Criminal Defence

If you are accused of committing a criminal offence, whether you have been charged or are being investigated, our lawyers can help you.

Investigation

If you are the subject of an investigation by police it is important for you to know your legal rights. You may or may not be required to answer questions which are put to you. You may be entitled to consult with a lawyer before answering any questions. If you are the subject of an investigation and would like to explore your legal rights, you should consult a lawyer.

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Arrest

Once you are arrested, you are generally entitled to consult with a lawyer before answering any questions. The police should advise you of your basic legal rights when they arrest you. Anything you tell the police (or anyone else, other than your lawyer or your lawyer's staff) may be used against you in Court.

After you are arrested you will either be released after you sign documents which show that you agree and promise to appear in Court at a specific day and time for your first appearance and for subsequent appearances. There may also be conditions of your release which you agree to abide by until the Court orders changes to those conditions.

If you are not released by the arresting officer or the officer in charge you will be held until the next day on which a Court is available for your bail hearing.

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Bail Hearing

A bail hearing is not a trial, it is a hearing to determine whether you are to be released or held in custody until the day of your trial. A bail hearing is conducted in front of a Justice of the Peace. Depending on the charge on which you were arrested, the Crown Attorney may have to establish that it is necessary for you to be held in custody or you may have to show that it is not necessary for you to be held in custody pending your trial.

Other factors which will often be considered at your bail hearing are your criminal record (or lack of one), your connection to the community, your employment. You may want to or be required to have one or more people stand as surety (sureties) for you.

Anyone who stands as a surety will also be examined as to their criminal record or lack of one, their connection to the community, their employment, their assets (which they may be required to put in the hands of the Court) as well as for their willingness and ability to make sure that you do not violate any of the conditions the Court imposes on you until your trial.

A surety's job is to make sure that an accused person attends at all required Court appearances and abides by all conditions imposed by the Court. If the accused person breaches any condition imposed by the Court, the surety is required to report the breach to the police. More information for people who are considering acting as sureties is available on the Ministry of the Attorney General's Web Site.

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Disclosure

The Crown Attorney must provide your lawyer with everything they plan to use against you and any other relevant evidence that the Crown has in your matter. Any evidence that is discovered later must also be disclosed.

After your lawyer has received and reviewed the Crown's disclosure, he or she will contact you to discuss the case against you.

If the Crown finds more evidence after having given your lawyer disclosure, that evidence must also be promptly disclosed.

There is generally no obligation on the defence to disclose its case to the Crown, but there are exceptions which your lawyer will discuss with you if they apply in your case.

Initial Disclosure is often not received for several days after an arrest, and may not be available until after a bail hearing.

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Resolution Meeting

After your lawyer has reviewed the disclosure provided by the Crown with you, and has heard your response to the evidence, your lawyer will contact the Crown to schedule a resolution meeting.

At that meeting your lawyer will find out how the Crown is planning to proceed with your case, and what sort of sentence the Crown will seek either in exchange for a guilty plea or after a trial. If a plea bargain or some other deal is to be negotiated with the Crown, the discussion will almost certainly start at this meeting.

There may be more than one resolution meeting in a matter.

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Crown Election

For many Criminal Code offences the Crown can choose whether to proceed summarily or by indictment. Making this choice is called the Crown Election. Some offences don't allow the Crown a choice because they are either straight summary or straight indictable offences.

Summary offences carry lower maximum sentences than indictable offences. Trials for summary offences are generally faster than trials for indictable offences and the accused has fewer options -- jury trials are not available for summary proceedings.

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Entering a Plea

At some point after at least one Resolution Meeting has been held with the Crown you will attend at Court to enter a plea. Your plea will usually be either guilty or not guilty. There are other special pleas (autrefois acquis and autrefois convict) which apply in rare circumstances.  If you do not enter a plea the Court will enter a plea of not guilty on your behalf.

If you plead guilty you will be reminded that in doing so you are admitting the essential elements of the offence(s) charged and waiving your right to appeal. Although the judge is not bound by any plea bargain made with the Crown as to sentence, judges don't generally impose a different sentence without very good reasons.

If you plead not guilty, the criminal process will continue. What the next step is will depend on several factors including the charges you are facing, the choices the Crown has made or will make as to how to proceed against you, choices you will make (with the assistance of your lawyer), and how long the trial is likely to be.

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Judicial Pre-Trial

A Judicial Pre-Trial is a meeting between a Crown Attorney, the Defence Lawyer and a Judge. The idea is to reduce the number or complexity of the issues for trial so that Court time is not wasted.

If your trial is estimated to take more than a day of Court time, a Judicial Pre-Trial is required. It is possible to have more than one Judicial Pre-Trial if it would help to reduce the amount of Court time required for a trial.

