The Criminal Case: Step-by-Step

Criminal investigations are conducted by the police or other investigative agencies. Investigations begin when police witness behaviour or receive a complaint about behaviour which may be a crime. Some criminal investigations are completed quickly. Others take weeks, months, or, in complex matters, years to complete. Not all criminal behaviour is investigated – police exercise discretion based on a number of factors, including available resources.

The decision to lay a charge rests with the police and/or Crown attorneys. Consideration is given to the applicable law and all available evidence.

When a charge is laid, an information package describing all the evidence is prepared and delivered to the accused or, more often, the accused's lawyer (known as “disclosure”). The court receives a list of charges against the accused person from the police.

Note that being arrested and being charged are different. Someone can be arrested and not charged. Conversely, someone can be charged without being arrested.

The Crown attorney is responsible for deciding whether to proceed with charges and is required to prosecute cases objectively and treat all parties in the case fairly, including victims, witnesses and the accused. While victims and/or their families are often consulted, the ultimate decision rests with the Crown attorney.

In deciding whether to initiate, or continue with, a prosecution, the Crown attorney must answer two questions of equal importance :

• Is there a reasonable likelihood of conviction? This question relates to the Crown’s ability to prove all essential elements of an offence using legally admissible evidence. Issues such as credibility and reliability of evidence are explored. For example, a very honest and credible victim may identify the perpetrator of a crime from a series of photos, but that identification may be unreliable because the victim only had a fleeting glimpse of the perpetrator when the crime was committed.
• Is it in the public interest to proceed? This question explores a variety of factors including the nature of the offence and its impact on public safety, how often this type of offence is committed in the community, circumstances of the accused and whether the matter is better addressed in a restorative justice context instead of the criminal courts.

Only if the answer to both questions is yes will the Crown attorney proceed with charges. In this way, the Crown attorney exercises prosecutorial discretion. Another element of this discretion is that the Crown attorney applies this two-part test to each individual charge. So, the Crown Attorney may decide to drop some charges and proceed with others.

An accused person has the right to be represented a lawyer. References to an accused include those that represent themselves and those that are represented by a lawyer.

Most people charged with a crime receive a document from the police advising them of the date and courtroom when and where they are required to appear to answer to the charge. Sometimes, the crime is very serious, the accused person has a criminal record or there is a concern they won’t come to court. In these cases, the accused person may be held in jail.

If the accused person is held in jail, will be a bail hearing will be held to determine whether they should be released or held until trial. In determining whether to oppose the accused person's release on bail, the Crown attorney must consider the public interest. Before making this decision, the Crown attorney will consider all relevant information and legal principles. The most fundamental legal principle is that a person charged with an offence has the right not to be denied bail without just cause and the right to reasonable bail. In most cases the Crown attorney must show cause why detaining the accused in custody is justified.

If the Crown is opposed to an accused person’s release, the ultimate decision is that of the judge. If the judge decides to release an accused person, they may be ordered to obey certain conditions. For example, the accused person may be required to follow a curfew or not have any contact with victims or witnesses. The accused person could be charged with a further offence if they fail to obey these conditions

Offences are set out in the Criminal Code and divided into three types: summary, indictable and hybrid (meaning that the Crown can choose either summary or indictable). Summary proceedings are typically for less serious offences and indictable for more serious.

If the accused is charged with a summary offence, their trial will be in the Provincial Court before a judge. There is no jury in Provincial Court.

If the accused is charged with an indictable offence and the offence is not within the exclusive jurisdiction of the King’s Bench or the absolute jurisdiction of Provincial Court, they can choose which court will hear the case. The accused may choose to be tried by: a Provincial Court judge, a King's Bench justice without a jury, or by a King's Bench justice and a jury.

The preliminary inquiry is intended to protect an accused from experiencing an unnecessary trial. It is a hearing in Provincial Court that is used to determine whether there is sufficient admissible evidence against an accused to proceed to trial. Preliminary inquiries are only allowed for prosecutions of indictable offences that are punishable by 14 years or more of imprisonment.

During the preliminary inquiry, the Crown attorney and the accused may call and cross-examine witnesses. If the court is satisfied that sufficient evidence exists, a trial date will be set. If not, the accused is discharged and with very few exceptions, the case is closed.

