decide on the guilt or innocence.
• The Court System in Canada
• Court procedures are controlled by law, tradition, and judicial authority.
• These procedures govern who may speak, when they may speak, and what order they
• The Daily Business of the courts
• In most cases the accused pleads guilty in the first appearance in court.
• In 1998, 81.3% of criminal cases were resolved without a trial.
• In the lower courts, the police may play an important role in prosecutorial discretion.
• Crown prosecutors usually have little time to prepare for each case, so they rely on the
police officers information.
• Prosecutors can use their own discretion when deciding stays of proceedings, withdraw
charges or dismiss the charges altogether. • They have also been known to settle cases before the trial in order to speed up the
decision making process, or to save victims from the trauma of testifying in court.
• They may decide to not prosecute a case due to insufficient evidence, witness problems,
due process problems, plea on another charge.
• The Defense Lawyer
• Defense counsel represents the legal rights of the accused in criminal proceedings and
tries to ensure that the criminal justice system operates fairly.
• One of their most important jobs is to ensure that the legal rights of the defendant are
• To achieve this goal defense lawyers usually examine all the evidence collected by the
police in order to asses the strength of the Crowns case in the proving of the defendant
guilty beyond a reasonable doubt.
• Responsible for preparing the case as well as selecting a strategy for attacking and
questioning the prosecutors case.
• They also help their client understand what is happening in court and the consequences of
the charges if the client is found guilty.
• The defense lawyer represents the accused at all stages of the criminal justice process.
• The formal function of a defense lawyer is to exercise their professional skill and judgment
in the case and fearlessly uphold the interest of their client without regard to any
unpleasant consequence to themselves or any other person.
• The Crown Prosecutor
• Represent the state’s case against the defendant.
• Their main goal isn’t to gain conviction, but to enforce the law and maintain justice by
presenting all the evidence relevant in criminal court.
• To maintain their credibility, prosecutors attempt to gain as many guilty verdicts as
• The prosecutor presents the Crown’s side of the case in an opening address to the judge
before the jury has heard anything else.
• The responsibilities of the Crown Prosecutor
• Can be viewed as the chief law enforcement officers in the provincial and federal court
• Discuss cases with police; make sentencing recommendations and filing appeals.
• Most obvious responsibility is to try indictable and summary conviction cases in a court of
• They examine court documents, interview witnesses, subpoena witnesses to testify during
• They can also decide when to not try a case or withdraw charges.
• A number of Crown prosecutors may work on a single cases as it travels through the court
system. • Prosecutors duties encompass the entire criminal justice system.
• The rold of judges in our criminal justice system includes upholding the rights of the
accused and arbitrating any disagreements that arise between the prosecutor and the
defense lawyer in the trial.
• They can also decide whether a defendant is innocent or guilty or the type and length of a
• It is important that they remain objective.
• In Ontario, judicial nominating committees seek out the best candidates and recommend
them to the Attorney General for review and appointment.
• Criminal Trial Procedure
• The criminal trial is the start of the adjudication stage of the criminal justice system.
• If the accused pleads guilty, then a date is set for sentencing.
• If the accused elects to be tried in court, various alternatives are open depending on the
• The Plea
• In most cases an accused who appears in criminal court for an indictable offence enters
what is known as general plea, which is guilty or nor guilty.
• Three other pleas (referred to as special pleas) are available to the accused: autrefois
acquit, autrefois convict, and pardon.
• Estimated 90% of accused plead guilty prior to trial or when they appear in lower court for
the first time.
• If the accused pleads not guilty to an indictable offence, a trial date is set that is both
acceptable and to the prosecution and the defense.
• If the accused is charged with a summary offence, the trial is held in a summary conviction
• An accused who pleads guilty will be sentenced immediately or remanded until the judge
has the opportunity to hear submissions concerning the sentence.
• The criminal code allows for remands for up to 8 days.
• If the charge is for an indictable offence, the trial may start right away.
• Preliminary Hearing
• Held when an accused is charged with an offence that must be tried by a judge and jury or
when they elect for judge alone.
