For most individuals who have been charged with an offence, the Criminal Justice System can be both daunting and confusing. The information contained herein is a basic overview of criminal procedure only and should never be used, or considered, a substitute for advice from a lawyer.
Understanding your Charges
In Canada, the Criminal Code distinguishes criminal offences based on the seriousness of the complained behavior and categorizes them as Summary, Indictable and Hybrid offences. Depending on this classification, the Criminal Code also sets out procedural differences between each category of offences as well as the maximum, and sometimes minimum, penalties upon conviction. Below is a description of the different categories of offences and some of the relevant distinctions.
Summary Conviction Offence
Summary Conviction Offences are the least serious offences in the Criminal Code and, unless specified directly in the Criminal Code, they carry a maximum penalty of six (6) months in prison or a $5000 fine or both. In addition, police can only initiate Summary conviction proceedings against an individual where the acts complained of occurred within the last six (6) months.
From a procedural perspective, Summary offences are relatively straightforward. For the purposes of trial, individuals charged with summary offences are only entitled to have their matters heard by Judge alone in the Ontario Court of Justice. As a result, persons charged with these offences are NOT entitled to a trial by jury and, in the normal course, take ten (10) to twelve (12) months to reach trial from the date of arrest. These estimates will vary from one courthouse to another and are meant to assist you in gauging how long charges can remain before the court. Other factors that may affect this estimate include: Length of trial time required, number of civilian witnesses, number of accused persons jointly charged and complexity of the matter.
Examples of Summary Conviction offences are as follows:
- Cause Disturbance (s. 175)
- Taking Motor Vehicle without Consent (s. 335)
- Obtain Transportation by Fraud (s. 393(3))
- Trespassing at Night (s.177)
The most serious offences in the Criminal Code are classified as Indictable Offences and carry a wide array of penalties up to life imprisonment as well as substantial fines. Unlike Summary conviction offences, however, unless the Criminal Code directs otherwise, there is no limitation period on when a person can be charged with an offence after it has been committed.
In addition to the above differences, there are also procedural differences between Summary and Indictable offences. As indicated above, an Individual charged with a summary conviction offence has no choice in their mode of Trial and the matter must be heard by a Judge in the Ontario Court of Justice. By contrast, individuals charged with Indictable Offences are given more choices on which level of Court their trial will be heard as well as the mode of trial they can choose. An individual charged with an Indictable offence has the option of deciding whether their trial is heard in the Ontario Court of Justice, commonly known as "lower" court, or the Superior Court of Justice, also known as "high" court.
If an individual charged with an Indictable offence chooses to have his/her trial in the Ontario Court of Justice, they have no further choice as to their mode of trial and it will be heard by a Judge alone. The penalties upon conviction outlined in the Criminal Code remain the same, however, the time it takes for the matter to be heard at trial is usually shorter then if an individual requests a trial in the Superior Court of Justice.
If an individual charged with an indictable offence chooses to have his/her trial in the Superior Court of Justice, for most offences, an individual can decide whether to have a trial by Judge alone or a trial by Judge and twelve (12) Jurors. In a trial composed of Judge and Jury, the Jurors decide issues surrounding the facts and the Accused person’s ultimate guilt. The Judge, on the other hand, decides only legal issues, such as admissibility of evidence and the administration of the proceedings, and, if necessary, the appropriate sentence.
The last major procedural distinction between a trial in the Ontario Court of Justice and Superior Court of Justice is the charged person's right to a 'Preliminary Hearing.'
The Preliminary Hearing is a proceeding in which the Crown is required to call evidence to satisfy the Court that a jury could, based on the evidence, conclude that an individual is guilty of the offences charged. To be clear, the Judge’s function is not to decide the charged person’s guilt or innocence, or even whether the Judge believes the evidence. The Court’s only function at the Preliminary Inquiry is to see if any evidence can support a conviction on the charges. As a result, the evidence required to be produced by the Crown is very minimal and it can even be contradictory, so long as there even a shred of admissible evidence on every essential ingredient of the offence. (Please see United States of America v. Shephard,  2 S.C.R. 1067).
