Criminal Court: Step-by-Step

If the presiding justice orders your release, your release order will require you to attend court at a specified time and place. The order will also often include conditions that you must obey. Some of these conditions could include:

• have no contact with the alleged victim or witnesses
• stay within a pre-determined geographic area
• live at a specific address
• not possess any firearms or weapons

In order to be released, you must agree to abide by all of the conditions set out in your release order. If you do not attend court as directed by the order, or if you do not abide by any bail condition, you may be arrested, held in custody, and charged with additional offences of failing to appear in court and failure to comply with a release order. If your release order includes a promise to pay and you fail to comply with the order, you and your surety may also be required to pay the amount promised.

A surety is someone who agrees to be responsible for you until your case is completed. This is typically a friend or relative. Your surety must ensure that you attend court and obey your bail conditions, and always has a financial obligation - either a promise to pay or, in exceptional circumstances, a deposit. A person who is prepared to act as a surety should contact your lawyer or the duty counsel assisting you.

If you do not comply with a term of your release, fail to appear for court, or are charged with any new offence(s), your surety may have to pay the amount of the release order. If the surety does not have the money, they may be ordered to serve a term of imprisonment.

A surety may attend the courthouse at any time and ask to be relieved of their duties and responsibilities.

More information on the rights and responsibilities of sureties is available at What are a surety's rights and responsibilities? - Steps to Justice and at Going to criminal court | ontario.ca

Special bail hearings are lengthier bail proceedings that cannot be accommodated in regularly scheduled bail courts. They are often scheduled in a special court and involve a pre-hearing conference with a judge or justice of the peace to discuss procedural issues and ensure that the hearing is ready to proceed. The procedures that apply to special bail hearings are set out in the Ontario Court of Justice Protocol Re Bail Hearings.

More information about the procedure to be followed in bail hearings in the Ontario Court of Justice is set out in the Court’s Protocol Re Bail Hearings. For information about how to appear in bail court, review the Court’s Revised Guidelines re Mode of Appearance for Ontario Court of Justice Criminal Proceedings.

The process for varying the conditions of your release order, or the conditions in an undertaking to the police, depends on whether the change is on consent (meaning both you and the Crown agree to the change) or whether the Crown is opposed to the proposed variation.

Consent variation procedure

Your lawyer, or in some cases duty counsel, can speak to the Crown on your behalf about whether they will agree to vary the conditions of your release order, and can assist you in filling out the forms below. If you do not have a lawyer and are not sure whether the Crown will consent to the change, you can fill out the forms below and submit them to the Crown to review.

If the Crown consents to a variation of your release order, you must fill out the Application for Consent Variation of Bail form. If the Crown consents to vary your undertaking to the police, you must fill out an Application for Consent Variation of Police Undertaking form.

If you have been released on a bail order with any sureties, your sureties must also consent to the proposed change(s) and they must complete Part 2 of the Application for Consent Variation of Bail form . Your lawyer, if you have one, must complete Part 3 of the form. If you are applying to change an undertaking to the police, your lawyer, if you have one, must complete Part 2 of the Application for Consent Variation of Police Undertaking form

You may submit your completed forms to the Crown Attorney’s Office in person or by email. Contact information for local Crown Attorneys’ Offices can be found using the courthouse location and information search tool.

If your request to vary your release order is granted, a copy will be sent to you by email.  To take effect, a bail variation form must include the Crown Attorney’s consent and the written authorization of a judicial official. Keep it with the original release order.

More information about this procedure can be found in the Court’s REVISED Consent Variation Procedures for Release Orders and Police Undertakings in the Ontario Court of Justice notice.

Contested variation procedure

If the Crown does not consent to your proposed variation(s), you may bring a court application asking a judge to change your conditions.  The type of application depends on whether you were released on a police undertaking or a court-issued release order. 

If you want to vary a condition on a police undertaking, and the Crown does not consent, you can bring an application in the Ontario Court of Justice under s. 502(2) of the Criminal Code by completing a Form 1: Application. You must serve and file this application in accordance with the Rules 2 and 3 of the Criminal Rules of the Ontario Court of Justice and the rules set out in the Practice Direction: Serving and Filing Criminal Court Documents.

