Information Gathering Stage
The purpose of these court appearances is to provide you with a copy of all the evidence that the Crown Attorney has in their possession as it relates to the charges against you. This evidence, commonly referred to as ‘Disclosure,’ usually includes some or all of the following:
- Handwritten notes of Police Officers involved in the investigation;
- Written, Audio and/or Video Statements of Victim(s) and Witnesses involved in the case;
- Expert Reports or Forensic Evidence, such as DNA and Fingerprint analysis;
- Video Surveillance; and
- Any other evidence gathered in the investigation that led to the Accused person’s subsequent arrest.
In addition, most courthouses in the Greater Toronto Area also attach a “Charge Screening Form” to the disclosure when it is provided. A Charge Screening Form provides very basic information about what the Crown’s position is at the outset of the proceedings. Most importantly, the Charge Screening form will indicate the Crown’s position should the Accused Person elect to plead guilty and it also includes important information about what kind of ancillary orders the Crown may seek, such as an order for your DNA or forfeiture of property. This is an important document as it provides an early indication of the Crown Attorney’s view of the evidence against you and it is important to review its contents with your lawyer.
Once provided, your Lawyer will review the disclosure in order to determine what remains outstanding and should review its contents with you. Should you decide to retain our office, Mr. Michael will then analyze all of the material and discuss with you a potential approach or strategy to defend you against the charges before the Court. This process will include a review of the strengths and weaknesses of the Crown’s case along with a detailed review the potential outcomes that may result, to ensure you fully apprised of all aspects of the case.
The Pre-Trial Stage
After you receive disclosure, the next step in the process is known as the “Crown Pre-Trial.” The purpose of the Crown Pre-Trial is for your lawyer to review the case with the Prosecutor and determine how the matter should proceed before the Court. It should be noted that these meetings typically occur between your lawyer and the Crown and the person charged is not present. In these meetings, the following topics are often discussed:
- Outstanding Disclosure;
- Potential violations of your rights;
- Possible witnesses that may be called at the trial or preliminary hearing;
- The expected Length of the trial or preliminary hearing;
- The possible review/changing of your bail conditions;
- Weaknesses/Strengths in the case against you;
- What sentence the Crown is seeking on a guilty plea.
The Crown Pre-Trial represents a valuable opportunity for your Lawyer to advocate on your behalf. Typically, this is the best avenue for your Lawyer to argue that there is insufficient evidence for the Crown to proceed to trial and the charges should be withdrawn (or thrown out). To argue for charges to be disposed of in this manner, it is important that your lawyer review the disclosure with you and is well prepared for the meeting with the Crown.
A "Judicial Pre-trial" is analogous to a Crown Pre-Trial with the prime distinction being the presence (and input) of a judge. The judge will assist by clarifying any outstanding issues and will often facilitate in the resolution of the matter. Similar to a Crown Pre-Trial, the accused is usually not in attendance and any decisions or positions taken by your lawyer, the Crown Attorney or presiding Justice, that require an accused person's input are not binding until the s/he accepts it. The Judicial Pre-Trial represents a valuable opportunity for your Lawyer to advocate on your behalf. If well-prepared, your Lawyer can attempt to persuade the Court that the case against you has significant frailties and should not proceed to trial. Even if unsuccessful, a Judicial Pre-Trial is an opportunity for your lawyer to canvass what an appropriate sentence is, should you decide to plea guilty. While not binding, the Judicial Pre-Trial is a good means to gauge the Court’s view of the case against you and iron out issues in preparation for your trial.
The Trial Stage
The Trial Stage for a criminal case is the culmination of a number of court appearances and procedural stages (as outlined above). Unlike depictions on television, however, a trial is never instantaneous and often takes several months before an accused person finally gets their day in Court. In the Greater Toronto Area, from the date of arrest to trial, a Summary Offence typically takes between eight (8) and twelve (12) months. By contrast, a trial for an indictable offence that occurs in the Superior Court of Justice will take anywhere from eighteen (18) to twenty-four (24) months to commence. While these timelines are only estimates, they can also be influenced by factors, including:
- Availability and Schedule of the Court, Crown Attorney, Lawyers and Witnesses;
- Complexity of each respective case;
- Nature of the Evidence to be called;
- Any Legal Argument and/or Applications to be argued by the Crown or Defence.
The above list is not exhaustive and, at times, these factors can also shorten the time it takes for a matter to reach trial. The goal in providing timelines is to impress upon the reader that Criminal Charges can often take months and even years before they reach trial. As a result, while incurring a criminal charge (or knowing someone who has) can be a stressful situation, it is important that you understand the timelines associated with taking a matter to trial and adjust expectations accordingly.
