The Criminal Process: Part 2

The Election

No, not the government type. There are two types of elections in the Criminal justice process. 

The first choice is made by Crown. Some crimes allow them to decide whether they want to proceed "Summarily" or by "Indictment" 

Summarily is basically the Canadian equivalent of a misdemeanour in the United States. These offences include:

  • causing a disturbance

  • trespassing at night

  • solicitation

  • nudity

  • pretending to practice witchcraft

  • defacing currency

Unless the Criminal Code specifies otherwise, the maximum penalty for a summary conviction offence is six months imprisonment, a $5000 fine or both. 

The other option is by indictment. These crimes are only by indictment: 

  • Murder, attempted murder, manslaughter

  • Terrorism

  • Some sexual offences

  • Criminal organization offences

  • Treason

  • Drug trafficking

These types of crimes have a punishment of up to life in prison.

And crimes that actually give Crown a choice (Hybrid offences) basically the legal equivalent of a car that can run both on gas and battery and crown picks which one it will run on: 

  • Some sexual offences

  • Assault

  • Stealing a cow

  • Forgery

  • Mail theft

  • Having weapons 

  • Bribery

  • Conversion therapy 


The second choice is made by the defence lawyer and the accused. 

If the accused is charged with a summary offence, they get no choice and the trial is automatically in provincial court. But if it is an indictable offence they have options on how they want their trial to go. The options are divided into two categories based on the maximum punishment: 

Category 1: If the crime has a punishment of less than 14 years they can pick from:

  1. By a provincial court judge

  2. In Supreme Court with only a judge

  3. In Supreme Court with a jury

Category 2: If the punishment is more than 14 years in prison, they get to pick from the following options, and if they want a preliminary inquiry (mini-trial before the trial discussed further down the page): 

  1. By a Provincial Court judge

  2. In Supreme Court with only a judge no prelim

  3. In Supreme Court with a jury no prelim

  4. In Supreme Court with only a judge and a prelim

  5. In Supreme Court with a jury and a prelim

What is a Preliminary Inquiry?

If the accused chooses an option from above with a preliminary inquiry (aka preliminary hearing) this will happen before the actual trial. A prelim (for short) is basically a mini-trial. In this trial, the crown will call witnesses and present their best evidence and the court will decide if there is enough evidence for there to be a full trial. The bar is really low and most cases pass this mini-trial phase. 

You will most likely be required to testify at the preliminary inquiry if there is one that takes place. 

Stage 4: The Trial

While you will not be permitted to be in the courtroom until your turn to testify, it is still important to understand the process. 

I see a trial almost as a play. It starts with the opening act where Crown sets the scene and tells the audience (either a judge or jury) what they can expect to see. 

They then start the first act of the show and present their evidence as to why the accused is guilty through witnesses. 

Witness testimony follows a pattern: 

  1. The crown guides the witness through what happened. This is called direct examination. 

  2. The Defence asks the witness questions. This is called cross-examination. 

  3. The Crown, if they want, can ask follow-up questions to clear up anything that was asked by the defence

  4. The witness leaves

Check out the frequently asked questions page for an explanation of the types of questions that will be asked. This pattern continues until the crown has gone through all of its witnesses. 

And then we move to Act 2.  

Act 2 is actually entirely optional. 

Defence counsel doesn't need to present anything or call any witnesses if they don't want to. Most defence counsel will wait till the end of Act 1, look at what Crown has presented, and decide if they want to bring any witnesses or if the accused should testify. Most of the time, there is no Act 2. 

Once Act 1 and 2 (If there is one) are over, we move to the finale: closing submissions. 

Closing Submissions and the Decision

Closing submissions are when Crown and Defence summarise their cases. Each side gives reasons why the accused should or should not be convicted. 

So, who decides the outcome? 

If it is a jury trial, the Judge will have been the referee throughout the trial and will decide what evidence the jury can consider (make sure everyone plays fair). The jury then decides based on the evidence in the case, if the accused is guilty. 

In a trial without a jury, the decision is made by the Judge 

When will the judge give his/her decision?


Unlike jury trials where jurors stay and deliberate until they have reached a verdict, the judge may not and often does not make a decision right away. If the case is long and difficult, they may take several days or weeks to decide. This is called reserving. 

Judges write out lengthy decisions that outline the facts, the law, and how/why they came to the decision. 

If you are testifying in a jury trial the jurors do not give reasons for their decision.