Civil and Criminal?

Criminal law

Criminal law punishes behaviour that offends society as a whole, although only one victim may have suffered. If someone breaks a criminal law, the state acts to punish that individual. In Canada, the Criminal Code and other statutes enacted by the federal government set out offences that are considered criminal. Three types of offences exist in the criminal court system:

1. Indictable offences – these consist of serious offences, punishable by jail terms of two, five, ten or fourteen years or a life sentence (an example: murder).

2. Summary Conviction offences – less serious offences with punishment consisting of a fine and/or six months in jail.

3. Hybrid offences – offences of this type can be prosecuted as indictable or summary offences, in the discretion of the Crown Attorney. The offence is presumed to be indictable until the Crown elects otherwise.

The type of offence determines which procedure the court will follow in hearing the matter. For example, it will determine the kind of judge with jurisdiction to hear the case.

A criminal matter generally begins with an investigation by a peace officer, followed by an arrest. After this, the officer will either detain the accused in jail or release the accused with a notice requiring an appearance in court at a later date.

The peace officer in charge of the matter must then swear an ‘information’ before a judge. The information is a document sworn under oath, which sets out the criminal allegations against the accused. The judge will decide whether to proceed with the matter based on the facts set out in the information.

If the accused has been detained in jail, the court must hold a bail hearing on his or her behalf within 24 hours, or as soon as possible. At the bail hearing, the judge decides whether the accused will remain in jail until trial, or be released with or without conditions and required to appear at the next court date, based on the evidence presented by the Crown and the accused.

Indictable offences require a preliminary hearing. At this hearing, the judge decides whether the Crown has sufficient evidence to result in a conviction, and if so, orders the accused to stand trial. If not, the accused is discharged and released.

If the accused is committed for trial, the court sets a trial date. The trial begins with the Crown’s presentation of evidence, and the defence responds with its own evidence, although the accused need not testify. The Crown must prove the case beyond a reasonable doubt in order to succeed in a finding of guilt. If the Crown succeeds, the accused may appeal the decision to a higher court.

Civil Law

Civil law deals with disagreements between individuals in society. It involves private disputes in areas such as business contracts, property ownership and obligations owed to family members. A civil action or lawsuit occurs when one person, the ‘plaintiff’, sues another person, the ‘defendant’, regarding a private dispute. The plaintiff must prove the defendant’s liability to the judge or jury on ‘a balance of probabilities’, a lower level of proof than that required in criminal court. If the plaintiff proves his or her case, the court usually orders the defendant to pay the plaintiff a sum of money as compensation for the losses the plaintiff suffered.

A document called a writ or Notice of Action indicates the commencement of a lawsuit. The plaintiff files the Notice with the court and all of the parties named in the suit. The plaintiff also files pleadings with the court and other parties, containing the allegations and claims the plaintiff has against the defendant. The defendant replies to these claims by filing a statement of defence with the court and other parties, within a specified time.

Parties generally hold ‘examinations for discovery’ next. These examinations allow each party to find out the details of the opposing party’s case by asking the other party as well as his or her witnesses questions which must be answered under oath. This clarifies the case for both parties and encourages settlement before trial.

Most provinces allow the judge to call a pretrial conference at this point, presided over by the judge and usually held in chambers. The parties discuss the dispute, and the judge attempts to find out whether the parties can come to an out-of-court settlement. If not, a trial date is set.

At the trial, held in court, each side presents arguments and evidence and can call witnesses. The trial may be held before a judge, or judge and jury. At the end of the trial the court makes its decision. The losing party has the right to appeal the decision to a higher court.

Natalie Fraser practised law in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly.