The Judicial Process in Criminal Cases for Adults

A person can file a complaint with the police against you if he or she believes is a witness to, or the victim of, a crime allegedly committed by you. The police will then decide whether or not to investigate.

The police will investigate, without any complaint filed, if you are caught committing a crime.

The process’s period always depends upon the complexity and the situation of the case.

Once the investigation has been completed, the police can arrest you if they have reasonable grounds to believe that you committed a criminal offence. After your arrest, they release you or they keep you detained.

After your arrest, they release you or they keep you detained. 

After your release

If the police decide to release you, they may also: 

• give you an appearance notice before the judge in court; or
• have you sign a promise to appear before a judge, and then give you a copy (this promise can include conditions to comply, for example not using drugs or alcohol).

The documents all-state where and when you must attend court before the judge. This part is called appearance.

If the police do not give you any document when you are released, or if you are not arrested, you may receive an appearance notice later, stating where and when you must attend court.

After your arrest, the police officers submit to a criminal and penal prosecuting attorney:

• a report investigation;
• the evidence gathered during the investigation;
• a request to initiate legal proceedings (a prosecution).

The prosecuting attorney assesses these documents. He or she has to decide whether criminal charges are laid against you or not. 

To do so, the prosecuting attorney bases its decision on the policies of the director of criminal and penal prosecutions.

When he or she decides to lay charges against you, the prosecuting attorney also takes into account:

• the evidence available;
• the best interests of victims and the Quebec population;
• protection of crime witnesses;
• respect of fundamental rights, such as presumption of innocence;
• the opportunity of prosecute in the public interest.

The public interest is, for example, ensuring that the population of Quebec can live in a safe society. 

The prosecuting attorney lay charges only if he or she thinks being able to convince a judge or a jury reasonably informed in law of your guilt.

If the prosecuting attorney accuses you, he or she makes an information. This document lists the alleged offences for each count you are alleged to have committed.

It is then submitted to a judge, who must sign it in order to charge you formally. 

It is at this stage, generally, that accused individuals seek the professional services of a defense lawyer, but you may also choose to represent yourself in court. 

If no charges are laid against you, the prosecuting attorney may apply:

• a non-judicial measure to your case, in other words, give you a warning or a formal notice;
• an alternative measure, if you are 18 years or older.

Non judicial and alternative measure apply only to certain crimes.

The prosecuting attorney may, if the evidence is insufficient, decide to drop the charges against you or request a further investigation.

The delay between the moment the police refer the file to a prosecuting attorney and the moment the prosecuting attorney decides to lay charges depends on:

This delay varies upon:

• the evidence the prosecuting attorney has to assess (quantity, type of evidence, complexity levels);
• further investigation that the prosecuting attorney might request to the police.

If the police keep you in detention after your arrest, you will appear before the judge within 24 hours following your arrest or as soon as practicable.

If the police released you after your arrest, you will appear before the judge at the time and place indicated in the document you have received.

At the hearing, the judge reads the charge or charges against you. This is when the judicial proceedings officially begin.

If you are held in custody until your first appearance, the judge will hold a hearing to determine if you are to remain custody until your trial or if you may be released. 

This hearing is called an interim release hearing (or bail hearing).

The judge must hold the hearing not more than 3 days after your first appearance, except if you consent to a longer period. 

If the judge decides you are not released, you remain in custody during the trial.  

During the judicial process, the judge may amend its decision.

Grounds for continued custody 

The judge may remand you in custody because of the following reasons:

• you may fail to appear before the judge for the next step in the judicial process;
• custody is necessary in order to maintain public confidence in the judicial system;
• the safety of the population may be jeopardized if you are not detained.

Regarding the last reason, the judge believes that you can:

• commit further  offences;
• destroy the evidence;
• bother the victim or witnesses.

Conditional release

The judge may order your conditional release. Depending on the offence with which you are charged, the conditions may involve:

• remaining at a fixed address;
• not contacting the victim;
• not consuming or possessing alcohol or drugs;
• not possessing a weapon;
• maintaining good conduct and not disturbing the peace;
• attending court when required.

You must comply with the conditions until the end of your trial. Breaching the conditions constitutes a new offence and you may be returned to custody, or new charges being laid.

Financial conditions (Bail)

The judge may require you to post bail to guarantee that you will comply with the conditions of your release and attend court when required.

To ensure that you comply with your conditions and appear in court, you may be subject to:

• deposit the amount of the bail at the court office;
• promise to pay the amount. 

The promise to pay may be made by another person, who becomes your "surety". This may be a family member or friend. This is called a ‘’bail’’.

If you fail to respect your bail conditions, the amount is confiscated. Otherwise it will be returned to the person who paid it once the judicial process is over, regardless of whether you are found guilty or acquitted.

Before the trial, the prosecuting attorney must provide all relevant evidence gathered against you to your lawyer or directly to you if you are representing yourself. This step is called the disclosure of evidence.

The prosecuting attorney will provide you with a copy of the following elements from the police investigation:

• witness statements;
• police reports;
• photos;
• video or audio recordings, etc.

The prosecuting attorney must also disclose all the other evidence gathered that will not be used at trial, regardless of whether it tends to show your guilt or your innocence.

