Navigating The Criminal Justice System in Canada: A Guide For Self-represented Accused, Victims, and Witnesses

By Peter Keen

An indispensable guide for the self-represented accused, victim or witness. Understanding Canada's criminal justice system can be difficult. Criminal charges often involve life-changing events, and the justice system can be intimidating and confusing. Many people struggle to understand what is happening, and don't know which of the many justice officials in the system can make decisions about their case. When can a trial be set? Who can change conditions of bail? Who can terminate a charge before trial? Who can a victim or witness contact for help preparing for trial? When a person goes to court it seems as if everyone has hired a lawyer, but the reality is many people appear before court, representing themselves. This book is a comprehensive guide to the justice system, written in simple, clear language. The book doesn't provide legal advice, but does explain how Canada's criminal justice system works, what justice officials do, and who has the power to make decisions at different stages of a criminal case. An indispensable guide for the self-represented victim, witness or accused.

• Language: English
• Publisher: Self-Counsel Press
• Release date: Feb 15, 2022
• ISBN: 9781770405288

Peter Keen

Peter Keen has been a criminal lawyer, worked as a prosecutor for 19 years, and is a published author. Peter has published over 70 articles and professional publications, and his work has been cited by the Supreme Court of Canada. He is also routinely asked to speak at legal conferences and public events. In 2018 Mr. Keen co-authored his first book on drinking and driving law entitled 'Impaired Driving and Other Criminal Code Driving Offences: A Practitioner's Handbook' which was published by Emond Montgomery Publishers.

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Introduction

Navigating the Canadian criminal justice system as a self-represented accused, victim, or witness can be a challenging experience. Victims or witnesses are rarely represented by lawyers, and are not expected to be. In some courts, self-represented accused are rare. In others, they are common. In some locations, the judges, lawyers, court officials, and prosecutors are very good at helping self-represented persons understand their options and roles. In other locations, often because caseloads are high, self-represented persons find themselves confused about what is going on.

This book provides a guide that will be useful to any self-represented accused, and any victim or witness who has become involved in a case going through the justice system. It will also be useful to those people who are supporting others involved in a case. The information contained here will educate any person unfamiliar with the justice system. Readers are introduced, in clear, easily understood language, to how the criminal justice system works. The book covers topics including:

• the steps in the criminal justice process;

• where to find information about the law applicable to an accused persons’ case;

• how accused persons, victims and witnesses are expected to behave in court;

• who can end a prosecution and how;

• the roles of the various parties;

• the process to get conditions of bail changed;

• plea negotiations;

• guilty pleas and sentencing;

• preparing for and conducting a trial;

• the options available for victims and witnesses;

• how to hire and work with a lawyer;

• and much more.

This book does not tell self-represented accused how they should resolve their cases, nor what the law is relating to the charge they are facing. It is not a complete guide to criminal offences, evidence law, and criminal procedure. It does not, for example, set out the law of assault, and what the defences to a charge of assault might be. Every accused person’s situation is different, and it would be irresponsible to try and tell an accused how their case might turn out in a book like this.

This book does not contain legal advice, nor does it tell individuals what they should do with their cases. Only a lawyer, or in some cases a paralegal, can provide legal advice. This book does provide information that will allow the reader to better understand what is happening in the court process. It gives the reader information intended to help them navigate the justice system. For those wishing to research the law specific to their case, see Chapter 26 for publicly available research tools.

We recommend that every self-represented accused hire a lawyer, if they are able to do so. The process of hiring a lawyer is discussed in Chapter 3. Some accused persons may be unable to hire a lawyer, or may not want to do so. Accused persons are entitled to represent themselves if they wish to do so, but in some cases, a court may appoint a lawyer to conduct some tasks, such as cross-examining complainants in a domestic assault or sexual assault case. These limitations are discussed in Chapter 19.

Local Practices May Vary

This book describes the procedures that take place during the criminal process. For example, it describes things like where the lawyers and accused persons may stand in court, and how to address the judge. It describes procedures such as first appearances, how a guilty plea is conducted, and the trial process. Readers should be aware, however, that local practices vary considerably from province to province and place to place.

As an example, in Ontario, a first appearance used to involve accused persons coming in person to a first-appearance court, and waiting until their case was addressed by a justice of the peace. In busy jurisdictions such as Ottawa, dozens or even hundreds of people might be in a first-appearance court, waiting for their case to be addressed. In Calgary, Alberta, on the other hand, a first appearance may take place before a justice of the peace at a case management counter in a courthouse. On a Northern Ontario reserve, all matters, whether for first appearance, guilty pleas, or trials might be in the same courtroom. The courtroom might be a community hall, church, or school classroom, and the appearance will be before a provincial court judge.

