Questions about the Criminal Justice System

How do you prepare for a Bail Hearing?

Bail (also known as “Judicial Interim Release”), is temporary release from jail while a person’s case is proceeding through the courts and the person is awaiting trial. When a person is arrested, they may be released with conditions from the police station, or they may be held for “show cause” (i.e. a bail hearing.) If they are held for bail, they must be brought before a Justice of the Peace in court within 24 hours.

Bail hearings require immediate and urgent work. Often we will get a call in the middle of the night from a new client who has just been arrested. We get busy right away. Our lawyers on call will take down all the information and provide the client with immediate summary advice on their rights upon arrest. We will then contact the client’s family members to determine if anyone can act as as suitable “surety” (see below.) We will review the questions that they will be asked in court when agreeing to become a surety and will advise on what documents they should bring to court. We usually rearrange our schedule to appear for our client the next morning in court to handle their bail hearing. Often times, we can present a good surety and strong plan of release to the Crown Attorney and negotiate the client’s release on consent. Contact us immediately if you require assistance for a family member who needs assistance with a bail hearing.

What is a Surety and what must they do?

A surety is a adult who is approved by a court to supervise an accused on “bail” (release from jail while awaiting trial). The surety is usually someone who is close to the accused, such as a family member or friend and someone who the accused will respect and listen to while they are out on bail. The surety promises an amount of money to the court to secure the release of the accused. The surety must ensure that the accused person comes to court when required, abides by the conditions placed on them, and does not commit any further offences. If the surety is aware that the accused is not abiding by the conditions, they are required to report the accused person to the police. This may result in further charges. If the surety does not carry out their duties they may lose the money that was promised to the court. Acting as a surety is serious responsibility. Talk to one of our lawyers if you have any questions about becoming a surety or your responsibility while acting as one.

What is the purpose of a Crown Pre-trial (Resolution Meeting)?

Once we have reviewed the evidence with our client in great detail, and done any necessary follow up investigation, we schedule a Crown Pre-trial, which means a one-on-one meeting with the Crown Attorney assigned to your case. (These are called “resolution meetings” in some jurisdictions.) This is an informal, off-the-record discussion between the lawyers where possible resolutions to the case are explored. If the matter is proceeding to trial, then we will discuss how many witnesses are anticipated, and how long the trial is estimated to take. Because we go into these meeting so well prepared, we are able to work out a resolution in the majority of our cases at this stage.

What is the purpose of a Judicial Pre-trial (JPT)?

After discussing the case with the Crown Attorney, it sometimes becomes necessary to schedule a meeting with a judge, which is called a Judicial Pre-trial. These meetings are informal, and generally held off-the-record in the judge’s chambers. These meeting are held to discuss aspects of the case such as missing disclosure, possible resolutions, and the position of the parties on various evidentiary issues. The judge may also provide input to each party on their respective position in a way that will assist in resolving the case without a trial. If the matter is going to proceed to trial the judge will work with both lawyers to estimate how long it will take, which witnesses will be called, and will case manage the parties to ensure that the trial is focused on the key issues.

I’m charged with domestic assault. Can I enter the Early Intervention Program?

The “Early Intervention Program” is a program that may be offered by the Crown in low violence domestic abuse or assault cases. It gives the accused the chance to take responsibility for what they did, resolve their case quickly and avoid going to trial. To qualify, the accused person must be a first time offender and not be accused of causing significant injury or using a weapon as part of the assault. As part of the Early Intervention Program, the accused person must take responsibility by pleading guilty to the offence, or entering into a Peace Bond. The accused may also attend the government sponsored “Partner Assault Response (PAR) Program” or some other form of counselling. We have access to various private anger-management courses and counselling resources for clients to attend under our careful guidance. We prefer our clients attend private anger management programs where possible and will liaise with the Crown Attorney about resources in the client’s area. We will advise you if your case qualifies for the Early Intervention Program.

