Canada's System of Justice

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Civil and Criminal Cases

The difference between private and public law has already been described. Another important distinction is that between “civil” and “criminal” cases. A civil case is another way of referring to a private case or “suit” – that is, where someone sues someone else. A criminal case involves a prosecution by the Crown under a public-law statute such as the Criminal Code, the Controlled Drugs and Substances Act or the Competition Act.  

How do civil cases proceed?

A civil action or suit can be started when individuals or corporations disagree on a legal matter, such as the terms of a contract or the ownership of a piece of property. A civil suit can also result from damage to private property or physical injury to someone. For example, someone who breaks a leg when he or she slips on an icy stairwell may sue for compensation. The person who sues is called the “plaintiff” and the person being sued is called the “defendant.”  

The procedure in a civil case can be complex, and the terminology describing the steps varies across Canada. Generally, a suit goes through pleadings, discovery, and the trial itself.  

A suit begins when the plaintiff files a pleading with the court to set out the complaint against the defendant and the remedy the plaintiff is seeking. This pleading may be called a writ of summons, a statement of claim, a declaration or an application. When the pleading is filed, a court officer issues the claim by affixing the seal of the court and signing the pleading on behalf of the court. Copies are then delivered to, or “served on,” the defendant.  

The defendant is responsible to provide the court with a “statement of defence.” If she or he does not, the court will assume that the plaintiff’s allegations are true, and the defendant may thus lose by default.  

Both the plaintiff and the defendant are entitled to consult a lawyer for assistance. Lawyers representing each side often discuss the lawsuit in an effort to settle it before a trial is necessary. A settlement can be reached at any time before the judge makes his or her decision. In fact, only about two percent of civil suits are actually tried before the courts.  

After statements of claim and defence are filed, each party is entitled to an “examination for discovery” before the trial. This examination is intended to clarify the claim against the defendant and to let each side examine the evidence that the other side intends to use in court.  

The dispute may then proceed to trial. During the trial, it is up to the plaintiff to present facts to support the claim against the defendant. In a civil suit, the plaintiff must prove that it is probable that the defendant is legally responsible, or “liable,” as a civil case is decided on a balance of probabilities.  

If the facts justify the remedy the plaintiff is seeking, the court will hold the defendant liable.  

What happens at a civil trial?

The trial begins with the plaintiff presenting evidence against the defendant. The plaintiff may call witnesses to testify to facts and present papers, photographs or other kinds of evidence. The defendant may cross-examine the plaintiff’s witnesses to test their evidence. The defendant then presents his or her own evidence, including witnesses. The plaintiff has the same right to cross-examine.  

Throughout the trial, the judge must make sure that all the evidence presented and all the questions asked are relevant to the case. For example, in most situations, the judge will not allow “hearsay” evidence, testimony based on what a witness has heard from another person.  

At the conclusion, both the plaintiff and the defendant summarize their arguments. The judge must then consider the evidence presented before making a decision, based on what has been proven to be most probable. He or she must decide whether the facts show that the defendant has broken a civil law, such as a law that we are bound to fulfill our contracts.  

Depending on what the suit is about and the court in which the action is taken, the defendant may have a right to a trial by judge and jury. In such cases, the jury must decide which version of the facts it believes. The judge decides what law applies. At the end of the trial, the judge will explain the evidence and the relevant laws to the jury. The jury must then consider the matter and reach a verdict.  

Decisions in civil cases

If the defendant is found to be not legally responsible or liable on a balance of probabilities, the judge will dismiss the case. If the defendant is found liable, the judge or jury must consider the remedy that the plaintiff asked for in the pleadings, the facts, and the authority to grant specific relief before deciding how to compensate the plaintiff.  

Remedies can be monetary, declaratory or injunctions. Monetary remedies, called “damages,” are the most common. The judge or jury who decides the case normally fixes the amount of damages. The judge or jury will take into account the expenses incurred by the plaintiff and, where the law permits, an additional sum to compensate the plaintiff for the loss suffered or that might be suffered in the future as a result of the wrongdoing of the defendant.  

