Legal Terms Defined

The following is a list of some of the more common legal words and terms used in the Canadian Courts. The definitions are provided to enhance your general understanding of the language of the Courts. They should not be taken or used as legal advice.

Absolute Discharge: an offender who receives an absolute discharge is deemed not to have been convicted of the offence. However, since the offender pleaded or was found guilty, he or she will still have a federal criminal record.

Accused: person who is charged with a crime.

Acquittal: a finding of not guilty in a criminal case.

Act: a law passed by Parliament or a provincial legislature. Also called a statute.

Action: a civil law proceeding, often referred to as a “lawsuit” and commenced by a Statement of Claim.

Adjournment: the postponement of a court proceeding or session until another date; may be with a specified date or indefinitely.

Affidavit: a sworn, or affirmed, written declaration that a certain set of facts is true.

Affidavit of Service: an Affidavit which sets out the manner, time and place that a particular court document(s) was served upon a person; is usually filed with the court as proof that a person was served with a particular document(s) in accordance with an order or rules of the court.

Affirmation: a non-religious oath given before testifying.

Allege: to suggest that something is true without necessarily being able to prove it.

Amicus Curiae: a Latin term meaning “friend of the court”; commonly found in family law cases; a person, usually a lawyer, is appointed as “amicus” on behalf of a child by the court. The amicus is responsible to the court in providing whatever input the court requires, i.e. the views of the child respecting proposed custody arrangements.

Appeal Book: a bound volume filed with an appeal court by the Appellant which contains all of the documents, affidavit evidence, orders, listing of exhibits filed, judgment and reasons for the decision that have been filed in the court from which the appeal is made.

Appeal: examination by a higher court of the decision of a lower court or tribunal. The higher court may affirm, vary or reverse the original decision.

Appellant: the person who appeals a decision of a court or other decision-making body.

Appearance Notice: a notice issued by a police officer requiring the accused's appearance before a judge or justice of the peace to answer a charge. An appearance notice is typically given instead of arresting the accused.

Applicant: person who applies to the court for a remedy or relief set out in an Application.

Application: a request of the court to make an order for the remedy or relief requested.

Argument: the address, oral or written, to the court by the parties with the aim of persuading the court to make a decision in their favour.

Arraignment: the process in criminal law by which the accused's name is called, the charge is read, and the accused pleads guilty or not guilty. If the offence is one that gives the accused a choice, he or she will also elect at the arraignment to be tried by a judge or by a judge and jury in a higher court, or by a judge in a lower court.

Bail: in the Criminal Code called “judicial interim release”; the release of an accused from custody pending the trial or conclusion of their case; may also be granted to a convicted person pending the conclusion of an appeal of their conviction; the release or bail includes conditions that must be followed by the accused or his/her bail may be revoked by the court.

Bench Warrant: a court order empowering the police to arrest a person. These warrants are most often issued in cases of contempt of court, failure to appear or where an indictment is being laid.

Beyond a Reasonable Doubt: this is the rigorous standard of proof that the Crown prosecutor is required to meet in a criminal case. This means that the evidence must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the mind of the judge or jury. The Crown must prove each element of the offence beyond a reasonable doubt.

Case Conference: a meeting of a judge and the parties and/or their lawyers to ensure that procedures are followed for the cost-effective and timely determination of the case and to explore the possibility of settlement of issues in the case.

Cause of Action: the legal basis underlying the plaintiff's civil suit against the defendant.

Certiorari: an “extraordinary remedy” used by a superior court to quash or cancel an order or decision made without jurisdiction by a lower court or tribunal.

Civil Case: a court proceeding which involves legal issues between individuals/organizations/governments; court proceedings other than criminal matters.

Class Action: an action or lawsuit brought by a representative plaintiff(s) on behalf of a group of people who have been similarly affected.

Common Law: the law stated in the decisions of judges from early times to the present.

Concurrent Sentence: sentences for two or more offences that are served at the same time rather than one after the other or consecutively; where sentences are concurrent, the length of sentence will be that of the longest sentence given.

Conditional Discharge: similar to an absolute discharge, except that the offender is subject to specified conditions contained in a probation order. If the offender violates these conditions, the discharge may be revoked. A conviction will then be entered, and an appropriate sentence imposed.

