Criminal Law Questions
The following information provides introductory answers to some common questions about criminal law concepts, problems, and procedures. Topics will be added regularly.
Summary vs. indictable offences
WHAT DOES LEGAL ADVICE AND REPRESENTATION COST?
Legal fees vary greatly between cases, and depend upon the complexity of the case, the legal objective the client wishes to pursue, and the time that will be required of a lawyer. As it is impossible to say what each individual case will require without knowing more, initial consultation is free. After hearing more about your case, an overall estimate of the costs can be determined on a block-fee basis, and will be set out clearly in writing. Block fees offer the benefit of certainty with regard to the costs of your case, and allow you to consult with me regularly without worrying about incurring unexpected fees. Payment plans can be arranged to accommodate your personal financial circumstances, and you are under no obligation to retain me following our first meeting.
For accused persons who cannot afford a lawyer and are facing certain types of criminal charges, Legal Aid Ontario provides financial support to eligible applicants. A certificate is provided to successful applicants which can be used to hire any lawyer who accepts LAO certificates.
WHAT RIGHTS DOES A PERSON UNDER ARREST HAVE?
In Canada, people who are arrested have several constitutionally protected rights. Under the Charter, police have a duty to immediately inform individuals who are arrested of:
(1) the grounds for the arrest;
(2) their right to silence;
(3) their right to speak with a lawyer.
In practice, this means the police must tell a person they are placing under arrest:
• The reason(s) the person has been placed under arrest. While the police do not need to use the specific language of the Criminal Code in their explanation, they must tell an individual what they are being charged with, giving that person a general sense of why they are being taken into custody.
• They may speak with any lawyer they choose, as soon as possible and in private. If an arrested person does not have their own lawyer or cannot afford one, they have a right to contact duty counsel who will provide free legal advice. The police must provide the telephone number for duty counsel if a person under arrest requires it.
• They have a right not to say anything. Anything said or done voluntarily, including submitting to physical testing (supplying samples of bodily fluids, for example), can later be used as evidence against a criminal suspect.
It is important to remember that while the police must inform a person of their right to silence, they may still proceed to question an individual who has been informed of that right. Once officers have informed an individual of the reasons for their arrest and their right to silence, and given them an adequate opportunity to speak with a lawyer, the police are then permitted to interrogate that individual without a lawyer present. Even if an individual continues to assert their right to silence, the police will often persist in questioning that person, in either aggressive or friendly fashion. In fact, new research suggests that the latter method is actually more effective in gaining confessions.
Given this reality, it is essential to bear in mind that the best course is always the silent one. A criminal suspect can do no harm if they say nothing, which is rarely the case if they decide otherwise. An individual’s lawyer will always know better if and how to answer any questions related to a criminal investigation.
WHAT ARE BAIL HEARINGS?
If the police arrest and charge an individual but do not release them directly from the station, that accused person will be held in custody until being brought before a Justice for a bail hearing. This is an accused person’s first opportunity to request that they be released back into the community while the charges against them are dealt with. Because it can take a long time to get to and through trial or otherwise resolve charges, a bail hearing frequently represents a critical first phase in the criminal justice process.
In Canada, an accused person’s right “not to be denied reasonable bail without just cause” is constitutionally guaranteed. In practice, this means that a person charged with a crime will usually be released if the court is convinced:
(1) The individual will attend court as required;
(2) The person does not present risks to the community upon release; and
(3) The public would not lose confidence in the criminal justice system if the individual is released.
Some situations in which the court may find just cause to deny bail include:
• An accused person has a history of failing to attend court and/or obey court orders;
• An accused has been convicted of similar offences in the past, particularly the recent past;
• An accused has a record of violence and the new charge(s) involves violence, especially if the old offence(s) and the new charge(s) involve the same complainant;
• An accused presents a flight risk because he or she faces charges carrying a potentially severe sentence upon conviction.
When the court grants an individual bail, it imposes certain conditions on that person’s release. These conditions vary greatly, depending on the accused and the charges they face, but some orders available to the court include:
• A requirement that an accused person live at a specified address;
• A requirement that an accused person not be certain places (the location of the alleged offence) or communicate with certain people (complainants and/or witnesses);
• A requirement that an accused person attend counseling for anger, substance abuse and/or other issues;
• A requirement that an accused individual not consume alcohol or non-medical drugs;
• Weapons prohibitions;
• House arrest;
• A general requirement that the accused keep the peace and be of good behaviour.
