Being charged with a criminal offence can be very confusing and overwhelming. However, knowing a few simple things, as well as obtaining the assistance of a lawyer, can significantly help you in dealing with your charges.
To read answers to frequently asked questions from accused persons and their families, click on the following links:
• I am appearing in court for the first time, what do I need to know?
• I am asked to be a surety, what do I need to do?
• Should I just plead guilty?
• Should I retain a lawyer?
• What if I cannot afford a lawyer?
THE COURT PROCESS
The court process can be very confusing to those unfamiliar with it.
There are many steps a person needs to take before you can have your case heard before a judge. These requirements are made by the Court and the Crown and will almost always need to be complied with.
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.
1) BAIL HEARING
At a bail hearing, the court will decide whether or not you can be released into the community while you are awaiting your trial date. In Canada, the presumption of innocence is a fundamental right that is guaranteed under our section 11(d) of our constitution - The Charter of Rights and Freedoms. 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.
For a person in custody, it is often a critical juncture that will affect their decision on how to proceed with their trial. This is a very important part of the criminal process and cannot be underestimated.
At this stage, the person charged will need the assistance of his or her friends and family to act as sureties. The amount of sureties and money to be put up can 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.
2) FIRST APPEARANCE & DISCLOSURE
In order to do anything with your charges, you need to know what evidence there is against you. The Crown is under an obligation to provide you with all the evidence that they will use against you, as well as other evidence that your lawyer thinks is relevant. You or your lawyer will be provided with this information in a package called "disclosure". This package is typically handed to the accused or their lawyer in court with a pink or yellow cover sheet.
On most first appearances, disclosure is not yet ready and so the accused must come back another day to see if it is ready. This process of having the accused return on another day is called a "remand" and the Justice of the Peace on your first appearance will remand you to a later date, often a few weeks, when disclosure might be available.
Once you have been provided with disclosure, 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.
a) Crown Pretrial
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. The defence lawyer will not speak about your charges, only 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 which are not confidential and help both the Crown and the defence estimate the length and type of trial required. The accused is not present during these discussions.
b) Judicial Pretrial
The Judicial Pre-trial is very similar to the Crown Pre-trial except that it is 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 shortened. The Judicial Pre-trial is a short but necessary procedure for trials expected to go longer than a few hours. The accused is not present during these discussions.
4) PRELIMINARY HEARING (only specific indictable offences)
For more serious offences, an accused has an option to have a "preliminary hearing" 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 then makes a finding based upon what they have heard and considered.
A person is either found innocent or 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.
6) ACQUITTAL OR SENTENCE
If you are acquitted of a crime, you walk out the front doors of the courtroom as if you were never charged in the first place. Of course, even though you may be acquitted, you may have still paid legal fees and suffered awaiting to prove your innocence. In that respect, things are different then before you were charged for the offence.
If you are convicted, the judge will then determine what an appropriate sentence is for you. *** Still under construction
ACTING AS A SURETY
Being 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. An accused's trial may not take place for many months and being released on bail is possibly the most important juncture in the criminal proceeding.
A person is only entitled to 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") may be brought in front of a Judge at 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:
* Not to have anything to do with the offence
* Not to have a criminal record or any outstanding criminal charges
* Be at least 21 years of age
* Be a Canadian citizen or landed immigrant
* Be employed (and not as an employee of the accused)
Your duties as a surety include, but are not limited to:
* Ensuring that the accused attends court on time and on every occasion
* Ensuring that the accused obeys all conditions that the court imposes upon the person
* To call the police if the accused breaches any of those conditions
* To be aware of the risk that if the accused reaches his or her conditions while under your supervision, you stand to lose any money or equity that you may have put up to have them released,
What you must remember when acting as surety:
* It is a criminal offence for a person to breach their bail. If a person is caught doing so, they will be charged with a new offence of failing to comply with their conditions. More importantly, it becomes very difficult to be released on bail again on these new charges because of the alleged breach.
* Conditions can only changed by a justice of the peace or judge. Nobody can give permission to change the conditions of a persons bail (except the Crown Attorney and approved by a Justice) - including any or all sureties.
* You have made a promise to the Court and you are required to keep it.
If you do not, then certain consequences may follow. Specifically, you may lose the money that you posted for the person.
Pleading guilty is a very important decision with serious long term consequences and should be discussed thoroughly with your lawyer 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 guilty according to the law. For these and many other reasons, the decision to plead guilty should not be made lightly or without advice from a lawyer.
RETAINING A LAWYER
The number one concern for people when deciding whether to retain a lawyer is the cost. Although legal fees can be expensive, there is also a wide range of what those costs may be. Legal costs depend on the complexity of the case, the time required of the lawyer, and the experience of the lawyer involved. Pinkofskys 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.
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
Because legal fees can be expensive, we offer flexible payment plans to accommodate your budget. You can discuss this with the lawyer you have your initial consultation with.
f you cannot afford a lawyer, Pinkofskys 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/