Been Charged?

The court process can be very confusing to those not familiar with it.

In most criminal cases, either you come into direct contact with the police or someone made a complaint about you that the police investigated resulting in charges being laid. Once you are charged, the police turn the charges over the Crown Attorney’s Office and the lawyers there (the Crowns) handle the prosecution from that point.

Your case is likely to appear in court many times before being heard by a judge or jury at a trial.

Below is a step-by-step guide that helps explain the procedures that are involved from the moment of being charged up to the day of trial.

If the police do not release you right away after your arrest on a “promise to appear” or “undertaking with conditions”, you will be held for a bail hearing. This is 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 as part of our constitution. When a person is charged with a crime, that person is presumed not to have committed the crime until convicted in a court of law.

With this in mind, if you are charged with a crime, the courts will release you if it is satisfied of certain factors:

* The person charged will come to court as directed and not try to flee to escape the charges (the “primary ground”);

* The risk to the community is low because the court thinks there is enough supervision to stop the person from being charged with another crime (the “secondary ground”);

* The community would not be “shocked” if the person is released, such as if charges are very serious and the Crown’s case is strong (the “tertiary grounds”).

In making a decision, the court will look at whether the person charged has a criminal record, what the plan of supervision is, how many charges there are, the type of charges, and whether they have ever breached any court orders in the past.

At this stage, the person charged generally needs the assistance of their friends and/or family to act as “sureties” who help supervise the person in the community rather than them being supervised in custody.

At the bail hearing itself, the Crown usually reads out the allegations to the court based upon what the police have told them. After this, the sureties typically testify on the witness stand. Then the lawyers make their arguments and the court decides whether or not to release you and what conditions you will have to follow.

The bail hearing is a critical juncture that will often affect your decision on how to proceed with your charges. This is a very important part of the criminal process and should not be underestimated or rushed.

Anyone charged by the police has the right to only one bail hearing, which is usually in front of a Justice of the Peace (or “JP”) of the Ontario Court of Justice. Although a review of that bail hearing (a “bail review”, or sometimes called a “High Court bail”) can be heard at the Superior Court of Justice, this can take weeks to put together and schedule. In addition, bringing 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 through the help of your lawyer.

Acting as a surety is a very important responsibility. Having a suitable surety can determine whether you will be released while you await your trial, which can be many months.

The following are some 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 permanent resident;

*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 person obeys all conditions that the court imposes upon the person;

*Calling the police if the accused person breaches any of those conditions.

*Acknowledging and accepting the risk that if the accused breaches any of their conditions while on bail and the surety does not report the breach to the police, the surety may lose the money or equity that they may have pledged.

Often times, a surety is asked to put up some money or equity (for example, in their house) as part of the bail. Usually, the surety does not actually have to pay the court any cash up front. Instead, they enter into a “recognizance” which is like a contract to pay the court a certain amount if the surety does not do their duties properly.

There is no standard amount of money a surety is required to put up. Instead, it depends on how much money or assets the surety has, how much money they make, the seriousness of the charges, and the accused person’s criminal record.

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 a bail condition 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 authorize changes to bail conditions on their own.

*The surety has made a promise to the court and is required to keep it, or risk losing the money they 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 has to provide you with all the evidence the police have gathered in your case, whether or not they intend to use it against you. 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, you 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 any violations of your rights, 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 you 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 agree on certain issues so that the length of the trial can be shortened. 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.

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 difference between feeling guilty, and being guilty according to the law. Furthermore, if you plead guilty you may not be able to get some of the benefits you have a right to under 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.

For more serious offences, you have an option to have a “preliminary hearing” (or “prelim”) before the trial. The purpose of the preliminary hearing is to explore whether or not the Crown has enough evidence for you to stand trial. This is very different from the trial itself, and serves a different purpose. The benchmark 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 charge 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’ arguments on the facts and the law, and then decides 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 violation of rights).

The Crown may also withdraw the charges at any time if they feel that there is no reasonable prospect of conviction, or at their own discretion if they think that it is right 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 arguments from the Crown and defence lawyers, and sometimes will hear evidence to determine what an appropriate sentence is for you.

Unless your charges are very minor or very straightforward and can be handled by duty counsel (government-funded lawyers who work at the courthouse), 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. These costs vary depending on the complexity of the case, the time required of your lawyer, and the experience of the lawyer you want involved. Derstine Penman Lawyers range from the most junior to the most senior 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.

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/