In order to make sense of the many things that happen after an individual is accused of committing a crime, there are many practical issues to resolve. The first issue is determining the Court date. The second issue is understanding what the release documents require. The third issue is who else will need to be informed of this accusation. Each of these questions arises much quicker than their respective answers; thus, dealing with the ambiguity associated with being accused of a crime can sometimes be just as difficult as addressing the accusations themselves.
A good place to begin resolving some of the confusion surrounding charges, is to acknowledge that a charge represents an allegation – NOT a verdict. Charges initiate a series of processes which include specific stages, specific documentation, and specific obligations. Becoming familiar with each step in the process; and where all the key decision-making occurs, greatly reduces the amount of mystery and/or confusion in the entire experience. Below is an overview of the general process used within Ontario; however, it does not represent legal advice relative to your current circumstances.
Understanding Your Documentation
You receive a significant amount of paper work prior to appearing before a Judge. All of the information contained within those documents provides the basis upon which your subsequent dealings with the law are based. Thus, while they may appear overwhelming; they should be reviewed carefully rather than simply filed away.
Your charging document (often referred to as an “Information”) outlines the alleged offense(s), the applicable Section of the Criminal Code, and the date and time/location of the alleged conduct. If multiple offenses are listed on your Information, each is considered a separate offense, and accordingly has its own elements. Reviewing each separately will help clarify what is being alleged against you.
Your Appearance Details outline when and where you must appear in Court; and in what format. As part of their guidelines regarding each stage of a criminal proceeding, the Courts in Ontario have outlined acceptable formats for attending Court proceedings. Acceptable formats may include attending in person; via video conference; via phone conference; or a combination thereof. Prior to attending Court, confirming your method of attendance will assist you in avoiding an unnecessary missed appearance.
As previously stated; Release documents provide details outlining the Conditions under which you were released into the Community. These conditions are Orders and are mandatory. Breach of any of these Conditions results in additional penalties independent of the original Charge.
All cases are different. While some cases are settled prior to proceeding further; other cases move forward through a Preliminary Inquiry; and other cases result in Applications leading up to Trial. The documentation provided describes your case. The descriptions below represent general information regarding the Process of resolving your case; and therefore are not indicative of how your case will ultimately proceed.
Understand Release Conditions and Your Obligations
Early attention to release conditions will make your job easier, since these determine the details of your day-to-day activity until the criminal charges against you are settled.
Release conditions routinely include: restrictions on where you can live; who you can get in touch with (and in some jurisdictions, indirect contact); whether you can possess firearms; whether you can use intoxicating liquor or substances; and regular Attendance at the police station to answer questions or to appear at a future court date.
Some of these conditions seem simple enough. However, a “keep the peace and behave”, or “do not communicate” condition has a broad range of practical implications beyond the wording used. If the meaning or practical application of any condition is ambiguous, the best course of action is to consult with an attorney regarding this ambiguity prior to attempting to interpret it yourself. For example, a release condition prohibiting direct communication with one individual may create issues related to indirect contact or other individuals associated with that individual.
A misinterpretation of a condition even if done unintentionally can result in another separate legal issue.
There are Two practices that assist in understanding your release conditions. Firstly, keep copies of your release documents available so you can reference them easily. Secondly, document the dates when you must comply with any reporting or other conditional obligations. Regardless of the status of your Case, release conditions run on their own timetable. Missing compliance deadlines frequently results in inconvenience.
Release conditions are not always permanent. When applicable, courts can modify release conditions, but this depends upon the unique factors involved in your case and the perspectives of the parties.
Maintain evidence relevant to your criminal charge
Immediately after being charged, the likelihood of losing useful information is greatest. This is almost invariably because no one realizes how important the information is at the time.
Depending upon the nature of what is alleged in relation to your charge, potential evidence includes:
- messages and email correspondence;
• call logs and sms communications;
• social media posts and interactions;
• receipts and transit records;
• work schedules and employment records;
• medical records;
• photographs;
Anything that shows where someone was, when and what happened, could be considered relevant to your defense.
Video content is extremely time sensitive. Many retail establishments, public transportation agencies and residential facilities have security cameras that automatically overwrite their video content within days to weeks. Finding out if there is potentially relevant video content and preserving it early will greatly reduce the difficulty of recovering it months later.
Building a chronological account of events while memories remain fresh will aid counsel. Creating a list of events chronologically with dates, times and locations provides counsel with tangible material to rely on. Additionally, it assists in identifying what type of documentation supports each event, and what areas require additional investigation.
Deleting or altering documentation is never acceptable. Deleting messages, changing images of screenshotted conversations, disposing of physical evidence or having someone else delete the material will convert a document-related issue into something much more serious. Document everything possible, including potentially adverse material, and allow counsel to evaluate the importance of each item. Material that contradicts the prosecution’s theory of the Case should be disclosed as part of the Crown’s obligation to disclose all relevant documentation in its possession.
Understanding what disclosures are provided by prosecution and how they impact defense strategy
Disclosures are packages of documentation provided by prosecutors to defense attorneys, and represent a crucial aspect of how a case is evaluated.
Typically included in disclosures are:
- police synopsis outlining the allegations made by the complainant;
- officers’ notes relating to the investigation;
- witness statements;
- photographic evidence;
- charge screening form outlining the Crown’s intentions for proceeding and representing their stance on sentencing should a conviction occur.
By reviewing the materials contained in a Disclosure file, defense counsel converts a vague allegation into a series of specific, verifiable assertions. Reviewing Disclosure allows counsel to identify what aspects of the Case relied on by the prosecution are based on actual fact vs. Inference, where different versions of events arise and what investigative measures were undertaken vs. Omitted. Counsel’s decision-making processes concerning whether to request additional material, whether to pursue Charter violations or how to engage in settlement negotiations, are directly influenced by the contents of a Disclosure package.