In general, the evidence is disclosed at your first appearance, but it may be disclosed before or after you appear.

Based on the disclosure of evidence, you can:

• plead guilty and receive your sentence immediately;
• plead not guilty : the judge will set a date for a trial or a next hearing before a judge;
• request to postpone your guilty plea or not-guilty plea at a future date.

For more serious offences, you have to choose a trial:

• before a judge only;
• before a judge and a jury.

You do not need to ask for the disclosure of evidence. 

Once you have assessed the evidence against you, you may choose to negotiate a settlement, by meeting privately with the prosecuting attorney accompanied by your lawyer, if you have chosen to be represented.

The settlement must then be approved by a judge.

If you are charged with a serious crime such as murder, that is punishable by 14 years or more in prison, a preliminary inquiry will be held before your trial if requested by you or by your lawyer. 

This inquiry is made to establish if the evidence is sufficient to go to trial.

After the preliminary inquiry, the judge determines if you will stand trial for each charge against you. Some charges may be dropped, and others may be added based on the results of the preliminary inquiry.

A criminal trial occurs when you pleaded not guilty to charges laid against you.

In criminal law, trials are held before the public, with some exceptions.

Two parties are involved in a trial:

• the prosecuting, represented by the criminal and penal prosecuting attorney, on behalf of the Quebec State;
• the defence, your lawyer, or you if you are representing yourself.

The trial is a hearing for which the prosecuting attorney has to convince the judge beyond a reasonable doubt that you are guilty.

The prosecuting attorney will attempt to show that you committed the offence charged, for example by: 

• calling witnesses, including the victim if necessary, and expert witnesses;
• presenting physical and documentary evidence.

You are not required to testify, present witnesses nor present physical or documentary evidence.

If you present evidence, it cannot be filed or submitted to the court office, but must be presented to the judge, in the courtroom, at the time of the trial.

If you decide to testify, the prosecuting attorney will be able to cross-examine you. Both the prosecuting attorney and your defence lawyer can cross-examine the witnesses presented by the other party.

Once the evidence has been presented, your lawyer and the prosecuting attorney make their closing submissions. This stage in the trial gives them an opportunity to: 

• highlight the key points in the case;
• present their arguments, based on legal reasoning, for your guilt or innocence.

At any moment during the trial, you can plead guilty to all charges against you or certain charges against you.

The trial before a judge only

At the end of the trial, the judge must decide if you are guilty of each charge brought against you.  You may be found:

• not guilty: you are acquitted of the charges brought against you;
• guilty: the judge will determine your sentence (prison, fine, community projects, etc.).

You may be found guilty on some charges, and not guilty on others. 

In addition, the judge may find you guilty of a crime of lesser importance than the original charge. 

The judge may announce the judgment immediately or takes time to consider it at more length. It may be given orally or in writing.

The trial before a judge and jury

At the end of the trial, the jurors listen to the judge's instructions and then withdraw to decide on a verdict of guilty or not guilty.

If the jury finds you guilty, the judge determines then the sentence.

Verdict of not criminally responsible

If the matter is raised, the judge or the jury can give a verdict of not criminally responsible for mental disorders. If it happens, your case will be given to the Review Board for mental disorders of Québec.

To be found not criminally responsible, evidence proving mental disorders must be presented before the Tribunal, including an expert witness.

The judge may sentence you:

• as soon as you plead guilty;
• as soon as you are found guilty.

However, sentencing normally takes place at another hearing. In the meantime, the judge may hold a hearing at which the prosecuting attorney and your lawyer can submit: 

• relevant evidence to help the judge decide the sentence;
• observations on the sentence the judge should apply.

They can also call witnesses, including the victim, and expert witnesses who can provide information to help the judge determine the sentence. 

The judge may ask a presentencing report to a probation officer. 

This document will focus on your personality and criminal record, among other things.

The judge may also request other types if reports. 

Objectives of the sentence

The judge must render a sentence that is fair and reasonable and proportional to the nature and gravity of the offence committed. The purpose of the sentence is to:

• protect society;
• denounce unlawful conduct;
• deter other people from committing offences.

The judge may choose a sentence that will assist in your rehabilitation. 

You may also be required to provide reparation for the harm done to the victim, for example by paying an amount of money as compensation.

When deciding your sentence, among other things, the judge will consider: 

• the circumstances of the crime;
• its severity;
• your degree of accountability;
• the consequences of the crime on the victim.

Sentence related to specific crimes

The Canadian Criminal Cide states that the sentence imposed by a judge must be “individualized”.

This means that the judge determines a sentence based on:

• the crime committed;
• the circumstances surrounding the crime;
• the accused person’s background.

Two people accused of the same crime will not necessarily receive the same sentence.

Additionally, the Criminal Code establishes minimum sentences for certain crimes.

If you consider that the judge has made an error, you may appeal the judgment.

The prosecuting attorney may also appeal the judgment. You, like the prosecuting attorney, have 30 days after the date of the end of the trial to appeal the judgment.

In some cases, it is not necessary to apply for leave to appeal, since an appeal may lie from your case by operation of law.

If the Court of Appeal agrees to hear your case, it may confirm, amend or strike down the judgment, or order the holding of a new trial.

It may take several months between the date of the end of the trial and the decision rendered by the Court of Appeal.