While accused persons seeking bail may sometimes be released on their own recognizance (a financial pledge to abide by the conditions set out by the court), sureties are often required at bail hearings to satisfy the court that the conditions of bail will be met.
WHAT IS A SURETY?
A surety is a family member or friend of an accused person who agrees to pledge a certain amount of money in support of that individual’s release. The surety also agrees to supervise the accused while they are on bail, ensuring that they follow the conditions of release and attend court as required. The support of a suitable surety is often essential to an accused person at a bail hearing. Proposed sureties will frequently take the stand in order to examine their relationship with the accused and make certain that they understand a surety’s duties. In some cases, multiple sureties may be required to satisfy the court that an individual will be sufficiently supervised while on bail.
Generally, suitable sureties should:
(1) Be a Canadian citizen or a landed immigrant;
(2) Not have a criminal record or any outstanding criminal charges;
(3) Not already be acting as a surety for another accused;
(4) Be at least 21 years of age; and
(5) Be employed.
A surety’s primary responsibility is to ensure that the accused person attends court as required and obeys the conditions of their release. As soon as the surety becomes aware that an accused has breached his or her bail conditions, which is a new criminal offence, the surety is required to immediately draw any such breach to the attention of police. If sureties fail to do so, they risk forfeiting the money they have pledged in support of the accused person’s release.
As the Charter requires that bail be “reasonable,” the amount of money that a surety is required to pledge in support of a person’s release will depend on the charges against the accused, the accused’s criminal record, including past instances where the individual failed to appear for court dates, the surety’s financial situation, and any other factor the court considers relevant. A surety is usually not required to deposit money with the court at the time the recognizance of bail is signed, but must demonstrate to the Justice of the Peace that they have the financial ability to pay whatever amount they pledge. Proposed sureties should therefore bring to court government-issued photo identification, proof of their address, and any documents which show they can afford to pay the amount of money they pledge, including banking, investment, and home ownership papers.
WHAT IS DISCLOSURE?
In Canada, individuals facing criminal charges have a constitutional right to know the prosecution’s case against them. The evidence against a person who has been charged criminally is known as disclosure. The Crown (prosecutor) has a duty to disclose all relevant information in its possession, whether or not it intends to produce that information in court. An accused person’s lawyer determines what information will be relevant for defence purposes.
The amount of time it takes for the Crown to gather disclosure will depend on the complexity of the case, but the prosecution must provide disclosure as soon as it becomes available. The initial disclosure package is handed to an accused or their lawyer, often with a pink or yellow covering sheet, during an early court appearance. This package can range from a few straightforward pages up to thousands of complex pages, photographs, videos, and expert evidence.
Disclosure typically includes, but is not limited to, some or all of the following:
• Police notes, photocopied directly from officer notebooks;
• Statements from witnesses;
• Photographs of injuries, evidence and/or crime scenes;
• Video recordings of police interviews or surveillance footage;
• Forensic analysis of evidence;
• Audio recordings of 911 calls.
If, after reviewing the initial disclosure package, an accused person’s lawyer believes that relevant information is missing, they can request that the prosecution provide additional disclosure.
An accused person who has received their disclosure directly should guard this package carefully, as it often contains confidential material and is critical to an effective defence.
WHAT ARE THE DIFFERENCES BETWEEN SUMMARY AND INDICTABLE OFFENCES?
These terms broadly distinguish the types of offences found in the Criminal Code of Canada. Summary conviction offences comprise the most minor offences in the Code and are dealt with in a relatively quick and simple manner, while indictable offences are more serious in nature and command more lengthy and complex procedures.
Summary offences are tried in Provincial Court (Ontario Court), and carry a maximum penalty of a $5,000 fine and/or a jail term of up to six months, with a limited number of specified summary offences (for example, sexual assault) carrying a maximum jail sentence of 18 months. An individual accused of a summary offence does not have a right to a jury trial.
The maximum punishment following a conviction for an indictable offence is set out in the Criminal Code, and ranges from 5 years to life in prison, depending on the offence. How an indictable offence is tried depends on the type of offence, and may be in Provincial or Superior Court, with a judge alone or a judge and jury.
Some other differences between the two classes of offences include:
• Fingerprints: The police cannot fingerprint an individual charged with a summary conviction offence, whereas they can fingerprint a person charged with an indictable offence.
