Ontario Criminal Court Procedures 2017-02-11T17:08:48+00:00

Ontario Criminal Court Procedures

criminal court procedures in ontarioCriminal court rules and procedures in Ontario are complicated.  To someone unfamiliar with them, the experience can be overwhelming. To make matters worse, making a wrong decision along the way may have severe and lasting legal consequences.  Fortunately, the lawyers at Robichaud’s can provide you guidance through these complicated procedures from suspicion, arrest, court, trial, and appeal if necessary.

Below, you will find a basic overview below of Ontario Court of Justice, and Superior Court of Justice court procedures and rules.

Note: What is offered here is an very simplified explanation of criminal court procedures in Ontario.  This is not legal advice nor is it accurate for every court jurisdiction in Ontario.  Generally speaking, the courts in Ontario will follow what is set out below.  However, every jurisdiction has their own rules, regulations, and practices for how a criminal case is conducted.   If you have specific question you shouldn’t hesitate to contact a lawyer and discuss in greater detail the specifics of your legal situation.

Learn more about Ontario criminal court procedures by following the links below:

Many people wonder under what circumstances a person may be detained, arrested and charged under Canadian criminal law, and if they are arrested, what right do police have to detain them or hold them for bail. The information below provides a very general overview of detention, arrest, and criminal charges under Canadian criminal law.

Powers of Detention Short of Arrest: detention, arrest, and criminal charges in canada

Not every police detention is an arrest. In some circumstances police may detain a person if they have reasonable grounds to believe that a recent or ongoing criminal activity is taking place and that a person investigated is somehow involved as a suspect. If the person is not being placed under arrest, the detention ought to be brief and of minimal intrusion on the privacy of the person. What this means in practice can be very unpredictable, particularly in situations where events are unfolding and police are trying to appreciate the situation at hand.

Regardless of whether someone is detained for an “investigative detention” or under arrest, they ought to be provided rights to counsel and an ability to contact counsel if the situation reasonably allows one an opportunity to do so. These rights are found under section 9 and 10(a) and (b) of the Charter of Rights and Freedoms. The same rights apply, with greater protection, for situations where a person is formally arrested as set out below. If those rights are violated, a person may apply to a criminal court for a remedy under section 24(2) of the Charter.

Powers of Arrest Under Canadian Criminal Law

criminal chargesA person may be arrested with or without a warrant. For warrantless arrests to be legal, the person making the arrest must find a person committing a criminal offence, or they must believe on reasonable grounds that the person has committed a criminal offence and they are escaping from a fresh pursuit of those legally entitled to arrest the suspect. (section 494 of the Criminal Code of Canada [C.C.C.]). These arrest powers apply to all persons and is often referred to as a “citizen’s arrest”. In making any such arrest, the citizen is required by law to deliver that arrestee “forthwith” to a police officer.

Powers of arrest for police officers are more broad than those applying to citizens and found under s.495(1) C.C.C. Police may arrest any person who has committed an indictable (more serious) criminal offence, or anyone that police believe is about to commit an indictable offence. They may also arrest any person committing any type of criminal offence if they find them committing it, as well as any person for whom a warrant is outstanding (like a bench warrant, or Canada-wide warrant). There are of course limitations to arrest powers. Those limitation are set out in greater detail in s. 495(2) C.C.C.

Generally speaking, with many complicated exceptions, a police officer will arrest a person if they believe on reasonable and probable grounds that person has committed a criminal offence. Contrary to popular belief for those unfamiliar with the criminal justice system, “reasonable and probable grounds” does not mean the police have to be sure that a person is guilty. Further, reasonable and probable grounds can be established from a vast possibilities of sources. Among other sources, their grounds may be premised upon hearsay, another interested party’s sole word, or circumstantial evidence that implies a person committed an offence. If a person is arrested without reasonable and probable grounds, that accused may ask the trial judge to provide a remedy pursuant to section 24(2) of the Charter of Rights and Freedoms.

Criminal Charges and Issuing Process

When police decide to criminally charge a person, a peace officer must attend before a justice of the peace or judge and swear an “information” that sets out the particulars of the offence. As an example, a peace officer may state that “On or about the 22nd day of February 2013, John Doe did assault Frank Jones with a weapon, to wit, a hockey stick” and then swear under oath that they have reasonable grounds to believe such an offence took place. This document, called an “information”, becomes the formal document that will appear before the Court and follows the accused throughout the process until the charges are disposed of, the information is replaced, or an indictment is filed in more serious cases.