In addition to varying from place to place, local practices may change over time. In many jurisdictions, processes changed considerably in response to the COVID-19 pandemic. Video appearances are now common in jurisdictions across Canada. This book does not attempt to set out the exact procedure followed in every one of the thousands of courtrooms in the country. It does, however, set out the key principles and processes that are common to the justice system throughout the country.

How This Book Helps the Reader

Reviewing this book will give the reader an understanding of how the criminal justice system works in Canada, and some of the major principles that apply. It will help reduce the confusion due to uncertainty that accused persons, victims, and witnesses often feel when involved in a criminal justice matter. We wish every self-represented accused person, victim, and witness a fair and just outcome to their case.

CHAPTER 1

How to Behave in Court

This chapter describes how people are expected to behave in court, and explains the basic rules about how self-represented people should conduct themselves. It explains where accused persons should stand or sit, how to address the judge and the court officials, and what the rules are for acceptable behaviour. It also contains advice on how a self-represented person can learn about court practices and procedures.

When people find themselves in court for the first time, they are often nervous, confused, frustrated, or scared. Some people present with extreme emotions, and are angry or volatile. Such rude behaviour tends to backfire, making the speaker less effective. One of the reasons for these emotions is people are worried about the rules they are expected to follow, and are frustrated at the fact they are in court. It is useful to remember that many persons in court feel the same way, and that the court officials, judges, prosecutors, court staff, and lawyers, are used to dealing with people who are worried about the system and their cases. For the most part, individuals who behave reasonably in court will not find themselves in trouble for making minor mistakes, such as addressing the judge with an incorrect title (such as sir instead of Your Honour).

1. Court Practices Vary

This chapter sets out some basic rules, but readers should be aware that the practices followed by individual courts vary. Different courts are organized differently. Where you are expected to stand, sit, and the title used to address the judge, lawyers, and prosecutor may be different in different cities or provinces. The easiest way to find out about local practices is to attend court and observe how court participants are addressing each other, where they stand, and how they behave. In addition, self-represented persons may ask the professionals how to behave. Information about this may be posted on provincial websites. Some basic principles are common across Canada, however.

2. Decorum: Politeness and Respect

No matter how frustrating an accused person finds the court process, it is important to maintain a proper decorum. Decorum refers to behaving politely and respectfully in court. This is true even when the accused believes the court process is unjust, because the accused believes that he or she is innocent.

Proper decorum occurs when the individuals involved listen when others speak, rather than interrupting. When an individual speaks, he or she should do so clearly and slowly enough for the judge and other people in court to make notes.

Proper decorum doesn’t mean giving up your case. People should present their cases strongly, but should do so politely but firmly. They should treat the other court participants with respect, even when they disagree. Sarcasm, rudeness, name calling, and shouting have no place in the justice system. People who behave badly may find themselves sanctioned by the court. Often, such sanctions are verbal, with a judge instructing the individual to behave properly. Generally, ignoring the rules of decorum will not help an individual present their case.

As an example, imagine that in an assault case, the witness is behaving politely and calmly, and the accused is shouting, rude, and condescending. Who do you think is more likely to have started the fight? Judges use the same common sense in answering this question that you do.

In extreme cases, if someone persists in rude or obstructive behaviour, such as shouting at a judge or swearing, the court might find the individual in contempt of court, which can result in a period of imprisonment. Contempt of court proceedings are rare, however. Court cases often deal with people who are in the grip of extreme emotions. Judges and lawyers understand that a person might be angry at being charged, or angry at hearing a witness tell a falsehood. Typically, an individual will not get in serious trouble for a momentary outburst or expression of emotion.

Individuals who endeavour to follow the basic rules of decorum — behaving politely and with respect — will typically find they will be treated this way in return.

3. How to Address the Justice or Judge

Anyone attending court will learn how to address the judge or justice quite quickly. Common terms are:

• For a justice of the peace: Your Worship.

• For a provincial or Superior Court judge: Your Honour.

• In some provinces, Superior Court judges may be referred to as My Lord or My Lady.

Other terms of respect such as sir or ma’am are also often acceptable.

4. How to Address Other Justice Officials

First names are not supposed to be used in court. Generally, the parties should refer to individuals using the honourifics Mr., Ms., or Madam, followed by their last name or title. With transgender or non-binary individuals, the court may inquire as to the proper mode of address. The theme underlying this is that there is a need to treat all individuals with respect.

