Canadian criminal justice: Trial

6 - Pre-charge diversion

trial is a formal hearing into a regulatory or criminal offence. At a trial, the prosecution is called upon to prove that the defendant is guilty of the offences and the defendant has an opportunity to defend against the prosecution. At the end, the presiding "trier of fact" - either a judge or a jury - decides whether the defendant is guilty or not guilty.

In Ontario, trials are held either in the Ontario Court of Justice with a judge (here, the lawyers normally wear suits) or in the Ontario Superior Court of Justice with either a judge or a judge and jury (here, the lawyers must wear their black robes). The level of court is determined partly by the offences, partly by the prosecution, and partly by the defendant.

Trials are governed by several fundamental principles. Subsection 11(d) of the Canadian Charter of Rights and Freedoms guarantees a person’s right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”  Importantly, the defendant has the right to remain silent and does not need to call evidence or testify, but they also have the right to make full answer and defence, which includes attacking the prosecution's case and may include calling defence evidence. The defendant is only guilty if the prosecution proves it "beyond a reasonable doubt."

Using a judge-alone trial as an example, the average trial involves the following steps.

First, the defendant is arraigned - the clerk of the court reads out the charges and the defendant pleads "not guilty."

Second, the prosecution's case involves one or more witnesses called by the prosecution. For each witness, the prosecution conducts a "direct examination" (the Crown Attorney asks only open-ended questions), then the defendant's lawyer conducts a "cross-examination" (the lawyer can ask leading questions), and then the prosecution may conduct a "re-examination" (the Crown Attorney can ask the witness to clarify questions from cross-examination). In some cases, the prosecution may make an opening statement before calling any witnesses, but this normally happens only in jury trials.

Third, after the prosecution's case is over, the defendant may bring a motion for a "directed verdict of acquittal." If the defendant can show that the prosecution did not produce "some evidence" on one or more charges, then the judge must dismiss those charges (in other words, drop the charges). However, if the prosecution did produce "some evidence" (even if the evidence is weak), then the trial continues.

Fourth, the defendant has the right to call a defence case, but has no obligation to lead any evidence or to testify. For each witness that the defendant calls (including the defendant himself or herself), the defendant's lawyer conducts a direct examination, the prosecution conducts a cross-examination, and the defendant's lawyer may conduct a re-examination. In some cases, the defendant's lawyer may make an opening statement before calling any witnesses, but again this normally happens only in jury trials.

Finally, the lawyers on both sides make their final submissions, where they explain why they think the defendant should be found guilty or not guilty. In many cases, the judge will ask questions during the submissions to make sure he or she understands each side's position.

After the trial, the judge will make their ruling - sometimes, they make their ruling immediately, but in many cases they will "reserve" their judgment and come back at a later date.

Our lawyers thoroughly prepare for trial. We have been successful at having charges dropped in directed verdict motions, at winning cases without leading any defence evidence, and at winning cases by preparing our clients or other defence witnesses to testify. We have won cases at both levels of trial court and both with and without juries.

Contact the lawyer of your choice for a free consultation.

This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at to propose any changes or updates.