Conditional Sentence: where a sentence of imprisonment of two years or less is given, the judge may order that the sentence be served in the community subject to conditions, one of which is often house arrest.

Consecutive Sentence: sentences for two or more offences that are served one after the other or consecutively, not at the same time as with concurrent sentences.

Contempt of Court: a criminal offence that typically involves interfering with the administration of justice, ignoring the rules of court or defying a judge.

Contested: a term used primarily in civil proceedings to describe a proceeding where the respondent/defendant takes steps to “contest” the claims of the plaintiff/applicant; as opposed to an “uncontested” matter where the responding party does not take any steps to oppose the claim of the plaintiff/applicant.

Conviction: in a criminal case, the determination by the court that an accused is guilty of an offence; the “conviction date” is when the accused was found guilty or convicted of the offence by the court and the sentencing of the accused may take place at that time or be adjourned to a later date.

Corollary Relief Judgment: a court order that is issued as part of a divorce proceeding. A corollary relief judgment usually addresses issues such as custody access, child support, spousal support, and the division of matrimonial assets.

Corroborating Evidence: evidence that confirms or strengthens evidence already presented to the court.

Costs: see Solicitor and Clients Costs or Party and party Costs.

Counterclaim: an action brought by a defendant against a plaintiff. The defendant's counterclaim is dealt with in the same trial as the plaintiff's claim.

Crown Attorney: the lawyer representing the Crown in a criminal prosecution.

Damages: monetary compensation for various kinds of losses, past and future, including emotional or physical injuries, loss of earnings, costs of care and financial or property losses.

Defendant: the person sued in a civil action or charged with a criminal offence.

Discovery: in civil actions, the parties are given an opportunity to question each other prior to trial to discover the details of the other side's case. The examinations for discovery which can extend to other witnesses as well, allows the parties to narrow the issues and focus the trial on contested matters.

Disposition: the outcome of a case.

Docket: the list or schedule of court cases to be heard on a particular day; a brief record of the proceedings in the court for a particular day.

Dual Procedure Offence: in Canada, all criminal offences are divided into one of three categories: summary conviction, indictable, and dual procedure offences. In a dual procedure (hybrid or Crown electable) offence, the Crown prosecutor has the choice to proceed by summary conviction or by indictment, depending on the seriousness of the offence.  The distinction between summary conviction and indictable offences is based on the formality of the procedures used to try them. Once the Crown has made its decision, the offence is subject to the normal rules of procedure for a summary conviction or indictable offence.

Election by the Accused: the Criminal Code gives accused charged with certain offences the choice to be tried by judge and jury or by a judge alone in a higher court, or by a provincial judge in a lower court.

Election by the Crown: in cases involving dual procedure offences, the procedure by which the Crown decides to prosecute a case as a summary conviction offence or as an indictable offence. The Crown is more likely to proceed by indictment if the circumstances of the offence are more serious than a typical case, or if the accused is a repeat offender.

Ex Parte: where a court proceeding is heard in the presence of one party only and without notice to the other party(s).

Exhibit: physical evidence that has been tendered or filed with the court, for example a document, weapon, item of clothing.

Factum: a bound volume filed with an appeal court which is made up of four parts: (1) an introduction as to what the appeal is about; (2) a summary of the facts that relate to the issues in the appeal; (3) a list of the issues in the appeal; and (4) an argument which contains statements setting out the law and facts to be discussed with reference to the particular evidence.

General Damages: compensation sought by the Plaintiff in an action that is not specified but where the court is to determine the appropriate amount to be awarded as damages.

Gladue Report:

Habeas Corpus: a writ issued by a judge ordering the release of a person who is being detained or imprisoned unlawfully.

Impact of Race and Culture Assessment:

Indictable Offence: one of the categories of offences set out in the Criminal Code; generally refers to a serious offence which is subject to a greater penalty than the less serious summary conviction offence.

Indictment: a formal accusation of a criminal offence having been committed by an accused(s) contained in a document filed with the court by the crown prosecutor.

Information: a sworn or affirmed statement made by an informant who has reasonable and probable grounds to believe that the accused(s) has committed a criminal offence.

Injunction: a court order restraining a party from doing some act (prohibitory injunction), or requiring the performance of some act (mandatory injunction). Injunctions may be permanent or temporary and may be subject to conditions.