The judge or jury are not required to award the amount asked for by the plaintiff; they may, in fact, award less than the amount claimed. In Canada, a judge or jury may occasionally award “punitive” or “exemplary” damages beyond compensation to the plaintiff. Such damages are usually awarded when possible under a law or when the judge or jury feel that the conduct of the defendant was so offensive that an increased award is required to express the disapproval of the community.  

Declaratory remedies state the rights of the parties. For example, when a court interprets a will or a contract, its decision is declaratory. The court’s decision on the ownership of personal property or land is also declaratory.  

Some remedies require a person to do or not do something. The most common of these is the “injunction.” An injunction can prohibit someone from doing something, such as annoying his or her neighbours by burning garbage. Injunctions can also make someone do something, such as remove a junk heap from the plaintiff’s property.  

Another remedy that requires a person to do something is known as “specific performance.” This is most commonly applied when the defendant has breached a contract with the plaintiff. For example, if the defendant, Mr. Jones, has broken his contract to sell his house to the plaintiff, Mrs. Smith, the judge could order Mr. Jones to sell the house to Mrs. Smith at the agreed price.  

Injunctions and specific performance remedies are not given automatically. In each case, the court has the discretion to make such an order or to award damages according to precedent.  

How do criminal cases proceed?

Since a crime is considered to be an offence against society as a whole, it is usually the state that starts a criminal prosecution.  

Criminal offences are set out in the Criminal Code or in other federal laws. They are divided into “summary conviction” and “indictable” offences. Some offences that may be prosecuted either summarily or by indictment are known as “hybrid” or “dual-procedure elective” offences.  

The person charged with a criminal offence is called the “accused,” and is always presumed innocent until proven guilty. If the accused is charged with a summary conviction offence, he or she will appear before a provincial court judge for a trial that will normally proceed “summarily,” that is, without further procedures. The maximum penalty for this type of offence is normally a $2,000 fine, six months in prison, or both.  

More serious offences are prosecuted by indictment. In most cases the accused may choose to be tried by a provincial court judge, by a superior court judge or by a judge of a superior court with a jury. For indictable offences, there may be a “preliminary hearing” during which a judge examines the case to decide if there is enough evidence to proceed with the trial. If the judge decides there is not enough evidence, the case will be dismissed. Otherwise, a full trial will be ordered.  

A person accused of a crime may not always be arrested. The accused may simply receive a “summons” after a charge has been laid before the court. A summons is an order to appear in court at a certain time to answer to the charge.  

If the accused is arrested by the police, certain procedures must be followed to protect his or her rights. When the police arrest or detain an individual, they must tell the person that he or she has the right to consult a lawyer without delay and explain the reasons for the arrest and the specific charge if one is being made.  

Anyone arrested and held in custody has the right to appear before a justice of the peace or judge as soon as possible (usually within 24 hours unless released sooner by the police) to have pre-trial release or bail determined. Bail hearings are sometimes referred to as “show-cause” hearings because the prosecutor usually must show why the accused should remain in custody. However, in certain situations the accused must show why he or she should be released. If a judge decides on release, the accused may be released with or without conditions. Release on bail will only be refused if there are very strong reasons for doing so.  

Anyone accused of a crime also has the right to stand trial within “a reasonable time.”  

What happens in a criminal trial?

A criminal trial is a particularly serious matter because liberty, as well as the stigma of a criminal conviction, is at stake for the accused. Recognizing this, both common law and the Charter provide appropriate protection. For example, the prosecution must prove that the accused is guilty of the charge beyond a reasonable doubt. Also, if any evidence is obtained in violation of the accused’s Charter rights, such as through an unreasonable search and seizure, the judge may refuse to admit the evidence.  

In a criminal trial, an accused person cannot be required by the prosecution to give evidence.  

Victims of crime

Decisions in criminal cases

If the accused is found not guilty, he or she will be acquitted and is then free to go. If the accused is found guilty of a crime, the judge must decide the appropriate sentence. When making this decision, the judge must consider the seriousness of the crime, the range of sentences possible in the Criminal Code or other statutes, preventing or deterring the offender or others from committing similar crimes and the prospects for rehabilitation.  

