Criminal Trial Process
The criminal trial process can be an exasperating experience for an individual who has had no previous history with the criminal courts. Here is a general overview of the different stages in the criminal trial process in Canada from beginning to end:
Stage 1: Pre – Arrest
During this investigatory stage, the police collect forensic and other evidence, including witness statements. They may apply to a Judge for a search warrant to further their investigation. When a determination is made that there are “reasonable and probable” grounds to believe that a specific individual has committed a criminal offence, a warrant (“in the first instance”) is taken out for the individual’s arrest, or if the person is already in police custody, they are arrested.
Stage 2: Arrest
The police attempt to arrest the client. The client becomes aware that the police are interested in them. The client contacts our office to ascertain the nature of the charges and to arrange for their surrender at a convenient time when they are in a position to proffer a strong bail application. The client is arrested. On the advice of this criminal law firm, he advises the police that “My lawyer has instructed me not to say anything in respect to the allegations”.
Stage 3: Bail
The client is either released from the police station or is held for a bail hearing. The client is released after a bail hearing.
Stage 4: Intake Period
After a period of days, weeks, and sometimes months, disclosure is provided by the Assistant Crown Attorney. Disclosure is the documentary and dvd/video records which set out witness statements and other evidence upon which the Crown will rely in the prosecution of the case.
Stage 5: Resolution Meeting with Crown Attorney
Defence counsel meets with an Assistant Crown Attorney to discuss the possibility of resolving the case prior to trial. If there is going to be a trial, trial issues and the anticipated duration of the trial are discussed. If a resolution is agreed upon, the case will be adjourned for as long as it takes for the proposed resolution to be achieved. If the case cannot be resolved through negotiation, then a trial date will be set. If the estimate for the length of the trial is a day or longer, then all parties must attend a judicial pretrial prior to setting the trial date.
Stage 6: Judicial Pretrial
Defence counsel meets with a Judge and the Crown Attorney who has carriage of the case, privately, to discuss outstanding issues relating to the case. The presiding Judge ordinarily makes some effort to resolve outstanding issues and often attempts to bring the parties closer to a resolution of the case so that a trial is unnecessary.
If the Crown Attorney proceeds by summary conviction, than there will be a trial by judge sitting without a jury in the Ontario Court of Justice. If the Crown Attorney proceeds by indictment (more serious matters), then the defence has the option to elect to have a trial by judge alone or judge and jury. If the matter will be proceeding to Superior Court, the defence has the right to request a Preliminary Inquiry before the trial. The preliminary hearing is a pretrial hearing similar to discovery in civil cases. The defence is given an opportunity to preview the case, and to examine witnesses under oath. A preliminary hearing can be an invaluable tool for the future trial since the defence is given an early opportunity to test the witnesses’ recollection of events before the trial, and to develop defence strategies.
Stage 8: Preparation for Trial
During this phase of the trial process, defence witnesses are thoroughly prepared and mock cross-examinations are conducted. Materials for pre-trial motions relating to the admissibility of evidence, and the Charter of Rights are prepared and filed with the Court.
Stage 9: Trial
A competent defence lawyer will raise every defence available, and advance every viabletechnical argument in an effort to successfully defend his client. At Kostman and Pyzer, Barristers, we aggressively advocate on behalf of our clients, from the time we receive that first telephone call from our client that the police are looking for him, until such time as the trial is over.