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  Court Procedure - Ontario Drinking and Driving
  The Bail Hearing Process Glossary of Terms
  Domestic/Spousal Assault  

 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court Procedure - Ontario

Do I need a lawyer to attend my first appearance in court?

Prior to your first appearance, you can retain a lawyer to attend court with you or even to attend your court appearances on your behalf, depending on your retainer agreement. Your lawyer is there to speak for you, so you don't have to worry about saying the wrong thing. 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.



Who will be at court on my first appearance?

Your first appearance is NOT your trial. None of the witnesses or police officers involved in your case will be there. It is NOT an opportunity to tell the judge your side of the story. The central purpose of your first appearance in court will be to obtain the details of the allegations against you.

Any evidence the Crown intends to use against you at your trial MUST be disclosed to you in advance. This procedure is called “disclosure”. Your “disclosure” may include, police or other witness statements, surveillance videos, photographs or any other type of evidence that relates to your case. The Crown must disclose ALL relevant materials to you, regardless of whether they assist the Crown's case or not. Evidence in the Crown's possession that points towards your innocence must also be disclosed to you.

Obtaining full disclosure in your case is crucial as “disclosure” will tell your lawyer almost everything they need to know about the strength of the Crown's case against you and how they can best defend you against the charges you are facing.

Quite often, disclosure will not be provided on your first appearance in court. If disclosure is not available, you (or your lawyer on your behalf) will have to return to court on another occasion to obtain it from the Crown. The nature and complexity of the allegations will usually dictate how quickly disclosure is provided. The more serious or complex a case is, the longer it usually takes to obtain the disclosure.



Second Appearance and Subsequent Court Appearances

If disclosure is not provided to you (or your lawyer) at the first court appearance, you will have to return to court a second time (or possibly a number of times) in order to obtain it.

Nothing meaningful can be done in your case without disclosure. However once disclosure is received, the next step is to discuss the case with a Crown Attorney. This step is often referred to as a “crown pre-trial” or “crown resolution meeting”.


Crown Pre-trial/ Resolution Meeting

The pre-trial/resolution meeting between your lawyer and the Crown Attorney usually takes place over the telephone or in a confidential meeting room after disclosure has been received and reviewed by your counsel.

Typically what is first discussed at this meeting is whether or not the Crown intends to proceed on the charges as laid. In the event they wish to continue the prosecution, the Crown and defence lawyer may discuss whether the accused person will be pleading “guilty” or “not guilty”. A “not guilty” plea will likely result in a trial.

If the accused person intends on pleading “guilty”, the Crown will usually outline the charge or charges they require the accused to plead guilty to, the facts surrounding the allegations to be accepted as part of the guilty plea and what the appropriate sentence may be.

If the case will be heading to trial, the Crown and defence lawyer may discuss which witnesses are required for trial and may estimate the length of trial time required to hear the matter so an appropriate trial date can be obtained.

Depending on the complexity of the case, or whether or not defence counsel and the Crown can agree on the resolution position for a guilty plea, one of the parties may request a judge to become involved in the pre-trial discussions and act as a mediator. This meeting with the judge is referred to as a “judicial pre-trial”.



Judicial Pre-Trial

In some cases, either the Crown or defence counsel may request the assistance of a judge during the pre- trial discussions. A judge may give their opinion on the merits of the case in an attempt to sway one side or the other towards a fair compromise. A judge may also give their opinion on an appropriate sentence in the event of a guilty plea or assist with estimating the duration of time required should the case go to trial. It is often a strategic decision to involve a judge in pre-trial discussions. Every case is fact-specific. After a judicial pre-trial is completed and assuming Crown counsel wishes to continue the prosecution, an accused person will have to make the decision to go to trial or to resolve their matter by way of a guilty plea.


 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 you are guilty of the offences before the court. Your defence lawyer will have an opportunity to question any witness called by the Crown. Once the Crown believes they have established proof of your guilt beyond a reasonable doubt, they will rest their case. At this point, you may chose to testify or call evidence on your own behalf to challenge the Crown's case.

Hiring a lawyer to work with you through the entire court process will ensure that you are properly represented at each and every stage of the proceeding. A lawyer is not just for someone who intends on having a trial. Your lawyer will also ensure that your interests are protected every step of the way. This is crucial to ensuring a winning strategy and a positive outcome in your case regardless of whether or not it your case goes to trial.


