A
Absolute Discharge: The person does not receive any fine or sentence, and there is no criminal record.
Accused: Someone who has been charged with committing an offence.
Acquittal: When the court finds the accused not guilty of committing an offence. The accused is free to go.
Act: An Act is a written law that has been passed by the federal or provincial legislature. Also called legislation or statute.
Actus Reus: From Latin meaning, guilty act, actus reus (physical) refers to the actual doing of the criminal act which must co-exist with mens rea (mental) which refers to the intent to commit the act.
Adjournment: The postponement, suspension or interruption of an ongoing hearing, proceeding, or trial, to resume at some future date. This may be at the request of one of the parties, or directed by the Court. It is always the Court who decides whether or not to adjourn the proceedings.
Admissible Evidence: Evidence that may be received by a trial Court to aid the judge or jury. Generally, evidence must be both relevant and material to be admissible, as well as not barred by any specific rule. In addition, the inclusion of the evidence should not be significantly unfair or prejudicial to a party.
Affidavit: A document that contains facts that a person swears or affirms to be true. A lawyer, notary public, or commissioner for affidavits must witness the person’s signature and sign it.
Alternative Measures: For a less serious offence, police or Crown might offer an alternative to going to trial. The accused may be given an opportunity to accept personal responsibility for their behaviour by agreeing to make amends to the victim and the community – e.g. by making an apology and / or paying compensation for the loss or damage, or by agreeing to go to drug treatment court.
Appeal: When either the accused, or defence counsel (lawyer) on their behalf, or Crown counsel ask a higher court to review the decision of a lower court because they believe there has been a serious error.
Application: In some courts, called a Motion – a request to a Court to decide on a matter relevant to the case.
Arraignment Hearing: This is held to determine how the accused person will plead (guilty or not guilty); what mode of trial they elect (jury or judge alone); and (often but not always) when a pre-trial conference, jury selection, pre-trial voir dires, and / or the trial will be held.
B
Bail Hearing: A court hearing where a judge decides if an accused will be released from custody while awaiting their trial or appeal. May also be referred to as a show cause hearing or judicial interim release hearing.
Bail: A court order (a “Release Order”) releasing an accused from custody while they are awaiting trial or appeal and requiring them to obey certain conditions (rules) and return to court on a specific date. In some cases, bail orders may require a money deposit or a bail surety. See “Surety” in this glossary.
Beyond a Reasonable Doubt: The burden of proof in criminal law means the judge or jury deciding the case is very sure that the accused is guilty. In a criminal case, Crown counsel must prove all the elements of the offence beyond a reasonable doubt.
Burden of Proof: The party who must prove something, on whatever standard (e.g. beyond a reasonable doubt) has the “burden of proof”.
C
Case Law: Decisions of courts relating to a particular matter or issue. Case law from the same level of court or other jurisdictions may be persuasive, but the court does not have to follow it. Case law from a higher court is binding on the lower court.
Charge: The specific criminal offence(s) a person is accused of committing. If a person is charged, it means they have been formally accused by the Crown of committing a crime.
Complainant: Any person who is the subject of the alleged harm that comprises the charge against an accused – see Victim.
Conditional Discharge: You are placed on probation for a certain length of time, during which you have to follow certain conditions (rules). After the probation period is over, if you’ve met all the conditions the discharge becomes complete and you will not have a criminal record.
Court Order: A legally binding direction by the Court to do something. There are serious legal consequences for disobeying a court order.
Court Reporter: A trained professional who creates official records of things said during examination for discovery/questioning, and court proceedings. This may also be done electronically
Criminal Record: Information about a person’s record of convictions in the criminal justice system. Criminal Records are kept in central computer systems which most police agencies across Canada can access.
Criminal Rules of Court: Rules that govern the criminal practice and procedure of the Court. They provide guidelines for each step in the prosecution of an alleged offence and set time limits for when certain steps must be completed. Additional guidance with Criminal Rules of Court type effect includes, Practice Notes or Practice Directions, or Notices to the Profession and Public.
