Criminal Law > Criminal Process

For many people charged with a criminal offence, the process can often be frightening and confusing.  Even in situations that may seem complicated. a good Criminal Defence lawyer will strive to fight for you to make sure you get the best possible result.  The following information is provided as a basic overview of the criminal process.

As each situation is different, you should always ensure to obtain legal advice.  Our law office offers free consultations and is available 24 hours a day and can be reached immediately at (416) 877-5291.

Having a lawyer assist you from the very first step is the best way to ensure you receive a proper defence.

If the Police decide to release you

If you are released from the police station following a criminal charge, you will be given a piece of paper with the date, time, and location of your upcoming court appearance.  This release can take one of several forms, but is most commonly done on a “Promise to Appear.”

If you do not attend court on the specified date, you may be faced with an additional charge – that of failing to appear for court.  However, if you hire a lawyer before your first appearance and sign a designation for your lawyer to appear on your behalf, you will not have to attend court for most appearance dates.  Based on the nature of the charge you are facing, you may also be given several conditions, which may include staying away from the complainant, not possessing any weapons, not consuming any drugs or alcohol, or not attending within a certain distance from a specified location.

It is vital to your defence that you do not break any of these conditions, as even the most simple breach will result in the laying of additional criminal charges.

If the Police decide to hold you

Most times following your arrest, the Police will inform you that you will be held for a “show cause” or a “bail hearing.”  Essentially this means that the Police are going to leave it up to the Court to determine, based on the arguments of the Crown Prosecutor and your lawyer, whether or not you should be released before trial.  For your bail hearing, you will be brought to court in handcuffs from the police station.

The importance of a bail hearing cannot be overstated.

If your are denied bail, you will either have to wait for your trial while in jail, or apply for a bail review to the Superior Court of Justice.  In the hours before your bail hearing, it is up to your lawyer to prepare for your hearing by meeting with people, either friends or family members, who agree to supervise you during the time up until your matter is resolved.  These friends or family members who agree to supervise you are referred to as “sureties”, and you can have either one or several people agree to act as your surety.

In addition to agreeing to supervise you, your surety will often “pledge” a certain amount of money for your release.  This does not mean that, in most cases, they will need to bring the money to court.  Rather, they must show that they have the financial means to pay the amount that they have pledged should you fail to attend court or breach any of the conditions of your release.  Your surety should, at the least, not have a criminal record, be able to supervise you in the manner agreed to by the court, and be able to show that they have a certain amount of money (usually through bank statements) to pledge to the Court as security for their promise.

The First Appearance

Whether released or in custody, you will have a court appearance scheduled either several days or weeks following your arrest.  The most important and common concern clients should understand is that your first appearance in court is not a trial.  Witnesses will not be called and you will not be found “guilty” or “not guilty.”

The purpose of the first appearance after your release or bail hearing is, for the most part, procedural.  At the first appearance your name will be called and either you or your lawyer will stand up before the Judge to pick up a package of documents summarizing the case against you.  These documents are referred to as the “Disclosure” and often contain the following:

• Police notes
• Statements from witnesses
• Copies of DVD or video statements given by you or witnesses at the police station
• Summaries of 911 calls made

What do I do with my Disclosure?

If you have hired a lawyer before your first appearance, your lawyer will attend court and pick-up your disclosure for you.  If you have not hired a lawyer, this is the important stage where finding the right lawyer to represent you is crucial.  You will meet with your lawyer at his or her office and review the disclosure with them.

Your lawyer will then be able to assess the strengths and weaknesses of your case, explain whether any of your constitutional rights were violated, and whether there are any defenses available to you.  If you are eligible, disclosure will also help you apply for legal aid.  This application can be made at the legal aid office at most courthouses, or at one of the local legal aid offices in your area.

Negotiating your Case – The Fight Begins

After reviewing your disclosure with you, your lawyer will be able to give you a good sense of the strengths and weaknesses of the Crown’s case against you.  Often, your lawyer may ask the Crown, by writing a letter, to provide additional disclosure in situations where the disclosure is incomplete, and where additional information is available.  The Crown has an obligation under law to provide all relevant materials in their possession — for example, if there is a videotape of an incident that may be relevant to your defence, the Crown must produce that videotape so long as it’s relevant — even if it’s not particularly helpful to the prosecution’s side.  Once your lawyer has had an opportunity to review your disclosure, research case law, and speak with potential witnesses, he or she will then schedule a meeting with the Crown attorney.

The Crown Resolution Meeting

Your lawyer will then meet with the Crown attorney and, in most situations, attempt to point out the weaknesses of the Crown’s case against you.  The Crown’s office does not typically meet with accused persons directly, and most Crown’s will emphasize the importance of having a lawyer for these meetings.  These resolution meetings are crucial and often determine whether or not the Crown will choose to proceed with the charges against you, or in very rare circumstances, withdraw the charges based on no reasonable prospect of conviction.  Many of the topics that are covered during these meetings include:

• The possible length of a trial
• Potential violations of your constitutional rights
• The sentence the Crown is seeking for a guilty plea
• The possibility of changing some of your release conditions
• The names of witnesses who will be required for trual

Judicial Pre-Trials

A “Judicial Pre-trial” is closely related to a Crown Resolution Meeting, except that this second-stage discussions are now held in front of a judge. The judge may assist in narrowing some of the outstanding legal issues and often is effective in persuading one party to resolve in cases of a stalemate in the negotiations.  These meetings are held either in Judge’s Chambers or in closed court and accused persons are usually not permitted to attend.

This allows your lawyer and the Crown the opportunity to discuss the case candidly as any admissions made on behalf of the client are not binding until the client accepts it.  In cases where your lawyer considers the Crown’s position on sentencing unreasonable, the Judicial Pre-Trial also affords an opportunity for a judge to weigh in with his or her opinion, which in certain cases may benefit a client who chooses to enter a plea before that same judge.

The Trial

If your matter is not resolved following a Judicial Pre-Trial, a trial date is often set in court at the next appearance date.  This trial date is often many months into the future, and several months of intensive preparation may be required.  For persons charged with certain more serious offences, the opportunity to conduct a preliminary inquiry is made available several months before the trial.  At this proceeding your lawyer may ask questions of witnesses who will appear against you at trial.  If the offence charged is extremely serious, you may also have an opportunity to elect a trial by jury.  At the trial, the Crown attorney will call several witness against you, possibly including the complainant, the police and possible even expert witnesses.

For additional questions regarding the criminal process, including those relating to sentencing and appeals, please contact our office.