Interim Order: a decision of a court that is not the final outcome of the matter; commonly occurs in family law cases where an interim or temporary order is made by the court regarding issues that may ultimately be decided at a later date, i.e. at a trial.

Intermittent Sentence: a sentence of imprisonment that is served in intervals (usually weekends), over a period of time. Under the Criminal Code, a judge can only impose an intermittent sentence if the term of imprisonment is 90 days or less. The offender must comply with the conditions of a probation order when not in confinement.

Judgment: the final decision by the court in a legal proceeding; judgment and decision are often used in the place of each other; may be written or given orally in court; may also be reserved by the court at the end of the proceeding and given at a later date, usually in written form.

Judicial Interim Release: a judicial order releasing the accused from custody prior to trial, which can be made subject to conditions.  A judicial interim release cannot be granted for certain serious criminal offences, like murder, mutiny or treason.

Jurisdiction: the scope of authority given to a particular court, tribunal or other decision-making body; the types of cases a court or decision-making body has the power to determine; the geographical area in which a court or decision-making body has the power to make decisions.

Justice of the Peace: a judicial officer with authority to determine minor criminal offences and civil proceedings as set out in a particular statute.

Leave: the permission of the court to proceed; for example, to “seek the leave of the court” to file an appeal.

Legal Aid: a program that assists those who require a lawyer but cannot afford one. In Nova Scotia, legal aid is usually available only for more serious criminal offences and (certain) family law disputes.

Litigation: the process of trying a dispute in court.

Mandamus: an “extraordinary remedy” used by a superior court to require a lower court or decision-making entity to exercise an authority that it has.

Mandatory Parole: in most circumstances, an inmate will be credited with one day of earned remission for every two days served in prison. Mandatory parole is the term used to describe situations in which the inmate is released as a result of his or her accumulated earned remission. Inmates released under mandatory parole are subject to mandatory supervision by a parole officer.

Motion: is a step taken by a party during the course of an existing court proceeding whereby a party requests an order for a specified remedy or direction from the court.

Offence: a crime; an act committed contrary to the law as set out in a statute such as the Criminal Code or a provincial statute.

Order: a decision of a court or other decision-making body that may or be issued on an interim basis or which directs the final outcome of the matter.

Pardon: an exemption from a conviction for a criminal offence resulting in the person no longer having a criminal record of the offence committed. The National Parole Board may grant a pardon to anyone who has served his/her sentence and demonstrated that he/she is a responsible citizen. Usually a waiting period is required before being eligible for a pardon.

Parole: the release of an offender from prison prior to the end of his or her sentence. The offender continues to serve the sentence outside of prison under the supervision of a parole officer, and must obey specific conditions or risk returning to custody.

Particulars: detailed information of the alleged facts of a criminal offence with which the accused has been charged.

Party and Party Costs: the costs that may be awarded by the court to a successful party in accordance with the tariff or schedule of costs set by the court for that particular proceeding, subject to the discretion of the court.  Costs can be awarded on the hearing of a motion or an application or a trial.  They are intended to provide substantial recovery of the successful party’s legal fees.

Party: a person or corporation who commences or defends or intervenes in a civil proceeding; in a criminal context, a person who actually commits an offence or who is liable as a party to an offence by reason of aiding or abetting or conspiring or counseling the commission of an offence.

Per Curiam: a Latin term meaning “by the court”; sometimes the written reasons for the decision of an appeal court are not acknowledged to be the reasons of a particular judge of the court but of the court as a whole and the reasons are given under the heading “per curiam”.

Petition: a document which commences a civil proceeding other than an action or law suit (which is commenced by a Statement of Claim); a Petition usually seeks from the court relief that is set out under a particular statute, for example a Petition for a Divorce under the federal Divorce Act.

Plaintiff: The person who commences an action or “law suit”.

Plea-Bargaining: negotiations between the defence counsel and Crown prosecutor concerning the charges and pleas of the accused. The Crown may accept a guilty plea on a lesser charge instead of incurring the expense and time and uncertainty of a trial on the original charge. The Crown may also agree to make a joint submission to the judge on the appropriate sentence, if the accused agrees to plead guilty.

Pleadings: the documents that are filed with the court by the parties to a proceeding which sets out the facts relied upon and defines issues or matters to be determined by the court including the remedies sought; the foundational documents which form the record of the case with the court.