Cross-Examination: The questioning of a witness by a lawyer or party on the other side – who did not call the witness to testify. Cross-examination takes place after the lawyer or party who called the witness to testify has finished asking question in direct examination (or examination in chief). The purpose of cross-examination is to test the witnesses’ truthfulness or reliability. Questions in cross-examination are allowed to be leading, that is, to suggest a certain answer.
Crown Counsel / Prosecutor: Lawyers who work for the government’s prosecutions service. It is their job to present the Crown’s (or the state’s) case in criminal matters. They are also known as prosecutors and “Crown”. In Canada, crimes are dealt with as wrongs against society as a whole and therefore, Crown counsel act on behalf of all members of the public and do not represent victims specifically.
D
Defence Counsel: The lawyer representing the person accused of an offence.
Detention Order: When a detention order is given by a judge, the accused is denied bail and remains in custody until the conclusion of the trial or appeal, subject to bail reviews or detention reviews. A detention order may also contain conditions not to contact the victim, witnesses, or other named persons.
Direct Examination: The questioning of a witness in court by the person who called the witness to court. The questions must be open ended and must not suggest a specific answer – i.e. they cannot be leading questions. Direct examination is also called examination in chief.
Discharge: When a person is found guilty or pleads guilty, but the judge decides that a conviction and criminal record are not necessary. See Absolute Discharge and Conditional Discharge.
Disclosure: Is the Crown’s obligation to give the accused all relevant information it has about the case. The Crown must disclose, or share, with the accused all the relevant information gathered in the investigation so that the accused can fully defend themself against the charges. The documents and other material provided by the Crown are often called the disclosure package or particulars.
Diversion: See Alternative Measures.
Duty Counsel: Lawyers paid by Legal Aid or otherwise publically funded, or pro bono, who may help unrepresented persons, generally at courthouses or places of detention, in providing brief, summary services, related to various civil, family, criminal, or immigration law problems, depending on the jurisdiction, Duty counsel provide free legal advice for a specific court appearance, but do not take on your whole case or represent you at trial. Examples include: in civil court, assisting parties in presenting pre-trial civil applications; in family court, assisting parties in presenting pre-trial family laws, including in relation to obtaining or maintaining restraining orders in family violence cases; in immigration court, providing basic advice and release on first appearances; and in criminal court, providing basic advice and release / bail on first appearance.
E
Election: For most indictable offences (with some exceptions), the accused is entitled to elect, or choose, how to be tried: by a Provincial Court judge without a jury; or by a superior court judge without a jury; or by a superior court judge with a jury. After the accused elects their mode of trial, they may re-elect (i.e. change to a different mode of trial) but only with the consent of the Crown. Some other legal restrictions set out in the Criminal Code may also apply.
Elements of the Offence: Each offence in the Criminal Code may be broken down into "elements" that comprise the offence. Each element must be proven beyond a reasonable doubt before the accused is found guilty of the offence.
Evidence: Oral or written statements under oath or affirmation by a witness, or "real" evidence, such as documentation or objects (which become exhibits), presented to the court by agreement of all parties, and the judge, or under evidentiary rules, to prove the facts that are necessary to establish a claim or defence in a civil or family case, or to determine the guilt or maintenance of innocence of an accused in a criminal case.
Exhibit: A document or object admitted as evidence in court.
Expert: A witness who gives evidence to help the court understand technical and scientific issues in the legal action. He or she may give opinions in areas that would not normally be within the judge’s knowledge. The expert must be shown to possess the necessary skill and qualifications in the area in which their opinion is sought. An expert can give evidence in person, and / or by writing a report called an expert report.
F
Facts: Something that can be shown to be true, to exist, or to have happened. In a legal case it is based on or related to the evidence presented. Matters of fact are issues for a judge or a jury to decide.
Final / Closing Arguments or Submissions: At the end of the trial, you will present your argument to the court (judge alone in civil and family trials and judge and jury in some criminal trials). It is a summary of your position based upon the evidence that has been presented to the court about the decision that the court should make.