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Mode of Trial Election (where available)

Depending on the charge(s) which have been made against you, and possibly also depending on whether the Crown chooses to proceed summarily or by indictment (see Crown Election section above) you may be able to choose whether you are tried by a Judge of the Provincial Court or by a Judge of the Superior Court or by a Judge of the Superior Court with a Jury.

There are many factors to consider before deciding which type of trial you will have.

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Preliminary Inquiry

At a preliminary inquiry the Crown must show that it has evidence upon which a jury could convict the accused. The Crown does not have to prove anything beyond a reasonable doubt at a preliminary inquiry. All the Crown has to do is show that there is some evidence, which, if a jury believed it, might lead a jury to convict the accused.

If the Crown's case meets this test, the presiding Judge will commit the accused to trial. The Judge can commit the accused to trial on any charge which the evidence reveals, whether the Crown had already laid the charge or not.

If the Crown's case does not meet the test for a preliminary inquiry, the presiding Judge will refuse to commit the accused to trial. This means that unless the Crown chooses to Prefer an Indictment

Preliminary inquiries are not always available to defendants, they are only possible if the trial will be conducted before a Superior Court Judge either with or without a Jury.

The main reason a defendant would want to have a preliminary inquiry is to have a chance to cross-examine the Crown's witnesses before the trial. The evidence a witness will give at trial will have to be consistent with what they testified to at the preliminary inquiry.

If a witness is unavailable for trial, that witness' testimony at the preliminary inquiry may be used as evidence at the trial.

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Preferring an Indictment

The Crown Attorney can by-pass a preliminary inquiry (or effectively reverse the preliminary inquiry Judge's refusal to commit the accused to trial) by a process called preferring an indictment. Preferring an indictment is also called a "direct indictment".

To prefer an indictment or (to obtain a direct indictment) the Crown must convince the Attorney General to sign the papers which a preliminary inquiry Judge would sign to commit an accused to trial.

The Crown doesn't usually choose to prefer an indictment, but when it does so it is usually because the Crown either wants to avoid the more public preliminary indictment or because the Crown believes the Judge who presided over the preliminary inquiry didn't commit the accused to trial on the appropriate charge.

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Jury Selection

If you have elected trial by Superior Court Judge with a Jury or if the Crown has required that you have a trial by a Superior Court Judge with a Jury, the members of the Jury who will hear your case will have to be chosen.

A few times a year (depending on where you live), a jury panel will be selected by the Sheriff's Office. A few hundred people, whose names have been randomly drawn from a from the most recent enumeration lists obtained from the Ontario Property Assessment Corporation, will be required to come to Court for jury selection.

Both the Crown Attorney and the Defence Counsel will be provided with a list of potential jurors before jury selection day. The information on the list is limited. For each potential juror the list will include their name, age, address and occupation. Based on that information, and on how the potential juror acts in the courtroom on jury selection day, the Crown and the Defence counsel must decide whether the juror is acceptable to them.

Each side has a set number of "peremptory challenges" which allows them to disqualify a juror without having to give a reason. The number of peremptory challenges depends on the charge(s) being adjudicated upon.

Either side can disqualify an unlimited number of jurors if they can convince the Judge that there is a good reason for doing so (but with so little information about a juror and no opportunity to question the juror or investigate them, it is difficult to be sure that the Judge could be convinced that your reason is good enough).

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Trial

At trial, the Crown will present its case through witnesses. There should be no surprises for the defence since the Crown has an obligation to disclose all of its evidence. The defence may have also have been able to cross-examine the Crown's witnesses at a preliminary inquiry.

Often, witnesses (other than the defendant and possibly the Court police officer) will be excluded from the Court room until after they have testified.

The Crown Attorney presents the prosecution's case first. When the Crown rests its case, the defence might ask the Judge to dismiss the case (and if the Judge does so the trial is over) but most likely the defence will then call its witnesses and introduce evidence of its own in an attempt to show that there is reasonable doubt as to the guilt of the accused.

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Appeal against Conviction or against Sentence

After the trial is over, if either side believes that the Judge or Jury or both made significant mistakes during the trial -- mistakes which could affect either the verdict or the sentence imposed or both -- it is possible for either side to appeal the verdict or sentence or both to either the Ontario Superior Court of Justice (for summary conviction matters) or to the Ontario Court of Appeal (from an indictable matter or a ruling from the Ontario Superior Court of Justice).

The Ontario Court of Appeal can confirm the ruling of the trial court, or can quash (undo) the conviction; if the conviction is quashed the Court can either enter a verdict of not guilty or (more likely) order a new trial. If the Court of Appeal upholds the conviction it can change the sentence imposed by the trial court.

An appeal from the Ontario Court of Appeal is heard at the Supreme Court of Canada.

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Page updated 30 September 2015