The Canadian Criminal Justice System | Criminal Defence Articles by Tushar K. Pain


Finding yourself caught in the web of the criminal justice system can be a frightening experience.  Feelings of shame and embarrassment are common.  Beyond this, you face the prospect of being saddled with a criminal record or worse, a jail sentence.  Once you’re in the system, your thoughts turn to understanding what is happening and getting through it unscathed.  So, how does the criminal justice system operate?

Being Brought Before The Courts

Typically, this happens through an encounter with the police.  In certain situations, the police attend the “scene”.  Generally, the police are dispatched to the “scene” when an alleged crime is in progress or has recently been committed and someone has called the police (usually through 911).  Another common situation in which the police are on scene are incidents involving motor vehicles.  These encounters usually arise from random stops or investigations arising from alleged driving infractions.

In other instances, the police may contact you (usually by telephone) and ask you to come in to the station to “discuss a matter”.  This typically occurs where the complaint made to the police relates to an allegation of criminal activity that happened some time ago and there is no imminent danger for the police to be concerned about.

In either of the above scenarios, the police make a decision as to whether or not a criminal charge should be laid.  If a criminal charge is laid, you must be brought before the courts to be dealt with according to law.  This can be accomplished by arresting you and bringing you before the court for a bail hearing or, releasing you on a Promise to Appear at the police station or, serving you with a notice to appear in criminal court.  The method chosen will depend on numerous factors including but not limited to the nature of the alleged crime, whether you are currently facing other charges, whether you have a criminal record and the nature of any such criminal record.

If you are held for a bail hearing you will be brought before a Justice of the Peace (“J.P.”).The J.P. decides, based on the evidence presented in court, whether or not you should be released from jail pending the resolution of your criminal charge.  The factors to be considered by the J.P. are whether you are likely to show up to court, whether you are likely to be a danger to the public if released, whether your detention is necessary in order to maintain confidence in the administration of justice.  Concerns regarding any of these factors may by addressed by placing various conditions upon your release and / or requiring a surety.  A surety is a person (usually a friend or family member) willing to pledge a certain sum of money and guarantee to the court that he or she will ensure that you attend court as required, abide by the conditions of your release, and make sure you stay out of trouble.  If the J.P. determines that there are concerns which cannot be adequately addressed by the requirement of a surety and / or the ordering of conditions, you will be detained in custody pending the conclusion of your criminal charge.  If you are detained, you can apply for a review of your bail hearing.  Whether or not you are granted release, you will be given a date to return to court in order to deal with the criminal charge.

If you are served a notice to appear in court or are released from the police station on a Promise to Appear, there may be two separate dates mentioned on these documents.  The first is the date you are to attend court.  The second date is the date you are to attend for photographs and fingerprints.  Failing to attend at either of these dates can lead to further criminal charges.

If you are released on a Promise to Appear, there may be certain conditions that accompany this form of release.  You will know this because you will have given a written promise to abide by any such conditions.  Again, failure to obey these conditions can lead to further criminal charges.

Preliminary Matters

Once the charge is before the courts, you are generally expected to retain a criminal defence lawyer.  In most circumstances, the lawyer proceeds by requesting a copy of the “disclosure” materials from the Crown Attorney’s Office.  “Disclosure” is all the evidence in the possession of the police that the Crown may use at your trial.  How long it takes to obtain a complete set of disclosure depends on numerous factors including but not limited to the nature and volume of the disclosure materials, the courthouse your matter is being prosecuted in, the individual officers involved in the case and the thoroughness and diligence of your lawyer.

Once the disclosure material is obtained, your lawyer should carefully review it with you.  Keeping the client involved is an essential part of building an effective defence, disseminating meaningful advice, and obtaining informed instructions.  Following a review of the disclosure, your lawyer will likely schedule a meeting with the Crown Attorney’s Office.  This type of meeting is referred to as a “pre-trial”.  The purpose of this meeting is to discuss numerous issues including but not limited to missing disclosure; a possible resolution to the case without a trial and; issues concerning trial.  Your lawyer will discuss the pre-trial with you and seek further instructions from you.  Generally, speaking, you will either be adjourning the matter, resolving it (perhaps by way of guilty plea), or setting a date for a trial.

Resolution Before Trial

The matter is usually adjourned or postponed when there is some item of disclosure that has not been provided to the defence.  On occasion, a charge may be resolved by a withdrawal by the Crown.  The more usual course for resolutions without trial is by way of guilty plea.  If the matter is being resolved by way of guilty plea, your lawyer should be informing you as to what the Crown wants you to plead guilty to; what charges (if any) are to be withdrawn; what sentence it will be seeking; what facts it will present to the court; what sentence your lawyer will be asking the judge to consider; what sentence your lawyer feels you will likely receive.  A guilty plea can proceed with either both sides asking the judge to consider the same sentence (known as a “joint submission”) or the two parties asking for different sentences.  In either case, the final decision is up to the judge.  A good lawyer will strive to minimize the uncertainty of the outcome by familiarizing him or herself with the people involved in the process.

Going To Trial

If the matter is going to trial, then a trial date will be scheduled at your next court appearance.  How far away the trial date is depends on various factors including but not limited to the courthouse the matter is being prosecuted in, the amount of time required for trial, the availability of witnesses and lawyers.

If the charge you are facing is proceeding by summary conviction (a method of proceeding for charges with lesser penalties), then you will have your trial in the Ontario Court of Justice.  If the charge you are facing is an indictable matter, then you may have the following options (i) a trial in the Ontario Court of Justice; (ii) a preliminary hearing in the Ontario Court of Justice followed by a trial before a judge in the Superior Court of Justice; (iii) a preliminary hearing in the Ontario Court of Justice followed by a trial before a judge and jury in the Superior Court of Justice.  These days, most matters proceed by summary conviction with the indictable procedure being left for more serious offences such as murder, attempted murder, drug trafficking, various forms of sexual assault, etc.  If your matter is proceeding by indictment, your lawyer will explain your options to you with a recommendation as to how to proceed.

Following the scheduling of the trial date, the lawyer begins to prepare for trial.  There are numerous steps involved in the preparation for trial.  How a case is prepared for trial depends on the particular circumstances of that case and the approach of the lawyer.  Some of the major steps often involved in preparing for trial include an analysis of the Crown’s evidence; the interviewing and preparation of witnesses; subpoenaing of witnesses; legal research and investigation of facts.  Thorough preparation conducted at an early stage helps to ensure success at trial.