• Court appearances: A person charged with a summary offence does not necessarily have to appear personally in court, and may be represented by a lawyer or other agent. Those charged with an indictable offence must (with some exceptions) personally appear when required in court.
• Charge deadlines: An individual cannot be charged with a summary offence after six months have elapsed since the offence allegedly occurred. There is no limitation on when charges can be laid for an indictable offence (with the exception of treason, which requires charges to be laid within three years).
• Pardons: An individual convicted of a summary offence is eligible to apply for a pardon after three years, while persons convicted of an indictable offence must wait five years (in both cases the individual applying must not have been found guilty of any offence in the years since the conviction they want pardoned).
A third category of offences are hybrid offences (sometimes known as “dual procedure” offences), which allow the Crown prosecutor to choose whether to proceed by summary conviction or by indictment. The Crown’s choice of procedure is called its “election.” The Crown will generally elect to proceed with less serious hybrid offences by summary conviction, unless specifics of the offence or the offender militate in favour of indictment.
WHAT ARE PRE-TRIALS?
After an accused person’s lawyer has received disclosure, they will arrange to have an informal discussion about the case with the Crown attorney (prosecutor). This meeting is intended to get a sense of each side’s view of the case, resolve certain issues, and potentially prepare for trial.
Known as a Crown pre-trial (CPT), or sometimes a “Crown resolution meeting,” this dialogue can touch on the following areas:
• The sentence the Crown will be seeking, both on a guilty plea and if the accused is found guilty at trial;
• Any information that the defence believes is missing from disclosure;
• How long a trial will take, and the type of trial;
• The number of witnesses that are expected to testify, including any expert witnesses;
• Any constitutional issues that the defence anticipates may be raised;
• Other legal issues.
Generally speaking, Crown lawyers will not meet with accused persons directly to talk about these matters, nor do accused attend pre-trials. While time and complexity are both of concern, the primary problem is that accused persons could potentially incriminate themselves in direct discussions with the prosecution. An accused person’s lawyer will explain to them what was discussed after pre-trials are completed.
In more complex cases, where a trial is anticipated to take more than a few hours, a judicial pre-trial (JPT) will be scheduled. In a judicial pre-trial, lawyers for the prosecution and defence arrange to meet briefly with a judge about the same matters mentioned above. The judge’s role is to provide an objective perspective and encourage resolution of the issues, where possible, in order to shorten the expected length of the trial. A judge presiding over a pre-trial can also propose a reasonable sentence, allowing an accused to plead guilty and accept that sentence the same day. Again, however, judicial pre-trials take place without the accused person present, but nothing conceded or admitted is binding until the accused accepts it.
WHAT IS A PRELIMINARY HEARING?
A preliminary inquiry or hearing is available to an accused facing trial in Superior Court on some more serious charges. A preliminary hearing is scheduled before the actual trial, and its purpose is to determine whether the prosecution has enough evidence to “commit” a case to trial on each count against an accused. Charges can be screened out if the evidence heard at a preliminary inquiry does not support the charges going ahead.
The standard for committing charges to trial (set out in Section 548(1) of the Criminal Code), however, is very low relative to what is needed to convict an accused person at trial. The vast majority of preliminary hearings will lead to a trial, and mostly provide an opportunity for lawyers on both sides to explore the evidence, including examination and cross-examination of witnesses who are expected to testify at trial. A request to hold a preliminary hearing can be made by either the Crown or the defence where an accused is charged with certain indictable offences. Whether an accused person opts for a preliminary hearing is largely a strategic decision made by their lawyer. The lawyer will explain to their client why they have decided for or against a preliminary hearing.
WHAT HAPPENS AT A TRIAL?
Where and how a case is tried, as well as how long a trial will take, depends on the type of charge(s) an accused person is facing. Trials may take place in Ontario Court of Justice (summary offences and some indictable offences) in front of a judge, or in the Superior Court of Justice (indictable offences) in front of either a judge alone or a judge and a jury.
In any trial, the Crown will attempt to produce evidence, including witness testimony and physical exhibits, which prove an accused’s guilt beyond a reasonable doubt. The defence may also call evidence and cross-examine witnesses in order to raise doubts about an accused’s guilt. After hearing all the evidence, the judge or jury will make the ultimate decision about whether a person is guilty or not guilty of the charges against them.
