If the Accused has been contacted by the police or if he or she expects to be charged with a criminal offence, they should call a lawyer and seek legal advice.
What should the Accused Person expect if the police are looking for them?
If the police are looking for the Accused, they should not hide. It is in their best interest to talk to a lawyer and get some legal advice on what their options are. The lawyer can find out what the police want. The lawyer can set up a convenient time for the Accused to turn his or herself in to the police.
What will happen after the Accused Person is arrested?
After being charged with a criminal offence, a police officer has the discretion to hold him or her for a bail hearing or release the Accused from the police station on a “Promise to Appear”.
What is a “Promise to Appear”?
When arrested, they may be released on a “Promise to Appear”, which is a paper that the Accused will be asked to sign stating a date when they are to attend court.
What will happen if the Accused is not released on a “Promise to Appear”?
If the Accused is not released on a “Promise to Appear”, then they will be taken to Court and held for a bail hearing.
What is a Bail Hearing?
A bail hearing is a Court proceeding to determine if the Accused should be released from jail while waiting for trial.
For a person in custody, a bail hearing is usually a vital stage that will affect their decision on how to proceed with their case. It is imperative that a competent and experienced lawyer conduct the bail hearing because it is a very crucial part of the criminal process.
There are many factors the Court considers when deciding if an Accused should be released. The Court must be satisfied that:
- The Accused will attend all Court appearances as Ordered by the Court;
- The Accused will follow and comply with any and all bail conditions that the Court imposes;
- The Accused will keep the peace and be of good behavior (stay out of trouble) while on bail, and;
- The community is not offended by the Accused person’s release given the serious nature of the offences alleged and the strength of the Crown’s case.
What does the Accused Person need to do in order to be released on bail?
One way to show the Court that the Accused should be released on bail is to have a person who will supervise you. The person who agrees to supervise you is called a Surety.
An Accused person will need the assistance of his/her friends and family members to come to Court and act as a Surety.
What is a Surety?
A Surety is a person who will act as a supervisor. It is the Surety’s responsibility to:
- Ensure that the Accused person attend Court;
- Ensure that the Accused person abide by all of the bail conditions and, and;
- Ensure that the Accused person stays out of trouble.
A Surety is required to pledge a sum of money, to show the Court that they will take their role as a Surety seriously. The Surety must also understand that it is possible that the money signed for the Accused person’s bail may be forfeited.
This monetary pledge ensures that the Surety will properly supervise the Accused person – or risk losing their money should they fail to do so. In most instances, the Surety need only establish that they have access to the amount of money being pledged and not need to deposit the money with the Courts. Bankbook statements or property deeds are examples of ways the Surety can prove their assets to the Court.
Depending on some very limited circumstances, a cash bail can be required.
If the Accused person breaches a condition of the bail and the Surety knows of the breach but does not inform the police, then the Crown may make application to the Court to obtain the money posted for bail. In addition, if the Surety fails to supervise the Accused in terms of court attendances and maintaining his/her bail conditions, then the Crown may make an application to the Court to obtain the money posted for bail.
Money posted for bail does not automatically default to the Crown if the Accused is rearrested for another offence or alleged to have breached a condition of his/her release. The Crown must show the Court that the Surety did not properly supervise the Accused person and did not report, if the Surety had knowledge of a breach or contravention of the bail conditions.
A Surety may be asked to testify in Court about their plan to supervise the Accused. The plan of supervision is usually the most important factor for the Court as it will determine if the Accused person will be properly supervised while on bail.
The Surety will also have to show that they are capable of supervising the Accused and that the Accused person will listen to the Surety. The Surety will be asked some background information about the Accused person as well as their personal relationship with the Accused in order to determine their suitability as a candidate to supervise the Accused while on bail.
A competent lawyer will meet with the potential sureties and will ensure that sureties at the bail hearing are adequately prepared for the process of testifying in Court. The sureties should know ahead of time what questions will be asked of them by the defence lawyer and even what questions they may be asked by the Crown Attorney. One wrong answer to any of the questions asked in Court could result in the denial of bail for the Accused.
What happens if bail is denied?
If bail is denied then the Accused person has options which differ depending on whether or not he/she is a youth or an adult. If the Accused person is a young person under the Youth Criminal Justice Act, then he/she can have a “Bail De Novo” after 2 clear days of the detention order. This means that the young Accused person can have another bail hearing in front of a Youth Court Justice.
If the Accused person is an adult and is denied bail, a defence lawyer can bring an application for bail review to the Superior Court of Justice. The application must be filed in accordance with the Rules of Criminal Procedure, which include the mandatory filing of transcripts for the proceedings to be reviewed. A substantial change in circumstances of the Accused, or an error in law by the lower Court, or the expiry of a mandatory review period is necessary in order to bring the application for bail review.
What happens at the first Court date?