If you are seeking to vary a condition on a court-ordered release, and the Crown does not consent, you can bring an application for a bail review in the Superior Court of Justice under s. 520 of the Criminal Code. The requirements for this application are set out in Rule 20 of the Criminal Proceedings Rules for the Superior Court of Justice.

You are encouraged to seek legal advice and contact your local courthouse to determine when your application can be scheduled for a court hearing.

Every person who is accused of committing a crime is entitled to receive a copy of the information and evidence that the Crown has about your case. The Crown must give you everything they have about your case unless it is clearly irrelevant or privileged. This information is called “disclosure”. The prosecutor’s office (the office of the local provincial Crown Attorney or the Federal Crown (Public Prosecution Service of Canada)) usually provides you with your disclosure before or at your first appearance in case management court. This is an ongoing process, however, and you may continue to receive disclosure material after your first court appearance.

It is important to have all the essential documents that are being relied upon before you proceed to trial. Disclosure material could include the following:

• the Information (the formal document that lists the charges)
• the notes of the police officers involved in the arrest and investigation
• surveillance video recordings or photographs
• financial documents
• forensic reports
• witness statements (recorded on audio, video or in writing)
• a synopsis of your case

You should contact the Crown Attorney’s office that is prosecuting your case before your first appearance in case management court to ask them how to get your disclosure. If you have hired a lawyer, they will do this for you. If you do not have a lawyer, you should do this before your first court date because the information in the disclosure will be helpful in applying for Legal Aid, consulting with duty counsel and meeting with a lawyer you are thinking of hiring.

You should review your disclosure to ensure that you can access it. If you experience any difficulties (for example, playing a surveillance video or opening an electronic file), you should contact the Crown Attorney’s office or advise the Court on your next appearance. If you lost your original disclosure and need a new copy or if you think that you should be getting additional disclosure, contact the Crown Attorney’s office. 

For any questions about how and where you can obtain your disclosure, contact the Crown Attorney’s office that is handling your case. When you contact the Crown Attorney’s office, be prepared to provide:

• your full name
• your date of birth
• a list of your charges
• the police occurrence number (found on your release papers)
• your email address, telephone number and mailing address

The Crown Attorney’s office should provide you with instructions to create an account to receive disclosure electronically, through the “digital disclosure hub”. This will enable you to receive disclosure on an ongoing basis. In order to create an account, you may be asked to provide identification or other information confirming your identity. If you wish to receive a paper copy of your disclosure, you may contact the Crown’s office in order to request one.

Your disclosure documents may contain sections that have been “blacked out” due to confidentiality concerns or because those portions are irrelevant to your case. If you think that relevant information is missing from your disclosure, you must send a request to the Crown’s office that describes the material you are seeking.

Your disclosure package will ordinarily include a one-page document entitled “Charge Screening Form”, which may be important if you are applying for legal aid. This document lists the charge(s) you are facing and may include the Crown’s position on resolution. It may indicate whether you have been approved for diversion or what sentence the Crown would seek if you decide to plead guilty. It will usually indicate whether your charges will be proceeding by way of summary conviction or indictment, a distinction that may determine how your case proceeds. You can find additional information about summary conviction and indictable offences, and Crown and accused elections, in the Glossary section of this guide.

Your case will be addressed in the case management court if it is a “first appearance”, if it is scheduled “to be spoken to”, or if it is scheduled “to set a date.” No guilty pleas, preliminary inquiries or trials are held in case management court.

If you have hired a lawyer, the lawyer may attend this appearance on your behalf, attend with you, or send you alone, with information to give to the Court that will help move the case along.

At each case management appearance, the presiding judge or justice of the peace will ask the Crown and you, or your lawyer, to provide an update on the status of the case. This may include questions concerning disclosure, Crown pre-trials or judicial pre-trials. At the end of each appearance, the presiding justice will tell you when you must next appear in court, and what you and the Crown must do before the next date. You should note down this date. If you fail to appear on that date, the presiding justice may issue a warrant for your arrest and you may be arrested, held in custody and charged with the offence of failing to appear in court.

