If the person causing harm has been charged with a criminal offence, this page provides information on the criminal court process. For more information on reporting abuse to the police, see Getting the Police Involved.
- Types of Criminal Offences
- Who’s in the courtroom?
- The Structure of a Trial
- Giving Evidence
- After the Trial
Types of Criminal Offences
There are three types of criminal offences:
- Summary Offences: these minor offences and are tried in Provincial Court. An example is the offence of causing a disturbance.
- Indictable Offences: these are more serious offences that have harsher penalties. These offences can be heard in Provincial Court or the Court of King’s Bench, and sometimes the accused person can decide if they want a judge or a jury to decide their case. Examples include murder, manslaughter and aggravated assault.
- Hybrid Offences: these can be treated as either summary or indictable offences, depending on how severe the crime was. The Crown counsel decides if the matter will proceed by summary offence or indictable offence.
Note: If a person elects to have their case heard in the Court of King’s Bench, there first has to be a Preliminary Inquiry in Provincial Court. The Preliminary Inquiry will determine if there is enough evidence for a trial. Witnesses will have to give evidence at the Preliminary Inquiry. As a result, it is possible that a witness will have to give evidence twice (once at the Preliminary Inquiry and the other time at trial). If the accused pleads guilty at any stage, the witness will not have to give evidence about the facts of the case.
Who’s in the courtroom?
There can be many people in the courtroom. Knowing who is who, what each person’s role is, and what is expected of you as a witness should help you understand what is going on around you.
- clerk: the judge’s assistant. The clerk:
- says “all rise” when the judge enters the courtroom;
- calls witnesses by name to take the stand and asks them to give their full name for the court reporter to record it properly;
- asks each witness to take an oath or to make an affirmation promising to tell the truth.
- court reporter: sits in front of courtroom near the judge and records on a computer everything that people say while the trial is going on.
- Crown prosecutor: lawyer who works for the government. The accused is seen as someone who may have committed a crime against the values of society. The Crown Prosecutor defends society’s values. (The Crown prosecutor does not represent you but you do not need your own lawyer if you are the complainant.)
- defence counsel: lawyer who represents the person accused of breaking the law. The job of the defence counsel is to question the Crown’s witnesses, test the credibility of each witness’ evidence, and try to find out if a witness is confused or making things up.
- judge: The judge will listen to everyone’s story so that they understand the entire situation. If there is a jury, then the judge only decides what the sentence should be. If there is no jury, then the judge decides if the accused is guilty or not.
- jury: is only present if the accused chooses to be heard by a jury. If there is a jury, it will:
- be composed of 12 adult Canadian citizens, men and women, selected for jury duty;
- act as “finder of fact”; and
- make a decision independently. Jury verdicts must be unanimous for the court to act.
- sheriff: maintains a safe environment in the courtroom and wears a uniform that looks similar to a police officer’s uniform.
- witness: a person called to give evidence in court in order to discover the truth. It is important that witnesses answer honestly.
For more information about being a witness, see Giving Evidence.
The Structure of a Trial
The format is essentially the same for a criminal trial, whether it is heard in the Provincial Court or the Court of King’s Bench.
- Opening Statements
- The Crown prosecutor and the defence counsel will make opening statements. These statements give a summary of what the case is about and what evidence will be called. The Crown prosecutor must show throughout the trial that the accused is guilty. The defence counsel does not have to prove that the accused is innocent.
- Calling Evidence
- The Crown prosecutor will call its witnesses. The purpose of these witnesses are to show the accused is guilty. Once the Crown prosecutor finishes asking a witness questions (called direct examination), then the defence counsel can ask the witness questions (called cross-examination). This happens for each witness.
- Once the Crown prosecutor has called all of its evidence, the defence counsel can state to the judge that the Crown prosecutor has not shown the accused is guilty. The judge will consider this application in the light of the evidence that has been heard. If the judge agrees, the case could be dismissed at that point. If not, the judge will ask the defence counsel to present its case.
- The defence counsel will call its witnesses to try to show that the accused is not guilty. Sometimes the accused will testify but they do not have to. Once the defence counsel finishes asking a witness questions, then the Crown prosecutor can ask the witness questions. This happens for each witness.
- The Crown prosecutor and defence counsel can call “expert witnesses”. Expert witnesses are believed to have knowledge in a specific subject beyond that of the average person because of their education, training, skill or experience.
- Closing Arguments
- When all of the evidence has been heard, the Crown prosecutor and the defence counsel make closing arguments to the judge (and jury, if there is one).
- If there is a jury, the judge will give the jury specific instructions before sending them away to make a decision.
Abuse occurs most often in private. If the incident does take place in private, the criminal case can develop into the word of the person causing harm against the word of the person experiencing abuse. Other witnesses may be able to help depending on what they know or have seen. It can also help if the person experiencing abuse has kept a record of the abuse.
