Most people who end up on trial have never been in a courtroom before. They have seen a lot of television, though, and television gets a surprising amount wrong. There are no surprise confessions from the gallery. Lawyers rarely pace dramatically in front of the bench. Trials are mostly slow, careful and sometimes dull, and they often turn on small details in a document or on whether a witness’s story stayed the same.
If you have a trial date at the Brampton courthouse, or a relative does, knowing the order of events will make it far less frightening. You will also get more out of your preparation meetings with your lawyer, because you’ll understand why they keep returning to certain questions.
This article describes how a typical adult criminal trial runs in Ontario. It’s general information, not legal advice. Your own trial may differ, depending on the charge, the court and any applications your lawyer brings.
Which Court, and Who Decides
Both the Ontario Court of Justice and the Superior Court of Justice sit at 7755 Hurontario Street, in the same building. Which one you’re in depends on how the case proceeded.
If the Crown proceeds summarily on a hybrid offence, the trial takes place before an Ontario Court of Justice judge. If it’s an indictable offence, you usually have a choice, called an election, between a provincial court judge, a Superior Court judge alone, or a Superior Court judge and jury. Offences such as murder must be tried in the Superior Court with a jury unless everyone agrees otherwise. Before that, for offences with a maximum sentence of 14 years or more, you can ask for a preliminary inquiry, which tests whether there’s enough evidence to go to trial. It isn’t the trial itself.
In a judge-alone trial, the judge decides both the law and the facts. In a jury trial, the judge decides the law and instructs the jury, while 12 citizens decide the facts, and their verdict must be unanimous. A jury that can’t agree is said to be “hung,” and that may lead to a new trial. Lawyers no longer have peremptory challenges to remove jurors without giving a reason, so selection now relies more on challenges for cause, decided by the judge.
Getting Ready Beforehand
The trial really starts weeks earlier. By then, your lawyer should have gone through your disclosure with you, identified the issues in dispute, and considered whether any pretrial applications are needed. A common one is a Charter application, which claims police violated your rights and asks the court to exclude evidence.
Your lawyer will likely prepare you for several things: the look and feel of the courtroom, your clothing, how to sit, and the fact that you must remain present. Section 650 generally requires an accused to be in court for the whole of the trial, subject to some exceptions. You can’t just skip the boring days. If you need an interpreter, that should be arranged well in advance. You have a right to one under the Charter if you don’t understand or speak the language of the proceedings.
Plan the logistics, too. Security lines at the courthouse can be slow in the morning, parking fills up, and you need to know which courtroom you’re in. Trials can also run late or begin after other matters are dealt with. Bring water and something to read during breaks, and turn your phone off. A family member may sit in the gallery, unless they’re going to testify, in which case a witness exclusion order may keep them outside until it’s their turn.
Opening the Trial
The trial begins with the arraignment. The clerk reads the charges aloud, and you’re asked how you plead. In most contested trials, you say “not guilty.” Your lawyer will often deal with any preliminary matters, like an order to exclude witnesses, or a publication ban that protects the identity of a complainant.
Next, in many judge-alone trials, the Crown simply calls its first witness. In a jury trial, the Crown usually gives a brief opening statement that outlines what it expects the evidence to show. Evidence is the only thing that counts. What a lawyer says in opening isn’t evidence.
From this point on, the presumption of innocence is the most important rule in the room. You don’t have to prove anything. The Crown must establish each element of every charge beyond a reasonable doubt. That standard is far higher than “probably guilty,” though it isn’t absolute certainty.
The Crown’s Case
The Crown goes first and calls its witnesses one at a time. Common witnesses include the complainant, police officers, bystanders and sometimes experts such as a toxicologist or a forensic examiner.
For each witness, there are usually these steps:
- Examination-in-chief. The Crown asks open questions to bring out what the witness knows.
- Cross-examination. The defence can ask leading questions, test memory and credibility, and bring out contradictions with earlier statements.
- Re-examination. The Crown can clear up new matters that came up during the cross-examination.
Witnesses, including police, can sometimes refresh their memory from their notes. Prior statements, such as a videotaped police interview, may be put to a witness if their evidence changes. There’s a fairness rule known as the rule in Browne v. Dunn: a lawyer who plans to contradict a witness with other evidence generally has to give that witness the chance to respond in cross-examination.
If a witness is vulnerable, the court may allow testimonial aids, like a support person, a screen or testifying from outside the courtroom via closed-circuit television. If evidence is disputed, the court may hold a voir dire, essentially a trial within a trial, to decide if it’s admissible. In a jury trial, the jurors leave the room during this process. Charter applications often work this way.