Again, the above explanations are grossly oversimplified processes of Canadian criminal procedure. To truly appreciate these processes in greater detail, and what remedies may be available to you if certain rules and laws are not followed, it is necessary to contact an experienced criminal lawyer who can analyze the particulars of the individual case. Contact one of our lawyers today at (416) 999-8389 to schedule an initial consultation.

When a person is charged with a criminal offence, the police retain a discretion for most criminal offences to release the alleged offender with or without conditions. Those forms of release are:

An Appearance Notice (also known as a form 9);
A “promise to appear” (also known as a form 10); or,
An Undertaking Given to a Peace Officer or Officer in Charge (also known as a form 11.1)

Forms of Release from Police Detention and Arrest

An appearance notice (form 9) is simply a notification provided by a peace officer of the upcoming court appearance as well as information on when the person must attend for fingerprinting for offences that are indictable or hybrid (straight summary conviction offences do not require fingerprinting). A peace officer is not permitted in law to release a person on a form 9 if the type of offence is: a) of a more serious nature (a straight indictable offence not listed in section 553 of the Criminal Code), b) it is not in the public interest to do so in order to establish the identity of the person, secure or preserve evidence, prevent the continuation of an offence, or to ensure the safety of a victim or witness. (See sections 496-497 of the Criminal Code of Canada).

A promise to appear (form 10) is very similar to an appearance notice above except that it may be provided by a peace officer other than those directly involved at the scene. A typical distinction is that an appearance notice is provided at the scene and a person is released without having to attend the police station, whereas a promise to appear is provided once a person has been processed and formally charged. A promise to appear also allows the police a bit more discretion to release on charges that are not “hybrid offences” so long as the maximum penalty does not exceed 5 years. (Section 498 of the Criminal Code of Canada)

An undertaking to a peace officer or officer in charge (form 11.1) will be provided together with a promise to appear and will include conditions more akin to bail terms. They may include restrictions on a person’s ability to attend a certain area, to refrain from engaging in specific acts, depositing of a passport, or to not contact the alleged victim or witnesses, and more. It may also require a person pledge up to $500.00 a security for their release. If a person is not ordinarily resident in the area of the offence (exceeding 200km) that deposit may require it be paid in cash. (See section 498 to 499 of the Criminal Code of Canada). Once a person is released and agrees to the terms of the undertaking, that person may wish to have those terms varied or loosened. An accused my follow the procedure and bring an application under section 499(3) of the Criminal Code to have their conditions varied.

If a person breaches any of the forms of releases above, they may be prosecuted under sections 145(5) and (6) of the Criminal Code by way of summary conviction or by indictment.

For almost every person who is held in custody upon their arrest, the bail hearing is their most important day in court. If a person is denied bail, they will be held in custody pending an appeal of that decision or until the case is disposed of by way of trial or guilty plea.

Since trials can take many months to reach, and often exceeding the maximum sentence one could reasonably expect, it is vital that an individual who is arrested and held for a bail hearing does everything in their power to ensure they are released. This includes understanding the processes involved, and retaining an experienced criminal lawyer to assist them in their hearing. Fortunately, most criminal lawyers including the lawyers at Robichaud’s are available 24 hours a day for emergencies just like this.

Please understand that the information provided herein is very general and ought not to be relied upon in lieu of legal counsel. Entire text books have been written on the area of bail in Canada alone. The information below simply provides an overview of the procedures involved in bail hearings.

Bail Hearings Under the Criminal Code of Canada: Section 515 of the Criminal Code

Most of the procedures addressing bail hearings is covered by section 515 and its subsections under the Criminal Code of Canada. When the court considers a person’s eligibility for release into the community on bail, a number of factors are considered. Before an assessment is made, the Court must determine who carries the burden of persuasion. Typically the prosecutor will have to “show cause” why a person must be held in custody pending their trial; however, there are occasions where the onus is reversed and the accused must show why his or her release is justified. Once this is established, there are a number of factors set out in large part by section 515(10) of the Criminal Code and are known colloquially as the “primary”, “secondary” and “tertiary” grounds.