First Appearance: Describes the first time the accused is required to come to court.
G
Guilty: A person found guilty of a criminal offence as originally charged, or a lesser and “included offence” (e.g. simple assault is an included offence of aggravated assault) either as a result of an acknowledgment by the accused pleading guilty, or as a result of a trial at which the accused was found guilty beyond a reasonable doubt.
H
Hearing: In law, a proceeding before a judge or master (only in some civil and family cases) to determine questions of law and / or questions of fact, whether the hearing of an application or the hearing of a trial.
Hearsay: Inadmissible testimony that is given by a witness for the truth of its contents, who relates what others have said rather than what they personally witnessed or observed. There are a number of exceptions to hearsay being inadmissible – it is a complex legal area.
Hybrid Offence: The Criminal Code creates two categories of offences, Indictable and Summary Conviction. Hybrid offences (sometimes known as dual offences) are those which Crown can proceed with under either category. The Crown’s decision will be based on the seriousness of the circumstances, when the offence occurred, whether or not the accused has been previously convicted of a similar offence and the likely sentence to be incurred. Once the Crown decides and advises the judge in open court, the offence is treated as the kind the Crown has chosen.
I
Indictable Offences: A category of criminal offences that are usually more serious crimes and carry greater maximum sentences than summary conviction offences. Because these offences may have a more significant consequence to the accused if convicted, the accused has a choice about what level of court will hear the trial. The accused can usually choose to have the trial held in Provincial / Territorial Court before a Provincial / Territorial Court judge, or a superior court judge alone, or by a superior court judge with a jury. If the accused is found guilty, the potential maximum sentences are the same, regardless of whether the trial was in a superior or provincial/territorial court, or with or without a jury.
Indictment: An indictment is the document used in a superior court that sets out the charges.
Information: An information (sometimes called a summons or appearance notice) is the document used in the provincial / territorial court that sets out the charges.
Innocent Until Proven Guilty: This is the rule that a person accused of a crime is innocent until the judge or the jury decides that the evidence presented by the Crown at the trial proves, beyond a reasonable doubt, that he or she committed the crime.
Intermittent Sentence: An intermittent sentence allows the offender to serve his or her time of incarceration in intervals (for example on weekends).
Issues: Factual or legal matters in dispute between the Crown and the accused in a criminal case.
J
Judicial Interim Release: See Bail.
Jurisdiction: A court’s power or authority over people, territories, or subject matter.
L
Leading Question: A question that prompts or encourages a desired answer. Usually allowed in cross examination but not allowed in direct examination (or examination in chief).
Leave of the Court: The court’s permission to proceed with certain types of applications or appeals or to proceed in a certain way.
Legal Advice: Advice from a lawyer about the law as it applies to a particular case. It usually includes information about whether, why and how a party should do something.
Legal Aid: Free legal information, advice and representation for people who cannot afford a lawyer and who qualify for the services.
Limited Scope Retainer: See Unbundled Services.
M
Material Fact: A fact that is important to proving your case.
McKenzie Friend: A McKenzie Friend is allowed to sit with an accused during the trial, and may provide moral, emotional and practical support like organizing documents and taking notes. They can make quiet suggestions, but they cannot address the court or give legal advice.
Mens Rea: From Latin means, guilty mind. Mens rea indicates the intent to commit a physical criminal act. Mens rea (mental) must co-exist with actus reus (physical), the doing of the criminal act.
Motion: In some courts, called an Application – a request to a Court to decide on a matter relevant to the case.
N
Not Guilty: A plea made by an accused person. This plea signals the burden on the Crown to prove the accused’s guilt beyond a reasonable doubt. “Not Guilty” can also be the finding of a judge or jury following a trial in which Crown was unable to prove the accused’s guilt beyond a reasonable doubt.
O
Objection: A statement made by a party during a hearing or trial for the purpose of challenging any specific evidence sought to be introduced. Common objections during trial include when a party inappropriately asks leading questions, when a party asks multiple questions at once, when a party asks vague or confusing questions, when a witness gives inadmissible hearsay evidence or opinion evidence, and when a party tries to introduce privileged information as evidence. The judge determines whether the objection succeeds or not, and may suggest a different form of question. See also Hearsay.