You sit with your lawyer during all this. Keep a notepad, and pass notes instead of whispering. React to nothing. Judges and jurors notice eye-rolling and head-shaking, and so do witnesses, and it never helps. If you hear something that seems wrong, write it down, and your lawyer will raise it at the next opportunity.
After the Crown Closes
When the Crown finishes, the defence has a choice. First, it can argue that there’s no evidence at all on an essential element, and ask for a directed verdict of acquittal. The bar is high, but it can succeed when the Crown failed to prove something basic, such as the identity of the person who committed the offence.
Otherwise, the defence decides whether to call evidence. You aren’t obliged to. Many trials end with no defence witnesses, because the defence’s position is that the Crown didn’t prove its case. The Charter protects your right not to be compelled to testify, and under the Canada Evidence Act, neither the judge nor the Crown may comment on your failure to testify in front of a jury.
Should You Testify?
Your lawyer gives advice, but this decision belongs to you. A few factors often come up.
Testifying gives the court your side directly. In a case that is one person’s word against another’s, it may be essential. On the other hand, you’ll be cross-examined by an experienced prosecutor on everything relevant, including any earlier statements to police. If you have a criminal record, the Crown may ask about your prior convictions under section 12 of the Canada Evidence Act, though a judge has discretion in some cases, following R. v. Corbett, to limit that.
When credibility is at stake, judges apply a framework from the Supreme Court’s decision in R. v. W.(D.). In simple terms: if the judge believes the accused’s denial, the result is an acquittal. If the judge doesn’t believe it but is left in reasonable doubt by it, the result is also an acquittal. Even if the judge totally rejects the accused’s evidence, they must still ask whether the rest of the evidence proves guilt beyond a reasonable doubt. So this isn’t a contest about whose story is better. An accused doesn’t have to be believed to be acquitted.
If you do testify, you can expect an honest review of tough questions in advance. Your lawyer can’t tell you what to say, but can explain how it works. It’s important to answer only the question being asked, to tell the truth, and to say “I don’t remember” if that’s the case.
Closing Arguments and the Charge to the Jury
Under section 651, the order of closings depends on whether the defence called evidence. If it did, the defence usually speaks first, followed by the Crown. If it didn’t, the Crown goes first and the defence goes last. Closing arguments tie the evidence to the elements of the offence and explain why a reasonable doubt exists or doesn’t.
In a jury trial, the judge then gives a detailed legal instruction, usually called the charge. It may take hours. Jurors are told what the offence requires, how to treat different kinds of evidence, and what reasonable doubt means. They then deliberate in private, and their discussions must stay secret. They stay until they reach a unanimous decision or can’t.
A judge alone might give a verdict right after closings or reserve the decision to a later date. Reserved judgments are common in more complicated trials, and they can mean waiting weeks or months with your conditions still in place.
The Verdict and What Follows
If the verdict is not guilty, the charge is over. Any bail conditions end, unless other matters are outstanding. The Crown does have a limited right to appeal an acquittal on a question of law. Afterwards, you might want to ask about your fingerprint and photograph records.
If the verdict is guilty, the court moves to sentencing. Some minor cases go straight to it, and others are adjourned to allow for a pre-sentence report, prepared by a probation officer under section 721, or for gathering material about your background, work and rehabilitation efforts. A victim may present a victim impact statement. Both sides then make submissions, and the judge imposes a sentence. It could be a discharge, a fine, probation, a conditional sentence or jail, depending on the offence and on what’s legally available. Bail could continue until sentencing, or the Crown may seek to have it revoked.
A person convicted of a serious offence may want to talk to their lawyer about immigration status, firearms prohibitions, licensing and how a criminal record may affect employment. Those are often more important in the long term than the sentence itself.
Appeals
A trial isn’t always the end. Summary conviction appeals usually go to the Superior Court of Justice, and indictable appeals to the Court of Appeal for Ontario. You generally have 30 days to file a notice of appeal, and the time limits are strict, so don’t wait. An appeal isn’t a new trial. It’s a review for legal errors or for a verdict that the evidence couldn’t reasonably support. Fresh evidence is rarely accepted.
If you’re in custody, you may also need to consider bail pending appeal, which has its own test.
Being Ready for Your Day
Expect delays, breaks and long stretches of waiting. Expect that witnesses may say things you know are untrue, and that the time to answer is through your lawyer. Expect a judge who is focused on the evidence, not on who seems most upset.
If you’re facing a trial in Peel, the firm’s criminal law page and Brampton service area page have more information, and you can contact us to talk about your case. A lawyer who has worked through your disclosure with you can make a daunting process feel a lot more manageable, though no lawyer can promise you what the verdict will be.