The Primary Grounds

Section 515(10)(a) provides that a person’s detention may be justified “where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.” To put it simply, the primary ground is in place to ensure that a person comes to court and doesn’t flee the jurisdiction. Factors that may be assessed on this ground include, but are not limited to:

Whether the person has ties to the jurisdiction;
If the person has a history of failing to appear in court;
If the person has the means, or has expressed a willingness or intention to flee the jurisdiction indefinitely;
Etc.
In order to mitigate any concerns, an experienced criminal lawyer will lead evidence to demonstrate that there is no risk or that it is very remote. That may include demonstrating the accused’s ties to the community, a strong supervisory plan that ensures he attends court, depositing of passports, or frequent reporting requirements.

The Secondary Grounds

Section 515(10)(b) provides that a person’s detention may be justified “where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.” To put it simply, the secondary ground is concerned with risk assessment and trying to predict whether there is a “substantial likelihood” that a person will commit further criminal acts if released or will tamper with witnesses or evidence. Factors that may be assessed on this ground include, but are not limited to:

A person’s previous criminal record;
Previous acts that bear similarity or connection to the offence at hand;
A history of failing to comply with Recognizances of Bail;
Specific threats made to witnesses or alleged victims;
Substance abuse issues that may increase the chance for relapse and further criminal acts;
Etc.
In order to convince the Court that there is not a substantial likelihood of reoffending, a lawyer may attempt to lead evidence of a plan of release that addresses any concerns of the Court, propose treatment plans for substance abuse, or distinguish any criminal record form the present allegations. The secondary ground is the most commonly sought means of justifying a detention order by prosecutors and counsel will typically have to approach each situation in a well thought out and tailored approach to the particular accused. Having a strong plan of release with responsible sureties is by far the most persuasive factor for a lawyer to present to the Court for the secondary ground.

The Tertiary Grounds

The tertiary ground is supposed to be used sparingly and only in cases where an accused person’s detention is necessary in order to maintain confidence in the administration of justice. Therefore, there may be situations where a person has strong ties to the community, has no criminal antecedents, yet the crime is so horrendous and inexplicable that it would shock the conscious of the community to release the person back into the community. The tertiary ground is relied upon most often in high profile cases and particularly so in homicides. The factors assessed in the tertiary ground include, but are not limited to:

The strength of the prosecution’s case;
The gravity of the offence;
The circumstances surrounding the commission of the offence, and whether a firearm was used; and,
If there is a potential for a lengthy term of imprisonment, and if a firearm was used, if the sentence would be three years or more.
Cases that involve the tertiary ground are very serious and will undoubtedly require the assistance of an experienced criminal defence lawyer to assist a person with the complexities involved.

Acting as a Surety for a Person’s Bail Hearing

When a person is granted bail, they are typically released to the care and responsibility of a surety who pledges a certain amount of money or security. The surety can stand to lost this amount if the person breaches any of the court’s conditions of release while they are on bail. Sureties are very important and will often be the deciding factor on whether or not a person is released.

The requirements of a suitable surety are generally as follows:

No criminal record;
Over the age of 21;
An ability to supervise the accused to a degree required by the Court;
An amount of money in savings or equity they can pledge to the Court as security of their promise;
A capacity to understand and enforce the conditions the Court imposes; and,
An ability to attend court on the day of the bail hearing in a punctual manner.
Keep in mind that none of the factors above are determinative of whether or not a person can be a surety, but assist the court and lawyer in ensuring that the plan of release is a responsible one. Once you have your sureties, you need to decide whether or not you wish to retain private counsel or use Legal Aid lawyers (duty counsel) for your bail hearing. The advantage of using duty counsel lawyers is that they are provided to you at no cost. However, duty counsel are often very busy and may not be able to cater to your needs as specifically as a privately retained counsel. The cost of a bail hearing ranges depending on the charges, the lawyer you retain, etc.

The information below is provided only in relation to the first day in criminal court in Ontario, and more specifically in the Greater Toronto Area. Different jurisdictions, particularly those outside of the jurisdiction of Ontario, have very different procedures on the first day in criminal court. For example, some jurisdiction require that a person enter a plea of “guilty” or “not guilty” on their first day which is a significant event, although not the present practice in Ontario’s Greater Toronto Area Courts.

