Criminal Court Procedures in Ontario

There are many steps that an accused must take before having a trial, preliminary hearing, or even a guilty plea. These steps are generally ordered as follows:

Going to Court for the First Time

"I need to go to Court for the first time, what is going to happen?"

For many people charged with criminal offences, the most frustrating and stressful aspect of the whole process is understanding what to do. Below is a brief summary of how the criminal process works in Ontario, what steps are required before a trial date is set, and what options are available to you.

Be advised that the following information should not be relied upon and legal advice from a lawyer is the only way that you can make a truly informed decision.

You should decide at an early stage whether or not you wish to retain counsel. Having a lawyer assisting you along the way is your best resource and invaluable in ensuring that you are properly defended. The earlier you speak to a lawyer, the easier and less frustrating the whole process becomes. Best of all, speaking to a lawyer for a preliminary consultation will usually not cost anything.

Bail Hearing / First Appearance

"How do I get my spouse / son / friend out of jail if the police do not release him from the station?"

For almost every person who is detained (not released by the police) upon their arrest, the bail hearing is their most important day in court.

Although we are all constitutionally guaranteed reasonable bail under our constitution, it does not mean that an accused will be released automatically. If a person is denied bail, then they will either have to await their trial in custody (which will likely be months away), or they will need to apply for a review (appeal) of the bail decision to the Superior Court. 

Since a bail review can be very expensive and takes time to prepare, neither of these options are preferable and must be avoided if possible.  Therefore, the best way to approach the bail hearing is with the prepared assistance of legal assistance.  Criminal lawyers are often available 24 home a day in these emergencies and you can call one to set up a bail hearing for the next day. 

To be granted bail, a person is typically released in the care and responsibility of a surety who pledges a certain amount of money for their release. The surety can stand to lost this amount if the person breaches any of the court's "conditions of release" or "recognizance" 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:

1)	No criminal record;
2)	Over the age of 21;
3)	An ability to supervise the accused to a degree required by the Court;
4)	An amount of money in savings or equity they can pledge to the Court as security of their promise;
5)	A capacity to understand and enforce the conditions the Court imposes;
6)	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.

Disclosure: Understanding the Case Against You

What is disclosure and why do I need it?

If you have been granted bail, or released from the police on the day of the allegations, then your next appearance will be in assignment court.  On your first appearance, you will be seeking "disclosure". Disclosure is the material that the Crown has in their possession that they will use to assist them in their prosecution and to assist you in understanding what evidence they may have against you.
 
Items typically found in disclosure include:
 
    * Police notes
    * Witness statements
    * Video or DVD statements or surveillance
    * Pictures
    * Forensic evidence
    * Radio or 9-1-1 calls
    * etc.

In Canada, you have a constitutional right to know what information the Crown intends to rely on to prosecute you. Your lawyer will typically ask for all the relevant materials (as it is sometimes difficult for a person not trained in law to understand what is important) and those materials will at some point be provided in court or to your lawyer.

Legal Aid needs to know what offences you are charged with before they will consider your application and disclosure will assist in that regard. It is also important to take disclosure to your lawyer once you retain one. The lawyer will then be able to assess the strength of the Crown's case and advise you accordingly.

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.

Discussing the Case With the Crown Attorney

"I want to speak to the Crown about these charges, can I? If I can't speak to them, what will my lawyer be able to speak to the Crown about?"

Before a trial date scheduled, the Crown typically requires that your lawyer conduct a "Crown Pre-trial", also known as a "Crown Resolution meeting".

Crown Attorney's will not typically meet with accused persons to discuss their 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 your case with the Crown so as to not unintentionally provide further evidence against you.

During this meeting, your lawyer 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.

Judicial Pre-trials: meeting with the Judge

"What is a 'judicial pre-trial' and why can't I sit in when my lawyer is discussing the case with the Crown and Judge?"

A "Judicial Pre-trial" is very similar to a "Crown Resolution meeting". The difference is that now these discussions are made in front of a judge. The judge can help further narrow the issues and may be able to convince one party to resolve if there is an impasse in negotiations.

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. 
 
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. 

Preliminary Hearings: For Serious Cases Only

There are many legal definitions of what a preliminary inquiry is, many opinions on its purpose and effectiveness. Such discussions go well beyond the scope of this informative page.

In short, the preliminary inquiry is a formal proceeding in court to determine whether or not there is enough evidence available to commit you to stand trial on all the counts you are charged with.

Preliminary inquiries are only held if the accused (or Crown) request one, and only if the charges are serious enough to warrant one.

The decision on whether or not to have a preliminary inquiry is a tactical one that your lawyer will make at the appropriate time.

Trial: Judge Alone or Judge and Jury?

At trial, your guilt or innocence will be determined by a judge or a jury. Jury trials are reserved to only those charged with the most serious offences such as murder, robbery, serious sexual assaults, and crimes that upon conviction will result in a potentially lengthy custodial sentence.

What happens in trial is the height of complexity for a barrister and cannot even be summarized within this informative page. Needless to say, it is always advisable to retain a lawyer for trial. Representing yourself at trial is a poor decision by anyone's standards.  Even criminal lawyers would likely not defend themselves - just as doctors would not operate on themselves.  Although lawyers may be expensive, liberty lost is never regained (to quote a Supreme Court Judge) and the price of losing that liberty will almost always outweigh the costs of legal representation.

Verdict:

The verdict is delivered by the judge, or jury as the case may be, which will decide whether you are guilty or not guilty of all or some of the offences charged. Upon a guilt verdict, you will be sentenced accordingly. Upon acquittal, that ends the matter unless the Crown appeals the decision for which they usually have 30 days to do so.

Sentence:

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 will 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.