Your matter will usually stay in the case management court until you schedule a preliminary inquiry or trial, or until your matter is resolved. Information about resolution can be found in the Resolution section of this guide.

If you are not in custody, you should consult the Revised Guidelines re Mode of Appearance for Ontario Court of Justice Criminal Proceedings and the Practice Direction: Criminal Case Management Appearances for details about how you may appear in case management court. For connection information for a particular case management court, use the Court location and information search tool.

If you are in custody, you will appear in case management court by video conference (Zoom), audioconference (telephone) or in person, unless otherwise directed by a judicial officer.

The Charge Screening Form may indicate if you are eligible for “diversion”, or “direct accountability”. This usually involves you completing some form of upfront work following which your charges are withdrawn or stayed by the Crown. This work may include hours of community service, addiction or mental health counselling, a letter of apology, some form of donation, and/or admittance into an educational or rehabilitative program. A diversion court worker will often monitor whether you complete the diversion.

If you are eligible for diversion, you should meet with a diversion court worker who may assist you in finding a suitable program based on the offer that was given to you by the Crown. It is up to you to decide whether you wish to participate in the program. If you agree, your case will be rescheduled for another date, to allow you to complete the diversion.

Following completion of your diversion work, the Crown with either withdraw or stay your charges. A withdrawal means that the charges have been dropped. A stay of your charges means that the Crown will no longer be pursuing your case but has one year to bring the charges back. After one year has passed, the Crown can no longer bring the charges back before the court.

For more information on diversion programs, please refer to Find out if you're offered diversion - Steps to Justice, prepared by Community Legal Education Ontario.

Before you decide to plead guilty, you are strongly encouraged to obtain legal advice. The Finding legal help and representation section of this guide provides information on how you can obtain legal advice.

Pleading guilty means that you give up your right to a trial and you accept that your actions were against the law. For more information on guilty pleas, you should review this information provided by Legal Aid Ontario: Guilty pleas – Legal Aid Ontario.

Some court locations require you to schedule your guilty plea date in advance. A legal professional may be able to assist you in arranging this date. If you do not have access to a legal professional, you can contact the Crown Attorney’s office to set a date to plead guilty. You should be prepared to provide the Crown with the following information:

• your full name
• your date of birth
• a list of your charges
• the police occurrence number (found on your release papers)
• your next court date
• the date you would like to plead guilty

If you are unable to speak with the Crown or a legal professional, you should indicate at your next court appearance that you wish to schedule a date to plead guilty.

If you decide to plead guilty, the judge will accept your guilty plea only if they are satisfied that:

• you are making the plea voluntarily
• you understand that the plea is an admission of all the essential elements of the offence
• you understand the nature and consequences of the plea
• you understand that the judge is not bound by any agreement you made with the Crown, including what sentence should be imposed

If the judge is not satisfied about any of the above issues, they may decide not to accept your guilty plea.

If the judge accepts your guilty plea and you are found guilty, the judge may either sentence you immediately or adjourn sentencing to another date. For more information, go to the Trial overview section of the Trial step, and review the Sentencing section.

The Ontario Court of Justice cannot give you legal advice. You are strongly urged to get advice from a lawyer or paralegal about your criminal trial. The Finding legal help and representation section of this website provides information about how to access resources for obtaining legal advice.

You should note that paralegals may only provide representation and advice in relation to certain types of criminal charges. Details about these limitations can be found on the Law Society of Ontario website: Permitted Criminal Code Summary Conviction Offences for Regulated Agents.

If you are representing yourself, a judicial pre-trial is generally required before you can schedule a trial date.  The procedure for setting the trial date should be discussed at the judicial pre-trial.  More information about judicial pretrials can be found in the Judicial pre-trial (JPT) section of this website.

The Court's Practice Direction: Procedure for Scheduling of Criminal Trials and Preliminary Inquiries and Practice Direction: Jordan-Compliant Trial Scheduling provide information on setting trial dates. You can also contact your local courthouse to find out how to set a trial date.

Accessibility accommodation for persons with disabilities

The Accessibility Information section of this website provides information about court accessibility features and accessible court services.