For the purposes of giving evidence, there are two issues:
- being “competent”
- being “compellable”
Being competent to give evidence means you are:
- able to respond rationally to questions about the facts in issue,
- able to communicate the evidence and give an intelligible account of what you witnessed (this includes the ability to have perceived it in the first place and the ability to recollect), and
- able to understand the moral obligation to tell the truth in court.
Being compellable to give evidence means it is possible to force a person to give evidence (by a subpoena). If you fail to comply with a subpoena (by not showing up to testify), then you can be charged with contempt of court.
Not all witnesses are compellable. For example, spouses are competent but not compellable witnesses. This means a person can choose to but cannot be forced to give evidence against their accused spouse. There are two situations where a person can be compelled to give evidence against their spouse:
- where the charge involves a threat to the person, liberty, or health of the spouse. This would include most cases involving physical abuse, and
- for certain offences under the Criminal Code. These include: sexual offences, sexual offences in relation to children, abduction of children, various marriage offences such as bigamy, and the offence of failure to provide the necessities of life.
If there is any dispute whether a situation falls into one of these categories, a judge will decide that issue at the hearing. If, in either of these two situations, a person refused to give evidence against their spouse, that person would be at risk of being prosecuted for contempt of court.
Some tips if you are a witness:
- Arrive 15 minutes early and let the Crown prosecutor know that you have arrived.
- Once court begins, all the witnesses will be instructed to leave the courtroom. This is called an order of exclusion.
- If you are asked to leave the courtroom, make sure that you stay just outside the courtroom so that you are easy to find when it is your turn to testify.
- The Crown prosecutor will call a witness first; then the defence will call its first witness.
- You may be the first one called to testify.
- The accused may plead guilty before or during the proceedings.
- The court may be delayed for a number of reasons. If there is a delay, you can ask the Crown about it.
Things to remember when testifying as a witness:
- If you do not know the answer to a question, do not try to guess. It is okay to say “I do not know” or “I do not remember”.
- If you do not understand a question, ask for it to be rephrased.
- Speak clearly and loudly.
- You must always respond verbally. The court records only verbal responses. When saying yes or no, you must use those words rather than nod or shake your head.
- Do not discuss your testimony with others. You may discuss your case with the Crown prosecutor and police, but no one else.
- If you make a mistake, let the Crown prosecutor know.
- It is recommended that you look your best when testifying.
- You will be required to take an oath (religious option) or affirmation (non-religious option) that you are telling the truth.
- You have a right to review your police statement before you testify. If you do not have a copy, you can obtain one from the Crown prosecutor.
- It is okay for you to ask for something you need, for example, tissues, glass of water, or to use the washrooms.
- It is the defense lawyer’s responsibility to ask many questions to determine the accuracy of your testimony. This is called cross-examination. The defense lawyer might suggest something that you, the witness, partially agree or disagree with. You can explain to the judge which part(s) you agree and disagree with. Try not to get upset if it sounds like you are not being believed.
After the Trial
The Court’s Decision
If the judge or jury finds the accused not guilty of the offence, then the accused person is free to go. However, there are still steps you can take to keep the person away from you. See more information on Keeping the Abuser Away.
If the judge or jury finds the accused guilty of the offence, the accused will be sentenced. Sentencing takes place at a later date after the end of the trial. Before the sentencing hearing, you can file with the court a written victim impact statement for the court to take into account when sentencing the accused. The statement can include details about how the offence has affected you emotionally and financially. Victim services workers can help you with this statement.
At the time of sentencing, you can also ask the court to order the accused to pay restitution or compensation to you for losses suffered as a result of the crime. Restitution can include losses such as stolen property, lost wages, or moving costs. This request has to be made by the Crown prosecutor before the court sentences the accused. You should give the Crown prosecutor all the information to support this request before the sentencing hearing.
Under Alberta’s Victims of Crime Act, some victims of certain crimes can apply to the government for financial benefits for injuries or death.
- The alleged offender does not have to be convicted of a crime in order for the victim to be able to make an application for compensation under the Act. However, the crime must have been reported within a reasonable amount of time after it happened. And the application for benefits must be made within two years from the time of injury or death. The government can extend the time for making a claim if they think it is appropriate in the situation.
- There are no benefits for financial or property loss.
Under Alberta’s Victims Restitution and Compensation Payment Act, the government can take steps to recover property alleged to have been gotten by an illegal act. It allows a “Civil Forfeiture Office” to ask the court to seize property acquired illegally as well as property used to carry out illegal acts. Again, the alleged offender does not yet have to be convicted of a crime in order for the victim to be able to make an application under the Act (but there must have been an investigation).
For more resources on abuse, see CPLEA’s publications on Abuse and Family Violence.