The outcome of a trial is never certain. Each case has strengths and weaknesses. There are benefits to all parties for matters to resolve without proceeding to trial, including victims who are spared from having to testify.

In order to resolve matters without a trial, the Crown and an accused may agree on certain charges that the accused will plead guilty to and that some charges that will be dropped. They may also make agreements on what sentence will be recommended to the judge.

This process is referred to as plea negotiation or plea bargaining. The Supreme Court of Canada has said this process is “vitally important to the well-being of our criminal justice system” and “without them, our justice system would be brought to its knees, and eventually collapse under its own weight.” A plea bargain can be made at any time up to, and during, the trial.

A trial gives the Crown and the accused an equal opportunity to present their evidence. An accused doesn’t have to prove they are innocent – a basic principle of Canada's justice system is that the accused is innocent until proven guilty by the Crown.

The trial begins with the Crown presenting the evidence against the accused. This is done by calling witnesses and introducing materials as evidence to support the charges. Sometimes, it’s necessary for the judge to determine if certain evidence can be introduced. Each witness called for the Crown is asked questions by the Crown attorney (“direct examination”). The accused is then given an opportunity to question the Crown's witness (“cross-examination”).

After cross-examination, the Crown may question the witness again. This is done if the witness's evidence needs to be clarified or if a new issue has been raised by the Crown and could not have known about before the trial. This is called redirect examination.

Once the Crown has presented all its evidence and closed its case, the accused is called upon to decide whether to call any evidence. If the accused chooses to present evidence, witnesses are called, including, potentially, the accused person themself. The Crown can cross-examine the accused’s witnesses and the accused may redirect after the Crown's cross-examination.

After all witnesses for both sides have given their evidence, the Crown and the accused may sum up their case (“closing argument”). Each side gives reasons why the accused should or should not be convicted. For each charge, the judge decides whether the Crown has proved its case beyond a reasonable doubt. A conviction is only possible for charges where the Crown has done so. Otherwise, the accused is entitled to an acquittal.

In a jury trial, the judge decides what evidence the jury will hear and instructs the jury on the law that applies to the case.

Once the judge or jury has considered all the evidence and relevant law, three results are possible: guilty, not guilty or, in the case of a jury trial, a hung jury. A hung jury means the jury was not able to reach a unanimous decision and jury members do not believe one can be reached. There is no such thing in Canadian law as a verdict of "innocent."

If the judge or jury find the accused not guilty and has no other charges pending, they are free to go. They cannot be tried again on the same charges unless the Crown Attorney appeals and the appeal court orders a new trial. If the accused is found guilty of some or all charges, the judge may sentence the accused immediately or set a later date for sentencing.

The Crown and the accused make submissions to the Court about what the sentence should be, although the final decision about sentence is up to the judge. This is in consideration of the offences for which the accused was convicted of, but also information about the accused and their background which is sometimes provided in a report, known as a pre-sentence report. It is especially important that circumstances of Indigenous people be considered, sometimes referred to as Gladue factors (named after a case decided by the Supreme Court of Canada).

Victims have a special role to play in the sentencing process and can tell the judge about the impact the crime has had on them. Known as “victim impact statements,” they can be oral or in writing. They are optional and can be provided to the judge by the Crown attorney if the victim decides not to attend court. Sometimes, a community impact statement is provided to describe the impact of a crime on the community.

The accused also has a right to speak should they choose to do so.

After considering all the relevant sentencing principles and information before the court, the judge decides the sentence. The judge may do so right away or at a later date (known as “reserving” their decision). The Criminal Code tells judges that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

An appeal is a request to a higher court to change a verdict, a sentence or some other decision made by a lower court. For more information on courts in Manitoba go to the Manitoba Courts website.

The Crown may appeal an acquittal and an accused may appeal a verdict of guilty. However, the Crown has a more limited right of appeal. While an accused can appeal an unreasonable verdict of guilt, the Crown is barred from any appeal of an unreasonable acquittal.

Either side can appeal the sentence, although sentence appeals to the Manitoba Court of Appeal require permission (known as “leave to appeal”).

Appeals cannot be made just because one side doesn't like the decision. In many situations, the appellate court may not have made the same decision as the lower court, but that doesn’t automatically mean that they can substitute their own decision.

It is important to note that the Minister of Justice and Attorney General for Manitoba cannot change or interfere with a court decision. A court decision can only be changed by an appeal to a higher court.