The Court Process

Being arrested and charged with a crime is not a pleasant experience. The criminal defence lawyers at Kruse Law Firm are here to guide you through this time of uncertainty with our experience and professionalism. In Ontario, there is a process you go through when you have been charged with a crime and arrested. Basic knowledge is the key to increasing your odds of successfully defending yourself in court. This is what we attempt to do with our blogs-provide basic information and help you understand ways that you can protect yourself if you are ever charged with a criminal offence.

It is very important that we point out now, as we have done in other blogs, that if you are under investigation or under arrest, you exercise your right to remain silent and request to speak to a lawyer. This is the best way to increase your chances of success through the process.

After you have been charged, you will either be released on a Promise to Appear or a personal recognizance or a bail hearing may take place where you are either released on certain bail terms or held in custody pending your trial.

After you are charged and hopefully released by the police, the prosecution of your case is turned over to the Crown Attorney who is completely in charge of your case. In Canada, the police investigate crimes and provide their complete investigative file to the Crown Attorney who is solely responsible for prosecuting crimes and making decisions in this regard. In other words, it is totally up to the Crown what happens next in terms of going forward with the charges. If the Crown feels that there is at least a “reasonable prospect of conviction,” they will proceed with the charges. With the assistance of your lawyer, you can then decide whether to negotiate a plea deal or proceed to a trial to attempt to win your case. At the trial, it will be up to a Judge to decide whether the Crown has proven the case against you “beyond a reasonable doubt” based on the evidence presented.

The span of time between your initial release on bail terms and when you are brought to trial can be lengthy depending on your charges and how quickly you and your lawyer would like your matter to proceed. After the bail hearing, you can either be released pending trial (in the case of, for example, a minor charge where you have no prior criminal record) or detained in custody until your trial date (for example, in the case of a first-degree murder charge). In some cases, you may receive a quicker trial date if you are remanded into custody. This is why you need to ensure you are represented by a criminal law firm whose priority is serving your best interests and who has the skill and expertise to win your bail hearing.

The next step is the disclosure phase (i.e. which takes place during the initial approximate three-month “remand court” phase). During this period of time, the Crown is required to provide your defence lawyer with a copy of the entire police investigative file (forensic evidence, civilian witness statements, video statements, police reports and police notes etc.) to the defence. Your lawyer will then review the disclosure with you and begin formulating a strategy and defence. It takes a highly trained criminal lawyer, who focuses on one area of law, to pinpoint the areas of reasonable doubt and find any potential “holes” in the evidence and build a defence which is designed to secure an acquittal. You are presumed to be innocent unless and until the Crown can prove that you are guilty beyond a reasonable doubt. If you hire a lawyer before your first appearance date, you are generally not required to attend court during any of the remand appearances. Your lawyer will attend on your behalf.

After you have a chance to examine your case with your lawyer, the negotiation phase occurs. This is where the defence conducts one or more “Crown pre-trials” with the Crown Attorney to discuss and argue your case on your behalf. Here, charges can be sometimes be dismissed or stayed by the Crown if they are weak. If the Crown has a strong case against you, based on your instructions, your lawyer will attempt to negotiate the best possible plea deal for you. This negotiation process is called “plea bargaining.” It all depends on the strength of the case against you and your lawyer’s experience and skill in defending you. A trial can be costly and lengthy and depending on your particular circumstance, the Crown could agree to either withdraw your charge or offer you an attractive deal to drop some of the charges or avoid a jail term. However, in many instances, you will want to proceed to trial where your lawyer has advised you that you have at least a reasonable chance of winning and you do not want to plead guilty

The Crown Pre-trial is where the opposing legal minds meet (your defence lawyer and the prosecutor) to see if there is any common ground to meet to avoid a trial. If this is not successful, then you may have a Judicial Pre-trial where the case is discussed in front of a Judge (who is not the Judge who will be doing your trial) in their chambers or in a courtroom. This is where the defence can employ its strategy to help their client with the added input from a Judge. For example, the judge may in fact agree with your lawyer that the Crown has a weak case. In my experience, I have seen many judges at judicial pre-trials agree with me that the case against my client is weak and the Crown Attorney has reluctantly agreed to withdraw the charge based on the combined input of myself and the Judge’s recommendation. However, the prosecutor has the same right to attempt to get their point of view across to the Judge.

If all else fails then you will then head to trial to try and win your case. If the charge is serious and the Crown Attorney elected by indictment, you will usually want to have a preliminary hearing before your trial takes place. For summary conviction matters (i.e. less serious matters), you will not have the right to a preliminary hearing and your case will be set for trial in the Ontario Court of Justice.

For an indictable matter where a preliminary hearing is held, the actual trial date might not take place until at least 18 to 24 months or even longer after the initial charges were laid. For a summary conviction matter, a trial date might not take place for a year or longer after the initial charges were laid.

For serious indictable matters, a preliminary hearing serves a very important screening and evidentiary purpose which an accused has in cases such as a major sexual assault, serious fraud, drug or murder cases. Conducting a preliminary gives you a strategic advantage in defending serious charges. At the preliminary hearing, your defence lawyer will be allowed to cross-examine the key crown witnesses months in advance of the judge or jury trial to more fully discover your case, create inconsistencies, create reasonable doubt, shape the case in a manner favourable to you and pin down the Crown and police witnesses to a particular version of events and set them up for an all our attack on their credibility and reliability at trial. If the Crown’s case turns out to be very weak at the preliminary hearing where there “is no evidence upon which a judge or jury properly instructed could convict,” it will be thrown out by the Judge (i.e. you will be discharged).

In a summary conviction matter, you will be tried by a Judge alone in the Ontario Court of Justice (“O.C.J.”) You do not have the right to a jury trial for a summary conviction matter. For most serious indictable matters, you can elect to be tried by either a judge alone in the O.C.J. orin the Superior Court of Justice (“S.C.J.”) or either a judge alone or a judge and jury in the S.C.J.

The actual trial is where your lawyer will confront and challenge the Crown’s evidence during cross-examination in an attempt to create reasonable doubt in the judge or jury’s mind. You will also be allowed to present evidence including potentially taking the witness stand to provide your version of events and to deny the allegations, assuming you and your lawyer believe that is appropriate strategy in your particular case. In some cases, the best strategy is for the defendant to testify and in other cases, your lawyer may feel that he has created enough reasonable doubt without the necessity of you taking the witness stand. Whether an accused takes the witness stand at his or her trial is a crucial and individual decision and can make or break a case. Every fact situation and trial is unique and this is a decision which only a highly experienced criminal trial lawyer can assist you with.

Your odds of success at trial are heavily dependent on the skill and expertise of your lawyer, your defence strategy, and the strengths or weaknesses of the evidence you are facing. If you are successful, you will be allowed to go free without a blemish on your record. However, if you are found guilty, you can often be punished more harshly at trial than you would have if you had pled guilty before a trial was conducted.

The experienced criminal defence lawyers at Kruse Law Firm can help you make an informed decision based on your individual case. We are experts in defending all types of crimes including crimes of violence, property crimes, drug crimes and impaired driving. We have had a consistent and winning track record for over 23 years.

Do not allow your future to be jeopardized in any manner. Call us toll-free today for a free initial consultation and let us handle it.