The Bail Hearing Process

Does everyone charged with a criminal offence require a bail hearing?

For most criminal offences, the police have the choice to release a person charged with a criminal offence without requiring a bail hearing. Police will generally not release a person without a bail hearing where they have concerns on one of the following grounds:  

1)     they need to establish the accused person’s identity

2)     they fear the accused  will destroy evidence relating to their investigation

3)     they fear the accused will continue or repeat the offence or commit other criminal offences

4)     they have reasonable grounds to believe the accused will not show up for court.

 If the police hold any of these concerns, they will likely hold the accused person for a bail hearing.

 

What happens at a bail hearing?

At a bail hearing, the court will decide whether or not the accused person should be released from jail while they await their trial. 

 

How does the Court decide who to release on bail?

In determining whether or not an individual facing criminal charges should be released from jail, the Court must be satisfied that the accused person will attend their court dates, that there is not a substantial likelihood that the accused would commit further criminal offences while released on bail and that the community would not be offended by the person's release given the serious nature of the offences alleged and the strength of the Crown’s case against the accused.

The onus is generally on the Crown to show why the accused should not be released on bail. In some situations, the onus is switched and it is the accused who must show why he should not be detained in jail while he awaits trial.

Most commonly, the reverse onus provisions are triggered when an accused person is already released on bail for other charges or is charged with a specific offence that imposes the reverse onus procedure, such as drug trafficking. A reverse onus situation may also be triggered when the person charged does not ordinarily reside in Canada.

For a person in custody, a bail hearing is often a critical juncture that will affect their decision on how to proceed with their case.  This is a very important part of the criminal process and cannot be underestimated. 


 

What does an accused person need to do to in order to get bail?

At the bail hearing stage, the person charged will likely need the assistance of his or her friends or family members to come to court and act as sureties.

 A surety is somebody willing to supervise the accused person while released on bail and is responsible for ensuring that all of the conditions of the bail are being followed. In some instances, the accused person may be required to live with the surety and the surety will likely be required to pledge a monetary amount towards the bail. 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 need not deposit the money with the courts. Bankbook statements or property deeds are examples of ways the surety can prove their assets to the Court.

How many sureties does somebody need to get bail? How much money will the sureties need to pledge?

The amount of sureties and money to be pledged can vary depending on a number of factors such as the number of criminal charges the accused is facing, the type of charges, the financial situation of the surety, the surety’s ability to supervise the accused, whether the accused has a prior criminal record and the extent of the record among other considerations. Every case is fact specific and the decision of how many sureties are required and how much money they must pledge is ultimately a decision for Judge or Justice presiding over the bail hearing.

A surety may be asked to testify in Court about their plan to supervise the accused and perhaps give 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.

One of the most important roles a defence lawyer has at the bail hearing stage is to ensure that potential 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.

Experienced criminal lawyers know what questions will likely be asked at a bail hearing and can prepare sureties ahead of time for the “tough” questions. A well prepared surety is often the difference between securing a
release on bail and a detention order.


 

What can be mentioned at a bail hearing?

The Crown may present a wide range of information about the accused person and about the offense with which they are charged, including the prior criminal history and specific facts relating to the charges. As everyone in Canada is innocent until proven guilty, the public disclosure of the allegations against an accused person could significantly impact their right to a fair trial. In certain circumstances, the lawyer can request a ban on the publication of any of this information. The justice can order that any information, including the reasons for releasing an accused person from jail or detaining them in custody, not be made public.


 

What are some possible conditions of release?

Some accused are released from custody after a bail hearing with relatively minor conditions while others are subjected to strict conditions if released from jail.  These bail conditions dictate what an accused person can or cannot do while awaiting the outcome of their criminal case. These conditions of release may include a requirement to report to a police station on a regular basis, to remain away from a specific area or location, to maintain a curfew, to notify the peace officer of any change in address or employment or occupation, to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or any other conditions that a judge requires.


What happens if the accused is not granted bail?

In the event of a detention order (denial of bail), the accused will have to bring a special application to the Superior Court of Justice to have his detention order reviewed by a higher Judge. 


What happens if I am caught violating my bail conditions?

If an accused person is caught violating any condition of their bail, they may be arrested and brought back to court for another bail hearing. In some cases, the court may revoke the previous bail order or impose more
stringent conditions if the Judge grants a subsequent release on a new bail.