Sometimes, when a person does not know the last name of the individual, they may refer to the parties by their role, for example:

• Madam Prosecutor (or Mr. Prosecutor)

• Mr. Reporter (or Madam Reporter)

• Madam Clerk (or Mr. Clerk)

5. To Whom to Direct Comments

In court, comments are expected to be directed to the judge. The participants are not supposed to speak to each other directly in court. In some courts, this practice may often be breached, with the parties speaking to each other directly. Some judges may humour this, but it may irritate others. Judges will speak up if a pattern of communication concerns them. The reason why comments are directed at the judge in court is to avoid the parties’ discussions degenerating into an argument.

In court, the judge is the only person who can make court orders binding the accused.

6. Listen and Don’t Interrupt

It is important to listen carefully to what the judge says. It is considered rude to interrupt the judge or an opposing party when they are speaking. If the prosecutor is speaking, the judge should give the accused an opportunity to speak as well. When the accused speaks, the prosecutor is expected to be silent to ensure the accused has a full opportunity to express himself or herself.

Sometimes, a court may forget to give a party the opportunity to speak. If this occurs, the accused should politely but firmly request the opportunity. For example, an accused whose right to speak has been overlooked might say:

Your Honour, I have not yet been given a chance to make submissions on this. Could I please do so now?

7. Observing

One excellent way to learn about the mechanics of the court process is to attend court and observe court proceedings. This can be done at in-person courts, and can also be done on the video courts. Video courts were once rare, but since the COVID-19 pandemic forced adjustments to proceedings, have become common in some jurisdictions. A few hours spent inside a courtroom, watching how lawyers interact with judges and court staff will teach the observer things such as —

• how to behave (and how not to behave),

• where to stand,

• when people are expected to stand and sit,

• how to address the judge, and

• how to address the parties.

In addition, observing in court will teach how to use the terminology common in court. Words such as adjournment, arraignment, plea inquiry, and more will become familiar. A glossary of commonly used terms is available on the downloadable forms kit which you can access through the link printed at the back of this book.

8. Asking Questions

Often, when an accused person’s matter is being addressed, he or she will be asked questions, and may not understand what is going on. If this occurs, it is important to speak up and ask questions. The judge will either explain what is happening, or will ask another person in court to meet with the accused to explain what is going on. If an individual doesn’t understand, he or she should not simply answer the questions. Here is a simple example of how to ask a question:

I’m sorry, Your Honour, I know I am being asked a question, but I really don’t know what is going on. Could someone please explain this to me?

9. Standing and Sitting

When a judge enters the courtroom, everyone is expected to stand. Typically, a court clerk or another official will state something such as, All rise. When the judge sits, the clerk will then open court, saying something like, This honourable court is now in session, please be seated. Everyone is expected to sit. A similar process is followed when court is closed.

Typically, people are expected to be seated in court, unless they are addressing (speaking to) the court. When lawyers are called upon to speak, they stand. A self-represented accused, when it is his or her turn to speak, will also be expected to stand. It is considered rude to address the court from a seated position, but often, courts will give individuals permission to sit when speaking. Someone who has a disability or mobility issue, will ordinarily be given permission to sit.

10. Where the Self-Represented Accused Is Expected to Stand or Sit in Court

Typically, there will be a place in the court where an accused person is expected to stand or sit. This may be in a prisoner’s box, at a table for the lawyers, or at another location in court. The court staff will usually direct an accused person where to stand if he or she does not know.

Figure 1 shows the layout of the court, and explains where the accused is expected to stand or sit in more detail. Not all courts are laid out in the same way, but most courts will have a number of similarities to the diagram, and include the following places:

Figure 1: Courtroom Diagram

• Judge’s dais or bench: This is the table where the judge sits.

• Court reporter’s and clerk’s bench: This is the table where the court reporter and clerk sit.

• Counsel tables: These are the tables where the prosecutor and lawyers will sit. It is also often the place where a self-represented accused will sit.

• Witness box: This is typically a table and chair, or podium, where the witness will give evidence. This is usually in a location where it can easily be seen from within the court.

• The bar: This is a barrier, like a fence, towards the middle of the courtroom. Typically, the public sits behind the bar, at the back of the courtroom. Only the professional judges, lawyers, and court officials sit in front of the bar. Other people, such as witnesses, articling students (lawyers in training), or self-represented accused may only sit in front of the bar when invited by