The Legal Process
The information below is not legal advice. It is general information to help you understand the criminal justice system. To receive actual advice for your case, seek the legal opinion of a lawyer who has reviewed the evidence in the case against you.
Core Areas of Practice
Sexual Offences
There are several sexual offences in the criminal code. These are very serious offences, and this area of law is complex and continuously evolving. There are special evidentiary rules in this area of law.
Child Pornography
Child pornography cases are very serious and often carry jail sentences, registration in sex offender registries, and significant social stigma that affect every aspect of your life. These cases often involve complex search issues and questions of knowledge and control. If you have been charged with this offense, you should contact legal counsel right away.
Domestic Offences
Domestic offenses often include assault, mischief, or threats made against an intimate partner. A conviction in this area can have a profound impact on child custody, your personal finances, and can result in your incarceration.
Youth Offences
These are criminal offences committed by young persons or minors. Their charges proceed under a different act. This act is called the Youth Criminal Justice Act. Youth charges proceed under this act, which utilizes different principles.
Other Offences against the person
These offences include, but are not limited to, common assault, assault with a weapon/ cause bodily harm/ assault by choke, or aggravated assault. These offences are very serious and can result in jail time, a criminal record, and serious restrictions on your freedom. Convictions can affect your ability to work in certain areas or travel abroad.
Drug Offences
Drug charges usually arise from violations of the Controlled Drugs and Substances Act. The most common charges are possession and possession for the purposes of trafficking, but also include other charges. A conviction under these provisions can carry lengthy jail sentences. Often these cases involve complex search issues and your privacy rights.
Property, Fraud & Theft
Fraud and theft charges can significantly affect your ability to obtain employment or to volunteer with vulnerable groups. Sentences can vary significantly depending on the amount of money or goods stolen, and the nature of your relationship with the alleged victim.
Breach Charges
Breaches occur when you are accused of breaking the conditions of your previous release order. Breach charges can result in imprisonment and the loss of bail. If you are convicted of this charge, you may have a criminal record entry which can make it more difficult to obtain bail in the future, because it speaks directly to the justifications for detention outlined in the Criminal Code. These charges can also put you in a position where you must justify your release to the court in the bail context.
Driving Offences
The Criminal Code outlines offences related to driving. These include offences such as driving while impaired by alcohol or drug, dangerous operation, and/or refusal. This means if you refuse to give a breath sample you could be charged with an offence under the Criminal Code. Some of these offences are subject to a mandatory minimum term of imprisonment.
Steps In The Criminal Justice System
A typical criminal case takes between 6-18 months to work its way through the criminal justice system. Though every case has its unique challenges, the criminal justice system can be broken down into a series of steps.
Step 1: Initial Arrest/Investigation
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After you are arrested, you will either be released or held for a bail hearing. If you are released, you will be given a court date and a date to attend a police station for fingerprinting. You may be released on an Undertaking to a police officer which will contain terms and conditions you must follow. Breaking these conditions may lead to further charges under section 145 of the Criminal Code.
If you are held by the police, you must be brought before a court within 24 hours. A bail hearing may need to be conducted. In some jurisdictions, these are conducted on the same day, while in others, hearings must be scheduled for a future date. At your bail hearing, a Justice of the Peace (the person with the green sash) will decide whether to detain or release you as you wait for your charges to resolve.
A lawyer can have discussions with the Crown regarding your release plan. Depending on your case, you could be given a level of release that’s more strict or lenient. A lawyer can assist by solidifying your release plan and making arguments on your behalf.
Step 2: Regular Appearances and Disclosure
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The next few months will be a series of short administrative appearances in front of a Justice of the Peace where you or your lawyer will provide the court with updates about the progress of your case. These appearances typically occur once every 3-4 weeks. If you retain a lawyer, the lawyer may file a document called a designation of counsel with the court. A designation is a document signed by you, authorizing your lawyer to appear on your behalf, cutting down on missed workdays. That said, you must appear in court any time that the court orders you to personally attend – or your lawyer instructs you to attend.
At your first court appearance, the Justice of the Peace will ask if you have hired a lawyer, whether you intend to, and if you have received your disclosure. They may ask if you have filed an application with Legal Aid.
Your disclosure is a series of documents and other media in the Crown’s possession. These documents are part of the evidence in the case against you. The Justice of the Peace will adjourn your case for 3-4 weeks for you to receive your disclosure and retain a lawyer. Disclosure is an ongoing process and you may continue to receive disclosure throughout your case. This first appearance is usually about five minutes long; however, you may be in court for most of the day waiting to be heard. Retaining a lawyer can help cut down the waiting time.
The next step in the process is to review the evidence of the case against you. Your lawyer will thoroughly review these documents and formulate a legal opinion of the case. They will then review it with you, explaining your options, as well as the strengths and weaknesses in the case against you. You will then instruct your lawyer on how you would like to proceed.
Step 3: CPT/JPT Meetings
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After a lawyer has received your instructions, or you have had a chance to review the evidence in your case, a meeting with the Crown (the Prosecution) will need to be scheduled. These meetings are called a Crown Pretrial (CPT), and the process of scheduling a CPT varies between jurisdictions. At this meeting, the Crown and Defence discuss your case. If your instructions to your lawyer are to resolve, the lawyer will try and negotiate the best possible outcome for your case. If your instructions are to take the matter to trial, the Defence and Crown will discuss trial estimates and iron out the logistics. Your lawyer will discuss the outcome of this meeting with you and help you decide how you would like to proceed.
