Criminal Process
It is crucial that you retain a criminal defence lawyer as early as possible. Your lawyer can help you to navigate the complex criminal process to achieve a successful result. Each criminal case is different, but the process is a sequence of stages that remains largely the same.
Retainer
To obtain the assistance of a lawyer, that lawyer must first be “retained”, which means to be hired. There are two ways to retain a criminal defence lawyer: to obtain a Legal Aid certificate or to pay privately. If Legal Aid determines that there is a “reasonable prospect of custody” upon the conviction of the accused AND if the accused makes below a certain (very low) annual income, Legal Aid may issue a certificate with which the accused can retain a lawyer. If the accused makes too much or if there is not a reasonable chance that the accused will go to jail if convicted of the offence, then the accused (or someone on the accused’s behalf) will need to pay privately to retain a lawyer. There are a number of different payment options that are available to retain a lawyer privately, including payment plans.
Arrest & Bail Hearing
If someone has been arrested and not released by police, the accused will be taken to court and must appear before a justice of the peace within 24 hours of their arrest. At this stage, a Crown prosecutor will decide if the accused can be released on conditions pending trial. If the Crown refuses to allow the accused to be released, or if the required conditions are overly restrictive, a bail hearing can be scheduled where the a justice of the peace will decide if the accused can be released pending trial, and if so, on what conditions. It is important to have a lawyer represent the accused at all stages after arrest to maximize the chance of release under reasonable conditions.
Bail Variations
If an accused is released, either by the police or by a justice of the peace, they may have to follow strict conditions. These conditions may be difficult to comply with, and they may prevent the accused from going to work or to school or from going to treatment for an addiction. Bail conditions can be changed in some cases. These changes are called bail variations. A criminal defence lawyer can assist you in obtaining a bail variation.
First Court Appearance
Once an accused is released, a date will be set for a first court appearance. The primary purposes for this court appearance are to obtain initial disclosure and to indicate whether the accused has retained counsel. If an accused retains a lawyer privately in advance of the first court appearance, a designation of counsel can be signed that allows the lawyer to appear without requiring the accused to be present. If the accused intends to apply for Legal Aid, they will need a referral from duty counsel on their court date to begin the process of applying for a Legal Aid certificate. Once the lawyer is retained, either privately or through Legal Aid, they can appear in court on behalf of the accused for most court appearances. This can be extremely beneficial, as it allows the accused to continue work or school without the interruption of a day in court.
Disclosure
Disclosure is information provided by the Crown that is related to the charges faced by the accused. It can include officer notes, witness statements, photographs, audio recordings, video surveillance, and a summary of the allegations. The initial disclosure will also include a Crown Screening Form, which is an indication of how seriously the Crown considers the charges. In some cases it shows that the Crown will allow the accused to enter into a diversion program which can result in the charges being withdrawn after successful completion. In most cases, however, it shows what type of sentence the Crown is seeking after a guilty plea. This initial offer is negotiable, however, and a criminal defence lawyer can often help to obtain an outcome that is better than what was initially offered by the Crown.
Resolution
In most cases, charges are resolved before a trial is ever scheduled. The following are possible outcomes for someone facing criminal charges:
- Withdrawal. Very rarely, a Crown may believe that there is not a reasonable possibility that they will be successful at trial, or the Crown may determine that it is not in the public interest to continue with the prosecution. More frequently, a withdrawal can result from the successful completion of a diversion program. In either case, this results in no criminal record for the accused.
- Peace Bond. The Crown sometimes will offer a peace bond, which results in a withdrawal of charges in exchange for the accused agreeing to comply with certain restrictions for a set period of time, generally 12 months. This also results in no criminal record.
- Absolute Discharge. A judge may determine that it is in the best interest of the accused and not contrary to the public interest that the accused avoid a criminal record. This is called a “discharge”, and means that the accused is deemed to have not been convicted of a criminal offence. An Absolute Discharge includes no conditions to comply with; the matter is complete once an absolute discharge is imposed.
- Conditional Discharge. Like an Absolute Discharge but with conditions for a period of time. These conditions generally last for 12 months, but the order can be up to three years. Terms can include conditions to not have contact with certain people, to not go to certain places, to attend counselling, to complete community service hours, or to not possess weapons. The order generally includes a term to regularly report to a probation officer. This also results in no criminal record.
- Fine. A judge may impose a fine on an accused after a finding of guilt. The amount of the fine depends on several factors, but it can be very large. For charges that relate to impaired driving (Over 80, Refuse Breath Sample, Impaired Driving), a fine is the minimum sentence by law. This outcome does result in the accused having a criminal record.
- Probation. An accused may be required to comply with the conditions of a probation order for a period of time, similar to those mentioned under “Conditional Discharge”. Unlike a conditional discharge, this does result in a criminal record.
- Suspended Sentence and Probation. An accused may be required to comply with the conditions of a probation order for a period of time, similar to those mentioned under “Conditional Discharge”. Unlike a conditional discharge, this does result in a criminal record. A “suspended sentence” means that the Crown prosecutor can apply to have the accused re-sentenced if they fail to comply with the conditions of probation.
- Custody. The worst possible outcome; a judge may decide that the accused must spend time in jail. The period can be anywhere from a few days or a few weeks to several months or even years, depending on the charge. For obvious reasons, this outcome must be avoided at all costs. A criminal defence lawyer can help to avoid or reduce a possible jail sentence.
Preliminary Hearing
In some cases, the Crown proceeds by way of indictment, either because that is the only option available on the charge, or because the Crown considers the offence to be serious due to the criminal record of the accused, the charge itself, or both. In these types of cases, the accused has an election on how they want to proceed with their charges. One of these options is to proceed to trial in the Superior Court of Justice, either by judge and jury or judge alone. Before having a trial in the Superior Court, an accused may be able to conduct a Preliminary Hearing in the Ontario Court of Justice. This hearing is either conducted to determine if the Crown has enough evidence to proceed to trial, or it is conducted to provide additional information to the Defence in advance of trial. A Preliminary Hearing allows the Defence to hear the testimony of witnesses who before this point may have only provided a written statement, which can provide very valuable information to be used at trial.
Trial
A trial may be in front of a judge alone, in either the Ontario Court of Justice or the Superior Court of Justice, or it may be held in front of a judge and jury in the Superior Court of Justice. At all stages of a trial, the Crown has the sole burden to prove the guilt of the accused beyond a reasonable doubt. A criminal defence lawyer can ensure that the Charter rights of the accused are protected, which is done during a hearing at the trial stage. It is also the role of the criminal defence lawyer to point out to the trier of fact, whether a judge or a jury, that a reasonable doubt exists on the evidence introduced during the trial.