O’Connor Application: Is an application made by the accused requesting documentation from a party other than the Crown or its agents, to produce relevant documents for the purpose of using them in court.
Offence: A state recognized crime or violation of a statute (written law passed by the federal parliament or a provincial / territorial legislature) that results in a penalty.
Onus: The burden of proof – who (which party) has to prove something.
Open or Open-ended Questions: Questions that cannot be answered with a simple yes or no. They usually begin with who, what, where, why, and how.
Order: A ruling made by a judge or master that tells a party to do something or not do something. It can also be the document that sets out the decision of the judge or master (in some civil and family cases).
P
Particulars: See Disclosure.
Peace Bond: An order made by a judge in criminal court, designed to protect one person from another. The peace bond lists certain conditions that must be followed by the person the peace bond has been issued against. The conditions usually include that the person have no contact, direct or indirect, with the other person, and that they stay a certain distance from that person’s residence, place of work, etc.
Plea: The statement an accused person makes to the court when asked if they plead guilty or not guilty to the offence charged.
Precedent: An earlier decision of a court or a higher court that should generally be followed in subsequent similar cases.
Preliminary Hearing / Inquiry: A preliminary hearing is a court proceeding that may be held before the trial to determine if there is enough evidence on the charges to proceed with a trial. If there is a preliminary hearing, it is held in the Provincial / Territorial Court.
Privileged Document: A document the other party is not entitled to see because it was created during confidential communications between a lawyer and his or her client, or was created to help conductor or settle the litigation.
Process Server: A professional document server.
Promise to Appear: The accused may be released by a police officer after promising to appear in court on a specific date. The document signed by the accused is called a "Promise to Appear".
Proof Beyond a Reasonable Doubt: It is the responsibility of the Crown to prove an accused’s guilt beyond a reasonable doubt before the court can find an accused person guilty. Therefore, after hearing all the evidence, if the court has reasonable doubt about whether the accused is guilty, the accused receives the benefit of that doubt and is acquitted. Also see Burden of Proof.
Publication Ban: An order the Court makes that prevents anyone from publishing, broadcasting, or sending any information about the particular matter described in the publication ban. Often, this is information that could identify a victim, witness, or other person who participates in the criminal justice system.
Prosecution: When a person is charged with an offence and legal proceedings are pursued against them.
R
Re-Examination: Questions asked by the party or counsel who called the witness, after cross-examination by the other party or counsel. Re-examination happens if the cross-examination has brought out new facts, or if something raised for the first time in cross-examination was unclear.
Report to Crown Counsel: A report to Crown counsel (sometimes called a “Crown Information Sheet”) is a document completed by a police officer that details the circumstances of an alleged offence and the investigation. The report will contain the date and time of the incident, information about the complainant / victim and witnesses, the person accused of the offence, a written description of the circumstances surrounding the offence and witness statements, if any.
Retainer: An agreement with a lawyer for legal work is called a “retainer”. A written retainer letter sets out the work that the lawyer has agreed to do, what the lawyer will not do, and how the lawyer’s pay will be calculated. The retainer agreement sets out the scope of your lawyer’s involvement in the file.
Reverse Onus: In bail hearings, it is usually the responsibility of the Crown to "show cause" why an accused should be detained while awaiting trial. In very limited circumstances, this responsibility (onus) shifts to the accused. When this applies, the accused must "show cause" why they should not be detained.
Rowbotham Application: If you’re facing serious and complex criminal charges and you have been denied legal aid but can’t afford a lawyer, you can make a Rowbotham Application to the court. If you are successful, a lawyer will be appointed to you by the government, or the charges against you will be stayed (suspended until a lawyer is appointed). The judge who hears your Rowbotham application will assess your financial situation (have you exhausted the funds available to you?) and the complexity of the case (would the trial be fair if you have to conduct your own defence without a lawyer?).