After the issue of bail has been determined, a first appearance date will be set. This date will be set by the “Promise to Appear” if no bail was required. At the first appearance the Crown will usually have substantial and sometimes all of the disclosure material available. This material will be turned over to defence counsel.
Another date will be set to return to court. This date will typically be 3-4 weeks in the future.
Will the Accused be expected to say anything in court on the first Court date?
If the Accused goes without a lawyer, they will be expected to explain their intentions to the Court regarding what they want to do with their case.
Prior to the first appearance, the Accused can retain a lawyer to attend court with them or even to attend court appearances on their behalf. The lawyer will speak on the Accused person’s behalf and they do not have to say anything. The lawyer is there to protect and represent their best interest.
In most courthouses, the Crown Attorney will give priority to the cases where a lawyer is present in court PRIOR to dealing with any cases involving unrepresented Accused persons. Many Accused persons retain lawyers prior to their first appearance in court.
Why does the Accused Person have to make more than one Court appearance?
Nothing can be done until disclosure is complete so he or she may have to make more than one Court appearance to get complete disclosure. After the disclosure is given to the Accused or to the lawyer, they need to come back another day so that the lawyer can have a Crown pretrial or resolution meeting with the Crown Attorney. In the interim, it will allow the lawyer some time to read through the disclosure, discuss the allegations with the Accused and then set up a Crown pretrial, or resolution meeting.
What is a Crown Pretrial/ Resolution Meeting?
A Crown pretrial is a meeting between the lawyer and the Crown Attorney. The lawyers will discuss the strengths and weaknesses of the case and whether or not a resolution is possible. If it does not appear possible, then the Crown Attorney and the lawyer will discuss how long a trial would take, and whether there are any Charter issues or special motions to be brought prior to the trial.
Sometimes it is necessary to get input from a judge. Accordingly, the case would be adjourned for a few more weeks in order to have a Judicial Pretrial.
What is a Judicial Pretrial?
Some cases require judicial pretrials in order to proceed to trial. Here, the estimates for time and witnesses, as well as application or motion issues will be discussed with the Crown and the judge. Judicial input sometimes assists in more accurate estimates. Judicial input may also influence one party or another to consider a particular strength or weakness to a case. This may help the parties reach a resolution agreement or realize that no resolution is possible before trial.
Once the parties agree to a trial estimate, then a target trial date can be set. Most times due to the backlog in the Criminal Justice System, a trial date is scheduled eight to twelve months down the road. However, every Courthouse is different and it depends on which Courthouse the matter is being held at.
What will happen at the trial date?
As you can see, there is quite a process before a criminal case ends up at trial. A trial usually occurs several months (sometimes even a year or longer) after the offence was alleged to have occurred.
At trial, the Crown attorney will lead evidence from witnesses and other sources to demonstrate that the Accused is guilty of the offences before the Court. The defence lawyer will have an opportunity to question any witness called by the Crown. Once the Crown believes they have established proof of guilt beyond a reasonable doubt, they will rest their case. At this point, the Accused may choose to testify or call evidence on their own behalf to challenge the Crown’s case.
Hiring a lawyer to work with the Accused through the entire court process will ensure that they are properly represented at each and every stage of the proceeding. A lawyer is not just for someone who intends on having a trial. The lawyer will also ensure that the Accused’s interests are protected every step of the way. This is crucial to ensuring a winning strategy and a positive outcome in the case regardless of whether or not the matter goes to trial.
Should the Accused do anything before going to meet with a lawyer?
In order to get the most out of the meeting, it is best to prepare for it. Write down everything the Accused remembers about the events surrounding the charge. Make sure to write “To my lawyer: Private & Confidential” at the top of the document. If the Accused has specific concerns, write them down so they can be addressed during the meeting. Take all documents relating to the charge and give them to the lawyer. The more information the lawyer has about the case and concerns, the better the advice the Accused will receive.
The Accused just wants to plead guilty and get it over with. Should the Accused Person tell the lawyer that’s what they want to do?
The decision to plead “guilty” or “not guilty” is up to the Accused. They should certainly tell the lawyer what they want to do. However, the purpose of hiring a lawyer is to allow them to make an informed and intelligent decision. A good lawyer should first listen to the Accused to understand their concerns. Then he or she should explain both the potential benefits and consequences of pleading guilty versus going to trial and the strengths and weaknesses of the case. Then the lawyer should recommend a course of action. Of course, the final decision for the Accused to make and the lawyer must carry out their instructions.
Can the Accused plead “not guilty” even if they have done it?
Yes. A plea of “not guilty” simply means that they are insisting that the Crown prove its case. In Canada, a person can be found guilty if he or she either pleads “guilty” or the Crown proves its case beyond a reasonable doubt. In any given case, there will be numerous legal issues requiring proof. Many times, the Crown will not be able to prove its case because they do not have the proper evidence regarding a certain element of the offence. In such cases, the Accused person will be found “not guilty”. A lawyer who does a thorough job in preparing the case will often be able to identify where such difficulties are likely to arise.