What happens at a criminal trial in the Ontario Court of Justice, step by step?

A criminal trial in the Ontario Court of Justice is heard by a judge alone, with no jury. The clerk reads the charge and takes your plea, the Crown calls its witnesses and your side cross-examines them, and then you decide whether to call any evidence of your own. The judge convicts only if the Crown has proved every essential element of the charge beyond a reasonable doubt.

The trial is the last stage of a criminal defence case in Ontario that has not been resolved by a withdrawal, diversion or plea. By the time a trial date is set, two earlier choices have usually been made. If you had a choice of court, the election is explained in our guide to choosing judge alone or a jury. The meeting where the trial length and issues are set is covered in what happens at a judicial pre-trial. This page picks up on the morning of the trial itself.

Which cases are tried in the Ontario Court of Justice?

A charge the Crown prosecutes summarily is tried in a summary conviction court, which the Criminal Code defines as a justice or provincial court judge (s. 785(1)); in Ontario that means the Ontario Court of Justice. A summary conviction offence carries a general maximum of a $5,000 fine, two years less a day in jail, or both, unless another law sets a different penalty (Criminal Code, s. 787(1)). Many offences are hybrid, which means the Crown chooses whether to proceed summarily or by indictment. When the Crown proceeds by indictment, many accused people can still elect a trial in this court before a judge, with no preliminary inquiry. Our page on what the Crown's summary or indictable choice changes explains how that decision is made and where it shows up in your disclosure.

Where the trial is held depends on where the charge was laid. A Toronto charge is heard by the Ontario Court of Justice at the Toronto courthouse at 10 Armoury Street. The Ontario Court of Justice also hears criminal cases at 50 Eagle Street West in Newmarket and at 7755 Hurontario Street in Brampton; our guide to the Newmarket courthouse for York Region cases covers the first of these. The steps below are the same in all three, because they come from the Criminal Code and the court's own rules, not from the building.

How does the trial unfold, step by step?

The Ontario Court of Justice publishes its own description of a criminal trial for people who come to court. The order it sets out, with the law behind each step, is below.

Two points in that order surprise many people. First, you are entitled to stay in the courtroom and hear every witness, even if you plan to testify yourself, but you must not tell any witness what was said in court. Second, cross-examination is where the defence puts its version of events to the Crown's witnesses. The court's guide warns that if your version is never suggested to the Crown witness, the judge may give it less weight later, or the Crown may be allowed to recall that witness.

What does "beyond a reasonable doubt" actually mean?

Everyone charged with an offence has the right to be presumed innocent until proven guilty according to law, in a fair and public hearing by an independent and impartial tribunal (Charter, s. 11(d)). The Supreme Court of Canada described what judges and juries must take from that in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 36. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. A reasonable doubt is not imaginary or frivolous, and it is not based on sympathy or prejudice. It is based on reason and common sense, and it must logically come from the evidence or from the absence of evidence. More is required than proof that the accused is probably guilty, although the Crown does not have to prove anything to an absolute certainty.

In practice, this means a judge can believe the complainant is probably right and still have to acquit. It also means the defence does not have to prove anything. The Crown must prove each essential element of the offence, and many of those elements are set out in the Information, the formal charge document in your disclosure.

Do you have to be in the courtroom for the whole trial?

Generally, yes. An accused must be present for the whole trial, in person or by audio or video where the Code allows it (s. 650(1)). With the consent of the prosecutor and the accused, the court can let the accused appear by counsel for any part of the trial except the parts where a witness gives evidence (s. 650(1.1)). If you have filed a designation of counsel, your lawyer can appear for you at many steps, but not while oral evidence is taken (s. 650.01(3)). Our page on when your lawyer can appear in court for you goes through each step of a case.

In a summary trial, if you were told the date and do not come, the court may hear and decide the case in your absence, or issue a warrant for your arrest and adjourn the trial (s. 803(2)). If it is the prosecutor who fails to appear for the resumption of an adjourned trial, the court may dismiss the charge (s. 803(4)).

What has to be done before the trial date?

Most of the work that decides a trial happens weeks before it. Under the Criminal Rules of the Ontario Court of Justice, any application starts with a Form 1 that must be served and filed with proof of service at least 30 days before the date the application will be heard, unless the Criminal Code sets a longer period (r. 3.1(1)). Pre-trial applications, such as an adjournment, a disclosure request or a stay for unreasonable delay, must be heard at least 60 days before trial (r. 2.4), and the court's practice direction on section 11(b) applications requires a delay application to be heard at least four months before trial unless a judge directs otherwise (r. 2.4 commentary). Applications to exclude evidence under the Charter are trial applications, heard at the start of the trial or during it (r. 2.5). Our guide to how a Charter application to exclude evidence works covers the exclusion application in depth. The delay remedy is explained in how long a criminal case can take before the delay is too long.

The court's guide adds three practical points. The Crown does not subpoena witnesses for the defence, so you must arrange subpoenas for anyone you want to call. An adjournment application must normally be served and filed at least 90 days before the trial date and heard at least 60 days before it. And if you have no lawyer when the date is set, the judge may set the trial "with or without counsel", which means it will go ahead whether or not you have hired one. Checking that your disclosure is complete well before then is part of the same preparation.

What changes the answer?