S
Search Warrant: A court order authorizing entry to somebody’s property to look for evidence related to an offence.
Sentence: A sentence is the penalty or punishment, pronounced by the Court upon the accused who has pleaded or been found guilty of an offence.
Sheriff / Bailiff: The Sheriff’s / Bailiff’s responsibilities are to make sure the courtroom is safe, and to look after witnesses, jurors or prisoners.
Show Cause: See bail hearing.
Statute: See Act.
Stay of Proceedings: A stay of proceedings might be directed by Crown or the Court. The first is when the prosecution process is suspended, by the Crown, for up to one year. If the Crown does not recommence the prosecution within one year, the criminal process is terminated. The second is when the Court suspends the case until further notice.
Subpoena: A subpoena (pronounced sub-pena) is an official court document, which orders a witness to come to Court to give evidence and to bring relevant documents, and that failure to do so could have serious negative consequences.
Summary Conviction Offences: These offences are usually less serious than indictable offences. The maximum penalty for a summary offence is usually a $5,000 fine and / or six months in jail. Some summary offences have higher maximum sentences.
Summons: An official notice telling an accused person they must appear in court at a specific time and place to give evidence. A summons is also used to require potential jurors to appear in court on a specific date and time for jury selection.
Superior Trial Court: Hears civil and criminal cases. Depending on the province or territory, this court may be called the Supreme Court, the Court of Queen’s Bench, or the Superior Court of Justice.
Surety: is the person who vouches that the accused will attend court as required and will obey all conditions of their bail while he or she is on bail awaiting trial or appeal. Depending on the terms under which a surety is accepted, the surety may be at risk of losing significant assets if the accused does not abide by his or her bail conditions or fails to attend Court.
T
Testify: To declare or say something in the witness stand under oath / affirmation in a court of law.
Trial: A criminal trial is the court proceeding where the Crown presents its evidence against the accused person, and the accused person may present evidence in their defence (or may elect not to). The judge or jury then determines if, based on the facts and law, the accused person is guilty or not guilty of committing the offence charged.
U
Unbundled Services: This is a method of legal representation in which a lawyer and a client agree limit the scope of the lawyer’s involvement in a legal action, leaving the responsibility for those other aspects of the case to the client in order to save the client money and give them more control and responsibility.
V
Verdict: The decision the judge or jury makes about whether an accused committed the offence(s) with which they were charged. The verdict can be either guilty or not guilty. In criminal cases, a jury’s verdict, must be unanimous.
Victim: The victim (often called the “complainant”) is an individual who suffers physical or mental injury, or economic loss as a result of an offence. Primary victims are those who were the direct victim of a crime. Secondary victims may have been victimized by some association with the crime, but not as a direct target.
Voir Dire: It is a hearing held (before or within a trial), without the presence of the jury in jury trials, to determine an issue relating to the trial. For example, a voir dire may be used to decide whether certain aspects of an expert witness’ testimony will be allowed, or whether a statement the accused person made to the police was voluntary and admissible in evidence.
W
Warrant for Arrest: A judicial order that gives the police the power to arrest the person named in the warrant, so that person can be brought to court.
Without Prejudice: This principle will generally prevent statements, whether made in writing or orally, in a genuine, but unsuccessful, attempt to settle or resolve an existing dispute from being put before the court as evidence of admissions against the interest of the party who made them. If they are used to successfully settle or resolve the dispute, they become “with prejudice”, and are admissible.
Witness: A person who gives evidence in a court proceeding orally under oath or affirmation, or by affidavit. Witnesses are persons who testify in court because they have some information about the case. A witness may volunteer to testify or may receive a subpoena (a legal document which orders him / her to come to court at a certain time to testify).
Y
Young Person: Under the YCJA (Youth Criminal Justice Act) a youth charged with an offence allegedly committed when they were 12 years old or older, but younger than 18, is called a “young person”. The charge and prosecution are governed by the YCJA, as well as the Criminal Code (or other statute that the charge is under), and there are special considerations and procedures to take account of the young age of the person.