What happens on the first day in Criminal Court

For those people charged in Ontario, many people who are unfamiliar to the justice system believe that the first day in criminal court is a trial date, or some other significant appearance that they must be fully ready to defend themselves at. Fortunately, the first day in criminal court is largely administrative in nature. Although there are significant benefits to having a criminal defence lawyer with you, or appearing on your behalf at that time, generally speaking a lawyer is not necessary on the first day in criminal court.

Screen Shot 2015-11-13 at 3.33.45 PMWhat typically happens on this day is that you appear before a Justice of the Peace and are informed of the charges an accused is facing. If requested, those charges will be read out to the accused. The Court will then typically enquire into whether or not the accused has counsel, or intends to seek counsel. They may also ask if the person has sought the assistance of the Legal Aid Ontario plan. At this time, the Crown Attorney may provide the accused with an initial package of disclosure and possibly indicate how the Crown intends to proceed (i.e. by way of summary conviction or by indictment). The case is then adjourned for the purpose of the accused retaining a lawyer if they wish to do so, as well as for further procedural steps including a resolution meeting, or a judicial pre-trial. The benefit of having the systems set up on this way is that it allows an accused to obtain disclosure prior to meeting with lawyers and assist them in deciding who is best suited to hire for their particular criminal charges.

Under Canadian law, a person charged with a criminal offence has a right to disclosure. Disclosure is the information in police and Crown possession that may be relied upon in any way to further their prosecution. Put simply, a person charged has the same right to evidence as the person prosecuting it. There are some very limited exceptions to what a person is entitled to in disclosure. Those limits are usually as a result of privilege, complete irrelevancy, or if the material is not in the possession of the Crown or police prosecuting the matter. The leading case on the matter that set the stage for disclosure in Canada is R. v. Stinchcombe. Since that decision, the law on disclosure has expanded into a highly technical and complicated area of jurisprudence.

There are also limits to disclosure when the offence is of a sexual nature and the material sought is highly sensitive such as therapeutic records. There are means to obtain disclosure that is not otherwise provided but it requires applications before the court often framed as a “third party records” application. These means are far too complicated to be discussed with any useful meaning here. There may also be instances where the disclosure is of such a sensitive nature (for example matters of national security, or obscene material and illegal pornography) that the prosecutor will only release the material to a lawyer who provides an undertaking to store and use it in a very limited manner. A person seeking any of this non-disclosed material is best served by retaining an experienced criminal defence lawyer to obtain the information.

What is disclosure, when do I get it, what does it cost, and what is in it?

Initial disclosure Disclosure is typically provided on the first appearance in criminal court. There is no fee for disclosure; however, if disclosure is lost, the Crown will often require a copying fee be paid for the inconvenience. Items typically found in disclosure include, but are not limited to:

Police notes
Witness statements
Video or DVD statements or surveillance
Pictures
Forensic evidence
Radio or 9-1-1 calls
etc.
Once initial disclosure if provided, it is prudent to retain a lawyer so they may review it and request any outstanding items from the Crown. Your disclosure package is very important with sensitive material inside. Do not lose your disclosure and do not let anyone else look at it other than your lawyer.

Charge Screening: Indictment of Summary Conviction

When you receive your disclosure, there is often a “charge screening form” on the front of the package. This sets out how the Crown intends to prosecute the charges. There are two ways the Crown may “elect”. The Crown may proceed by way of summary conviction, or by way of indictment.

To understand more about the difference between a “summary election” or a “indictable offence” you can visit our webpage on the matter here. In short, a summary election means the Crown considers it less serious and usually carries a maximum of 6 months imprisonment, although in some instances it may be up to 18 months in jail as a maximum sentence. If the Crown proceeds by indictment, they consider the matter more serious and will often afford the accused the right to a preliminary hearing and jury trial. A Crown election is supposed to be made as soon as possible; however, it is not uncommon for the Crown to hold off until the day of trial on some occasions.

Charge Screening: Plea Bargains and Early Resolution

In addition to the information on how the Crown intends to proceed, the prosector will also typically set out what sort of sentence they would seek in the event of a guilty plea. There are often two positions take on sentence that reflects if the person proceeds to trial, or if they plead guilty before doing so. Consideration is given to an accused who pleads guilty early and therefore receives what is often referred to as a “plea bargain”.