• How the Crown proceeds. A summary prosecution is tried by a provincial court judge; an indictable one may be tried here or in the Superior Court, depending on your election (Criminal Code, s. 785(1); OCJ glossary).
• Whether you testify. You do not have to, and neither the judge nor the Crown may comment on your silence (Charter, s. 11(c); Canada Evidence Act, s. 4(6)). If you do, you can be cross-examined like any witness. See whether you have to testify at your own trial.
• Whether a Charter breach is raised. Evidence obtained in breach of a Charter right is excluded if admitting it would bring the administration of justice into disrepute (Charter, s. 24(2)).
• Whether you attend. Your presence is required for the evidence (s. 650), and a summary trial can proceed without you if you stay away (s. 803(2)).
• Whether you understand English. A party or witness who does not understand or speak the language of the proceedings has the right to an interpreter (Charter, s. 14).
• Whether a witness is missing. The court may adjourn a summary trial before or during it, considering the interests of justice, including any victim's interests (s. 803(1) and (1.1)).

A worked example

For example, imagine Arash, a 34-year-old from North York who is more comfortable in Farsi than in English. He is charged with assault after an argument outside a restaurant, and the Crown proceeds summarily, so his trial is in the Ontario Court of Justice at 10 Armoury Street. At the judicial pre-trial, his lawyer tells the judge that one issue will be whether a short statement Arash made to an officer at the scene was voluntary, so the trial is booked long enough for a voir dire. A Persian interpreter is requested for every day Arash must attend.

On the trial date, Arash pleads not guilty. The complainant and two officers testify for the Crown, and each is cross-examined; his lawyer puts Arash's account of who pushed first to the complainant directly. After a voir dire, the judge rules on the statement. At the close of the Crown's case, Arash and his lawyer decide together whether he will testify, knowing that if he does, the Crown can cross-examine him. The judge then hears closing submissions and gives reasons on whether the Crown has proved the assault beyond a reasonable doubt. This is a hypothetical, not a real client and not a prediction of any result.

What mistakes do people make at an Ontario criminal trial?

1. Assuming the Crown will bring your witnesses. It will not. Defence witnesses need their own subpoenas, arranged through the court office well before the date.
2. Holding back your version during cross-examination. If you plan to contradict a Crown witness, the contradiction should be put to that witness first, or the judge may give your evidence less weight.
3. Raising a Charter issue on the morning of trial. The Criminal Rules expect a Form 1 application served and filed at least 30 days before it is heard (r. 3.1(1)); the court can excuse non-compliance, but it can also dismiss the application without hearing it on the merits (r. 5.3 commentary).
4. Discussing the evidence with witnesses during breaks. You may hear all the evidence, but you must not tell a witness what has been said in court.
5. Recording the proceedings on a phone. The court's guide notes that s. 136 of the Courts of Justice Act prohibits recording without the presiding judge's permission.
6. Not attending. In a summary trial the court may proceed without you or issue a warrant (s. 803(2)).

What to do this week

1. Confirm the trial date, courtroom and length on your last court paper, and whether the trial was set "with or without counsel".
2. Make a list of every witness you may need, with contact details, and ask your lawyer or the court office about subpoenas.
3. Read your full disclosure again, including officers' notes and any video, and write down every point where it differs from your memory.
4. Identify any Charter issue now, such as a search, a detention or access to a lawyer, so an application can be served on time.
5. Ask for an interpreter on the record if you or a witness needs one, so it is booked for each day.
6. Gather sentencing material early, such as letters about work and family, in case it is needed; see what a pre-sentence report involves.

If you are more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains the court process from the first appearance onward.

Frequently asked questions

Is there a jury in the Ontario Court of Justice?

No. Trials in the Ontario Court of Justice are heard by a judge alone. A jury trial is only available in the Superior Court of Justice, where an accused who has that choice elects it.

Can I be found guilty of some charges and not others?

Yes. The court's guide says the judge may find you guilty of some charges on the Information and not guilty of others. If you are found not guilty of everything, you are free to leave at the end of the trial.

What happens if I am found guilty?

The judge may sentence you the same day or adjourn sentencing to a later date. Before sentence, both sides can present evidence and make submissions, the Crown may file a victim impact statement, and the judge may order a pre-sentence report, which the court says usually takes about six weeks.

Can the trial be postponed if a witness cannot come?

In a summary trial the court may adjourn before or during the trial, and must consider the interests of justice, including the victim's interests where that information is available (s. 803(1) and (1.1)). An adjournment request by the defence is an application under the Criminal Rules and should be brought well in advance.

Can I plead guilty on the trial date instead?

A plea can still be entered at the start of the trial, but the court may accept it only if it is satisfied that the plea is voluntary, that you understand what it admits and what it leads to, and that the facts support the charge (s. 606(1.1)). What a plea involves, and what cannot be undone afterwards, is explained in what happens at a guilty plea in Ontario.

Can I appeal if I am convicted?

Yes, within the time fixed by law, and the court that hears the appeal depends on how the case was prosecuted. Our guide to appealing a criminal conviction in Ontario sets out the routes.

Getting help

Gambriani Law PC represents people at criminal trials in the Ontario Court of Justice in Toronto and across the GTA, in English and Farsi. No lawyer can promise how a trial will end, but early preparation gives you a clearer view of the evidence and your options. The office is at Suite 1901, 5000 Yonge Street in North York, open Monday to Friday, 9:00 a.m. to 5:00 p.m., at +1 647 970 3370, or you can reach us through the contact page.

This page is general information about Ontario criminal procedure, not legal advice about your case.