 

Drinking and Driving

What is drinking and driving?

Driving while impaired by alcohol, driving with more than 80 milligrams of alcohol in 100 millilitres of blood (Over 80) or refusing to provide a breath sample are all examples of drinking and driving offences in Canada.

 

What are the penalties for drinking and driving? 

The Criminal Code provides a minimum fine of $1000 for a first offence in addition to a criminal conviction registered on your permanent record. Subsequent drunk driving convictions carry minimum jail penalties beginning with 30 days in jail for a second conviction. A third or subsequent drinking and driving offence will carry a minimum punishment of 120 days in jail.

In addition to the penalties mandated under the Criminal Code, a conviction for drunk driving will also drastically affect your motor vehicle insurance coverage and premiums.  In Ontario, you will probably be required to insure with Facility Association, which insures high-risk drivers and exacts high premiums. For each of the three years following your conviction, Facility Association will levy a 100 per cent surcharge atop your premiums. It will impose more surcharges, up to a maximum of 250 per cent, for other convictions relating to the same incident, such as careless driving or failing to remain at the scene of an accident. Each insurance company has its own conviction surcharge schedule.



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

adjournment - the case will be addressed in court at a later date. Also referred to as "putting the matter over".

 

 

 

affidavit - a sworn document replacing a witness' live testimony in court. When an affidavit is presented in court, the other side has the right to force the person who signed it (the affiant) to attend court for cross-examination.

 

 

 

arrest - taking physical control of a person and telling them that they are under arrest.

 

 

 

bail hearing - see "show cause" hearing

 

 

 

bail review - an appeal of the judge's decision at a show cause bail hearing. The Crown and defence both have the right to appeal a show cause decision. Bail reviews must be filed with a superior court and the materials that must be filed are a copy of the information laying the charges, a transcript of the proceedings at the original bail hearing, an affidavits from the accused and an affidavits from all proposed sureties. To even be allowed to argue a bail review/, these materials must demonstrate either that 1.the original judge made a legal error OR 2. that a new and better plan of supervision of the accuse is being proposed. Whoever asks for a bail review must file it at least 48 hours before the requested date. The first bail review can be filed two days after the show cause completes. Subsequent bail reviews cannot be filed until 30 days after the previous one.

 

 

 

bail variation - a change to the conditions of a recognizance. Any variation must be agreed to by the Crown Attorney, the accused, and the surety(s) and all parties must attend court to say so. If the Crown Attorney will not consent to the bail variation, the defence may bring a bail review asking a judge to order the change.

 

 

 

Charter of Rights and Freedoms - Canada's leading civil rights statute applicable to all government agencies. The Charter was proclaimed in 1982 and gives Canadians the right to remain silent when arrested, the right to not be arbitrarily detained, the right to not be unreasonably searched, the right to a timely trial, and the right to have a lawyer -among others. For an accused person, a remedy for a Charter breach can only be pursued at trial or sentencing and the most common remedies are an order that 1. evidence be inadmissible at trial or 2. stays the charges.

 

 

 

complainant - is the term applied to people who 'complain' to police that a criminal offence was inflicted on them. If and when the accused person is convicted of the crime, the complainant is then referred to as a victim.

 

 

 

conditional sentence - a jail sentence that the offender can serve while living at home "in the community". Conditional sentences must be shorter than 2 years long. The offender must live with a "house arrest" rule (with exceptions,) for at least part of the conditional sentence.

 

 

 

conviction - after a judge finds an accused person guilty, the judge may sentence the offender to a discharge, find them not criminally responsible, or convict them and order their punishment. Only if the offender is convicted is there a "criminal record" of the type usually sought by employers.

 

 

 

criminal record - a very general phrase usually used to refer to a "C.P.I.C." inquiry from the police database. The police database keeps notations of any contact between a person and police. There are many levels of inquiry possible. Any criminal record is confidential. It can only be given out with the consent of the person inquired about or to other police forces. Most employers request the lowest level C.P.I.C. inquiry which discloses only criminal convictions. Employers who work with the elderly or children may obtain a much more thorough "vulnerable persons" check which discloses any outstanding charges and all charges previously faced.