Not all disclosures are comprehensive at initial delivery. Subsequent materials may become available to defense counsel. Should counsel discover that certain material appears to be absent from a Disclosure file, it is advisable to bring this to the attention of opposing counsel rather than continue without it. Requests for further disclosure are accepted components of the judicial process and raising concerns early on is usually preferable to raising them at a later stage.
What happens at initial court appearances
First court appearances are frequently misunderstood. While an initial court appearance does represent a critical juncture in the judicial process, it does not constitute a trial. No evidence is presented during an initial court appearance.
An initial court appearance serves primarily as a procedural/administrative function. During an initial court appearance, the accused is formally advised of their charge(s), the next scheduled date for subsequent proceedings is set, and the court addresses logistical matters. Frequently, initial appearances are very short. Neither guilt nor innocence is established during an initial court appearance. Likewise, no substantive determinations regarding the merits of your Case are made.
Confirming Attendance requirements for each appearance is necessary prior to assuming them. Attendance arrangements for each stage of court proceedings are dictated by your local court rules. As such, Attendance may be required in-person, via remote video conferencing or telephonically or through any combination thereof. Confirmation with either your local court administrator or counsel will prevent unnecessary delays due to incorrect assumptions.
As previously mentioned, First appearances typically mark the beginning of a sequence of court appearances as opposed to conclusively settling a matter. Pretrial motions hearings; formalized Disclosure; applications to amend release conditions; and other preliminary motions may take place at multiple appearances throughout the duration of your Case. Individuals who assume that your Case will resolve rapidly will typically experience frustration during the earlier stages. An appreciation for this reality and knowledge that the major work occurs outside of court appearances will facilitate greater ease navigating this process.
How Defence Counsel Assesses the Next Steps
Once the review of the disclosure process has taken place, then the evaluation work can begin. It can seem quite structured from the outside, but the actual process is much less formalized once you get into the details.
One major factor is what does the prosecution need to establish for all elements of the offense, and based on what evidence is currently available does the evidence meet the elements of each component. Most offenses have multiple elements, and when even one of those elements cannot be established; then the overall strength of the prosecution case is diminished.
The other aspect is to evaluate what evidence is available to support the defense theory, or to undermine the prosecution theory. Both aspects are evaluated together with legal issues that may arise from the evidence itself. There are instances where there is concern about how certain evidence was collected; and in such a situation, an issue may arise under the Charter and must be formally raised via an application to the court (usually after providing reasonable notice to the crown). The process and timelines for raising such an issue are governed by the Criminal Rules of Court, which contain guidelines and deadlines.
After evaluating both aspects, there are various avenues to consider. Those avenues include; entering into a guilty plea prior to trial, negotiating an alternative solution (where possible), proceeding to trial, or making a procedural motion (that may impact the direction of the case). Ultimately, the viability of those options depend solely upon the facts, evidence and relevant laws.
It is also important to note that an assessment cannot guarantee a particular outcome. The ultimate determination of an outcome is based on the court’s findings based on the evidence presented. Any representation or suggestion that a particular charge will be withdrawn, dismissed or lost in advance of hearing evidence would be misleading. However; Counsel can explain the strengths and weaknesses of the case along with the rationale for recommending a particular course of action to assist with making an informed decision.
Understand Your Local Court Process
In York Region, cases are heard in designated courts. Practical realities exist depending upon where your case is heard.
The Newmarket Courthouse serves a considerable portion of the region and processes a high volume of criminal matters. As such, differences exist regarding how appearances are scheduled, how disclosure is provided and how preliminary discussions occur amongst counsel. Locally accepted practices tend to create efficiencies in processing a file for everyone involved. Statistics related to regional court activity regarding case volumes, appearance numbers and time frames for disposition are compiled and published annually by the Ontario Court of Justice for interested parties who wish to view them in a broad context.
For anyone navigating a case in this region, having counsel who regularly appears in the local courthouse is a practical advantage. Sondhi Defence’s Newmarket criminal lawyers work within these courts, and familiarity with local procedure, scheduling practice and the general pace of proceedings helps in planning each step realistically. The same applies to counsel elsewhere: knowing the court matters more than knowing the area.
That familiarity does not influence outcomes. Cases are decided on their evidence and the applicable law, and no local connection produces a favourable result on its own. What it does affect is the practical experience of the process, which is often what clients find most difficult to manage.
Frequently Asked Questions
Is a first court appearance the same as a trial?
No. A first appearance is a procedural step at which the charge is put to the accused and the matter is scheduled for its next stage. No evidence is heard and no finding is made. In many cases the appearance is brief, and a case may involve several appearances before it is resolved.
What is disclosure in a criminal case?
Disclosure is the material the prosecution must provide to the defence, generally including the police synopsis, officers’ notes, witness statements, photographs and a charge screening form indicating the Crown’s position. Reviewing it is what allows the evidence and any legal issues to be assessed properly.
What should I do if I do not understand my release conditions?
Obtain advice rather than interpreting the wording yourself. Conditions can have broader reach than they appear to, particularly conditions relating to contact or to keeping the peace. Keep a copy of the documents accessible and record any dates on which reporting or other periodic obligations fall due.
Can release conditions be changed?
They can be varied, though the approach depends on the circumstances and the positions of the parties. Where a condition is impractical, unclear, or no longer appropriate as circumstances change, the appropriate step is to raise it through counsel rather than to comply partially or ignore it.