Disclosure
You must have access to your disclosure prior to your trial date. You can find more information on disclosure in the Obtaining proper disclosure section of The Case Management court step of this guide.

Interpreter
You can find information on what to do if you or one of your witnesses requires an interpreter for your trial in the Interpreter and language section of this guide.

French trial

You have the right to have your trial in French. If you require a French trial, inform the court as soon as you can. More information regarding the criminal trial process can be found in French on Accueil - Justice pas-à-pas (stepstojustice.ca) and at https://cliquezjustice.ca/.

Witness subpoenas

A subpoena is a court order issued by a judicial officer that requires a witness to come to court. The judicial officer will only issue a subpoena if they are satisfied that the witness has relevant evidence to give at your trial. The Crown is not required to subpoena or call anyone as a witness on your behalf. It is up to you to subpoena any witnesses you want for your defence, so they are obligated to attend the trial. Contact the court office where your case is scheduled to be heard well in advance of your trial date to find out how to apply for a witness subpoena.

Charter notice

If any of your rights under the Canadian Charter of Rights and Freedoms(the "Charter") were breached, section 24 allows you to apply to the trial judge for a remedy. For example, if your right to be tried within a reasonable time, guaranteed by section 11(b) of the Charter, has been breached, the trial judge might “stay” the charge against you, which means the case ends. If your right to be secure against unreasonable search and seizure, guaranteed by section 8 of the Charter, has been breached, the judge might refuse to allow evidence obtained by the police to be used in your trial. You can find more information about your rights under the Charter on the Government of Canada’s Charterpedia website.

In order to argue that your rights under the Charter have been breached, you must provide a written Notice of Application to the local Crown Attorney’s office that is prosecuting the case. You must comply with Rules 2 and 3 of the Criminal Rules when making court applications, including Charter applications. These rules set out what materials you need to prepare and when they need to be served and filed. If you do not comply with these criminal rules, you can ask the judge to still allow you to proceed with your application.

If you wish to argue that the charges against you should be stayed due to a breach of your s. 11(b) Charter right to be tried within a reasonable time, you must comply with the procedural rules in the Court’s Practice Direction: Section 11(b) Charter Applications.

You may wish to argue that the law under which you have been charged is unconstitutional, as the law breaches one or more of your Charter rights. If so, you must provide a written Notice of Application and a Notice of Constitutional Question to the local Crown Attorney’s office that is prosecuting the case, as well as to the Attorney General of Canada and the Attorney General of Ontario, at least 15 days before your trial date. You must also provide these notices if you are seeking a remedy other than the exclusion of evidence in relation to an act of the government of Ontario or Canada. The addresses for the Attorney General of Ontario and the Attorney General of Canada are:

The Attorney General of Ontario
Constitutional Law Branch
McMurtry-Scott Building
4th floor, 720 Bay Street
Toronto, Ontario M7A 2S9
clbsupport@ontario.ca

The Attorney General of Canada
Ontario Regional Office - Department of Justice Canada
120 Adelaide St. W., Suite 800
Toronto, Ontario M5H 1T1
NCQ-ACQ.Toronto@justice.gc.ca

Once the trial date is set, it is expected to proceed unless a judge grants an adjournment. If you do not have a lawyer when the trial date is set, the judge may order that the trial date be set “with or without counsel.” This means that your trial will proceed even if you have not hired a lawyer or paralegal to represent you.

Applications for adjournments should use the Notice of Application form and must comply with Rules 2 and 3 of the Criminal Rules and the Practice Direction: Serving and Filing Criminal Court Documents. This means that unless a judge orders otherwise, adjournment application materials must be served and filed at least 90 days prior to the trial date, and the application must be heard at least 60 days before the trial. The Crown may either oppose your application, or consent to the trial being adjourned.

If you cannot attend on a scheduled court date, someone else on your behalf will have to appear in court to explain why and to ask for an adjournment. If it is a trial date and the judge does not adjourn the case, your trial might go ahead, and you might be found guilty in your absence.

If you do not attend court as required, a warrant for your immediate arrest may be issued. You may also be charged with the criminal offence of failing to appear in court and held in custody for a bail hearing.