 

 

 

 

Crown Attorney - In Canada the lawyers who prosecute cases are called Crown Attorneys. This is because they are employed by the Canadian government and Canada is a Commonwealth country. It is technically the Queen of England, (i.e. the Crown) who prosecutes. Complainant/victims are merely witnesses of a crime perpetrated upon one of the Queen's subjects.

 

 

 

Crown pretrial - a meeting between an assistant Crown Attorney and the defence lawyer to determine:

1. whether the Crown will proceed with the case to trial

2. whether a plea bargain can be agreed upon

3. what sentence the Crown will ask the defendant to be punished with if s/he is convicted

4. whether any changes to bail conditions will be agreed to by the Crown

5. whether the Crown still needs to provide the defence with any materials relevant to the case

6. how long a trial will take so that the proper amount of time can be set aside for it.

The accused person is never present at these meetings so that they don't tell the Crown anything that could hurt their case or that could be used against them at trial.

 

 

 

custodial sentence - a jail sentence.

 

 

 

detention - when police prevent a person from leaving their presence whether by physical means or psychological control such that the person believes they have no choice but to remain with police.

 

 

 

disclosure - copies of all of the police officer notes, photographs, videos, forensic tests, witness statements, and documents provided by witnesses and experts that were collected during the investigation of the case. The Crown must disclose to the defence everything relevant to the case that they have in their possession regardless of whether it is good or bad for the Crown.

 

 

 

disposition - another word for sentence

 

 

 

diversion - a resolution that results in the charge(s) being withdrawn or the proceedings stayed. There are many different types of diversion. The most common is offered to persons never charged before for minor offences. Other types of diversion are offered to young persons and to marginalized persons such as aboriginals and the mentally ill. Most diversions require the accused to "take responsibility" for the offence and then make a donation, do volunteer work, or take counselling in exchange for the charge(s) being withdrawn or stayed.

 

 

 

domestic - the term used when a person is accused of a crime against a girlfriend, boyfriend, spouse, child and sometimes a parent or sibling. If the complainant is perceived as a vulnerable family member, it is usually described as domestic. Domestic cases are prosecuted by a separate team of Crown Attorneys specially trained to prosecute these cases.

 

 

 

duty counsel - free lawyers assigned to bail and guilty plea courts to assist unrepresented, indigent persons in emergency situations.

 

 

 

fitness hearing - if an accused person is found "unfit" at a fitness hearing, a judge has decided that the accused is so mentally ill that they are unable to understand the proceedings, the consequences of conviction, and cannot instruct counsel. To be unfit an accused must be so ill that they do not understand the role of the judge and the lawyers, do not know where they are, and don't understand that they are criminally charged and could go to jail if convicted. If an accused is this ill, they are sent to hospital and the case proceeds only after they become well enough to pass a fitness test at a subsequent fitness hearing.

 

 

 

Gladue report - is a type of pre-sentence report assembled for aboriginal offenders that explains to a bail or sentencing judge how their aboriginal heritage contributed to their offending. Gladue reports are used to support defence arguments for non-custodial sentences.

 

 

 

guilty plea - an accused charged with criminal offences generally has a choice of only two pleas: guilty, and not guilty. Canada has no plea of "nolo contendre" (no contest) and a plea of "guilty with an explanation" is only available in Provincial Offences court. When pleading guilty the accused must admit to committing the illegal act and to intending to commit that act. If the accused does not admit the act and the intent, the judge cannot convict and a trial date must be set.

 

 

 

hold down - having the case spoken to in court later during the same day.

 

 

 

house arrest - the person must stay in their home at all times. Exceptions may be made such as going out with particular people, going directly to and from work or school, and/or going out for medical emergencies.

 

 

 

intermittent sentence - is a jail sentence that the offender can serve on weekends. Only sentences shorter than 90 days can be served intermittently. Intermittent sentences are generally available to persons who can prove they are working full time.

 

 

 

judicial pretrial - a pretrial meeting with a judge present. A judge helps the Crown and defence agree by telling them the law and telling them what they think of potential defences or prosecution strategies.

 

 

 

not criminally responsible (N.C.R.) - after a person is convicted, the defence or the Crown can ask the judge to find the convicted was so mentally ill that s/he could not have intended to cause the injury inflicted. If the convicted is found N.C.R. they are sent to a mental hospital and are released only when doctors and others decide they are no longer a danger to themselves or others.

