Criminal law, the essentials · from arrest to sentence

1. The presumption of innocence

You are presumed innocent until proven otherwise (Charter, s. 11(d)). It is up to the prosecution (in Québec, the DPCP) to prove your guilt beyond a reasonable doubt. You have nothing to prove, and a single reasonable doubt must lead to an acquittal. The burden never shifts onto you.

2. On arrest: your rights

From the moment of arrest or detention (Charter, s. 10):

• You must be told the reasons for your arrest.
• You have the right to remain silent · you are not required to give your version on the spot.
• You have the right to speak to a lawyer without delay (the duty counsel legal aid line is free, 24 hours a day). If you ask, the police must stop questioning you until you have done so.
• A search has to follow rules (Charter, s. 8); evidence obtained in breach of your rights can sometimes be excluded (s. 24(2), the framework from Grant).

The safest reflex: stay polite, say you want to speak to a lawyer, and avoid discussing the facts before you have.

3. The first appearance and release

After the arrest, you are told the charges (the first appearance). The rule is release, with or without conditions; detention before trial is the exception, and the prosecution has to justify it (Criminal Code, s. 515). Conditions can be imposed (no contact with a person, curfew, no-go zone). Follow every condition: breaching a condition is a separate offence.

4. Disclosure of the evidence

The prosecution must give you all the relevant evidence it holds, both for and against you (see Stinchcombe): the police report, the officers' notes, videos, statements. This is disclosure. Write down what you received and ask for what is missing: you cannot defend yourself against evidence you have never seen.

5. The plea, the mode of trial, the trial

You plead guilty or not guilty. Offences are divided into summary conviction offences (less serious) and indictable offences (more serious); for some indictable offences, you choose the mode of trial (judge alone, or judge and jury) and there may be a preliminary inquiry. At trial, the prosecution presents its evidence and its witnesses; there are cross-examinations; then comes the verdict. See the detailed court process →

6. Common offences

A few offences that come up often (general information; the exact classification depends on the facts):

• Assault (ss. 265 to 268): using force without consent; the seriousness rises from simple assault to assault causing bodily harm or with a weapon, then aggravated assault. Full guide →
• Theft (s. 322; theft under or over $5,000, s. 334) and fraud (s. 380).
• Mischief (s. 430): destroying or damaging property, or interfering with its use.
• Uttering threats (s. 264.1) and criminal harassment (s. 264).
• Break and enter (s. 348).
• Impaired driving (alcohol, drugs; s. 320.14) and refusing to provide a sample (s. 320.15).
• Drugs: possession, trafficking, production · under the Controlled Drugs and Substances Act (not the Criminal Code).

7. Defences

Depending on the situation, several defences exist (it is for a lawyer to assess them):

• The reasonable doubt · the most basic one: the prosecution has not proved one of the elements.
• The defence of the person (s. 34) and the defence of property (s. 35).
• The defence of duress (s. 17) and the defence of necessity (a common law defence).
• The mental disorder defence (s. 16) and thealibi.
• The Charter breaches (arrest, search, delay) that can lead to evidence being excluded or to a stay of proceedings.

8. Sentencing

If you are found guilty, the sentence must be proportionate to the seriousness of the offence and to your degree of responsibility (ss. 718 and following). The judge weighs the objectives (denunciation, deterrence, rehabilitation, reparation) and the aggravating or mitigating factors. The possible sentences:

• Discharge , absolute or conditional (s. 730): found guilty but not convicted · so no criminal record. Full guide →
• Fine, probation (s. 731), community service.
• Conditional sentence (served in the community, under conditions) or imprisonment in custody.

For Indigenous people, the sentence must take their particular circumstances into account and consider options other than prison (the Gladue).

9. The criminal record

A finding of guilt creates a criminal record, which can affect employment, travel and immigration. After a waiting period and under certain conditions, you can apply for a record suspension (formerly a « pardon ») from the Parole Board of Canada. Full guide →

10. Young persons (LSJPA)

Young people aged 12 to 17 come under the Youth Criminal Justice Act. The system focuses on rehabilitation and reintegration, with adapted measures and greater privacy protection. The consequences and the record follow special rules, separate from those for adults.

11. Getting help

Do not go it alone:legal aid system (depending on income) covers most criminal defence work, and a criminal defence lawyer can assess your case, the disclosure and the possible defences. Your role, beforehand: gathering dated facts and a clean timeline · preparing to meet your lawyer →.