On the day of your trial, the Crown Attorney will put forward evidence that they will use to try to persuade the Judge or Jury your guilt on the charges. In proving their case, the Crown Attorney will lead evidence through from witnesses (including police, civilians and/or experts) as well as other sources (such as surveillance footage, fingerprint or DNA evidence) to demonstrate that you are guilty of the offences before the Court. With respect to all the evidence called, your defence lawyer will have an opportunity to cross-examine any witness called by the Crown Attorney in an attempt to demonstrate inconsistencies in their testimony and/or challenge other evidence to show that the Crown has not proven their case beyond a reasonable doubt.
In addition to challenging the Crown Attorney’s evidence through cross-examination, in some situations your lawyer can attempt to exclude evidence based on the manner it was obtained or if it is not sufficiently reliable. Examples of these types of applications include breaches of your rights pursuant to the Charter of Rights and Freedoms, such as (i) an illegal search of an individual and his or her property, and (ii) Arbitrary arrest or detention.
After leading all the evidence they intend to rely on for the purposes of the trial, the Crown will advise the Court that they have closed their case. If, at this point, the Crown has failed to lead any evidence on an essential element of an offence, your Lawyer can apply to have those charges dismissed or ‘thrown out.’
If charges remain, the Court will ask you and your lawyer if you wish to lead any evidence in your own defence. At this point, an individual charged may choose to testify on his or her own behalf or call other evidence to challenge the Crown's case against them. Although this is always an option, depending on the circumstances of the case, this may or may not be necessary and you can never be forced to testify. In addition, your decision not to testify cannot be used against you at your trial.
At the conclusion of evidence by both the prosecution and defence, both sides will be asked to make submissions to the Court as to the factual and legal basis as to why an individual charged should be convicted or acquitted of the offences. Upon completion of those submissions, the Court will make a decision, based on the evidence, on what facts were proven in the case and render a verdict accordingly.
In cases decided without a jury, a Judge is required to give reasons for reaching their verdict orally or in writing and it is not uncommon for the presiding Judge to request time to review the evidence before rendering their verdict.
In cases decided by a Jury, the presiding justice will give jurors an instruction on the legal rules and principles they must use in reaching their verdict in the case and the different legal tests that apply. Following this instruction, Jurors will retire to deliberate and make their decision. In reaching a decision of guilty or not guilty, all jurors must be in agreement as to the appropriate outcome. If all jurors are unable to agree, the result is a ‘hung jury,’ which simply means that no conclusion could be reached and a new trial must be held to decide the issue.
If Acquitted, the issue is considered decided and the individual will be no longer required to attend Court or answer to the charges and any conditions of bail tied to those allegations will be lifted.
If convicted, however, the Judge will be asked to decide the issue of sentence regardless of how the verdict was rendered and again the Court will hear submissions from both the Crown and Defence on this issue. In some cases, the Court or one of the lawyers, may ask for Pre-Sentence Report to assist in determining the appropriate sentence. A Pre-Sentence Report is normally prepared by a probation officer and contains information about the Offender, including his/her background and current status, by consulting various sources in the community and by speaking to individuals familiar with him/her. A copy of this report will be given to the presiding Judge, the Court, the Crown Attorney and Defence Counsel before the sentencing process is complete. The Defence and Prosecutor can then rely on this report for the purposes of their submissions and the Judge may rely on it for the purpose of determining the appropriate sentence. Similar to rendering a verdict, it is not uncommon that a Judge may request time to make his/her decision on sentence.
When sentencing an accused person who is found guilty of a criminal offence, there are a number of options available to the Court. These range from a discharge, the least intrusive option, to imprisonment, the most serious and restrictive penal sanction available to the Court. The following are a list of some of the sentencing options that are available:
The most lenient sentence available in the Criminal Code is known as a Discharge. Despite being found guilty of an offence, a Judge has the power to not enter a conviction against the offender and, as a result, s/he will not have a criminal record. Although a discharge is not considered a conviction, a record of a Discharge is kept by the Canadian Police Information Centre (CPIC) and by the police agency that laid the charge for time periods defined by statute (see below: Absolute vs. Conditional Discharge).
In order to be eligible for a discharge, the offence(s) for which you are being sentenced must carry no minimum punishment and/or have a maximum sentence that is less than fourteen (14) years in prison. If the offence(s) for which you are being sentenced meet the above criteria, you (or your lawyer) must also satisfy the Court that granting a discharge would be both in your own interests and not run contrary to the public interest pursuant to section 730 of the Criminal Code.