 

 

 

Officer in Charge (O.I.C.) - after police investigate and arrest someone, a file is opened and that file (called a Crown brief) is assigned to a senior police officer to manage the case while it is being prosecuted.

 

 

 

peace bond - is a type of recognizance with rules to follow that a judge can order a person to comply with for 12 months and that is not a conviction. Peace bonds are often entered into by accused persons in exchange for charges being withdrawn or stayed by the Crown.

 

 

 

preliminary inquiry/preliminary hearing - persons charged with indictable offences may ask for a preliminary hearing before a trial . At a preliminary, the Crown must prove to a judge that there is enough evidence to warrant going to trial. The hearing has many of the same features as a trial and allows Crown and defence to see the evidence in a "dress rehearsal". The Crown need only prove that there is "some" evidence to support each charge regardless of how weak it is.

 

 

 

pre-sentence report - a report assembled by probation officers to explain to a sentencing judge the underlying causes of the offender's offending. The author talks to the accused, his friends and family and employers, social workers, and doctors. The report often describes what happened to the offender during childhood and adolescence such as witnessing or being a victim of abuse or addictions in the home, past medical or mental health diagnoses, learning disabilities and addictions. It also describes their lifestyle, whether they have dependents, their work and education history, and any other relevant issues. The purpose of the report is for a judge to determine whether the offender will be a good candidate to comply with a probation order and what treatment or medication they should take while on probation.

 

 

 

recognizance - a document that authorizes the release of an accused from custody in exchange for a pledge of money.

 

 

 

resolution - a criminal case completing in any way. An "early resolution" is a euphemism for a plea bargain.

 

 

 

set date - a court attendance for the purpose of determining whether both Crown and defence are ready to schedule a date to complete the matter by trial or resolution.

 

 

 

show cause hearing - this is the formal name for a bail hearing. Everyone who is arrested and not released from the police station must be taken to bail court within 24 hours of that arrest. If the Crown does not agree to bail, the show cause hearing is often adjourned until friends or family can attend court to propose themselves as sureties by testifying in court. Proposed sureties must convince the justice that they can ensure the accused person attends all court dates, obeys any rules on the bail, and will not be arrested again while on bail.

 

 

 

surety - a person who signs a recognizance of bail pledging money to guarantee that they will enforce the conditions on that bail. If the accused breaks any condition on the recognizance, the surety is expected to attend the courthouse and tell the justice of the peace to revoke the bail. This causes a warrant for the arrest of the accused to be issued. If the surety does not revoke bail and the accused is arrested for a new offence or is charged with failing to comply with bail or failing to attend court, the Crown can seek to take the money pledged by the surety at an "estreat" hearing. Notice of estreat hearings is mailed to sureties at the address they provided to the court on the recognizance.

 

 

 

stay of proceedings - the Crown has the charge(s) frozen in time indefinitely. This is done rather than withdrawing the charge(s) so that the charges can be "unfrozen" if the Crown decides to. In practice, proceedings are never continued except in the rarest of situations.

 

 

 

summary election / indictable election - a criminal charge is prosecuted via one of two possible processes: by summary election or by indictment. Most charges in the Criminal Code of Canada are hybrid offences which permits the Crown to decide whether to prosecute the charge 'summarily' or 'indictably'. If they proceed by summary conviction, the trial must happen at the lower court level and the possible jail sentences are shorter. If the Crown proceeds indictably, the Crown can ask for a longer jail sentence, but the defence gets the right to have a preliminary inquiry and a judge alone or judge and jury trial in Superior Court.

 

 

 

discharge - after an accused is found guilty, a judge can refuse to convict the offender and can instead order a discharge of the case. If the judge wants the offender to perform some task in exchange for the discharge, the judge will order a conditional discharge with probation to ensure that task is completed. If the judge feels the offender has been punished enough already, the judge can order an absolute discharge. Regardless of the type of discharge, because there is no conviction, no "criminal record" of the type most employers obtain will be created. Discharges are available to offenders found guilty of minor offences and who have little if any criminal record.

 

 

 

Youth Criminal Justice Act - is the statute that governs how persons aged 12 to 18 are treated when charged with a criminal offence. Persons under 12 years old cannot be criminally charged because the law has decided that children that young are not old enough to understand the consequences of their actions. In rare circumstances persons under 18 can be prosecuted as adults if the Crown convinces a judge to do so.