However, the positions taken by the Crown do not necessarily reflect the best position a person may receive before or after trial. Ultimately, the issue of sentence is always up to a judge and not the Crown Attorney. It may be that the initial plea position offered is quite unreasonable in the circumstances and in speaking to an experienced criminal lawyer, they may help you appreciate whether it is a good deal or not, and more importantly whether to plead guilty at all: no deal is a good deal if a person can be acquitted of the charges.

Regardless of how the Crown intends to elect, or what the Crown’s position is on the “plea bargain”, this is always negotiable. There is nothing binding on the Crown to proceed one way or another simply because it is reflected on a charge screening form. Retaining a lawyer can assist an accused in ensuring that the best deal possible is worked out, or in the event the matter proceeds to trial, does so in the most preferred manner by the accused.

Before a trial date scheduled, the Crown typically requires that your lawyer conduct a “Crown pre-trial” or also known as a “Crown resolution meeting.” Unfortunately for unrepresented accused, Crown Attorney’s will not typically meet with the accused directly to discuss the case. Most Crown Attorney’s insist that all conversations are conducted through a lawyer.

There is good reason for this as many accused as eager to explain their case and discuss the merits, but not knowing that what they tell the Crown Attorney could be used to incriminate them later. It is always advisable to have a lawyer discuss the case with the Crown so that an accused does not unintentionally provide further evidence to assist the prosecution. Resolution meetings with the Crown are not “off the record” for unrepresented accused and just like speaking to a police officer, anything you say can and will be used against you.

If you retain a lawyer to assist with the Crown resolution meeting, they will discuss such things as:

What the Crown is seeking for a guilty plea?
Negotiations on a guilty plea
Whether the bail conditions can be changed
How long a trial will take
Whether there are any outstanding items in disclosure
What witnesses are required for trial
Legal issues
Potential constitutional arguments
etc.
Upon completion of the meeting, you will be advised by your lawyer on these issues and advise you on your best approach to the case from this point forward.

A “Judicial Pre-trial” is very similar to a “Crown Resolution meeting”. The difference is that these discussions are before a judge in chambers or in closed court. The benefit of a judicial pre-trial is that the judge can help further narrow the issues and may be able to convince one party to resolve if their is an impasse in negotiations. Judicial pre-trials are also held as a mandatory step in many jurisdictions, particularly where the proceeding is expected to take up a significant period of Court time.

Closed court proceedings

As mentioned, these proceedings are done in Chambers or in closed court so accused persons are usually not permitted to attend. With the accused not present, Crown and Defence counsel can discuss the case much more frankly and without reservation since any admissions or concessions that the lawyer may make on behalf of his or her client is not binding until the client accepts it. In some jurisdictions the officer in charge of the investigation may attend; however, if the judge or counsel feels that it is discouraging open and frank discussions, they may be excused. All discussions in judicial pre-trials between counsel and the judge are considered “off the record’ in order to encourage open discussions about the case.

Judicial pre-trials are also very helpful in negotiating the best possible resolution agreement since there is the objective opinion of the judge who will suggest a reasonable sentence. The added benefit is that presiding judge of the pre-trial can accept a plea that same day and the accused will know what they are going to be sentenced to since the judge will express his or her opinion on an appropriate sentence.

In Canada, all criminal charges are classified into three categories: a) summary conviction offences, b) indictable offences, or c) hybrid offences. Pure summary conviction offences are those that are considered less serious, whereas pure indictable offences are those considered the most serious under Canadian criminal law. Hybrid offences are those that the Crown Attorney may “elect” to proceed by indictment or summary conviction. The Crown’s decision to elect one way or another is entirely discretionary and challengeable only in clear and exceptionally rare cases of abuse of process or malicious prosecution.

Summary or Indictable Election/Offence?

Whether the criminal offence is summary, indictable, or hybrid, nearly all criminal charges commence in the Provincial level of criminal court. In Ontario, this court is known as the Ontario Court of Justice. Depending on the nature of the offence or the nature of the Crown’s decision on how to proceed (i.e. how they elect), the case may progress to a higher level of criminal court known as the Superior Court if the accused wishes.