In deciding whether you meet the above criteria, the Court can decide whether it would be appropriate to grant an Absolute discharge or a Conditional discharge. To understand the differences - Please see below.
The primary feature of an Absolute discharge is that, once granted, there are no prerequisites or requirements attached to the sentence for the Offender to enjoy the benefit of it. In addition, the time period before the discharge is completely expunged, from both CPIC and the arresting police force’s database is only one (1) year from the date it is imposed. This means that once granted, an individual will not need to complete any additional task, such as community service hours, before the full benefit of a discharge is realized.
As the name suggests, a Conditional discharge has certain requirements attached to it that must be met before an Offender can enjoy the full benefit of a discharge. The conditions most often attached to this type of discharge come in the form of a period of probation, up to a maximum of three (3) years, that will include statutory conditions along with discretionary ones imposed by sentencing Judge as s/he deems appropriate in the circumstances. Typically, optional conditions include reporting requirements, counseling and/or community service hours, while statutory conditions require you to: (i) keep the peace and be of good behavior, (ii) attend court when required, and (iii) report changes in your name, address and/or occupation.
While an offender is sentenced to a Conditional Discharge does not need to apply for a pardon and any reference to it must also be removed from the local police force’s records and Canadian Police Information Centre database (CPIC), the period of time required is longer than an Absolute Discharge. A Conditional discharge requires three (3) years to be expunged and this commences only after the expiration of the probationary period.
It is important to note that a discharge, absolute or conditional, can be revoked and a conviction entered in some circumstances. In circumstances where an offender fails to comply with the conditions attached to a discharge or commits further offences during the relevant retention periods, a Court can alter the sentence and substitute a discharge with a criminal record.
If an offender is found guilty and receives a Suspended Sentence, it simply means that the Court has elected not to impose any further punishment on him/her except to place him/her on a probation order for a period not exceeding three years. Much like a conditional discharge, the probation order attached to a suspended sentence can have discretionary conditions the Court deems appropriate along with the same statutory conditions listed above.
Unlike a discharge, however, a suspended sentence always results in a criminal record and, in order to be removed, the offender must apply for a pardon through the National Parole Board in accordance with the timelines and eligibility requirements stipulated in the Criminal Records Act.
After a finding of guilt, the Court may impose a fine as a means of punishment. Regardless of the amount, when a fine is imposed as a punishment, a criminal record will result. In order to be removed, the offender must apply for a pardon through the National Parole Board in accordance with the timelines and eligibility requirements stipulated in the Criminal Records Act.
A Conditional Sentence is an alternative to imprisonment that allows a Court to impose prison term of less than two (2) years that is served in the community. Typically, the length of the conditional sentence will include conditions that severely restrict the liberty of the offender and most often include conditions that do not allow him/her to leave their residence except in narrow circumstances and/or impose a curfew. In addition, all conditional sentences must include the following statutory conditions:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
The Court also has the option of imposing discretionary conditions as the circumstances require but, unlike a conditional discharge, the failure to abide by any of the conditions can result in the Offender being placed back into custody to serve none, part or the entire unexpired portion of the Conditional Sentence in jail. The imposition of a Conditional Sentence results in a criminal record and, in order to be removed, the offender must apply for a pardon through the National Parole Board in accordance with the timelines and eligibility requirements stipulated in the Criminal Records Act.
An Intermittent Sentence is a punishment of imprisonment that the Court imposes that is not served continuously but rather allows the offender to serve his/her sentence during specified days of the week and return to the community in the interim. Although this typically results in an Offender serving a jail sentence on weekends, it is not a prerequisite and a sentencing Court may alter the start and end times based on the needs of the individual offender. The maximum custodial sentence that can be served under an intermittent sentence is ninety (90) days and failure to attend the custodial facility at the specified times can result in the sentence be served continuously and/or additional charges being laid. The imposition of an Intermittent Sentence results in a criminal record and, in order to be removed, the offender must apply for a pardon through the National Parole Board in accordance with the timelines and eligibility requirements stipulated in the Criminal Records Act.
The term "Reformatory Sentence" is usually used by the Courts to describe a jail sentence of less than two(2) years that is served in provincial facility rather then a Federal Penitentiary. In addition, the rules surrounding parole and early release differ between Reformatory Sentences and those served in a penitentiary. For more information, please contact a lawyer.
A Penitentiary Sentence refers to a custodial sentence that is more than two (2) years and, as a result, is served in a Federal Prison. Unlike provincial facilities, a Federal Penitentiary can be anywhere in Canada and have very different procedural and behavioural rules that govern them. In particular, the rules governing parole and early release differ significantly from those involving reformatory sentences and you should consult a legal professional for more information.