Please consider the information on this web site to be general information only to help inform you about the criminal court process, and should not be considered legal advice. Please feel free to call our office for a consultation regarding your specific circumstances.
CHARGED WITH A CRIMINAL OFFENCE?
Facing criminal charges can be overwhelming and confusing. However, some understanding of the process and obtaining the assistance of a lawyer can go a long way to help you to deal with your charges.
The process of going to court can be very confusing to those not familiar with it.
In most criminal cases, either you have come into direct contact with the police or someone made a complaint about you that the police investigated, which resulted in charges being laid. Once you are charged, the police turn the charges over to the Crown Attorney’s Office and the lawyers there (the Crowns) conduct the prosecutions.
Your case is likely to appear in court several times before your matter is heard before a judge.
Below is a step by step guide that help explains the procedures that are involved from the moment of being charged, up to the day of trial.
THE BAIL HEARING
If the police do not release you right away after your arrest on a ‘Promise to Appear’, you will be held for a bail hearing, also called a ‘show cause hearing’.
At a bail hearing, the court will decide whether or not you can be released into the community before your trial date. In Canada, the presumption of innocence is a fundamental right that is guaranteed in our Charter of Rights and Freedoms, which is part of our country’s constitution. When a person is charged with a crime, a person is presumed not to have committed that crime until they are convicted of it in a court of law. Relying on this principle of justice, the courts will release an individual who is charged with a crime if the court is satisfied that they will come to court as directed, that there is not a risk to the community, and that the community would not be offended by the person’s release.
The bail hearing is a critical juncture that will often affect an accused person’s decision on how to proceed with their charges. This is a very important part of the criminal process and should not be underestimated.
At this stage, the person charged will generally need the assistance of his or her friends and/or family to act as “sureties”. The number of sureties and amount of money to be put up will vary depending on the amount of charges, the type of charges, whether the accused has a prior criminal record, and whether they have ever failed to appear for court in the past.
BEING A SURETY
Acting a surety is a very important responsibility. Having a suitable surety can determine whether or not a person charged with an offence is released while they await their trial which can be a wait of many months. The bail hearing is possibly the most important juncture in the criminal proceeding.
A person is entitled to only one bail hearing, and it is usually in front of a Justice of the Peace of the Ontario Court of Justice. Although a review of that bail hearing (a “bail review”, or sometimes referred to as “High Court bail”) may be brought to the Superior Court of Justice, an accused is not entitled to do so until 30 days have passed. In addition, bringing an application for a bail review can be expensive and difficult for everyone involved. As such, it is very important that the first bail hearing is approached in a prepared and careful manner though the help of your lawyer or duty counsel.
The following are some general guidelines to follow in determining whether a surety is suitable or not:
The surety should:
* Be at least 21 years of age;
* Be a Canadian citizen or landed immigrant;
* Not have anything to do with the offence;
* Not have a criminal record or any outstanding criminal charges.
* Be in a position to supervise the accused person to some degree (the amount of supervision required will largely depend on the seriousness of the charge);
The surety’s duties include, but are not limited to:
* Ensuring that the accused person attends court when (and on time) and as required;
* Ensuring that the accused obeys all conditions that the court imposes upon the person;
* Calling the police if the accused breaches any of those conditions;
* Acknowledging and accepting the risk that if the accused breaches any of his or her conditions while under your supervision and you do not report the breach to the police, you may lose the money or equity that you may have pledged to have them released.
Remember when acting as a surety:
* It is a criminal offence for a person to breach their bail. If a person is caught doing so, they can be charged with the additional criminal offence of failing to comply with their conditions. More importantly, it becomes very difficult to be released on bail again after an alleged breach.
* Variations to bail conditions can be made only with the consent of the Crown and approved by a justice, or through the bail review process (described above). The surety or sureties CANNOT unilaterally authorize changes to bail conditions.
* You have made a promise to the Court and you are required to keep it, or risk losing the money you have pledged.
You have the right to know what evidence there is in the Crown’s case against you before deciding what to do. The Crown is obliged to provide you with all the evidence the police have gathered in your case whether or not they intend to use it against you. You or your lawyer can also ask the Crown for anything else you think is relevant. The Crown will normally hand over a package of this “disclosure” to you at your first appearance in court.
The Crown’s obligation to disclose information about your case continues throughout the case, and you may receive more disclosure as time passes.
If disclosure is not ready on the first appearance, the accused will have to come back to court every week or few weeks until it is ready. When the Justice of the Peace in court tells you to come back to court another day, this is called a “remand”.