Is there a right to a preliminary hearing or jury trial?

electing the mode of trialFor most indictable offences, the accused has a right to conduct or waive a preliminary hearing prior to a trial. All preliminary hearings are held in the Provincial level of court. Similarly, the accused may also chose to conduct a trial in the Provincial level of court without having a preliminary hearing. If the accused chooses to proceed to the Superior Court, that person may then chose to have a trial before a judge sitting without a jury, or to be tried by a jury. That mode of election and rights therein is found under section 536.1(2) of the Criminal Code of Canada which reads:

You have the option to elect to be tried by a judge without a jury or to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
An exception to these typical choices in the mode of trial are those offences found within section 553 of the Criminal Code of Canada. Section 553 lists those crimes that the Provincial court has “absolute jurisdiction” over. This means that even when the Crown proceeds by indictment, a person does not have a right to a preliminary hearing, jury trial, or to be tried in the Superior Court.

Another exception to these typical choices are those offences listed within section 469 of the Criminal Code of Canada. “469 offences” are the most serious offences under Canadian criminal law. They include murder, treason, and terrorism offences. Unlike most indictable offences where an accused has a right to be tried before a judge alone, section 469 offences must be tried by a jury unless the Crown Attorney consents to a judge sitting alone.

The preliminary hearing serves a gatekeeper function under Canadian criminal law. In short, it is a proceeding to determine whether there is sufficient evidence for a person to stand trial on the acts alleged. The threshold required for a person to stand trial is very low.

The legal test is whether “a jury who is properly instructed and acting reasonably, could return a verdict of guilt on the evidence presented.” There is little jurisdiction for a preliminary hearing judge to consider competing inferences that may establish innocence in the end.

If the case is circumstantial in nature, a preliminary hearing judge is permitted to engage in a limited weighing of that evidence in their assessment in the test above and in asking the question of whether a jury could still reasonably return a verdict of guilt.

Reasons for a preliminary hearing beyond committal to stand trial

Although preliminary hearings are rarely successful in having charges disposed of by way of an accused being discharged, they are of great benefit to all parties involved as it serves as an invaluable discovery mechanism so that the case is better understood for trial. The preliminary hearing is very similar to the trial process. Witnesses come to court and testify under oath, opposing counsel may cross-examine then, and judges will make rulings on admissibility of evidence. As a preliminary hearing proceeds, there is little distinguishable difference between it and a criminal trial. However, there are some differences that are of significance.

One major difference is that under certain sections of the Criminal Code, the prosecutor may introduce that may otherwise be inadmissible so long as the evidence is credible and trustworthy and the opposing counsel does not wish to hear from the witness (see ss.540(7) to 540(9) of the Criminal Code).

Another significant difference is that an accused would rarely call evidence at the preliminary hearing. Although they have the right to, it would be unusual for an accused to present evidence as the test for committal is a one-way street and a judge is not permitted by law to consider what evidence to prefer if they contradict one another.

Who is entitled to a preliminary hearing?

Lastly, not every charge entitles a person to a preliminary hearing. Preliminary hearings are only applicable to cases of a serious nature and proceeded by way of indictment. An accused may waive his or her right to a preliminary hearing; however, the Crown Attorney also has the right to conduct one regardless of the accused’s waiver.

It is impossible to provide a brief overview of what takes place at a criminal trial in Canada. Suffice to say that it is intensely complicated process that requires years, if not decades of highly technical and specialized expertise to fully master. Law schools offer full courses in advocacy that despite their intensity and length, only touch upon the most basic of trial process.

The criminal trial ingests, synthesizes, and implements a lawyer’s knowledge of evidence, human behaviour, skills in examination, public speaking, tactical decision making, and overall intelligence. In short, it epitomizes and crystallizes the definition of what it means to be a “lawyer” to many counsel – at least those who are litigators. Trials are stressful, intense, unpredictable, and carry a very high degree of risk to those inexperienced in the process.

Why retain a lawyer for the criminal trial

Needless to say, it is essential for a person who is facing criminal charges to retain counsel to assist with the trial process. As an example of how important this is, history demonstrate that even those familiar with the criminal process retain counsel including police officers, lawyers, and judges when charged with criminal acts.

Although the Canadian criminal trial process is the envy of most nations around the world, it is premised upon an adversarial system where a highly skilled Crown Attorney will seek to use everything within their prosecutorial means and ethics to return a verdict of guilt unless there is no public interest to do so, or if there is no reasonable prospect of conviction – indeed, they are obligated to do so.

As a result, in order for the scales of justice to remain balanced, a person ought to retain an equal adversary in order to defend them against the Crown and the virtually endless resources they possess. You may speak to one of our criminal defence lawyers today about this and other processes in order to ensure that you are provided the best defence possible.