Point of Law: a question regarding a law or legal issue as opposed to a question regarding the facts involved in a legal proceeding; a term often used in determining whether an appeal can be taken of a decision. Some appeals can only be made on a point of law, and not in regard to the facts of the case as they were determined by the trial judge. However, in some cases, the difference between a point of law and a point of fact may be unclear or mixed.

Preliminary Inquiry: a hearing before a Provincial Court Judge to decide whether there is sufficient evidence for the accused to go to trial; a preliminary inquiry only takes place where the accused is charged with an indictable offence and chooses to be tried by a judge or judge and jury of the superior trial court.

Pre-Sentence Report: prior to sentencing, the judge may order a probation officer to prepare a pre-sentence report. The report summarizes the accused's family life, personal situation and background. Pre-sentence reports are used to help judges decide on an appropriate sentence for the offender.

Pre-Trial Conference: a meeting between the parties and/or their lawyers and a judge to settle procedural questions and define or narrow the issues to be tried; settlement of trial issues may also occur.

Prima Facie: a Latin term meaning “at first sight”; used to describe a fact that is presumed to be true unless disproved by contrary evidence.

Private Prosecution: where an individual prosecutes a criminal charge against a person as opposed to a public prosecution by a Crown Attorney where the charge is laid by a policing agency; the Criminal Code provides for individual citizens to be able to prosecute a person that the individual believes has committed a criminal offence and where the state or Crown has not laid a charge and does not intervene in the prosecution.  A judge then decides, after hearing the allegations of the informant and witnesses, whether a case has been made out to issue a summons to compel the attendance of the accused in court to answer to the charge.

Probate: the granting of probate of a will or the letters of administration of an estate without a will; the determination of the court as to the validity of a will.

Probation: a sentence that requires the offender to obey certain stipulated conditions. Some conditions, like keeping the peace and being of good behaviour, are compulsory in every probation order. Others conditions are left to the judge's discretion. Probation is only available where the offence does not carry a mandatory jail term. The probation order can be no more than three years in duration. It is a federal criminal offence to violate any term of probation without a reasonable excuse.

Pro Bono: a Latin term meaning “for the good”; used to describe a lawyer’s services that are provided free of charge.

Prohibition: an “extraordinary remedy” used by a superior court to prohibit a lower court or tribunal from exercising or continuing to exercise an authority it does not have.

Prothonotary: the Prothonotary is the Chief Clerk of the Supreme Court with whom all civil litigation is filed. The word is of Greek origin, and it means "First Clerk."   The Prothonotary is engaged in Court Administration and has authority to issue specified orders.

Quash: to void a particular legal proceeding or decision, i.e. quash an order of a tribunal, making the order of no force or effect, as if the order had not been made.

R. v. (name): the R. stands for “Regina” which is the Latin word for Queen or “Rex” which is the Latin word for King; the “v.” stands for versus or against; in criminal proceedings the name of the case is referred to as, e.g. “R v. Smith.

Record of Proceedings: in regard to a particular case, the listing or recording by the court of all of the appearances and/or proceedings and their outcomes before the court.

Registrar: an officer of the court office or “registry” who receives documents for filing with the court and who has authority to certify or confirm decisions on behalf of the court.

Regulation: a form of legislation enacted under the authority of a statute by the Governor-General in Council (the federal cabinet), the Lieutenant-Governor in Council (a provincial cabinet), a Minister or government official, or an administrative board. Typically, the regulations will set out detailed provisions that are not essential to include in the statute. This power to enact regulations permits the government to act expeditiously and introduce changes without having to enact a new statute.

Remand: to send an accused back into custody to await further proceedings or trial (custodial remand); to send a case back to a lower court from an appellate court with instructions for trial or further proceedings.

Respondent: the person who responds to or opposes an Application made by the Applicant; also a person who responds to or opposes an appeal taken by an Appellant.

Rule of Law: a principle of governance in which all persons and institutions, including the State itself, are subject to laws that are publicly promulgated, equally enforced, and independently adjudicated without bias or influence.

Rules of Court: the procedures which govern the proceedings in the court and which are to be followed by the parties.

Service: the delivering to a person of a copy of a document that has been filed with the court; the manner of service, e.g. in person, and time frame within which service must occur is set out in the Rules of Court or in the particular statute governing the case.