What is the Partner Assault Response (PAR) Program?

The PAR Program is a government sponsored program that provides an accused person who is willing to take responsibility for their actions with tools that can assist them in resolving conflict in non-violent ways. It is generally a 12-week program and requires attendance at all of the sessions in order to complete the program. These programs are offered by various community agencies; some of which are tailored to a particular segment of society. (E.g. Indigenous, same sex relationships; or provided in a certain language other than English.) Upon completion of the program, a report is provided to the Crown Attorney which supports an accused person’s completion of the Early Intervention Program. Ask us whether the PAR program is an option for you to consider in resolving your case. We also have access to various private anger-management courses and counselling resources for clients to attend under our careful guidance. Depending on the case, we may may be able to arrange for you to take a private course instead of the PAR program.

Can I take a private anger-management or counselling program instead?

We have many contacts with private anger-management providers, social workers, psychologists, and psychiatrists that are able to assist our clients and provide us with information that may assist in resolving our clients’ cases. We work directly with these providers to ensure that the treatment addresses the concerns the Crown Attorney or the Court may have. We then follow up with the provider to obtain detailed reports that will assist the client’s case. Our clients regularly thank us for finding them the assistance they need and choose to continue with the provider long after their case has ended. Once we assess your case, we will be able to determine which private resources are best suited to you and available in your region.

Can I just sign a Peace bond?

A peace bond is a court order to “keep the peace and be of good behaviour” for a period of time (usually one year.) The court order may also include other conditions that you need to follow such as not having any contact with the complainant in the case, or attending counselling. A peace bond is not automatic and must be offered as option to resolve the case by the Crown Attorney before an accused person can agree to enter into one. A peace bond may be offered by the Crown Attorney in non-violent cases, where the accused person has taken considerable upfront steps (e.g. counselling, community service) to show that they have remorse and are making significant amends for their actions. Usually, a person’s charges are withdrawn after entering voluntarily into a peace bond. The lawyers at RSJLAW will be happy to discuss whether a peace bond is an option in your case, and the steps you can take that might convince the Crown Attorney to offer one to resolve your case.

How do I get diversion, and what steps must I complete?

Diversion is the general term to describe various programs meant to divert less serious cases out of the criminal justice system. It is usually reserved for non-violent offences (e.g. shoplifting) when an accused person has not been charged before. The Crown Attorney must first agree that your case is one that warrants diversion before you can work with the local diversion worker in the courthouse. The diversion worker will usually have the client complete certain requirements such as completing community service, writing an apology letter, paying any damages, or making a charitable donation. Upon completion of all the requirements, a report is sent to the Crown Attorney and the charges are usually withdrawn. In less serious cases, we always consider whether diversion is an option to resolve a client’s case and will approach the Crown Attorney about this during our early discussions.

What is a Conditional Discharge?

A judge may decide to “discharge” a person after having found them guilty of the offence. Usually this is when the person is a first time offender, and the person completes a number of things to show their remorse (e.g. counselling, community service, charitable donations, restitution). The offence must not be subject to a minimum punishment, and the discharge must be in the best interests of the accused, and not contrary to the public interest. In discharging the person, the judge decides that a permanent conviction (i.e. criminal record) is not warranted in the circumstances. Instead a temporary record is placed in the national database and is removed after a set waiting period. Discharges can take two forms. An “absolute” discharge is one where a judge finds a person guilty, but discharges them without any further conditions. A “conditional” discharge is one where a judge finds a person guilty, and decides to put them on probation for a period of time. If the person fails to complete their probation or does not abide by the conditions, the court may revoke the discharge and re-sentence the person in addition to charging them with the further offence of breach of probation. If a discharge is possible in your case, we will discuss what steps you can take to increase the likelihood of one being granted.

What is a Suspended Sentence?

