Criminal Trial Procedure

The Criminal Code of Canada is the federal law that defines the processes that must be followed. The Criminal Code of Canada also describes what courts hear what types of offences and when.

Cases are processed in criminal court when:

• Someone is charged with a crime, and
• The case was not diverted from the court system through out-of-court options.

The police or Crown Attorney may be able to give you information about your charge.

When someone is charged with a crime, police file documents with the court. Those documents include:

• The information: The information describes the charges against the accused.
• The disclosure: The disclosure lists the evidence the police have against the accused.

The Crown Attorney may be able to provide you with a copy of the evidence submitted against you. You may also be able to view some evidence at the police station. 

For more information, contact the police or the Crown Attorney.

PEI has some out-of-court options for criminal charges. They are:

• Youth Extra-Judicial Sanctions program
• Adult Alternative Measures program
• Restorative Justice

If you go to court, you may:

Hire a lawyer to represent you.

• Hiring a lawyer can be expensive.
• Some lawyers provide unbundled services. Unbundled services is when a lawyer agrees to help with some of the legal process, without taking on the whole case. For example, they may help you prepare your evidence and documents, but not represent you in court.
• You can find a list of all the lawyers licensed to practice on PEI on the Law Society of PEI’s Find a Lawyer page.

Get a Criminal Legal Aid lawyer to represent you (if you are eligible).

• Criminal Legal Aid is a free provincial service.
• They can represent people in a criminal trial if they cannot afford a lawyer and they qualify for the service.
• To qualify for the service, you must meet their financial eligibility. You can find more information on the Legal Aid page on the Government of PEI website.

Represent yourself.

• If you are going to represent yourself in court, you may want to get advice from a lawyer. Contact us about our Lawyer Referral Service.
• Our Lawyer Referral Service can give you 45 minutes of legal advice for $25 + tax. It is not an emergency service and it may take up to 30 days to get a meeting with a lawyer.

If you represent yourself in court, you will:

• Present your opening statement.
• Examine your witnesses.
• Cross-examine the Crown’s witnesses.
• Provide your closing arguments.
• For more information, see The Trial below.

When you go to court:

• Dress neatly
• Arrive early
• Ask for directions to the courtroom for your case at the front desk
• Wait inside the courtroom until the court clerk calls you to the front of the room

Treat the Judge with respect (even if you do not agree with what they say):

• Stand when the judge enters the room, then sit and stand when the court workers do
• Stand when you speak to the judge unless you're sitting on the witness stand
• Address the judge as, “Your Honour”

Communicate clearly

• Speak into the microphone so that you can be recorded
• Speak loudly enough so the judge, lawyers, and others can hear. The microphones do not amplify your voice.

There are three types of offences in the Criminal Code of Canada: summary, indictable, and hybrid.

• Summary offences are considered less serious crimes. For example, causing a disturbance or theft under $5,000. Summary convictions are tried in Provincial Court.
• Indictable offences are considered more serious crimes. For example, murder. Indictable offences may be tried in Provincial Court or Supreme Court.
• Hybrid offences are offences that could be either summary or indictable. The Crown Attorney decides if they will treat a hybrid offence like a summary offence or an indictable offence. Hybrid offences are also called Crown-electable offences. Most sexual assault cases are hybrid offences.

Summary offences are tried in Provincial Court. If it's a summary offence:

• The judge reads the charges against you.
• You can plead guilty, plead not guilty, or ask the judge to reschedule the appearance to have more time (this is sometimes called an 'adjournment'). If the judge gives you more time, you may enter a plea later.

Indictable offences may be tried in Provincial Court or Supreme Court. If it's an indictable offence:

• The judge reads the charges against you.
• The court asks you how you want to be tried. You have three options:

1. To be tried by a Provincial Court judge, or
2. To be tried by a Supreme Court judge without a jury, or
3. To be tried by a Supreme Court judge with a jury.

• If you choose a Provincial Court judge, you'll be asked to enter a plea (guilty or not guilty).
• If you choose to be tried by a Supreme Court judge with or without a jury, the judge will ask if you want to have a preliminary hearing or not. A preliminary hearing is a pre-trial hearing to decide if the Crown Attorney has enough evidence against you to have a trial.

If you plead guilty, the judge will ask you:

• If your plea is voluntary. Voluntary means you chose to plead guilty. You were not pressured to do so. 
• If you understand that you are admitting to an offence.
• If you understand the plea and its consequences.
• If you understand that the judge may choose a different sentence than what the Crown and your defence lawyer may have agreed to.