You have been charged with having committed one or more criminal offence(s). The Crown must prove that you committed these offences. The “Information” is the formal document that sets out the criminal offence(s). A copy of the Information will ordinarily be included in your disclosure. If not, you may request a copy by contacting the courthouse.

Essential elements of the offence

You can be found guilty only if the Crown proves each essential element of the charge(s) against you beyond a reasonable doubt. Many essential elements of the offence are set out in the Information.

Before your trial starts, you may ask the judge to review the essential elements of the charge against you so that you will understand what the Crown must prove.

Presumption of innocence, reasonable doubt and burden of proof

Everyone charged with an offence is presumed to be innocent. That is why you cannot be convicted unless the Crown proves each essential element of the charge against you beyond a reasonable doubt. The phrase “reasonable doubt” does not require proof to an absolute certainty or proof beyond any doubt. “Reasonable doubt” is not an imaginary or frivolous doubt, but it does involve a significant level of proof far beyond the “balance of probabilities” standard of proof in civil cases.

How to act and prepare for court

Going to court is a stressful process. Here are some useful tips to consider before you step into a courtroom:

• Be respectful and polite to everyone, including the other party.  
• Dress in a neat and professional manner. This shows that you are serious and respect the court process.
• When you address the judge, use either “Your Honour” or “Justice” before the judge’s last name.  For example, you can say, “Justice Smith” or “Your Honour”. 
• You must stand when a judge enters or leaves the courtroom.  When you are speaking, you should also stand. 
• When speaking to a witness, you should use “Mr.”, “Ms.” or “Doctor”, and not use first names.  For example, you can say, “Mr. Smith”, but not “Joe”. 
• You should avoid using slang or obscene language.
• Court is usually open from 9:00 or 10:00 a.m. until 4:30 p.m. and takes a break for lunch at 1:00 p.m.  There are also breaks in the morning and in the afternoon.  These hours may change.  The judge will determine if your case starts earlier or later or ends earlier or later.  Make sure that you and your witnesses are on time. 
• Return to court on time after the breaks. 
• Take notes during court so that you may respond to any issues raised by the other party when it is your turn to speak to the judge. 
• When you want to speak during the trial, address the judge.  Do not talk to the other party.  Do not interrupt when the judge or the other party is speaking.  Only one person is allowed to speak at a time.  If you disagree with something the other party says, write it down.  Do not speak to the other party and tell them that you don’t agree.  The judge will give you time to disagree but only when it is your turn to speak. 
• If you object to the other party’s questions to witnesses, besides writing down your objection, you should stand up.  This tells the judge that you have something to say. 
• Do not stand up, however, if you disagree with the other party or the other party’s witnesses’ answers to questions or if you think that the other party or their witnesses are lying.  Just write it down. 
• If you can’t hear a witness, the other party, a lawyer, or the judge, you should let the judge know. 
• Although you may ask the judge questions about procedure, they cannot give you legal advice because they must be fair and impartial.  To get advice, you should consult a lawyer or duty counsel at your local courthouse. 

Here are some additional tips on how to prepare and present your case at trial:

• Bring a pen and paper to take notes during your trial. You may also take notes electronically, on a laptop computer or a tablet, but section 136 of the Courts of Justice Act prohibits you from recording the proceedings, unless granted specific permission to do so by the presiding judge
• Be organized and ready to speak to the court by keeping your documents readily accessible when needed. You should bring:
  • the originals and two copies of any documents or photographs you want to use or file as evidence during your trial
  • the disclosure material you received from the Crown
  • copies of any subpoenas you have served
• Write down what you will present to the court, along with a list of questions you are going to ask witnesses. This includes preparing what you are going to say if you decide to testify. Write down bullet points rather than complete sentences.
• Rehearse what you are going to say in court. This may help you feel less nervous when presenting in front of others.
• Speak in a clear, calm and slow tone. Ensure others in the courtroom can hear you when you speak.
• Although court may be stressful, act in a calm, professional manner.
• Avoid making personal attacks on others in the courtroom.
• Answer any questions clearly. Only answer what is asked of you. When judges have questions, this often means they want you to clarify something important. It is best to address their questions head-on rather than avoid answering.