A judge may decide to “suspend the sentence” of a person who has been found guilty of an offence, and to order them to serve a period of probation with conditions. This is instead of sentencing the person to pay a fine or serve time in jail. The difference between a conditional discharge and a suspended sentence is that the accused who receives a suspended sentence has a conviction (i.e. permanent record of guilty) registered against them which is held in the national database. If the person fails to complete their probation or does not abide by the conditions, the court may revoke the suspended sentence and re-sentence the person in addition to charging them with the further offence of breach of probation. We always consider whether asking for a suspended sentence is an option when a client is about to be sentenced for an offence.

What will I have to do while on probation?

A judge can order a person to serve probation and follow certain conditions for a maximum of three years. This can be done on its own (when ordering a conditional discharge or a suspended sentence) or in combination with a fine or following a jail term that is less than two years. A person under probation must keep the peace and be of good behaviour, appear in court when required to do so, and notify the probation officer of any change in their address or employment. The judge can also order that the person abide by other conditions. Some examples would be engaging in counselling or other forms of treatment, abstaining from contact with individuals involved in the case, not attending certain addresses, avoiding consumption of certain substances, and completing up to 240 hours of community service. It is a criminal offence to fail to abide by a probation order. We advocate on our client’s behalf so that they will be able to complete the probation order successfully and ensure that our clients fully understand any conditions that are placed on them.

Does a Conditional Sentence mean I can avoid going to jail?

A judge can order a person to serve a jail sentence in the community instead of serving their time in jail. Usually this means that the person will be under “house arrest” during their sentence and only allowed out of their house for very limited reasons. Conditional sentences are not available when the the charge carries a minimum sentence or when the offence is one involving a “serious personal injury offence”, a sex offence, theft over $5000, terrorism offences and any offence which carries a maximum term of imprisonment of fourteen years or life. We understand that a conditional sentence can be very beneficial to our clients as it allows them to remain in direct contact with their family and serve their sentence under much more comfortable circumstances than a provincial jail. We will discuss with you the possibility of asking the judge for a conditional sentence in your case prior to be sentenced.

What is a Criminal Record of Conviction?

A Criminal Record of Conviction is what is created when a judge finds a person guilty of an offence and then decides to give that person a sentence and conviction which results in a permanent record of the finding of guilt in the national database maintained by the police. The conviction stays on the person’s record for life, unless the case is either successfully appealed, or the person receives a “record suspension” (i.e. formally called a “pardon”). Criminal convictions can have lasting consequences for a person and can affect their ability to work or travel in the future. We will discuss the potential consequences of a conviction with you to ensure that you understand the potential risks of your case.

If the police violated my rights under the Charter, will that affect the outcome of my case?

The Charter of Rights and Freedoms guarantees everyone in Canada, (whether they are a citizen or not) certain fundamental freedoms, democratic and legal rights. The legal rights that come into consideration in criminal cases are outlined in sections 7-14 of the document, and include important ones such as the right to be secure against unreasonable search or seizure, the right not to be arbitrarily detained, the right to counsel, the right to be tried within a reasonable time, the right to be presumed innocent until proven guilty, the right to reasonable bail, and the right against self-incrimination. As part of our review of your case, we will determine whether we can argue whether your rights have been violated in your case and will advise you about how this may affect your chances of success at trial.

What is the difference between a summary and indictable charge?

Most criminal offences in the Criminal Code are referred to as “hybrid” ones in that they can be prosecuted in two different ways: summarily or by indictment. It is the Crown Attorney that chooses which way to prosecute the case, depending on factors such as the timing since the offence occurred, and the seriousness of the allegations. Cases in which the Crown Attorney has elected to prosecute summarily are dealt with exclusively in the Ontario Court of Justice before a judge alone. The procedures in this court are simpler and less costly for all parties, and the maximum jail terms for various offences are limited. When a case is prosecuted by indictment, the accused gets to choose if they want to have their trial in the Ontario Court of Justice, or in the Superior Court of Justice before a judge alone, or a judge or jury. The potential jail times for indictable cases are typically a lot longer. We will be happy to discuss with you the Crown’s election in your case and the options available for trial based on that election.

