Key Differences Between Civil vs. Criminal Cases

Posted by Stevenson Whelton LLP
July 24, 2019

A civil case or civil action involves one person suing another. Whereas, in a criminal case, the Crown prosecutes a person for a criminal offence according to the laws set out in Canada’s Criminal Code or another statute.  Two key differences between civil actions (or lawsuits) and criminal cases are the legal procedures leading up to resolution of the case, and in the way guilt is determined.

A Civil Case or Lawsuit

Civil actions begin when there is a dispute between people or corporations, such as a disagreement about a contract or a negligence action which caused injury to one of the parties.  For example, if an inattentive driver seriously injures a pedestrian, the pedestrian may sue the driver for losses (or ‘damages’) that result from their injury.  In a civil case, the person who brings the lawsuit or sues is called the plaintiff, while the person being sued is called the defendant.  

Approximately 98 percent of civil actions in Canada are resolved without a trial, and sometimes even before a plaintiff files a lawsuit. In such cases, resolution of the dispute may be achieved when the opposing parties and their lawyers reach a mutually- agreed upon settlement, or through the arbitration or medication process, or via alternative dispute resolution.  

The objective of the plaintiff in a civil action is to seek a remedy.  In most cases, the plaintiff is seeking monetary damages for losses caused by the defendant.  In other civil actions, the plaintiff may be asking for a declaratory remedy, which is a statement clarifying the rights of the parties, such as a marriage settlement agreement.  A third remedy which may be sought by a plaintiff is an injunction or restraining order; however, injunctions always require a court proceeding. 

If the two parties in a civil action cannot reach an agreement through negotiation or arbitration and the plaintiff wants to continue with the lawsuit, the plaintiff can file a pleading with the court.  A pleading is the first step towards a trial and it defines the complaint against the defendant and the remedy being sought by the plaintiff.  Copies of the pleading or claim are delivered to the defendant, who is then expected to provide the court with a statement of defence.  If no statement of defence is filed, the court will assume the plaintiff’s statement is true and the defendant may lose by default.  The next pre-trial step is the examination for discovery, which allows each party to examine the evidence from the other side which they intend to present in court.  Both parties continue to have the option to settle their case without proceeding to trial.

During the trial, the plaintiff brings evidence to support their allegations against the defendant, and the defendant may present evidence to disprove the plaintiff’s claims against them.  Both parties have the opportunity to cross-examine the other’s witnesses, and may themselves call expert witnesses and others to support their viewpoint.  Key evidence in a civil trial includes facts that show that the defendant broke a civil law, such as the Occupiers’ Liability Act which holds a property owner or occupier liable for someone’s injuries if they recklessly allowed an unsafe condition on the property which caused injury to the plaintiff.   

The standard of proof in a civil trial is that, on a balance of probabilities, the defendant is legally responsible (liable) for the wrongful action committed against the plaintiff.  If the judge or jury finds that, on the basis of all the evidence presented, it’s probable that the defendant was legally responsible, then the court will hold the defendant liable.  In cases where the plaintiff is seeking monetary damages and the defendant has been found liable, the Court must decide whether the plaintiff is eligible for the damages being sought by the plaintiff, and must also determine the amount of damages that should be awarded, based on evidence of losses suffered by the plaintiff.   In some cases, the determination of damages can be quite complex, for example, when a catastrophically injured plaintiff will require extensive future care for the foreseeable future.

A Criminal Case

A criminal case begins when a person has been charged with a criminal offence.  Police lay a criminal charge and arrest a person when they have reasonable grounds to believe an offence has been committed.  The person charged with a crime is called the accused, and the opposing party bringing the action is the prosecution or the Crown.  The accused person is always presumed innocent until proven guilty.

When a person has been charged with a crime, they must be informed of the reasons for the arrest and promptly given their right to speak to a lawyer of their choice.

After being arrested and charged with an offence, the accused may be released with a promise to appear in court at a later date, or they may be held in a holding cell until being brought before a judge or justice of the peace to enter a plea, usually within 24 hours.

When the accused enters a plea, the judge will decide to release the accused until the trial or on bail.  At a bail hearing, the prosecutor must give reasons why the accused should remain in custody. And, if the judge decides to release the accused person, they may release them with or without conditions.  Refusal to release someone on bail only happens when there are very compelling reasons for keeping them in custody.

There are two types of criminal offences in Canada, as defined in our laws.

  • Summary conviction offences are for more minor crimes, such as causing a disturbance. Summary conviction offences don’t have the right to a jury trial and result in lower penalties, such as fines or jail time.
  • Indictable offences are more serious crimes, such as assault, and they generally result in more serious penalties.  An indictable offence can only be tried after a preliminary hearing where the judge decides if there’s sufficient evidence to proceed. If the case isn’t dismissed, then the accused may choose to be tried by a jury, judge and jury, or judge alone.

However, some crimes may be prosecuted ‘either or’, as a summary conviction offence or an indictable offence.  For example, if the accused person has a previous conviction, the Crown may choose to prosecute as an indictable offence rather proceed summarily.

With a summary offence, the accused typically appears before a provincial court judge and the trial proceeds immediately.  If charged with an indictable offence and the judge in a preliminary hearing decides there’s enough evidence to order a trial, the trial must be scheduled within a reasonable time.  

A key difference between a criminal and civil trial is the requirement for finding the defendant guilty.  In a criminal trial, the standard is higher since the stakes are also higher for an accused, who may lose their freedom and have the stigma of a criminal record if found guilty. Accordingly, the prosecution in a criminal case must prove that the accused is guilty of the offence beyond a reasonable doubt.  However, if evidence is presented showing that the accused’s Charter rights were violated in any way, the judge may refuse to consider any evidence that was tainted by the violation.

Similar to a civil case, the opposing parties (in this instance, the accused and the Crown) will both provide evidence to prove their side of the case.  If the case is dismissed against the accused and they are found not guilty, they are free to go.  If the accused is found guilty of a crime, the judge must decide on an appropriate punishment or sentence, and this decision is based on several criteria including the seriousness of the crime and past convictions for the accused.


Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.