Given this relatively easy test, many people are confused by the overall purpose of the preliminary hearing given that the Judge does not to decide whether the Crown should proceed to trial based on the strength of the evidence presented. From a defence lawyer’s perspective, and in our client’s interests, the Preliminary Hearing can be an important tool in preparing your ultimate defence at trial. The Preliminary hearing serves an important discovery function because it allows your lawyer to ask questions that (s)he may not normally ask and to pin down the testimony of witnesses in a case.
As a general rule, when a criminal defence lawyer is conducting a trial, (s)he will not ask questions that they do not know the answer to for fear that, if damaging evidence comes out, it may sway a judge or jury in the wrong direction. In simple terms, it’s just too risky.
Examples of Indictable Offences are as follows:
- Homicide: Manslaughter (s. 234) and Murder (First and Second Degree, s. 231)
- Possession of Restricted Firearm (s. 95)
- Robbery (s. 343)
- Participate in Criminal Organization (s.467.11)
A majority of offences in the Criminal Code are not classified as solely Summary or Indictable offences but instead are designated as “Hybrid Offences.”
Hybrid Offences are those offences where the decision on whether the charge is classified as either a Summary or Indictable Offence is left to the discretion of the Prosecutor (Crown Attorney). This means that the Crown Attorney decides, or elects, how to proceed and the corresponding procedural differences as well as sentencing maximums (and, where applicable, minimums) apply.
Examples of Indictable Offences are as follows:
- Theft (Under $5000) (s. 322)
- Assault (s. 266)
- Assault causing bodily harm (s. 267)
- Uttering Threats (s. 264.1)
- Fraud (Under $5000)
The Initial stages of being charged
Release by a Police Officer at the Police Station or Scene
If you are charged with a criminal offence but released by police from the station or from the scene, you will be given a document requiring you to attend Court on a particular date. This document can come in the one (or both) of the following forms:
- Promise to Appear, a Summons to Attend - This document is provided to you by a Police Officer and will outlines the date and time you are required to attend Court in regard to the charge. The document will also outline the charge(s) you are facing as well as the address of the courthouse you are to attend. In some circumstances you may also be required to attend the Police Station or Court facility before your first Court Appearance to be fingerprinted and/or photographed.
- Release on Undertaking with Conditions to an Officer In Charge (Form 11.1) - In addition to a Promise to Appear or Summons to Attend Court, you may also receive a document entitled a “Release on Undertaking with Conditions to an Officer In Charge.” This document outlines conditions the Officer has deemed appropriate for you to abide by while the criminal charges remain before the Court. Unless you or your lawyer can vary these conditions in Court, you will be required to comply with these conditions until your charges have been dealt with. If you fail to abide by the conditions imposed under Form 11.1, it may result in further charges, including “Fail to comply With an Undertaking” (s.145(5.1) ), that will be above and beyond the charges you were initially released on.
In many cases, a Police Officer will not release you from the scene or the police station and instead will hold you at the police station until the you can be brought before the Court for a Bail Hearing (also known as a “Show-Cause” Hearing). Essentially, this means that the Police are going to let the Court determine, based on the your lawyer’s and the Crown Attorney’s arguments, whether you should be released or detained before trial.
Bail represents one of the most important stages of the criminal process. The purpose of the bail hearing is to decide whether an individual charged should remain in jail or be released until the Criminal charges are decided by the Court. Due to the high volume of cases in the Greater Toronto Area, most Courthouses require several months before you can have a trial on your charges. As a result, regardless of your guilt or innocence, if you lose your bail hearing you can remain in jail for several months awaiting your trial.
While a bail hearing can look like a trial to the untrained eye, its purpose is not to determine a person’s guilt or innocence but rather the Court’s function is simply to decide whether the individual charged should be released before a Judge (or jury) reaches a decision on his/her guilt on the charges. Consequently, the Court must balance the liberty of the person charged against the interests (and safety) of the community as a whole before making its decision. This decision is not a simple “yes” or “no” answer but rather involves a number of different factors. To decide the issue of bail a Court must weigh three criteria:
- Will the Individual charged attend Court as required?