How do I know if my case will be held in the Ontario Court of Justice or the Superior Court of Justice?

The Ontario Court of Justice (colloquially referred to as the “lower court”) is the provincially administered court that handles the vast majority of criminal cases, as well as matters involving youth charges, Highway Traffic Act offences and provincial regulatory offences. The Superior Court of Justice (the “high court”) handles complex criminal and civil litigation in the province. Judges in the Superior Court are appointed by the federal government and also hear appeals from summary conviction matters in the Ontario Court of Justice. Only lawyers may appear on behalf of clients in the Superior Court and lawyers must wear special gowns when doing so. Appeals from the Superior Court of Justice are typically heard in the Ontario Court of Appeal.

What is the benefit of having a Preliminary Inquiry?

A preliminary inquiry is a hearing that is conducted in the Ontario Court of Justice before a judge in more serious or complex cases that are being prosecuted by indictment. Sometimes considered a “mini-trial”, the Crown will present evidence to the court and the judge must determine whether there is enough evidence to commit the person to stand trial. It is rare for the accused person to present any evidence at the preliminary inquiry. Instead, the accused is able to cross-examine the witnesses presented by the Crown, ask clarification-type questions, and lock down evidence under oath. In this fashion, the preliminary inquiry serves the more important function of allowing the parties to “discover” the case fully where both sides can test the evidence to determine how strong the case is against the accused. The Crown Attorneys and Defence Counsel will usually continue their discussions with a case-management judge after the preliminary inquiry has completed. There are many times where cases are resolved without a further trial after all parties have had an opportunity to further assess the case in a trial like situation as a result of conducting a preliminary inquiry If your case is eligible for a preliminary inquiry, we will review the benefits and considerations and costs involved in choosing to have one.

Will I have to have a trial?

There are times when the parties cannot agree on a resolution of a case, and a client must choose whether they want to proceed to trial. We believe that this is a fundamental right of all clients and that it should be their choice whether to have a trial and challenge the Crown Attorney to prove the case against them beyond a reasonable doubt. We have experience in handling trials before judges and juries. Once a trial has started it is up to the judge (or the jury) to decide whether the Crown has proven that the accused is guilty beyond a reasonable doubt or whether that person should be acquitted. Trials require intense preparation in order to cross examine the various witnesses, prepare the client who may need to testify, and make closing submissions at the end of the case. We will obtain your instructions and review the associated costs with you prior to scheduling a trial. We will then work hard with you to prepare the case and to advocate on your behalf when your trial date arrives.

Can you help me get a Criminal Record / Vulnerable Sector check?

On November 1, 2018, the Police Records Checks Reform Act (PRCRA) came into force. Police record check are searches of various databases in order to screen a person for suitability for various types of employment, volunteer positions, and licenses. The PRCRA outlines three types of record checks: a criminal record check which focuses on convictions; a criminal record and judicial matters check which will disclose convictions, discharges (that have not yet been removed) and current outstanding charges; and vulnerable sector checks which will disclose convictions, discharges, outstanding charges, and in certain circumstances involving vulnerable sectors any previous arrests or charges when there was no finding of guilt. Please ask one of our lawyers if you are asked to obtain one of these criminal record checks are are concerned about what may be disclosed.

Can you help me apply to have my fingerprints destroyed?

A client may be eligible to apply to have their fingerprints and photographs destroyed when their cases ended in a non-conviction (e.g. withdrawn, stayed, peace bond, discharge). There are certain waiting periods that apply depending on the final resolution of the case, and the police force that was responsible for laying the charges. When possible, we will assist in filling out the paperwork and applying on behalf of our clients for their fingerprints and photographs taken on arrest to be destroyed after the completion of their case.