Note to Readers
This Handbook is intended as a reference for self-represented litigants (SRLs) who are accused of committing a crime and are required to appear in a Canadian criminal court (with emphasis on superior court). While this Handbook cannot anticipate all of the possible situations that may arise, it is intended to provide you, the SRL accused, with a starting point to assist and guide you. [Note: throughout this document, both “you” and “the accused” are used interchangeably, depending on the context.]
This handbook does not provide legal advice and must not be used as a substitute for the advice that a lawyer may provide. The handbook provides general information only.
Certain laws and court procedures are different in each province and territory. Information in this handbook may not be applicable to your situation.
Language
Throughout this document, the term “self-represented” (SRL) is used to describe persons who appear in court without representation from a lawyer. The use of this term is not meant to suggest or imply the reasons the individual is without representation, or comment on the wisdom of self-representation.
This handbook tries to describe legal processes in plain language, but we provided definitions for words that are not normally used outside of the legal context in Section 12: Glossary.
Hyperlinks
Hyperlinks have been added where referenced material is available online. Clicking or pressing “Ctrl” while clicking on a link in the Handbook will open the target document in your default web browser.
Criminal Process – Broad Outline
In simple terms (expressed here so that the order of the more detailed proceeding to follow in this handbook makes sense, because it will not necessarily speak to everything in chronological order, and is occasionally repetitive so as to be as detailed as possible), in the normal chronology a criminal case usually proceeds in the following order:
- Police investigation – if you are aware of such an investigation that may apply to you, you may wish to seek legal advice;
- You are arrested by the police or the police serve (deliver to you) notice that you have been charged with an offence – usually in a form called a summons, promise to appear or an appearance notice, advising you to appear in Provincial / Territorial Court;
- If you receive such a notice, it will direct you to appear in Provincial / Territorial Court on a certain date and time and you will keep your liberty until then. Alternatively, under the provisions of the Criminal Code, you may be arrested and put in custody to appear on the specified date – in the process the police will read to you details of certain rights to which you are entitled, including right to a lawyer (it is advisable that you take this opportunity to seek a lawyer’s advice);
- If you are arrested and put into custody to appear on the specified date, the Crown must bring a bail application (sometimes called “judicial interim release”) in Provincial / Territorial Court within 24 hours of your arrest (in limited circumstances, such as murder, the bail application must be made to the superior court). In the process you should be informed of the offences with which you are charged and be advised of certain rights to which you are entitled, including the right to retain and instruct a lawyer (it is advisable that you take this opportunity to seek the lawyer’s advice before the bail application is heard). You should arrange to have your lawyer present for your bail hearing, if you have one, or, if not, ask for the free assistance of duty counsel. If bail is granted (usually there are conditions), you will be released and you must attend court as set out in the Release Order;
- If bail is denied, you will remain in custody, often called “remand”, until your trial. However, you do have the right to seek a review (appeal) of your denial for bail in the superior court in your province; you must fill out a bail review application, arrange to have it served on the Crown and file it with the Court;
- Once you are charged with an offence, the Crown has a duty to provide you with “Disclosure”. This means that the Crown must provide to you copies of all relevant information pertaining to your case. There are some limitations on what you may receive and what needs to be provided to you;
- Generally speaking, offences are classified in three categories. Summary Conviction Offences, Indictable Offences and Hybrid Offences (where the Crown Prosecutor formally decides whether they wish to engage the Summary Conviction Process or the Indictable Process). If the Crown elects the Summary Conviction Process, the case proceeds using the procedures relating to Summary Conviction matters. If the Crown elects the Indictable Process, the case will proceed using the Indictable Process. If the Crown elects the Summary Conviction Process (if a Hybrid offence) or if the offence is categorized as a Summary Conviction Offence, the charge will usually be heard in the provincial court. If the Crown elects the Indictable Process (if a Hybrid offence) or if the offence is categorized as an Indictable offence, the accused usually has the option to elect whether to be tried by a provincial court judge, a superior court judge sitting without a jury, or a superior court judge sitting with a jury. There are many exceptions to this process;
- If the Crown elects to have the charges determined in superior court (Indictable Procedure), there: (a) may be a Preliminary Inquiry (for cases with maximum penalty of 14 or more years imprisonment – and in some other cases – however, there are currently steps being considered / taken by Parliament to limit Preliminary Inquiries – so check the Criminal Code) in provincial / territorial court, to see if there is sufficient evidence to proceed in superior court, and at the end of that process, if there is found to be such evidence, or you don’t contest it, you will be remanded to superior court for trial; or (b) where there is no right to a Preliminary Inquiry, you will be, similarly, remanded to superior court for trial. In either case an “Indictment” will be filed and a date set for you to appear in superior court (the Crown may, at any time, handle the matter by a “Direct Indictment” in which case the matter thereafter goes directly to superior court);
- In superior court, you will attend at an Arraignment on the date set, where there will be a number of steps: (a) you may enter a plea of Guilty (in which circumstances, the matter will proceed to Sentencing), or Not Guilty (if you don’t enter a plea, it will be presumed to be “Not Guilty”), after which the case will proceed to trial; (b) have the right (in most, but not all cases) to elect to be tried by a judge alone or a judge and jury (if you have the right to so elect, but don’t do so, election to judge and jury will be presumed); (c) dates will be set for trial, a pre-trial conference (in certain cases – usually for a trial of more than 3 - 5 days), and for jury selection (if a judge and jury trial) – all of this may take more than one appearance in Arraignment.
- Pending the trial date any scheduled pre-trial conference will take place (often on one or more occasion) and certain pre-trial motions or applications (to determine the admissibility of certain evidence such as the voluntariness of statements made by the accused, or Charter breaches) will take place as necessary, before a case management judge appointed by the Chief Justice or designate;
- The trial proceeds after which the judge or jury will find you guilty or not guilty – if not guilty, you are free to go (if there are no other charges proceeding against you), whereas if you are found guilty, you will proceed to Sentencing;
- If you are found guilty, Sentencing will take place on that day or a subsequent day(s);
- If you do not accept the finding of guilt and / or sentence, you have certain rights of appeal.