- Will the Individual charged commit further criminal offences or interfere with the Criminal Process if released?
- Does the Individual charged need to be kept in custody to maintain the public’s confidence in the Criminal Justice System?
Depending on the answers to the above questions, a Court may decide to release or detain an individual in custody.
If the Court has concerns regarding one of the above considerations, the Court is not limited to simply decide to detain the accused person in custody. The Court can also decide to:
(i) release the accused person on specific conditions, or
(ii) release an accused person into the custody of another person, known in law as a Surety (for more info on the meaning of a surety see below), on specific conditions.
The Conditions a Court may impose range from the relatively simple ones, such as a requirement to reside at a particular address, to much more restrictive conditions, such as a curfew or house arrest. These conditions will remain in effect until the criminal charges are ultimately resolved and, failure to abide by those conditions, could result in further criminal charges and/or being placed back in custody.
To understand how the issue of bail is decided, it is important to first understand some basic information about the process. Aside from your lawyer, a bail hearing involves three other important parties: The Crown Attorney, Justice of the Peace, and Surety or Sureties.
The Crown Attorney
The Crown Attorney is a government lawyer who prosecutes criminal cases on behalf of the Ministry of the Attorney General of Ontario or Public Prosecution Service of Canada. In basic terms, the Crown Attorney represents the interests of the community as a whole and can make decisions on how to proceed with the charges against you. This does not mean, however, that a Crown decides your guilt or innocence. The Crown’s job is to put forward the case against you to the Court and, because it is the Crown’s responsibility to prove your guilt, they can also decide not to proceed with the charges against you and/or make procedural decisions that may affect how the case proceeds.
In the context of bail, the Crown Attorney must decide on whether to seek your detention, or to “show-cause,” or agree to your release on bail.
If the Crown agrees to your release from jail pending your trial, conditions are usually discussed with your Lawyer in advance and put before the Court for approval. If there is any disagreement between your lawyer and the Crown Attorney on the appropriate conditions for your release, the Court will be the ultimate decision maker on this issue.
Justice of the Peace
Most bail hearings are presided over by a Justice of the Peace. A Justice of the Peace (JP) is a Judicial Officer appointed by the Provincial Government pursuant to Justice of the Peace Act. In the context of a bail hearing, the principal function of the JP is to be the decision-maker on issues arising during the course of the hearing, including the ultimate verdict as to whether someone should be released on bail or detained in custody. Similarly, a JP can make decisions on the suitability of a surety and impose conditions on an accused person s/he may deem appropriate as part of a Recognizance of Bail.
Surety or Sureties
Often, a court may grant bail and impose specific conditions on an accused person, pending the result of their outstanding charge(s). In a significant number of cases, the Court will order a person be released into the custody of a surety or sureties. In simple terms, a Surety is an individual who comes before the Court and is prepared to assure the person charged will:
- Attend court when required;
- Abide by the conditions of the release order imposed by the Court; and
- Report the accused to the police or Court in the event that s/he breaches one or more of the bail conditions, commits a further criminal offence or fails to attend Court.
In order to ensure an individual takes the above responsibility seriously, a proposed Surety agrees to pledge money or valuable security to the Court in support of the accused person. Normally, the Court does not require that the proposed Surety actually deposit money with the Court as long as they can provide proof that they do in fact have access to the monies pledged. The Surety and/or accused will only be subject to financial penalty if the accused or surety fails to abide by conditions noted above and, at this point, the Crown Attorney can seek forfeiture of the monies pledged.
Once an individual has been approved as Surety by the Court, s/he is required to comply with the responsibilities imposed on them until the charges are disposed of or until the surety is relieved of their responsibilities as surety by the Court.
To be relieved of their responsibilities, a surety may attend before a Justice of the Peace and file an “Application by Surety for Relief.” After receiving the “Application by Surety for Relief” the Justice of the Peace will issue a “Warrant for Committal” for the accused. This will authorize the Court or Police to arrest the Accused and placed them in custody until the bail issue is re-addressed by the Court. In the alternative, a surety can also attend at a police station and advise an officer that s/he wishes to be removed as surety and a warrant can also be issued for the accuser's arrest.