For many swept up in the tide of a criminal prosecution, the most stressful part of the experience is a lack of knowledge about how the system works. In a process seemingly confusing and counter-intuitive to the uninitiated, judges and prosecutors are frequently impatient and inflexible as they try to move thousands of cases through inefficient intake courtrooms.
The following information will shed some light on what you might expect if you find yourself on the wrong side of the law.
If you are arrested by a police officer, two possible scenarios will unfold. One, usually in the case of less serious offences, you will be released from the police station provided that you sign a written undertaking agreeing to attend court on a specific date; there may also be some conditions that you must agree to, for example, to stay away from a particular person or place while you are awaiting your trial.
The second possible scenario is that you will be held for a bail hearing before a justice of the peace. You must be taken before a JP within 24 hours of your arrest. The JP will then determine whether you will be released on bail or kept in jail while waiting for your trial.
Your first court date will usually be within three weeks of your arrest. This will be the first appearance of several before you can actually set a date for your trial. Disclosure (the statements and evidence the police have collected to prosecute you) will normally be provided to you on your first court date. It is best to consult with a lawyer before your first court date; the lawyer can advise you what to expect in your dealings with the criminal justice process.
Upon arrest, you have critical rights that you should exercise immediately.
The common law and the Canadian Charter of Rights and Freedoms enshrine fundamental rights for every person living in Canada. The most important right upon arrest is to be immediately advised of your right to contact a lawyer. Exercise this right. A person under arrest without the help of a lawyer is a child among adults--utterly vulnerable. Criminal justice history is replete with examples of completely innocent people, who thought they didn't need a lawyer, being made to appear guilty by skilled investigators.
If you say you want to speak to a lawyer, the police are obligated to assist you in contacting a lawyer. If you do not know a lawyer, the police must facilitate access to staff lawyers paid by Legal Aid Ontario, known as duty counsel.
The lawyer is a gateway--he or she will advise you of other important rights you have and how to exercise them.The most important of these additional rights is your right to remain silent. This is a critical right but one very difficult to exercise without the assistance and advice of legal counsel.
Finding a lawyer is easy; finding a competent lawyer is not so simple. Little information is available to consumers of legal services. Consult the lawyers' regulatory body, The Law Society, to determine that the person you are dealing with is registered to practice law in Ontario. When considering hiring a lawyer, ask about his or her experience with the type of charge you are facing. Ask about his or her success rate. Ask for references from former clients. Ask about the lawyer's fees and billing methods. Most importantly, ask if the lawyer will give a free initial consultation to allow you to properly discuss these and any other issues that concern you. David offers free consultations; simply call him at 416-738-7708.
For those unable to pay for a lawyer privately, Legal Aid Ontario may be able to assist if you meet certain financial criteria. David can discuss this option with you as well.
Chronic misrepresentation by sensationalist media and vote hungry politicians has created the impression of a justice system soft on crime and coddling of the "criminals" it prosecutes. Because of this, the experience of being charged and prosecuted is almost always a shock. Guilty or innocent, you may find yourself presumed guilty, exiled from your school, workplace or even your own home, suddenly suspended from driving, under "house arrest" or, at the worst, confined to a jail while you wait for your trial. Unfortunately, such life shattering events routinely occur on the basis of nothing more than an allegation, often to ordinary good folk.
Most people are familiar with the American distinction between "misdemeanors" and "felonies". The Canadian terminology is "summary" (less serious offences) and "indictable" (more serious offences). If you are charged with a summary offence you can expect your trial to occur in the Ontario Court of Justice within six to nine months of your charge date. If you are charged with an indictable offence, the process is much longer. You are entitled to a preliminary hearing to determine if there is sufficient evidence to commit you for trial. If committed, your trial will then be held in the Ontario Superior Court with or without a jury. Depending on the geographical jurisdiction in which your trial is held, the indictable process can take up to two years to complete.
Whether you are charged with a summary or an indictable offence, your lawyer may be able to "short circuit" the process by having the charges withdrawn or diverted from the criminal process altogether.
Few environments are more intimidating than the courtroom. In the world of someone accused of a crime, the lawyer is a white knight--the only support in a hostile world. A lawyer will help make sense of the process and can even appear in court for you without you having to attend court at all. This is another reason to choose the right lawyer. The most important factor in choosing a lawyer, of course, is finding one capable of presenting a successful defence.