Sheriff: an officer of the court who is responsible for maintaining the security of the court which includes the escorting of accused persons in custody; ensuring the security of jurors in criminal jury trials, and the carrying out of court orders.

Solicitor and Client Costs: also called “lawyer and client costs”, refers to the court awarding costs to a successful party that provides full indemnity for their legal fees.

Special Damages: a specified sum of money claimed as damages by a Plaintiff in an action or law suit; in contrast to general damages which does not specify an amount but asks the court to determine and award the appropriate amount.

Stare Decisis: a Latin term meaning “to abide by decided cases”; this principle of the common law requires judges to apply previous binding decisions of their own court or any higher court.

Statement of Claim: a pleading in civil law proceedings where the Plaintiff alleges the facts relied upon in support of the relief or remedy claimed; the document attached to a Notice of Action which commences an action or “lawsuit”.

Statement of Defence: the pleading in response or defence to the Statement of Claim in civil law proceedings where the Defendant alleges the facts relied upon in defence of the claim made in the action or “lawsuit”.

Statute: a law or Act enacted or passed into law by Parliament or a legislature.

Submission: similar to argument; the address or presentation of the parties to the court at the end of a particular proceeding, after the evidence has been presented and before the court is to make its decision.

Subpoena: a command to appear at a specific time and place to give testimony in regard to a particular matter; some subpoenas may require the person to produce a document or other things in his/her possession.

Summary Conviction Offences: the category of criminal offences that are subject to less formal and complex procedures. Summary offences are tried by Supreme Court justices or Provincial Court judges. They are usually less serious crimes than indictable offences and carry lower penalties.

Summons: a document which requires a person to attend court on a specified date and time to answer or respond to a complaint filed with the court; a process in criminal proceedings to require an accused person to attend court to answer to a criminal charge.

Surety: in criminal proceedings, a person who, with or without being required to post a sum of money or security, guarantees that an accused person who has been granted bail will appear for his or her trial and/or next scheduled court appearance.

Suspended Sentence: where a person is found guilty, the court suspends the passing of a sentence and releases the offender on conditions set out in a probation order. Upon the expiration of the probation order, where the person has not been charged with further offences and has complied with all conditions of a probation order, the court will not sentence the person.  If the offender breaches probation, the judge may order the offender returned to court, and impose a jail term for the original offence.  As well, the offender may be charged with the federal criminal offence of breaching probation.

Testimony: statements made in court by a witness under oath or affirmation.

Title of Proceedings: the formal name of the court case; in civil proceedings for example: “John Smith v. John Jones”; in criminal proceedings for example: “The Queen v. John Smith”; the heading in a court document which describes the parties to the legal proceeding; may also be called the “style of cause”.

Tort: a civil action arising from a wrongful act or omission, in which a plaintiff may sue a defendant for damages.

Transcript: the official paper record of a court proceeding which is produced by the transcribing of a recording of the proceedings taken in court.

Viva Voce Evidence: oral evidence of a witness in a court proceeding as opposed to evidence given in the form of an Affidavit; “viva voce” is a Latin term meaning “living voice”.

Voir Dire: a hearing within the course of a trial to determine whether evidence put forward by one party or the other is admissible. If at the end of the voir dire the evidence is found to be inadmissible, then it cannot be considered in determining the guilt of an accused. In jury trials, the voir dire is conducted in the absence of the jury and the proceeding cannot be reported upon or published.

Warrant: a command or order of the court; there are numerous warrants in criminal proceedings such as an arrest warrant which is an order of the court to arrest an accused person and bring him or her before the court to answer to the offence with which the person has been charged; or a search warrant which is an order of the court permitting the search by peace officers of a particular premises for particular things respecting a criminal offence that are to be brought before the court.

Youth Criminal Justice Act: a federal statute that establishes how young people will be treated, tried and sentenced for criminal offences. The Act applies to suspects who are over 12 years old and under 18. In certain limited circumstances involving very serious offences, those who are 14 or older may be transferred to adult court. Among other things, the Youth Criminal Justice Act dramatically limits the maximum punishment that might otherwise apply for an offence, and creates special record-keeping provisions to protect young offenders from the adverse publicity and consequences of having a criminal record.