A common misunderstanding when it comes to understanding the justice system revolves around the distinction between two broad umbrellas of law: civil law vs criminal law.
Since we refer to all legislation as law, and all individuals who argue cases before court as lawyers, it is easy to assume that it is all basically the same. While there are a great many similarities, this assumption actually obscures a very important distinction between these two realms of legal practice.
This is a problem because when someone tells you to hire a lawyer, the assumption is that it is a straightforward affair. Then you search online and are overwhelmed with choice. There are somewhere close to 16,000 lawyers practicing in Ontario alone, many of them in Toronto. To wade through all that different expertise requires breaking down those who practice law into silos of focus.
The most fundamental division is the division of civil law vs criminal law. This article will summarize the basic distinctions, and why those distinctions are important.
Public vs. Private
The most basic distinction of criminal vs civil law is the question of what relationships those laws set out to govern. Criminal law is public in that it governs the relationship between an individual and society at large, as represented by the government.
If you drive while impaired, harm someone, and hire a Toronto criminal defence lawyer to defend you in court, they will be defending you from a public prosecutor, not the person you harmed; this is because in the eyes of the law, you have committed an offense against society at large, and if found guilty, you will be punished by society. This is why any criminal case will be labeled as “the Crown vs “John J. Defendant” — the government, representing society, is the harmed party.
In contrast, civil law is private in that it governs relationships between people. This is a body of law that is concerned with the disputes individuals (or companies) have with other individuals or companies, and so covers contract law, owning property, the rights and duties of family members, and damage caused by others to someone or their property.
If a divorced couple are in conflict over custody of a child, then family lawyers would argue the case before a family court, with different goals, guidelines, and procedures than a criminal case would have.
Common Law
Both civil law and criminal law in Canada rely to some extent on common law, which is not written legislation but rather the body of precedent set by verdicts reached by courts in the past. A common example is how in the US the case Roe v. Wade created precedent for the idea that abortion was constitutionally protected. Once that case was decided, laws that had been legal became unconstitutional, based on the precedent set by the case.
This is one of the most important reasons why lawyers specialize. Part of being a good lawyer is having a good awareness of the important cases that create precedent, and there is so much case law that it would be impossible to have truly deep expertise in more than a few areas.
That is why a key part of finding a good Toronto criminal lawyer is looking for someone with experience in the specifics of your type of case, someone like Jeffrey Reisman, with over 20 years’ experience practicing criminal law.
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Standard of Proof
So far, we haven’t talked much about the practical, or process, differences of criminal law vs civil law in Canada. One of the most important of these is who must prove what in order for the case to be decided, otherwise known as standard of proof.
The bedrock of how criminal defense works in Canada is ‘innocent until proven guilty.’ In other words, the burden is on the prosecution to prove to the court that the defendant is guilty; the defence does not need to prove anything, they just need to create a reasonable doubt that the defendant might not be guilty.
In civil law, on the other hand, the standard of proof relies on the “balance of probabilities.” The plaintiff only must show that it is probable that the defendant is guilty, and the court must rule in favour of whichever side is most likely in the right. This is a lower standard of proof than exists in criminal cases, because in criminal cases a person’s freedom, or in the past even their life, is at stake.
Evidence
Another important process difference of criminal vs civil law is in what is expected of the defendant. In criminal proceedings a prosecutor is not allowed to require the accused to give evidence; in civil cases, this restriction does not apply.
Probation Period
Another difference in criminal vs civil law is how long the courts are involved in a case. When a civil case is decided, the court rules, and then the case is closed. In criminal law, however, there can be a lengthy process even after sentencing has been handed down.
There are multiple situations where at sentencing an offender may be placed on probation, which allows them to be in the community but requires them to meet certain conditions. This can be in addition to jail time, or instead of it, or interspersed with it if the offender is under an intermittent sentence. A violation of the probation conditions is considered a separate, new offence. A breach of probation in Ontario is an offence that can carry a sentence of up to 4 years of imprisonment.
Criminal law has many unique intricacies that separate it from civil law, from its body of case law to its tools for protecting the innocent or ensuring a fair trial and reasonable sentence for the guilty. If you are faced with criminal charges, make sure you have a lawyer with the years of experience necessary to navigate this system and protect your interests — talk to Jeff Reisman Law today.