Being charged with a criminal offence can be a stressful and confusing experience. It is important to understand the steps that will be taken by the criminal justice system in Ontario and to know what to expect as your case progresses.
1. Arrest and detention: If you are suspected of committing a crime, the police may arrest you and take you into custody. If police do not yet intend to arrest you, they may nonetheless detain you and attempt to speak with you. The Charter of Rights and Freedoms (generally) provides you with safeguards while in police custody for arrest and/or detention. For example, you have the right to remain silent and to speak to a lawyer. Those Charter rights often work in tandem, and you need to be aware of some very important qualifications:
i) the police must advise you of your right to remain silent and your right to speak with a lawyer of your choosing immediately upon arrest or detention;
ii) before attempting to question you, the police must give you the opportunity to call any lawyer of your choosing once a safe, secure, and private environment can be provided (this usually occurs once you arrive at the police station);
iii) a lawyer of your choosing does not necessarily mean you can call a particular lawyer at 2am and wait for him or her to call you back, especially if you have been arrested for drinking and driving;
iv) if you do not have a lawyer, you will be given the option to speak with a free lawyer through the Legal Aid Ontario toll free number – this legal advice is often brief and the “free” lawyer will only assist you while you are in police custody (he or she will not become your trial lawyer);
v) if and when after receiving legal advice you invoke your right to remain silent, it does not mean that the police are obligated to stop questioning you; and
vi) if you initially decide to speak with police and change your mind, you can re-invoke your right to silence. You can also request another opportunity to consult with a lawyer, although the police will not always be required to facilitate that request.
2. Release from police custody (or not): Once you are formally arrested for a criminal offence, there are generally three ways that you can be released from police custody.
Sometimes for minor offences police will issue you a “ticket” at the scene of the offence and release you. This ticket, known as a “Form 9” outlines your personal information, the charge(s), a date where you must attend the police station for fingerprints to be taken, and details for your first court appearance.
If you are not released at the scene, the police will arrest you and bring you to the nearest police station to continue the investigation (photograph, fingerprint, attempt to interview). You could then be released from the police station with a document known as a “Form 10.” As with the Form 9, the Form 10 includes your personal information, charge(s), details for your first court date. The police may also require you to abide by certain conditions, known as an “undertaking.” Conditions of an undertaking might require you to avoid communication with specific individuals, avoid attending at certain locations, or avoid possessing weapons. You could also be precluded from operating a motor vehicle.
The police may also, at their discretion, hold you for a bail hearing. There are many factors that could lead police to hold you for bail, including the seriousness of the allegations, your criminal record, a perceived risk to public safety, a perceived risk that you will not attend court, and/or a need to preserve evidence related to the investigation. The police must bring you to appear in a bail court within 24 hours of your arrest. That does not necessarily mean that you will be released or that you will have a bail hearing at that time.
In some cases the Crown Attorney and your lawyer will agree on terms of bail. However, even where the Crown agrees to release you, there might be terms of the release that you are not immediately able to meet – for example, you could be required to live with a surety – someone who promises to supervise you and who pledges money to ensure that you will abide by the bail conditions. If your surety is not immediately available, you might be required to stay in police custody until he or she can sign for the bail.
Perhaps the Crown will not agree to release you or you do not agree with the Crown’s terms of release. In either scenario, you have the right to have a bail hearing within a reasonable amount of time. Unfortunately, the bail system suffers from a lack of government resources and that often means people must wait in custody until your case can be reached. For simpler cases, you might be lucky and have your hearing later that same day. Depending on the circumstances of your situation, the court might require a longer “special bail hearing”, in which case your bail hearing might not occur for several days. Once you finally arrive at your bail hearing, a Justice of the Peace or judge will decide whether to release you on bail or keep you in custody until your trial. If you are released after your bail hearing, you will likely be required to follow a series of conditions designed to minimize any perceived risk to public safety and/or any perceived risk that you will not attend court.
3. First appearance and beyond: You will be given a date in court for your first appearance within a few weeks of your arrest. At this appearance, your lawyer will attend to collect some initial disclosure that the police have provided to the Crown. Your lawyer will also schedule a follow-up court date to ensure that your matter moves along expeditiously.
Over the next weeks and months, your lawyer will continue to receive and review disclosure, have discussions with the Crown Attorney who is assigned to your file, and meet with the Crown and a judge to discuss the case (known as a “judicial pre-trial”). Once disclosure is mostly complete, your lawyer will be able to gauge the strength of the case against you and advise you of the possible outcomes.
The Crown Attorney is duty bound to proceed with a prosecution where a reasonable prospect of conviction exists and where there is a public interest to proceed with the case. Those are very broad guidelines, which generally means the Crown will have a wide strike zone for hanging on to your case. An effective defence lawyer can nonetheless draw the Crown’s attention to frailties in your case without ruffling said Crown’s feathers (something you want to avoid where possible). Sometimes, the frailties in your case are more obvious, such as an uncooperative key witness or evidence that did not materialize. When the Crown determines that there is no longer a reasonable prospect of conviction or public interest in proceeding with your case, the Crown may, in its sole discretion withdraw charges as they see fit at any point in the process.
4. Trial: Assuming you intend to plead not guilty, your matter will be scheduled for a trial. A criminal trial for less serious “summary” offences will always be held before a judge at the Ontario Court of Justice. More serious “indictable” offences will usually be tried at the Superior Court of Justice before a judge alone or before a judge and jury. There are circumstances where a trial for indictable offences can occur before a judge alone at the Ontario Court of Justice.
5. Sentencing: If you are found guilty at trial or if you plead guilty, the judge will consider the facts of the case and any relevant sentencing principles and will determine your sentence. Sentencing is a highly individualized process, and the outcomes can vary significantly.
It is important to remember that this is just a general outline of the criminal justice process in Ontario and that every case is unique. If you have been charged with a criminal offence, it is strongly advised that you seek legal representation to ensure that your rights are protected. A lawyer will be able to provide you with guidance and advice throughout the process and can help you to understand your options and make informed decisions about your case.
I would be happy to discuss your case with you. Please contact me to arrange a complimentary consultation.
Comments