Judges may impose many different kinds of sentences or a combination of penalties that may include such penalties as:

• A fine (a sum of money),
• restitution (an order requiring the offender to compensate for injuries or to pay compensation for loss of or damage to property as a result of the offence),
• probation (release of the offender on the conditions prescribed), which may include community service,
• community service (an order that the offender perform a certain number of hours of volunteer work in the community), or
• imprisonment (confinement in a prison or penitentiary).  

An offender who is sentenced to more than two years will be sent to a federal penitentiary; one who is sentenced to two years or less will go to a provincial prison.  

However, the judge does not always have to convict, even if the accused person has pled guilty or been found guilty. The judge may give an offender an absolute or conditional discharge. Under a conditional discharge, the offender must obey conditions imposed by the judge or face a more severe sentence. An offender who is given a discharge will not get a criminal record for the offence.  

Can a decision be appealed?

Because it is possible that a court may make an error in a trial, the right to appeal a court’s decision is an important safeguard in our legal system.  

In most civil and criminal cases, a decision made at one level of the court system can be appealed to a higher level. Where there is no right to appeal, permission or “leave” to appeal must be sought. The higher court may deny eave to appeal, affirm or reverse the original decision. In some cases, it will order a new trial.  

Both sides in a civil case and either the prosecution or the accused in a criminal case may appeal.  

Sometimes, it is only the amount of damages or the severity of the sentence that is appealed. For example, the accused may ask a higher court to reduce a sentence, or the prosecution may ask to have the sentence increased.  

How does restorative justice fit in?

Restorative justice, which has recently come into our system from Aboriginal justice traditions, is another way to respond to criminal acts. Restorative justice puts emphasis on the wrong done to a person as well as on the wrong done to the community. It recognizes that crime is both a violation of relationships between specific people and an offence against everyone (the state).  

In restorative justice programs, the victim of the crime, the offender and, ideally, members of the community voluntarily participate in discussions. The goal is to restore the relationship, fix the damage that has been done, and prevent further crimes from occurring.  

Restorative justice requires wrongdoers to recognize the harm they have caused, to accept responsibility for their actions and to be actively involved in improving the situation. Wrongdoers must make reparation to victims and the community.  

Youth justice

Special considerations come into play when young people commit acts that are considered criminal. This is why Parliament passed the Youth Criminal Justice Act in 2003. It applies to young people aged 12 to 17 years, inclusive. The Act recognizes that young persons must be held accountable for criminal acts, although they need not always be held accountable in the same manner or to the same extent as adults. It is in society’s interest to ensure that as many young offenders as possible are rehabilitated and become productive members of society.  

The Act recognizes that young people lack the maturity of adults, and that the youth justice system should include enhanced procedural protections and measures of accountability that are consistent with this reduced level of maturity. The Act also recognizes that young people have special needs and circumstances that must be considered when any decision is made under the Act. These principles are set out in the Act’s Declaration of Principle. To protect the rights of young people, youth justice proceedings require special guarantees: courtesy, compassion and respect for victims; the opportunity for victims to be informed and to participate; and assurance that parents will be informed and encouraged to participate in addressing the young person’s offending behaviour. Young persons are given the same rights and protections as adults, such as the presumption of innocence and the onus on the prosecution to prove its case beyond a reasonable doubt. Of course, young people are also entitled to be represented by a lawyer.  

Proceedings under the Act are conducted in special youth courts. A youth court has the power to impose an adult sentence. For the most serious offences committed by a young person who is 14 years of age or more (this age varies from 14 to 16, as determined by each province), there is a presumption that an adult sentence will be imposed. The Crown may also choose to renounce the application of this presumption. In this case, the judge who finds the young person guilty has to impose a youth sentence.  

The Act allows for youths to be dealt with outside the formal court system through the means of “extrajudicial measures.” These measures are generally restricted to relatively minor, first offences. They are expeditious and often informal, and minimize the stigmatizing effects of an appearance in court. They also reserve the costlier court process for more serious cases.  

The Act says that young people are to be held accountable in ways that are fair and in proportion to the seriousness of their offences. These interventions should reinforce respect for societal values, encourage the repair of harm done, be meaningful to the offender, respect gender, ethnic, cultural and linguistic differences and respond to the needs of Aboriginal young persons and of young persons with special requirements.

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