Depending on the results of the CPT, A Judicial Pretrial may need to be scheduled. A Judicial Pretrial (JPT) is a private meeting between the Crown, the Defence, and a Judge. The case is discussed, and the Judge weighs in. These discussions are often scheduled if trial estimates are beyond a prescribed limit, or when either party wants input from the Judge.
Step 4: Trial/Resolution
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After these preliminary steps are complete several things may happen. A trial may be scheduled, typically 12 or more months into the future. A resolution hearing may be scheduled to resolve your matter. For example, this could be a guilty plea or a peace bond. You may also have a series of adjournments that may allow you to complete upfront work (such as counselling or a diversion program) before your matter resolves. In certain circumstances, the Crown may ask the Court to withdraw the charges against you, though this is rare.
Resolutions are case specific and depend on a series of factors including but not limited to the facts in the case, your unique circumstances, your history with the criminal justice system, and any mitigating or aggravating factors.
FAQs
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If you have been charged with an offence, or are under investigation by the police, you should contact a criminal lawyer immediately.
A lawyer can explain your rights, help you navigate the criminal justice system, and offer you legal advice about your case or your interactions with the police.
If you are under investigation, a lawyer may be able to obtain more information about the investigation or negotiate a time and place for you to surrender if necessary. While some officers are not willing to discuss cases with criminal lawyers, contacting a lawyer will allow you to better understand your rights. If the police intend to detain you, a lawyer can also help you make vital arrangements that may secure your release.
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If you’ve been arrested or are under investigation, you should remain silent until you have consulted with a lawyer. You have a constitutional right to remain silent and no one can force you to speak. If arrested, you must provide the police with your name, birthdate, and the name of your legal counsel, but you are not required to answer any questions or give any statements about the alleged crime.
Anything you say can be used against you in court: but your silence cannot be used against you later.
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If you are facing incarceration, and you financially qualify, you may be eligible for assistance from Legal Aid. You can contact Legal Aid at 1-800-668-8258. You may need a document called an Adult Charge Screening Form as part of the application. This is provided to you as part of the Disclosure from the Crown. This document tells Legal Aid what sentence the Crown is looking for with an early guilty plea along with any court orders they would be seeking.
If you do not qualify for Legal Aid, our office can offer monthly payment plans to accommodate your financial circumstances.
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The police have a great deal of discretionary power about whether to release or hold an accused person after they have been arrested. If they decide to release you, you will be provided with a court date, and a date to take your fingerprints. Upon release, you will be given certain conditions that you must follow, violating these may lead to additional charges.
If the police decide to hold you, your case will be reviewed by the Crown. The Crown will decide whether they will agree to release you on specific conditions, or if they will try to hold you in custody until your case resolves.
to detain you the Crown must justify your detention. They may argue:
1. That you pose a flight risk, or your detention is needed to ensure your attendance in court.
2. There is a substantial likelihood that you will re-offend, or your detention is necessary for the protection of the public including witnesses.
3. Releasing you would negatively affect the public’s confidence in the justice system.
Whatever they decide, you must be brought before a Justice of the Peace within 24 hours of your arrest, and the Justice makes the ultimate decision. A lawyer can help by having preliminary discussions with the Crown, and by arguing your case in front of the Justice of the Peace. In certain circumstances, a bail hearing may be a reverse onus hearing, meaning you must prove to the court that you should be released.
Contested bail hearings are usually between ninety minutes and two hours. In some jurisdictions, these are conducted on the same day or the day following your arrest. In other jurisdictions, these hearings are booked after an initial appearance before a Justice of the Peace.
At a bail hearing, a Justice of the Peace will decide whether you should be held in custody while you await your trial. A bail hearing is one of the most important events in the criminal justice process because your liberty is at stake. Preparing for a bail hearing involves contacting sureties, preparing for court by coming up with a bail plan that addresses the grounds for detention, and presenting evidence to the court.
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A guilty plea and sentencing hearing occur when an accused person admits to the facts alleged by the Crown and takes responsibility for the offence her or she has committed. To be a permissible plea, the accused must enter the plea voluntarily. He or she must be prepared to admit the essential elements of the offence and be properly informed of the nature and consequences of pleading guilty. An accused must understand and agree that the facts support the charge and that the court is not bound by any agreement made by prosecutor and defence, if such an agreement applies.
These hearings are conducted in front of a Judge, who makes a formal finding of guilty. The Judge then imposes a sentence they find appropriate after hearing arguments from the Crown and the Defence about your circumstances, the circumstances of the offence, and other relevant factors that may apply. Accused persons often plead guilty after a more favourable outcome is negotiated with the Crown at a meeting called a Crown Pretrial (CPT). This could involve pleading to a lesser charge or receiving a more lenient sentence than would likely be imposed after trial.
Pleading guilty may result in a criminal record, and may carry immigration and/or driving consequences. It is a serious decision that can have long-term consequences affecting your employment, housing, and travel opportunities.
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A trial is a formal court process aimed at determining whether an accused person is guilty of the offences they are charged with.
At your trial, a Judge will make findings of fact and either acquit you (find you not guilty) or find you guilty. To make this finding, the Judge will weigh and consider the evidence. Finding an accused person guilty requires that the Judge is convinced of your guilt beyond a reasonable doubt, which is a higher standard than probable guilt but less than absolute certainty.
At trial, your lawyer tests the evidence against you. This involves challenging witnesses through cross-examination, pointing out the flaws in the Crown’s case, and may involve calling Defence evidence for the judge to consider.
After the evidence of the case is heard, the Defence and Crown will make submissions about the case. The ultimate decision rests with the Judge after they consider the evidence and the submissions of counsel.
If you are acquitted, the matter ends. If you are found guilty, the judge will impose a sentence they deem fit.