The trial judge

The trial judge is an independent and impartial judicial officer who will hear your trial and decide if you are not guilty or guilty.  The trial judge will know nothing about the case at the start of your trial. You should call the trial judge “Your Honour”.  The trial judge is required to ensure that you receive a fair trial. He or she should review the trial procedures with you, and you may ask for directions. The trial judge cannot, however, give you legal advice.

The trial Crown Attorney (also called “the Crown” or “the prosecutor”)

The Crown is the lawyer who prosecutes the charges against you. The Crown must prove all the essential elements of the offence beyond a reasonable doubt.

The court clerk

The court clerk sits in front of the trial judge and assists them throughout the trial. The court clerks reads the charges out loud and asks you if you plead guilty or not guilty, swears or affirms witnesses and takes care of the exhibits (pieces of evidence, such a documents or objects, identified by witnesses) during the trial.

The court reporter or court monitor

The court reporter or court monitor is responsible for making a record of what is said during the trial or for monitoring equipment that records everything that is said.

This graphic from Community Legal Education Ontario (CLEO) helps illustrate what a criminal court may look like: https://stepstojustice.ca/resource/criminal-courtroom-ontario-court-of-justice-print-version/.

Advising the trial judge of any problems

At the start of the trial, you should tell the trial judge about any problems regarding your case, for example, the form of the Information, a breach of your Charter rights or a witness who could not come to court that day.

Arraignment

Your trial will start with an “arraignment”. This is when the court clerk asks you to confirm your name and then reads out loud the charges against you. The court clerk will then ask you if you plead guilty or not guilty.

Plea
You may plead guilty or not guilty. If you plead not guilty, or if you refuse to enter a plea, your trial will proceed. Before deciding to plead guilty, you should review the Information about pleading guilty section of the Resolution step of this guide.

Order excluding witnesses

At the beginning of the trial, you or the Crown may ask the trial judge to order all witnesses in the case to remain outside the courtroom until they testify. This is to make sure that witnesses do not change their evidence based on what they hear other witnesses say in the courtroom. Often, the officer-in-charge of the case will be permitted to remain in the courtroom. Accused persons are entitled to hear all the evidence and you will not have to leave the courtroom when other witnesses testify, even if you intend to be a witness yourself.  You are forbidden, however, from telling any witnesses what evidence was given in the courtroom or the questions that were asked.

The case for the prosecution

Crown opening statement

The judge may ask the Crown to give an overview of the allegations against you and the evidence to be called. This “opening statement” is not evidence.

Examination-in-chief

The Crown calls its witnesses first. The Crown will ask the witnesses questions in order to bring out evidence that supports the Crown’s case. This is called examination-in-chief. You have the right to object to questions asked by the Crown or evidence given by a witness that you believe are irrelevant or improper. It is generally improper to ask questions that suggest the answers (called “leading questions”) in examination-in-chief.  For example, it would be proper to ask a witness “What colour was the car?” It would be improper to ask, “Was the car red?”

Cross-examination

Generally, you will be allowed to cross-examine each Crown witness after the Crown finishes the examination-in-chief of that witness.  When you cross-examine the Crown’s witnesses, you may ask them questions to test the reliability, accuracy or truth of what they have said.

You may also ask the Crown’s witnesses questions about things that you think might help your defence. The questions you ask of the witnesses in cross-examination will not be treated as evidence.  Only the witnesses’ answers are considered evidence. You may use the prior statement of a witness to show inconsistencies between what a witness has said at the trial and what the same witness said at some other time. If you believe an inconsistency exists and that your defence would benefit by bringing the inconsistency to the judge’s attention, you should ask the judge for direction about how to proceed.

You are not permitted to argue with witnesses. You are also not permitted at this stage of the trial to make statements about why you should be found not guilty. You are allowed to put your version of the events directly to the witness in cross-examination. Unlike in examination-in-chief, you are also allowed to suggest answers that will assist your case. For example, you may ask “Was the car red?”, instead of asking, “What colour was the car?”  When you suggest facts to a witness, they can agree with all, part or none of your suggestions.

