Civil and Criminal Cases

A civil case is a private case where someone sues someone else. This is also known as a suit or action. In a criminal case, the Crown prosecutes an accused under a public-law statute such as the Criminal Code or the Controlled Drugs and Substances Act.

How do civil cases work?

A civil action or suit starts 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 if someone is injured or property is damaged. 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. The person being sued is called the defendant.

Civil cases are complex. A suit goes through several stages: pleadings, discovery, and the trial itself.

Pleading

First, the plaintiff files a pleading with the court. This sets out the complaint against the defendant and the remedy the plaintiff is seeking. A court officer then 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 must 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. The defendant may thus lose by default.

Both the plaintiff and the defendant are entitled to consult a lawyer. Lawyers often discuss the lawsuit to settle it before a trial is necessary. The two sides can reach a settlement at any time before the judge makes his or her decision. In fact, 98 percent of civil suits never make it to the courts.

Discovery

Each party is then entitled to an examination for discovery before the trial. Its purpose is to clarify the claim against the defendant and lets each side examine the evidence that the other side intends to use in court.

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, because a civil case is decided on a balance of probabilities. This is the standard of proof for a civil case, just as the standard of proof for a criminal case is proof beyond a reasonable doubt.

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

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 evidence: papers, photographs or other documents. 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 testimony based on what a witness has heard from another person – this is called hearsay evidence.

At the end, 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 says we are obliged to fulfill our contracts.

Depending on the suit and the court, the defendant may have a right to a trial by judge and jury. It is then up to the jury to decide which version of the facts it believes. The judge still decides which law applies and explains the evidence and the relevant laws to the jury. The jury must then consider the matter and reach a verdict.

How a trial ends

If the defendant is found not liable, the judge will dismiss the case. If the defendant is found liable, the judge or jury must consider three things:

  • the remedy that the plaintiff asked for in the pleadings;
  • the facts; and
  • how to compensate the plaintiff.

Remedies

In 2011-12, cases involving impaired driving (11%), theft (10%), common assault (10%), and failure to comply with an order (9%) were the most common types of cases completed in adult criminal court.

A remedy is a means of resolving a civil case. There are three different types.

  • Monetary remedies, called damages, are the most common. The judge or jury who decides the case fixes the amount of damages. The judge or jury will take into account the expenses incurred by the plaintiff. Where the law permits, they can also award an additional sum to compensate the plaintiff for the loss suffered as a result of the wrongdoing of the defendant. The judge or jury is not required to award the plaintiff the amount he or she asks for. They might even award less than that amount. In Canada, a judge or jury may occasionally award “punitive” damages. This is a larger award that expresses the disapproval of the community. These damages are meant to punish the defendant because the defendant's behaviour was so offensive.
    Declaratory remedies simply state the rights of the parties. For example, when a court interprets a will or decides who owns personal property or land, its decision is declaratory.
  • An injunction is a restraining order that says that someone can or cannot do something. You could get an injunction to stop your neighbours from burning garbage or to order them to remove a junk heap from your property. Injunctions are not given automatically. In each case, the court has the discretion to make such an order or to award damages according to precedent.

What are criminal cases?

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

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

Criminal offences are set out in the Criminal Code or in other federal laws. There are two types:

  • Summary conviction offences, which are the most minor cases, for example causing a disturbance; and
  • Indictable offences, which are more serious and include theft, break and enter, and murder.

The person charged with a criminal offence is called the accused. The accused is always presumed innocent until proven guilty.

Summary offences

The accused appears before a provincial court judge for a trial that will normally proceed immediately. The maximum penalty for this type of offence is normally a $5,000 fine, six months in prison, or both.

Indictable offences

An accused has three choices:

  • Have a judge alone hear the case in provincial court.
  • Have a judge and jury hear the case in a superior court.
  • Have a judge alone hear the case in superior court. 

There may be a preliminary hearing before a trial, 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, the judge will order a full trial.

What happens in an arrest?

The police must follow certain procedures to protect the rights of the accused. A person who has been arrested is first read their rights. The police must

  • tell the person that he or she has the right to consult a lawyer without delay;
  • explain the reasons for the arrest and the specific charge, if one is being made.

What happens in custody?

A person who is taken into custody goes to a holding cell in a detention centre. He or she has the right to appear before a justice of the peace or judge as soon as possible (usually within 24 hours). At that time a judge decides on pre-trial release or bail. In a bail hearing, the prosecutor must show why the accused should remain in custody. If a judge decides the accused should be released, 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 under the Charter to stand trial within "a reasonable time." The Charter does not say what this means but the courts have provided some guidance. A judge considers four factors to determine if a trial is happening within a reasonable time:

  • the length of the delay;
  • the reason for the delay;
  • whether the accused agreed to a delayed trial date;
  • whether the delay affected the accused's ability to put forward to a fair defence.

What happens in a criminal trial?

A criminal trial is a very serious matter. After all, the accused has a lot to lose: his or her liberty and the stigma of a criminal conviction. Because of that, both common law and the Charter protect the rights of the accused. For example, the prosecution must prove that the accused is guilty of the charge beyond a reasonable doubt. Also, if any evidence is obtained that violates 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.

Decisions in criminal cases

The median amount of time to complete an adult criminal court case declined in 2011-12, down two days from the previous year, to 117 days.

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;
  • denouncing the harm to the victim and the illegal conduct; and
  • the prospects for rehabilitation.

Almost two-thirds (64%) of criminal cases completed in 2011-12 resulted in a finding of guilt, a figure that has remained relatively stable over the past decade. The remainder of cases were stayed, withdrawn, dismissed, or discharged (32%), acquitted (3%) or resulted in some other type of decision (1%).

Judges may impose many different kinds of sentences or a combination of penalties. These may include:

  • A fine (a sum of money);
  • Restitution: asking the offender to pay costs of injuries or loss of damage to property;
  • Probation: release of the offender with conditions;
  • Community service: an order that the offender perform a certain number of hours of volunteer work in the community;
  • Imprisonment: confinement in a prison or penitentiary.

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

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

Can you appeal a decision?

The right to appeal a court's decision is an important safeguard in our legal system because a court could make an error in a trial.

The right to appeal a court's decision is an important safeguard in our legal system because a court could make an error in a trial.

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 leave 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.

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