Criminal Court Process

Getting Started

After a crime is reported to local police and charges have been laid, the court process will begin.

The Lead Up to Hearings/Trial

There will usually be several court dates after charges have been laid. Until a trial or preliminary hearing date is scheduled, these court dates are generally administrative in nature. Victims and witnesses are generally not required to attend these initial court dates.

The accused person may appear in court (in person, virtually or with their lawyer acting on their behalf) to give the court updates. Under certain circumstances, a lawyer can act on behalf of the accused and attend court without the accused attending for these appearances.

An accused person has several options with respect to how they wish to proceed. The accused can plead guilty at any stage in the court process. The accused can also set a trial date in the Ontario Court of Justice or, for certain offences, set a trial date in the Superior Court of Justice with or without a jury. If the accused elects to have their trial in the Superior Court of Justice, they may also have the option of setting a date for a preliminary inquiry.

Sentencing occurs after an accused either pleads guilty or is found guilty by a judge or a judge and jury. A victim has a right to give a victim impact statement at the sentencing hearing.

Preliminary Inquiry

For certain offences, the accused has the option of setting a preliminary inquiry.

One of the purposes of a preliminary inquiry is for the judge to determine whether there is sufficient evidence to proceed to trial. It also gives the defence an opportunity to hear some of the evidence that forms part of the Crown’s case.

Victims and witnesses may be called to testify at the preliminary inquiry.

If there is sufficient evidence at the preliminary inquiry for the matter to proceed to trial, trial dates are scheduled. If there is insufficient evidence for the matter to proceed to trial the accused will be discharged and the case is over.

Trial

In situations where the Crown proceeds by indictment (generally for more serious offences), the accused has the option of choosing whether they would like a trial with a judge alone or a judge and jury, with or without a preliminary inquiry. Where the Crown proceeds summarily (generally for less serious offences), the accused does not have the option of a jury trial and the trial proceeds in the Ontario Court of Justice before a judge alone.

Victims and witnesses will likely be called to testify at the trial to tell the court what happened. The Crown has the burden of proving the charges against the accused “beyond a reasonable doubt.” The accused may call evidence at the trial but is not required to.

Where the trial is being heard by a judge alone, at the end of the trial, the judge determines whether the accused person is found guilty or not guilty. In cases where the trial is before a judge and jury, the jury is the “trier of fact” and determines whether the accused person is found guilty or not guilty. A jury’s decision must be unanimous. The judge will instruct the jury on the law applicable to the case.

If the accused person is found not guilty, the matter is complete.

If the accused person is found guilty, a sentencing hearing will be scheduled. The sentencing hearing is always before a judge.

Victim Impact Statements

After an accused person is either found guilty or enters a plea of guilt, victims have the option of completing a Victim Impact Statement. It is not mandatory that a victim complete a Victim Impact Statement.

The purpose of a Victim Impact Statement is to inform the judge how the crime has impacted the victim’s life. Where a victim impact statement has been presented, a judge is required to consider it when determining the appropriate sentence.

Victims can choose how their statement is presented to the court. They can read it aloud, the Crown can read it aloud, or it can be presented in writing for the judge to read.

Sentencing

At the sentencing hearing, the judge will hear submissions by the Crown and the defence with respect to the appropriate sentence. The judge will take into consideration a number of factors in determining the appropriate sentence, such as the circumstances of the offence and the offender, the sentence range for similar offences as set out in the case law and the purposes and principles of sentencing. Some offences also have mandatory minimum sentences that a judge is required to impose.

As part of the sentence, the judge may also make certain ancillary orders depending on the offence for which there is a finding of guilt. For example, a judge may make a free-standing restitution order to compensate the victims for their losses, and/or order that the accused pay a fine in lieu of forfeiture.

Restitution Orders

As part of the sentence, a court can order that an offender pay restitution to the victim(s) to compensate them for some or all of the financial losses that occurred as a result of the offender’s conduct.

The Court can order that the offender pay restitution as part of the conditions of the offender’s probation, or conditional sentence of imprisonment. There may be additional criminal consequences for an offender who fails to pay restitution ordered as part of probation or a conditional sentence of imprisonment.

The Court can also order that restitution be paid as a free-standing restitution order pursuant to section 738 of the Criminal Code. If the offender does not pay the amount set out in the free-standing restitution order, victims are responsible for taking steps to enforce the order through the civil court.

Appeals

Once the trial is over and the offender has been found guilty, an offender may appeal their conviction to an appeals court. An offender also has the right to appeal their sentence which was imposed after a trial or a guilty plea. The Crown has the right to appeal and may appeal an acquittal and sentence; however, the Crown’s right to appeal is more limited than an offender’s right to appeal. Witnesses are rarely required to testify at an appeal. If the legal test for an appeal has been met, the appeal court can1:

• Dismiss the appeal.
• Set aside the conviction or acquittal and order a new trial. If there is insufficient evidence to support a conviction, the appeal court can substitute an acquittal.
• Where an offender has been tried by a judge alone, the appeal court can set aside an acquittal and substitute a guilty verdict.
• Increase or decrease the sentence and add or remove additional sanctions.

1. “Criminal Appeals” Ontario Government, www.ontario.ca/page/criminal-appeals, Accessed May 11, 2022.