If you intend to call defence evidence that is different from what a Crown witness has told the court, you should suggest your version of the facts to that Crown witness during your cross-examination. This gives the witness a chance to agree or disagree. If you don’t suggest your version of the facts to Crown witnesses, the judge may give less weight to your version, or the Crown may be allowed to call the witness again in reply.

You may also cross-examine the Crown witnesses about whether they have criminal records.

Re-examination

When you finish your cross-examination of a witness, the Crown may be allowed to re-examine that witness about anything new brought out in your cross-examination.

Notes of police and other Crown witnesses

The Crown may ask the judge whether a police officer or other witness may use their notes to refresh their memory while testifying. You are entitled to see the notes and you may agree that the witness be allowed to use them, or you can ask the judge to make a ruling about this issue. If you do not agree that the witness should be allowed to use the notes, the judge will hold a mini hearing during the trial (called a voir dire) to determine the issue. You will be allowed to ask questions to show that the witness should not be allowed to refer to their notes. These questions should explore when and how the notes were made and the witness’s reasons for needing the notes.  You will also be allowed to make submissions explaining why the witness should not be permitted to refer to the notes.

Statements to a police officer or other person in authority

Sometimes the Crown will seek to introduce evidence of a statement that you are alleged to have made to a police officer or other person in authority. The Crown must prove that you made the statement and did so voluntarily. These issues will be determined during a mini hearing during the trial called a voir dire.

A voir dire is treated as a separate hearing. It can arise in various situations, including where it is necessary to determine if a witness is competent to give testimony or is qualified to give expert opinion evidence. The evidence in a voir dire cannot form part of the evidence in the trial until the judge rules it to be admissible. You may ask the trial judge to explain the voir dire process to you before it starts.

Hearsay

A witness usually is not permitted to give evidence about what someone else said. This is “hearsay”. There are some exceptions to the rule against hearsay. For example, evidence about what someone else said is usually allowed to explain later conduct of a witness or to describe background events. Another important exception is that the Crown can ask witnesses about statements they say you made.  As explained above, there are special rules to follow when the statement was made to a police officer or other person in authority.

Calling a defence

After the Crown has finished calling their evidence and has “closed” the case for the Crown, you will have the following options:

(i) You may request a “directed verdict” of acquittal. This means that you are asking the judge to dismiss some or all the charges because there is no evidence in relation to at least one of the essential elements of the offence that the Crown must prove. If you request a directed verdict and the judge rules against you, you will then be allowed to decide whether to call a defence. If the judge rules in your favour, you will be acquitted in relation to that charge.

(ii) You may decide not to call evidence and not to testify in your own defence. If you choose not to testify and not to call any witnesses, the judge will decide the case based only on the evidence presented during the Crown’s case. You will be convicted only if the judge finds that every essential element of the offence has been proven beyond a reasonable doubt.

(iii) You may decide to call evidence in defence. You have the right to remain silent. You do not have to testify or call defence witnesses. If you choose to call defence evidence, the evidence may be your testimony, testimony from your witnesses, or both. You may also wish to file evidence such as documents, diagrams, or photographs. If you call defence witnesses, the examination-in-chief, cross-examination and re-examination processes described above also apply to your defence witnesses, but you will examine the witnesses in chief, the Crown will cross-examine them, and you may be permitted to re-examine on certain points. The Crown will be allowed to cross-examine your witnesses about their evidence and about whether they have a criminal record. These rules apply to you as well if you choose to testify.

Deciding if you should testify

After hearing the Crown’s case against you, you must decide if you wish to testify, that is, give evidence about what happened. If you want to testify about your version of the events, you must do so during the defence portion of the trial. You must carefully consider whether you wish to testify. This decision can be discussed with a lawyer prior to trial.

Some advantages to testifying include:

• You may have unique evidence that cannot be presented by anyone else.
• You can explain why you said or did something.
• You can demonstrate that you could not have committed the offence you are charged with.
• You can give your own version of events that contradicts what the Crown is presenting.