If you don't understand any of the questions, ask the judge to explain them for you.

After the judge accepts the guilty plea, they will ask the Crown attorney to present the facts of the charge and any previous criminal record. If you disagree with anything the Crown says, tell the judge. You can also tell the judge other facts about the case that you think they should know.

After that, the judge may:

• Sentence you.
• Set a later date for sentencing.
• Ask a probation office for a report. This report helps the judge determine your sentence.

If you plead not guilty, the judge sets a future date for the trial.

If your case will be heard in the Provincial Court and you're in custody (jail), the police, the judge, or a justice of the peace decide if you will be released. 

There may be a hearing about your custody. During that hearing, the Crown argues why you should be kept in custody or released on conditions. If you have a lawyer, you should ask that they be present at this hearing. If you do not have a lawyer, you will be representing yourself.

If the judge orders your release, you'll be released on an undertaking. An undertaking is a court order that gives conditions (rules) that a person charged with a crime must follow until the court process is done. You may be charged with a new offence if you do not follow your undertaking.

If you are not released, you'll remain in custody until your trial. The court and the defence lawyer (if you have a lawyer) try to get the earliest trial date possible. If you are found guilty and sentenced to time in jail, the time you spent in custody may be deducted from your sentence. 

If your case is not heard in Provincial Court, the judge schedules a preliminary hearing to see if there is enough evidence to send your case to the Supreme Court.

A preliminary hearing is a pre-trial hearing when the accused is tried in the Supreme Court. A preliminary hearing is also called a preliminary inquiry. Not every court case includes a preliminary hearing. 

The preliminary hearing is an opportunity to find out the strengths and weaknesses of the Crown’s case. You can waive your right to a preliminary hearing. 

During a preliminary hearing:

• The Crown presents their case and evidence against you. 
• The judge decides if there is enough evidence against you to have a trial. 
• You do not have to enter a plea and the judge does not have to decide whether you’re guilty or not.
• The defence does not usually call witnesses.

If there is not enough evidence for trial, the judge will discharge you and you are free to go.

At the trial, the Crown must prove that you are guilty beyond a reasonable doubt. If the Crown fails to prove that, you will be found not guilty.

The Crown Attorney and the defence lawyer make arguments and give evidence. The Crown Attorney always presents their case first, followed by the defence lawyer. If you do not have a defence lawyer, you will be representing yourself in court. 

The Crown Attorney calls witnesses to testify. Testifying means giving spoken evidence in court. You or your defence lawyer may cross-examine any of the witnesses to bring out evidence in your favour. Cross-examination is when the other side (the Crown Attorney or defence lawyer) asks a witness questions after they have testified. These can be leading, “yes” or “no” questions. Questions can be about anything relevant. Cross-examination of a witness is often used to: 

• Point out inconsistencies, 
• Challenge their testimony, or 
• Question their reliability.

After the Crown and defence present their case, the judge hears closing arguments about the case. If you have entered a defence, the defence’s closing arguments come first. If you have not entered a defence, the Crown’s closing arguments come first. Whichever side goes first has the right to rebut (explain why it disagrees with) the closing argument of the other side.

A verdict is a court order that states if the accused is found guilty or not guilty. The judge or jury decides the verdict.

A verdict may be:

• Not guilty
• Guilty as charged
• Guilty of a lesser offence.

During a sentencing hearing, the judge decides what your sentence will be. 

Before deciding the sentence, the judge hears from both the Crown attorney and the defence lawyer (if you have a lawyer). The judge also reads or listens to any victim impact statements. A victim impact statement is a document the victim writes that includes information about any injuries or financial loss they experienced because they were a victim of crime. You can find more information in our Sentencing guide.

Sentences are based on:

• Evidence.
• Guidelines in the Criminal Code of Canada.
• Sentences passed in similar previous cases.
• Pre-sentencing reports. These are reports prepared by a probation officer to help the judge decide a sentence.
• A joint submission. This is when the Crown Attorney and the defence lawyer make sentencing recommendations to the judge.

Sentences may include:

• Jail time
• Probation
• Community service

Appeal means having a higher court review an order. In a criminal case, an appeal would ask the higher court to review the verdict or sentence. It is not a new trial. No witnesses give evidence.

You may be able to appeal if you believe:

• The judge was wrong in finding you guilty
• The sentence is not appropriate.

Yes, there are time limits for when you can make an appeal. You should contact a lawyer or the court for information on how to appeal. Call us to ask if our Lawyer Referral Service may work for you.