WHAT MUST A PERSON KNOW BEFORE PLEADING GUILTY? In certain cases, pleading guilty may be the best course of action for a person charged with a crime(s). This approach can save an accused person time, money, and stress, and some charges may be reduced or withdrawn. In addition, a sentence following a guilty plea is usually more favourable than the sentence imposed if an accused is found guilty after a trial.
Where an accused person decides they want to plead guilty, certain conditions must be met before the court will accept the plea. Because an accused individual is giving up their constitutional right to a fair trial, the court must be satisfied that the accused fully understands the consequences of a decision to plead guilty.
Section 606 of the Criminal Code sets out the conditions that must exist before a court may accept a guilty plea. These are:
(1) The accused must be making the plea voluntarily;
(2) The accused understands that they are admitting all elements of the offence they are charged with;
(3) The accused understands the nature and consequences of the plea;
(4) The accused understands that while the prosecutor and the accused’s lawyer may have reached an agreement on sentencing, the court is not bound by any such agreement.
In practice, this means that an accused who chooses to plead guilty must first know:
• They have a right to a trial and are freely waiving that right, meaning they are not under pressure from any outside party to plead guilty. The Crown is being relieved of its central duty to prove an accused person’s guilt beyond a reasonable doubt.
• A guilty plea is an admission that they did and thought everything that the offence requires. It is important to distinguish between feeling guilty and being guilty according to the law. While an accused person may feel guilty, elements of the offence as required by law may still be absent. Moreover, a lawyer cannot allow a client who maintains his or her innocence to plead guilty.
• A judge does not have to accept the sentence recommended jointly by the Crown and the accused’s lawyer. A judge may impose a harsher sentence than that worked out between the prosecution and defence, and an accused may not change their plea after they hear that sentence (except where the judge permits it).
In some cases, the judge will directly ask an accused questions to ensure that they grasp each aspect of a guilty plea. In other cases, an accused person’s lawyer may inform the court that they have already spent time conducting a plea inquiry with their client and are satisfied the accused understand the implications of their guilty plea. Although some sort of inquiry will usually take place before a guilty plea is accepted, the absence of a full inquiry will not usually invalidate an accused person’s guilty plea.
HOW DOES THE COURT DETERMINE A SENTENCE?
After the judge accepts a guilty plea or an individual is found guilty beyond a reasonable doubt at trial, the Crown and defence will each make their own submissions on sentencing. The Crown will first submit to the judge what it believes is an appropriate sentence. Counsel for the defence will then provide the court with information about an accused person’s background, and particulars of the offence which could lessen a harsher sentence. Sometimes either or both sides will provide the court with previous judicial decisions which will inform the sentencing judge of the range of sentences in similar cases.
Section 718 of the Criminal Code sets out the purposes and principles of sentencing, which the court will consider, including:
• Denouncing unlawful conduct;
• Deterring the offender and the rest of the community from similar behaviour;
• Separating offenders from society (through incarceration) where necessary;
• Assisting in rehabilitating offenders;
• Providing reparations to victims;
• Encouraging offenders to take responsibility and acknowledge the harm caused to victims;
• Ensuring that sentences are proportionate to the seriousness of the offence;
• Whether the offence was motivated by hate against an identifiable group;
• Whether the offender abused their spouse, a minor, or a position of authority in relation to the victim;
• Whether the offence was for the benefit of a criminal organization, or was a terrorism offence;
• Whether the sentence is comparable to that imposed on others found guilty of similar offences;
• Whether an offender can be punished without imprisoning them, particularly in the case of aboriginal offenders.
An individual up for sentencing will also be given the opportunity to address the court, but is not required or often advised to do so. These submissions could help or hinder the court’s final decision on sentencing. It is therefore important that a lawyer carefully review with their client everything that will be said in court.
HOW DO APPEALS WORK?
An individual found guilty at trial may apply to have their case heard again by a higher court, while the Crown may also appeal a not guilty finding or a sentence it deems inappropriate. Appeal procedures can be complex and timelines are strict, so an individual who wishes to appeal their conviction or sentence must generally seek the assistance of a lawyer and act quickly to file their appeal request.
Those who have been found guilty and sentenced to time in a provincial or federal custodial institution may also appeal their conviction or sentence before the Court of Appeal of the province in which they were convicted. Known as an "inmate appeal," this procedure does not require an incarcerated person to be represented by counsel. Some legal advice is nonetheless advisable for those who wish to utilize this option.