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The Criminal Trial
The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss the criminal trial procedure.
Criminal Trial
Note: Trial procedure for criminal offences is different from trial for civil offences.
A criminal trial takes place when a person is charged with a criminal offence. The purpose of a trial is:
- For a government lawyer (the Crown Prosecutor) to give evidence to the court regarding the alleged criminal charge against you.
- Any person charged with a criminal offence has the right to either represent themselves (self-representation) or hire a lawyer to represent and defend them at the trial.
- Anyone charged with a criminal offence has the right to choose their own defence to represent them. If they cannot afford a lawyer, they may apply to Legal Aid Alberta for assistance (http://www.legalaid.ab.ca).
- The defence lawyer meets and consults with the person accused, then choose to represent the accused by speaking on their behalf in court.
- The defence lawyer cannot give evidence or testify on behalf of the accused. The lawyer’s duty is to challenge the charges presented against the accused, to submit evidence and make an argument to the judge and/or jury y giving reasons why the accused should not be found guilty of the charges.
Before Trial
Before the trial start date, some aspects or issues relating to the case may need to be addressed. This will be done through what is called “pre-trial motions.”
Examples of issues which may be addressed through Pre-trial Motions include:
- If a Charter right(s) of the accused has been violated such as their right to be tried within a reasonable amount of time (commonly referred to as a “Jordan application”). If a Charter right of an accused violated in such a way that their trial was delayed unreasonably, it will have serious consequences on how the case will continue. This is because the court can decide to “stay” the charges against the accused and discontinue the trial.
- In a situation where the police violated the Charter right of the accused upon arrest by carrying out an unlawful search and seizure of items such as drugs or weapons that could be used as evidence in court. The lawyer for the accused can put in a pre-trial motion to the court to refuse such evidence.
- Pre-trial motion can also be used by lawyer for the accused to request the Crown to prove that the statement given by the accused to the police was not forced(coerced). That is to show that the accused gave the statement willingly and voluntarily.
Note: There are strict rules for how to file an application for a pre-trial motion. The applications must be filed well in advance of the trial. Timelines are posted by the courts.
Language: If your first language is not English, you have the right to a translator who speaks your language to help you understand what is said in Court. When scheduling a trial date, you should inform the court if you need a translator so that arrangements could be made on time. If you did not tell the Judge at the time that you schedule your trial, and you are representing yourself, it is recommended that you contact the Crown Prosecutor’s office well in advance of your trial date and let them know, so that they can arrange for a translator to be present at your trial. It is important that you understand exactly what is happening with your matter.
Disclosure: Before trial, the Crown’s will provide evidence they intend to use to the defence lawyer or the directly to the accused if the accused is representing themselves. This is called the disclosure package, and it is provided early enough after a charge is laid and before a trial date is scheduled. It is important to ask for disclosure if it is not provided.
Our Canadian system requires that the accused person does not attend a “trial by surprise” – the accused person has the right to know the case that they will have to meet at trial. What is in the disclosure package will depend on the case, but it often includes any witness statements that were taken in writing or record, police notes and reports about the matter. It can include photographs and reports about physical evidence that was seized by police. If the alleged crime was recorded in audio or video footage, and the police got a copy of this, a copy of the footage will be in the disclosure package. The disclosure package is an important tool for the accused to use in preparing for trial.
The Crown’s Evidence
For an accused to be found guilty, the crown prosecutor has the duty to provide evidence proving to the court that the accused committed the offence. In every case, the court will determine what evidence is relevant. For example, if a person is charged with stealing, the prosecution could use a video footage of the crime or a witness as evidence. The amount of evidence required to establish ‘guilt’ depends upon the offence that the person is charged with.
Every witness testifying must swear under oath to tell the truth about what they saw, felt, or heard themselves. They cannot talk about what someone else told them. Evidence that a witness heard ‘second-hand’ or from another person is called “hearsay” evidence, and such evidence generally not admissible in court. When a witness gives their testimony, the Crown will ask them questions about what happened.
The Defence ‘Cross-Examining’ the Crown’s Evidence
After the Crown has finished questioning all their witnesses, the defence lawyer may “cross‑examine” those witnesses. This means that the defence lawyers can ask questions to the witnesses about their testimonies. The purpose of cross-examination is to verify gaps in the witness testimonies. If their story does not match what they said before or if their testimony is a little confusing, the defense lawyer will ask them questions to help clarify things or show that the witness is not telling the truth.
If the accused person is representing themselves, they will be asked if they want to cross-examine the Crown’s witnesses. Occasionally, a defence lawyer may be appointed to a case where a person is representing themselves, for the purpose of cross-examining one or more crown witnesses.
