An individual’s introduction to Ontario’s court system often comes at the point of arrest. An arrest occurs when an individual suspected of committing an act in contravention to the law, for example, something that breaches provisions in the Criminal Code, the Youth Criminal Justice Act, or the Controlled Drugs and Substances Act, among others. During an arrest, the accused individual will be detained, and brought into police custody.
After The Arrest
Following the arrest, the individual may be released immediately, on their own recognizance. This means that authorities consider that it is appropriate to release the accused into the community, and that the accused can be trusted to remain in the community and attend court as needed of the remainder of their matters.
If the accused is not immediately released, he or she has the right to a bail hearing within a short amount of time. The purpose of a bail hearing is to decide whether or not the accused individual can be released into the community while their matter makes its way through the criminal justice system. At a bail hearing, it is generally expected that a surety will present themselves on behalf of the accused.
A surety is a person who makes a promise to a judge or justice of the peace that they will supervise an individual who is accused of a crime and released on bail. The surety undertakes to ensure that the accused is following the conditions of their release, which may include attending all court appearances, avoiding certain people or places, living at a certain address, and remaining sober. If the accused breaches the conditions of their bail, the surety must inform the police. This is a key responsibility that sureties have.
The surety also pledges a certain amount of money, called a “recognizance”. This amount of money differs from case to case, but what remains the same is that the surety must be able to prove that they can provide that sum of money if need be. If the accused breaches the conditions of their bail and the surety does not contact the police, the surety may be required to pay the amount of recognizance to the court. Essentially, a surety is “the eyes and ears” of the court.
During bail the hearing, the potential surety will be interviewed by the the accused’s counsel and by the Crown regarding their background, their personal connection to the accused, and their ability to provide adequate supervision. The judge or justice of the peace may interject from time to time for clarification. As bail hearings are a type of trial, potential sureties are required to swear or affirm that they are telling the truth before taking the stand.
If the surety is approved, their duties begin immediately. A surety’s duties can end for a variety of reasons, including when the accused’s matters have concluded or resolved, or if the accused gets re-arrested. If the surety chooses to no longer be a surety, the accused will be returned to custody. A surety can choose to end their involvement in the matter at any time, and do not need a reason for doing so.
At the end of the bail hearing, the accused is either released into the surety’s custody, or remains detained. Nonetheless, the next steps are the same.
The next step is to obtain disclosure. Disclosure refers to all materials the Crown will use against the accused in criminal proceedings, and usually consists of a package which includes several paper documents. Among the documents, individuals may find: police officers’ notes, witness statements, a copy of their CPIC (criminal record), and a screening form. A screening form is a form the Crown completes, which briefly details the charges against the accused, and the punishment the Crown will seek. Disclosure is not limited to paper copies of evidence, and can come in video, audio, or photograph form.
Receiving all disclosure related to an ongoing criminal matter is important for a variety of reasons. A person can best face the charges against them if they can access all the information the Crown will be using to prosecute them. Furthermore, it is an individual’s constitutional right to receive their disclosure. It is therefore the Crown’s duty to provide the disclosure.
Disclosure often comes in stages over the course of a few weeks. It is not always complete or ready to be distributed to the accused by the time the accused’s first court appearance is scheduled. If an individual retains a lawyer, the lawyer will review the disclosure to see if there is missing information, and based on his or her findings, request that the Crown provide what is missing.
The lawyer will also review the disclosure to understand the case against the accused. Lawyers examine the disclosure to determine whether the process of obtaining evidence was fair to the accused, and that the accused’s rights were respected throughout any investigation. Finally, and most importantly, lawyers review the disclosure with the accused individual, to ensure that the individual knows about all aspects of the case against them, and that all of the individual’s questions are answered.
When disclosure is complete, a resolution meeting is held. During this meeting the counsel and the Crown discuss sentencing possibilities if the accused pleads guilty, and sentencing possibilities if the matter proceeds to a trial. In addition, new developments in the case can also be discussed at this point.
After the resolution meeting, the accused must decide whether they want to proceed to a trial or to a guilty plea. A guilty plea is when the accused decides to forego a trial and move right to sentencing. The accused admits all of the elements of the offence, and offers no defence. Guilty pleas are both a show of remorse, and a manner of moving matters through the criminal justice system efficiently. In recognition of this, the Crown will often suggest a more favourable sentence for the accused. It is important to remember that the ultimate decider of the sentence is the presiding judge, which means that the sentence the Crown requests will not always be the sentence the accused individual ultimately receives. Regardless, pleading guilty effectively ends the proceedings.
If the accused individual wishes to proceed to trial, as is their right, there may need to be a judicial pre-trial first. A judicial pre-trial occurs after a resolution meeting or Crown pre-trial. The key difference between these types of meetings is that a judge is present at a judicial pre-trial. It is important to note that judicial pre-trial judge will not be the same judge that presides over the case if it goes to trial. Judicial pre-trials, like resolution meetings, can occur for both the Ontario Court of Justice and the Superior Court of Justice matters.
When all necessary steps are complete the matter moves to trial. Every trial is different, but one similarity remains: the trial is the process by which the accused is found either guilty or not guilty. If the accused is found not guilty, the matter is complete. If the accused is found guilty, the matter proceeds to sentencing. Sometimes sentencing requires its own hearing. This is usually for more serious matters.
Following a Trial
Following sentencing, both the Crown and the defence can appeal the result of either the trial or the sentence. The appeal is heard at a higher level of court.
There is an additional alternative to trials and guilty pleas: withdrawal of charges. Withdrawals are rare, but they do occur. A withdrawal is when the Crown decides that there is no reasonable prospect of convicting the accused of the offence they are charged with, and thus decides to abandon the case against the accused.