Once you have received the initial disclosure package, your lawyer will need to discuss the case with the Crown. If the case is more complex, a discussion with a judge will also be required. These are called “Crown Pre-trials” and “Judicial Pre-trials” respectively. The accused person is not present during these discussions.
a) Crown Pre-trial
A Crown pre-trial is a necessary step in the process where your lawyer will have an informal discussion with the Crown about your case, often over the telephone. The conversation is usually about how long the trial is expected to take, whether there are constitutional issues, how many witnesses may be called, whether expert witness are going to be called, the sentence that the Crown is seeking, and other issues that help both the Crown and the defence estimate the length and type of trial required. Generally at this stage the Crown will provide their position on an appropriate sentence should the accused person enter a plea of guilty.
b) Judicial Pre-trial
The Judicial Pre-trial is very similar to the Crown Pre-trial except that it is done in the presence of a judge. The judge will often encourage parties to reach an agreement about non-contentious issues so that the length of trial can be limited. The judge may also weigh in on what an appropriate sentence would be for a conviction on the charges. The Judicial Pre-trial is a short but necessary procedure for trials expected to go longer than a few hours.
WHY SHOULDN’T I JUST PLEAD GUILTY & GET IT OVER WITH?
Pleading guilty to a criminal offence is a very important decision with serious long-term consequences. You should discuss the decision thoroughly with your lawyer and in consideration of the Crown’s disclosure and the consequences before making that final decision.
Although a person may believe they are guilty of an offence, the law may not consider the behaviour criminal in nature – there is a very important distinction between feeling guilty, and being guilty according to the law. Furthermore, if you plead guilty you cannot avail yourself of any remedies available through the Charter of Rights and Freedoms. For these and many other reasons, the decision to plead guilty should not be made lightly or without advice from a lawyer.
PRELIMINARY HEARING (only for certain indictable offences)
For more serious offences, an accused has an option to have a “preliminary hearing” (or “preliminary inquiry”) before the trial. The purpose of the preliminary hearing is to explore whether or not the Crown has enough evidence to commit the accused person to stand trial. This is very different from the trial itself and serves a different purpose. The threshold that the Crown has to meet at this stage is very low and most individuals are marked down for trial after the preliminary hearing.
The trial is where both sides have the opportunity to tell their story in front of a judge or jury. In criminal law, the Crown is required to prove beyond a reasonable doubt that a crime occurred and that the person charged is the same person who committed it. The Crown and defence lawyers call evidence through witnesses and by entering exhibits. The judge or jury hears the evidence and the lawyers’ submissions on the facts and the law, and then makes a finding based upon what they have heard and considered.
The judge or jury will find a person either guilty or not guilty of the charges. Another possibility is that the charges are “stayed” (possibly because of a constitutional breach).
The Crown may also withdraw the charges at any time if he or she feels that there is no reasonable prospect or conviction, or at their own discretion if they think that it serves the interests of justice to do so.
If you are acquitted of all charges at trial, you walk out the courtroom as if you were never charged (except, of course, that you will have suffered through the wait for your trial to prove your innocence, and will have paid legal fees).
If you are convicted of some or all charges, the judge will then hear submissions from the Crown and defence lawyers, and sometimes will hear evidence to determine what an appropriate sentence is for you.
HIRING A LAWYER – WHAT WILL IT COST?
Unless your charges are very minor or very straightforward and can be handled by duty counsel, it is strongly recommended that you hire a lawyer to assist you in defending against your charges and to make sure that justice prevails in your case.
The primary concern for people when deciding whether to hire (or “retain”) a lawyer is the cost. Although legal fees can be expensive, there is a wide range of what those costs may be. Costs depend on the complexity of the case, the time required of the lawyer, and the experience of the lawyer involved. Derstine Penman lawyers range from the most junior to the most senior of lawyers and we offer flexibility in our rates depending on who you wish to represent you. We also offer flexibility in terms of payment plans.
The best way to determine whether or not you wish to retain a lawyer is to call and schedule a meeting to discuss your case and get a fee estimate on your case. It costs nothing for this preliminary consultation and you are under no obligation to retain our firm.
PAYMENT PROGRAMS AND LEGAL AID
If you cannot afford a lawyer, Derstine Penman accepts Legal Aid certificates. Contact Legal Aid Ontario at the following link to see if you qualify for assistance: http://www.legalaid.on.ca/en/getting/