• This is used to see if there is enough evidence to proceed in a criminal trial and to protect
the accused from being placed on trial unnecessarily.
• During the preliminary inquiry, a court judge or justice of the peace examines the evidence
and hears witnesses in order to determine whether a reasonable jury would find the
accused guilty. • Conducted in the same way as a regular trial.
• The prosecution presents its evidence as well as any witnesses.
• The accused has the right to cross examine any witnesses and to challenge the
• All of the evidence doesn’t have to be shown, as long as there is enough to show the judge
that a reasonable case can be made against the accused.
• After all of the evidence is shown, the judge has to decide if they can prosecute the
accused, and the trial date will be made.
• If the evidence is insufficient, the charges are dropped and the defendant is free.
• If fresh evidence is brought to light in the case, the prosecution usually proceeds by way of
• This allows the Crown prosecutor to bypass the preliminary inquiry and indict the accused
• A defendant would waive the right to a preliminary inquiry because the accused has
decided to plead guilty, the accused wants to speed up the process and have a trial date
set as clearly as possible, and the accused hopes to avoid the negative publicity that might
result from the inquiry.
• Bill C15A of December 2003 states that preliminary inquiries are no longer automatic in
this country, instead they must be requested by the crown prosecutor or the defense
• Many believe that preliminary inquiries should be eliminated altogether due to the costs
and delays they involve.
• They also place witnesses and victims in a vulnerable position as they have to suffer
through traumatic interrogations in addition to the questioning they would have to face
• Supporters argue that they offer defense lawyers their only opportunity to examine
witnesses prior to trial and they ensure that cases will only go to trial with sufficient
• The prosecutor Screening Process
• Once the police arrest and lay charges, it is not automatic that a prosecutor will try a case
because many defendants are never brought to trial.
• The prosecutor has the power to decide between trying the case, plea bargaining staying
the proceedings or dismissing the charges.
• In hybrid offences, the prosecutor has the power to decide to proceed by way of summary
• Prosecutors screening process to determine what to do with a given case include, the
belief the there is sufficient evidence for a conviction, case priorities, the record of the
accused, nature of the witnesses, credibility of victims or witnesses and willingness to drop
a case if the accused will testify against someone else in court.
• The transfer model very little screening occurs and prosecutors drop most of the accused
after they receive the case from the police. • The unit model Prosecutors are given significant amounts of discretion.
• The legal sufficiency model Cases are screened according to their legal elements.
• The system efficiency model Cases are disposed of in the quickest way possible. Only
cases with a high probability of success will be prosecuted.
• The trial sufficiency model Case proceeds to court if a conviction is likely.
• The defendant rehabilitation model Prosecutions decision rests on whether they can
rehabilitate the accused. Alternatives such as treatment programs are sought out before
the case goes to court.
• Plea Bargaining
• Has been defined as any agreement by the accused to plead guilty in return for the
promise of some benefit.
• Serves a variety of purposes including: improves administrative efficiency in the courts,
lowers the cost of prosecution, permits the prosecution to devote more time to more
• Can occur before the trial starts or during the trial when it is believed that pleading guilty
will be beneficial.
• Most plea bargaining occurs between the accused, the defense lawyer, and the Crown
• Charge bargaining may involve: the reduction of the charge to a lesser or included offence,
the withdrawal or stay of other charges or the promise not to proceed on other possible
charges, the promise not to charge friends or family of the defendant, the promise to
reduce multiple charges to all one inclusive charge and the promise to stay certain criminal
courts and to proceed on others.
• Sentence bargaining is another form of plea bargaining.
• Prosecutors and defense lawyers recommend to the judge an appropriate sentence for the
• Sentence bargaining usually includes: a promise to proceed summarily rather than
indictment, a promise from the Crown to make a particular recommendation in relation to
sentence, a promise not to oppose defense counsels sentence recommendation, a
promise not to appeal against the sentence imposed in a trial, a promise not to apply for a
more severe penalty, a promise not to apply for a period of preventative detention, a
promise to make a representation as to the place of imprison