At the end of the case a trial judge is required to return a verdict of guilty or not guilty unless the Crown prosecutor withdraws the case or the charges are stayed by the Crown or the Court. The verdict is not required to be the same for all charges. For example, a judge may decide that a person is guilty of one court, but not guilty of another.

A judge may also decide that a person is not guilty of charge as set out in the charging document (the Information or Indictment) but guilty of a lesser included offence of the charge alleged. This means that a judge could find someone not guilty of the charge of sexual assault, but guilty of a lesser and included offence of assault if the facts supported such a result. A verdict of “guilty” or “not guilty” and all the included verdicts may also be delivered by a jury if the matter is heard before one.

If an accused is found “not guilty” of a charge, that ends the matter for that charge unless the matter is appealed by the Crown. If a person is acquitted of all their charges, i.e. found “not guilty”, then all bail conditions attached to that charge will also cease. However, if a person has other outstanding charges, then those conditions attached to those charges will remain in force.

If a person is found “guilty” of all or some offences, the matter then typically moves to sentencing. There may be rare situations where a person is found guilty but before a sentence is passed, the proceedings are stayed if a defence of entrapment is made out – to use one example.

In addition to verdicts of guilty and not guilty, a person may have their charges “stayed” which is very close to an acquittal or withdraw for most intents and purposes. An exception to that would include implication for immigration where stays of proceedings are treated somewhat differently and places a person’s application on hold until the time limit when the Crown could re-prosecute the matter expires.

Speak to one of our criminal lawyers to understand more about verdicts and how they relate to your specific circumstances.

The sentencing of an accused person is not an easy task because of the numerous factors and circumstances that the judge is required to consider. A lawyer may assist you in these submissions and explain to the court why leniency or restraint should be considered. Even in sentencing, a lawyer is a vital tool in ensuring that your time spent in custody, the fine you pay, or the sentence you receive is not excessive and proportionate the offence your were found guilty for.

Some basic principles of sentencing include the following:

718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2: A court that imposes a sentence shall also take into consideration the following principles:

(a)a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
As one can see, sentencing is complicated; particularly when it is necessary to ensure that all of the positive factors are enhanced and all the negative components are adequately explained. Retaining a lawyer who is familiar with these written and other unwritten practice experiences is critical in ensuring that an accused receives the best sentence possible in the event that you are convicted.

When a person is found guilty of a criminal offence and does not agree with the result, they may seek leave to appeal that verdict or sentence. A vital aspect to a criminal appeal is ensuring that timelines and rules are followed very closely. If a timeline on filing is missed, or if the rules of appeal are not followed strictly, it may result in a criminal appeal being dismissed without even a hearing on the merits.

Summary conviction and indictable criminal appeals.

Both the Court of Appeal for Ontario, and the Summary Conviction Court of Ontario have very strict rules of procedure that require strict compliance. You can understand more about appeals and the process of appealing a criminal conviction or sentence by viewing our page on Criminal Appeals in Ontario or you can reach one of our criminal lawyers by calling (416) 999-8389 for an immediate initial consultation.

FOR MORE INFORMATION ON APPEALS, CLICK HERE.

Reasonable expectation of privacy in voyeurism crime in Canada: the case of Jarvis

Reasonable expectations of privacy in voyeurism cases under the Canadian Criminal Code: London's case of R. v. Jarvis. The Ontario Court of Appeal released a decision today upholding the acquittal of a London [...]

  • bail hearings justices of the peace

Liberty lost: the failings of delegating bail hearings to Justices of the Peace in Ontario

How the delegation of bail hearings to Justices of the Peace has failed, and a judicial recalibration is required. Recently, the the CBC reported  that"Judges will be taking over bail hearings at two [...]

5 things I learned in my first weeks as a criminal defence lawyer

5 things I have learned in my first weeks as a defence lawyer Following my call to the Bar, I traded in my dogeared copy of the Rules of Civil Procedure, turned my [...]

What does “Care and Control” mean in Impaired Driving, Over 80, and DUI cases? 

What does "Care and Control" mean in Impaired Driving, Over 80, and DUI cases? "Drinking and Driving" In Canadian criminal law, there are two distinct offences that constitute what is colloquially [...]