Should I do anything before going to meet with a lawyer?
In order to get the most out of your meeting, it is best to prepare for it. Write down everything you remember about the events surrounding your charge. Make sure to write “To my lawyer: Private & Confidential” at the top of the document. If you have specific concerns, write them down so you don’t forget to address them during your meeting. Take all documents relating to your charge with you. The more information the lawyer has about your case and concerns, the better the advice you will receive.
Will I be expected to say anything in court on the first court date?
If you go without a lawyer, you will be expected to explain your intentions to the court regarding the defence of your case. If you have hired a lawyer, your lawyer will do all the talking and you will not have to say anything. The lawyer will explain the status of the case to the court and suggest a course of action.
I just want to plead guilty and get it over with. Should I tell the lawyer that’s what I want to do?
The decision to plead “guilty” or “not guilty” is up to you. You should certainly tell the lawyer what you want to do. However, the purpose of hiring a lawyer is allow you to make an informed and intelligent decision. A good lawyer should first listen to you to understand your concerns. Then he or she should explain both the potential benefits and consequences of pleading guilty versus going to trial and the strengths and weaknesses of your case. Then the lawyer should recommend a course of action. Of course, the final decision is yours and the lawyer must carry out your instructions.
Someone else will be paying the legal fees. Can that person tell the lawyer what to do regarding my case?
The lawyer answers only to the client. The client is the person the lawyer will be representing — the person whose case the lawyer will deal with. This is the only person the lawyer can take instructions from. The lawyer cannot reveal anything the client says without the client’s permission. In this type of situation the lawyer should make it very clear that regardless of who is paying the bill, the lawyer only takes instructions from the client and cannot reveal any details of what is going on without the client’s permission.
Can I plead “not guilty” even if I did it?
Yes. A plea of “not guilty” simply means that you are insisting that the Crown prove its case. In Canada, a person can be found guilty if he or she either pleads “guilty” or the Crown proves its case beyond a reasonable doubt. In any given case, there will be numerous legal issues requiring proof. Many times, the Crown will not be able to prove its case because it does not have proper evidence regarding a certain element of the offence. In such cases, the accused person will be found “not guilty”. A lawyer who does a thorough job in preparing the case will often be able to identify where such difficulties are likely to arise.
Can I travel or do I have to stay in town until my case is finished?
Whether or not you can leave the jurisdiction while your charge is pending depends on the conditions of your release (your “bail conditions”). If your conditions of release do not specifically prohibit you from leaving the jurisdiction, then you may travel. Of course, you must ensure that you come back to attend court as required.
Now that I’ve been charged, do I have a criminal record?
The simple fact that you have been charged does not lead to a finding of guilt or conviction. In our system of law, a person is presumed to be innocent until proven guilty. If you are ultimately found guilty, then you will have a either a finding of guilt or conviction on your criminal record. However, various authorities like the police will be aware that you have an outstanding charge. In many instances, if you try to cross the border to the States, the immigration authorities will be aware of an outstanding charge and refuse entry. In some instances, even potential employers and others may be able to see the outstanding charge. Therefore, a criminal record of sorts is in existence.
I was physically abused by the police during my arrest. What can I do?
There are basically four possible courses of action. A complaint can be made to the Ontario Civilian Commission on Police Services. This is often an unsatisfactory course of action as it is controlled by the police. Secondly, criminal charges can be pursued against the offending officers. However, the rate of success in obtaining convictions against police officers is abysmal. Thirdly, a civil action may be brought seeking financial compensation. Fourthly, a remedy may be sought at trial that could lead to the dismissal of your charges. This, however, is a rare occurrence. You should speak with your lawyer regarding the specifics of your case and what can be done.
I was photographed and fingerprinted. Will these be on file forever?
If you are found guilty, then your photographs and fingerprints will stay on file with the police. If your charges are withdrawn, dismissed or stayed, an application can be made to have the photographs and fingerprints destroyed. Each police force has its own procedures and timelines for destruction. However, some police forces refuse to destroy these records in any circumstances.
The police want me to take a polygraph test. Do I have to do this?
The polygraph test is an investigative tool used by the police. Its results, the fact that one was administered, or the fact that someone has either offered or declined to take the test are generally inadmissible in court. Although its results are inadmissible, any evidence arising through the use of the polygraph may be admissible in court. There is no legal obligation to take the test. In most instances, it is best to exercise your right to silence,
What is “plea bargaining”?
Plea bargaining is the process whereby defence counsel and Crown counsel attempt to resolve a case without a trial. It usually results in a guilty plea by the client in exchange for the Crown taking a position regarding the sentence that is acceptable to the client. Of course, it is the judge that ultimately decides the sentence. Sometimes, in fact, a judge will be involved in the plea bargaining process. That is to say, the judge will be “in on the discussions” between defence counsel and Crown counsel and will provide input regarding the appropriateness of the proposed resolution. Pleabargaining does not always result in a guilty plea. In some instances, it can result in the withdrawal of the charge. A diligent defence lawyer will thoroughly prepare his or her case before entering into the plea bargaining process. This allows the lawyer to know the strengths and weaknesses of thecase and, therefore, effectively gauge the appropriateness of a proposed resolution. Of course, the lawyer should always keep the client advised and seek informed instructions before entering into a plea bargaining discussion with Crown counsel.
If I am acquitted, will the Crown pay for my legal fees?
No. In the Canadian criminal justice system each party pays its own costs regardless of the outcome. However, in select cases, the Crown may be forced to pay the legal fees of the accused person. In the context of a criminal trial, a Charter application may be brought by the accused seeking costs against the Crown. This application may only be granted where exceptional circumstances exist. In the context of a civil action, an accused person may decide to sue the Crown. The suit will be successful if malicious prosecution can be proved. In both instances successful applications are rare and usually not worth pursuing.
I was charged by the police based on nothing more than the word of one person. How can this be? Can I be convicted if it is just my word against his?
The police can lay a charge where they have reasonable and probable grounds to believe that an offence has been committed. It is possible for the police, based only on the word of one person, to form reasonable and probable grounds. It is also possible to be convicted based solely on the word of one person. If the trial judge is convinced beyond a reasonable doubt, based on the evidence presented, that the alleged offence has occurred, then you will be convicted.
I want to make sure that I hire a good lawyer. Is it a good idea to ask about his or her win / loss record?
The win / loss record really refers to the lawyer’s success rate. However, what is defined as success in any given case will be defined by its particular circumstances. A successful outcome is not always defined as an acquittal. In some cases an acquittal is near impossible. However, that does not mean that the case cannot be dealt with “successfully”. For example, a client with a long criminal record facing another charge where the case against him is overwhelming may define success as any outcome that does not result in jail time ¾ a result that may be very difficult to achieve. Although it may not be possible to get an acquittal in this example, the lawyer may be “successful” in helping the client attain his goal. Is this outcome a win or a loss? In this example, both the lawyer and client may consider it a win. What if the lawyer considered it a loss even though he helped his client attain the desired outcome? This example demonstrates that the term “win / loss record” is not a meaningful one. Rather, information relating to a lawyer’s listening skills, communication skills, approach to a case, and experience are more helpful in selecting a good lawyer.