Your Arrest and Release

Upon your arrest, it is recommended that you exercise your right to silence.  For first offences and not particularly serious charges, the Police will most likely release you on a “Promise to Appear.”  This promise requires you to attend court at a particular date and time.  If you do not show up to court on that day, you run the risk of being charged with failing to appear for court.  Also, however, your lawyer is also able to attend court in your place if you have to work or choose not to attend.  Sometimes, depending on the charge you are facing, you may be given several conditions, which may include staying away from certain persons, not consuming any drugs or alcohol, not having any weapons and not attending within a specific distance from a physical location.

If you are not released, the Police will take you to court for a Bail Hearing.  In this situation, it will be up to the Court to determine, based submissions from your lawyer and the Crown, whether or not you should be released prior to the resolution of your criminal matter.

The Bail Hearing

If certain situations you may be denied bail.  This means that you will either have to wait for your matter to resolve, whether by trial or by guilty plea, while in custody.  Alternatively, you may hire a lawyer to review your case and see if you are eligible for bail review to the Superior Court of Justice.  Click here for more information about the Bail Hearing.

The First Appearance

Whether released or in custody, you will have a court appearance scheduled either several days or weeks following your arrest.  The most important and common concern clients should understand is that your first appearance in court is not a trial.  Witnesses will not be called and you will not be found “guilty” or “not guilty.”

The purpose of the first appearance after your release or bail hearing is, for the most part, procedural.  At the first appearance your name will be called and either you or your lawyer will stand up before the Judge to pick up a package of documents summarizing the case against you.  These documents are referred to as the “Disclosure” and often contain the following:

• Police notes
• Statements from witnesses
• Copies of DVD or video statements given by you or witnesses at the police station
• Summaries of 911 calls made

The Disclosure

If you have hired a lawyer before your first appearance, your lawyer will attend court and pick-up your disclosure for you.  If you have not hired a lawyer, this is the important stage where finding the right lawyer to represent you is crucial.  You will meet with your lawyer at his or her office and review the disclosure with them.

Your lawyer will then be able to assess the strengths and weaknesses of your case, explain whether any of your constitutional rights were violated, and whether there are any defenses available to you.  If you are eligible, disclosure will also help you apply for legal aid.  This application can be made at the legal aid office at most courthouses, or at one of the local legal aid offices in your area.

After reviewing your disclosure with you, your lawyer will be able to give you a good sense of the strengths and weaknesses of the Crown’s case against you.  Often, your lawyer may ask the Crown, by writing a letter, to provide additional disclosure in situations where the disclosure is incomplete, and where additional information is available.  The Crown has an obligation under law to provide all relevant materials in their possession — for example, if there is a videotape of an incident that may be relevant to your defence, the Crown must produce that videotape so long as it’s relevant — even if it’s not particularly helpful to the prosecution’s side.  Once your lawyer has had an opportunity to review your disclosure, research case law, and speak with potential witnesses, he or she will then schedule a meeting with the Crown attorney.

The Meeting with the Crown

Your lawyer will then meet with the Crown attorney and, in most situations, attempt to point out the weaknesses of the Crown’s case against you.  The Crown’s office does not typically meet with accused persons directly, and most Crown’s will emphasize the importance of having a lawyer for these meetings.  These resolution meetings are crucial and often determine whether or not the Crown will choose to proceed with the charges against you, or in very rare circumstances, withdraw the charges based on no reasonable prospect of conviction.  Many of the topics that are covered during these meetings include:

• The possible length of a trial
• Potential violations of your constitutional rights
• The sentence the Crown is seeking for a guilty plea
• The possibility of changing some of your release conditions
• The names of witnesses who will be required for trual

The Meeting with the Judge

A “Judicial Pre-trial” is closely related to a Crown Resolution Meeting, except that this second-stage discussions are now held in front of a judge. The judge may assist in narrowing some of the outstanding legal issues and often is effective in persuading one party to resolve in cases of a stalemate in the negotiations.  These meetings are held either in Judge’s Chambers or in closed court and accused persons are usually not permitted to attend.

This allows your lawyer and the Crown the opportunity to discuss the case candidly as any admissions made on behalf of the client are not binding until the client accepts it.  In cases where your lawyer considers the Crown’s position on sentencing unreasonable, the Judicial Pre-Trial also affords an opportunity for a judge to weigh in with his or her opinion, which in certain cases may benefit a client who chooses to enter a plea before that same judge.

The Trial

If your matter is not resolved following a Judicial Pre-Trial, a trial date is often set in court at the next appearance date.  This trial date is often many months into the future, and several months of intensive preparation may be required.  For persons charged with certain more serious offences, the opportunity to conduct a preliminary inquiry is made available several months before the trial.  At this proceeding your lawyer may ask questions of witnesses who will appear against you at trial.  If the offence charged is extremely serious, you may also have an opportunity to elect a trial by jury.  At the trial, the Crown attorney will call several witness against you, possibly including the complainant, the police and possible even expert witnesses.

For additional questions regarding the criminal process, including those relating to sentencing and appeals, please contact our office.