When the defense lawyer finish asking questions to the witnesses of the crown prosecution, then the crown prosecutor may ask their witnesses some more questions, if any. This step is called “Re-examination”. If no more questions to ask witnesses, the crown prosecutor will tell the court that their case is “closed”. That is their turn of presenting their evidence is complete. It will now be the turn of the defense lawyer to present their defence.
Defence’s Evidence
This is the stage where the lawyer defending the accused presents evidence and reasons why the accused should not be found guilty. This comes after the crown prosecutor has finished presenting their own case against the accused.
The defense lawyer in this process will:
- State that the Crown has not presented enough evidence to establish that the accused is guilty, or
- Call their own evidence to defend the charges against the accused.
At this point, the defense can argue that the crown has not provided enough evidence to prove the case or find the accused guilty of committing the offence. They can request that the court acquit the accused as the crown has not proven their case beyond a reasonable doubt.
If the accused person decides to testify, their testimony will be referred to as defence evidence, and the accused will be a witness. To present a defence, the accused or their lawyer can provide other witnesses, documents, and statements to help defend the accused. There are rules that apply to this stage.
When the defense lawyer finish asking questions to their own witnesses, it will now be the turn of the crown prosecutor to ask questions to the witnesses brought by the defense side.
Final Arguments for the Crown and the Defence
When both sides, that is the crown/prosecution and the defense lawyer or the accused, have finished presenting their case and evidence, the judge will ask if they have any “final arguments”. Both the Crown and defence lawyer will make closing or concluding statements to the court. If the defence lawyer provided their own witnesses, they will present their final argument first. If the defence lawyer did not provide any witnesses, the Crown will make their final argument first.
The level of evidence required to prove a case against an accused varies from case to case.
Each criminal charge or offence has its elements, and what kind of evidence is needed in court. The main requirement is that the crown prosecution needs to prove the case “beyond a reasonable doubt” that the accused committed the offence they are being charged with. If the crown prosecution proves the case, then they prove the accused is guilty.
Examples of statements the defense lawyer can make in court to show that the Crown has not presented enough evidence to prove the accused is guilty:
- The Crown has not proven that a crime occurred.
- The Crown has not proven identification – in other words, the Crown has not proven that it was this specific accused person who committed the crime.
- The Crown has not proven that the accused person acted in an unlawful way on purpose (that they have not proven a “guilty mind”).
Examples of defences that the accused may put forward, if based on either the evidence called by the Crown or the defence, include:
- That they have an alibi, or proof that they were somewhere else or doing something else at the time that this crime was occurring.
- That they acted in self-defence.
- That they had consent to act in the manner that they did.
Judge or Jury Verdict
When both sides finish their concluding or closing statements, the judge or the jury will determine the court decision or verdict. The decision will either be that the accused person committed the crime (guilty) or that the crown did not prove guilt (acquitted or not guilty). If a person is accused of multiple criminal offences, the Judge or jury must determine if the person is guilty or not guilty of each charge.
Note: A Judge or a jury may reserve judgment to a later date if time is required to consider the evidence and decide. If a jury provides a verdict, they are not required to give any reasons for their verdict. However, if a Judge provides a verdict, they must provide reasons for their verdict.
Verdict of Not Guilty
If the accused is acquitted or found not guilty, they are free to leave once the case is dismissed.
Verdict of Guilty & Sentencing
If the accused is found to be guilty of the criminal offence the person will be punished (sentenced) for their actions. A sentence can include a discharge without a criminal record, jail time, a fine or probation. During the sentencing, the judge determines the appropriate punishment.
During the sentencing hearing:
- The Crown, and the defence lawyer each make an argument about what the appropriate sentence should be. The defence lawyer’s arguments will provide the Judge with details about the person’s personal circumstances (i.e. employment history), educational background, family circumstances, etc. The Crown’s arguments will provide the judge with details about the person’s criminal record (if they have one) and the possibility of reoffending.
- Both the Crown and the defence lawyer will also suggest a sentence (or a range of sentences) that they think are appropriate.
- Sometimes the Court will have statements provided by victims or those close to them, called Victim Impact Statements, which are read out loud in court and describe the impact of the crime on them.
- After hearing from both Crown and defence, a Judge will determine a sentence. The Judge may wish to adjourn the matter so that a Pre-Sentence Report can be prepared. A Pre-Sentence Report is prepared by a Probation Office, and it assists the Court to determine an appropriate sentence. The Report will include information such as the age of the accused, their background, level of maturity, attitude about the offence, willingness to make amends, and a sentencing recommendation.