There are also some disadvantages to testifying at your own trial:

• The Crown can cross-examine you and find any weak points in your testimony and evidence.
• The Crown may ask you questions regarding topics you do not want to discuss, and you will have to answer under oath.
• The Crown may ask you about your past criminal record, if you have one.

Crown reply (or “rebuttal”)

If you call defence evidence, the Crown may be allowed to call reply evidence. This may occur if your evidence raised a new issue that the Crown could not have reasonably anticipated.

Closing submissions

After all the evidence is presented, the judge will give you and the Crown an opportunity to make closing submissions about why you should be found not guilty or guilty. Closing submissions must be based on evidence that the trial judge heard during the trial from either a Crown or defence witness (including you if you chose to testify), and inferences that can be drawn from this evidence.

If you do not introduce any evidence or call any witnesses during the evidence stage of your trial, you will go last. Otherwise, you may be required to go first. During your submissions, you must summarize your key points, focusing on the essential elements of the charge(s) against you. You should try and pinpoint the weaknesses in the Crown’s case while pointing out contradictions in their witnesses’ testimonies. This is your last opportunity to show the judge that the Crown has not proven the charges beyond a reasonable doubt. You can refer to evidence or exhibits that have been previously presented at trial, but you will not be permitted to give evidence as part of your submissions

The Crown’s closing submissions will focus on why the judge should find you guilty.

Judgment

The judge will find you not guilty or guilty, either immediately or after an adjournment to later in the same day or even to another day. The judge may find you guilty of some of the charges on the Information and not guilty of other charges. The judge has an obligation in every case to provide clear and meaningful reasons for judgment, explaining the basis upon which the case was decided either for or against you.

If the judge finds you not guilty of all charges, you are free to leave at the conclusion of the trial. If the judge finds you guilty of some or all the charges, you will be sentenced either the same day or on a later date set by the judge.

Sentencing

If you are found guilty, the judge may sentence you immediately or adjourn sentencing to another date. If you believe that you need time to prepare for the sentencing, either because you want to prepare submissions, or because you may wish to call evidence, you can ask the judge to adjourn the sentencing to another day.

Before a sentence is imposed, the judge will hold a sentence hearing. At this hearing, you and the Crown will have the opportunity to present evidence. You may tell the judge what you think the appropriate sentence should be and why. 

If you have a criminal record, the Crown may provide this to the judge. The Crown may also file a Victim Impact Statement, which may be presented in writing or read out in court by the victim. This statement explains the harm that the victim or the community suffered as a result of the offence.

In order to obtain more information about you, the judge may order a Pre-Sentence Report. A probation officer will interview you, people who know you and any victims involved in the offence(s). The probation officer will then write a report that outlines your background and attitude towards the offence, and may also include options for sentencing, along with recommendations for specific rehabilitative programs. These reports usually take about six weeks to complete, and your sentencing may be delayed during that period.

If no Pre-Sentence Report is ordered, you may wish to provide the judge with information about your work, family and personal circumstances.

A judge must consider the circumstances of Indigenous offenders when deciding what sentence is appropriate. This involves considering “Gladue principles”. Community Legal Education Ontario’s Steps to Justice website provides helpful information about how Gladue principles are applied: Understand how Gladue works at sentencing - Steps to Justice .

The judge will impose a sentence that takes into consideration your circumstances, the circumstances surrounding the offence and any applicable minimum or maximum sentence. Your sentence might involve a discharge, a fine, probation, jail, or a combination of these. You can find descriptions of the various types of sentences at stepstojustice.ca/questions/criminal-law/what-sentences-might-i-get-my-criminal-case. Depending on the circumstances of the case, the judge may also make additional orders. These could include an order that you provide a DNA sample, an order prohibiting you from owning firearms or an order prohibiting you from driving.

Appeals

You have the right to appeal a conviction or sentence or both within the time fixed by law. You must file your Notice of Appeal with either the Court of Appeal for Ontario or the Superior Court of Justice. Please consult the Ministry of the Attorney General’s website to determine which court can hear your appeal: https://www.ontario.ca/page/criminal-appeals.

Further information

You can obtain more information about criminal trials on the Ministry of the Attorney General’s website at: https://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/criminal_law.php.