Being charged with a criminal offence is a stressful experience for anyone. Feelings of guilt or anger (when falsely accused) combined with the disruption to your life and the potential for a criminal conviction and incarceration create a situation most of us are not accustomed to. Hiring a lawyer to help navigate the criminal justice system can alleviate some of this stress and provide helpful advice. If you have been charged with a criminal offence there are several steps to take.
Preliminary Step – Police Interactions
Before a criminal charge is formally laid, you will likely be arrested by the police. You have a right to legal counsel and the police are obligated to both inform you of this right and to provide you with a reasonable opportunity to do so. The police will likely ask many questions during your interaction with them. These questions should not be answered until you have had the chance to speak to legal counsel and get their advice about what to do or say. There is no obligation to answer any questions or make a statement to the police. Incriminating statements will likely appear as evidence at trial, but a statement professing your innocence is evidence you cannot use at your trial. Accordingly, you will almost always be told by a lawyer to remain silent, other than to provide identifying information such as your full name and date of birth as this will be necessary to ensure you are released from custody pending your case being dealt with in court. A search of your person (and sometimes your car) will often be conducted by the police incidental to your arrest, but it is important that you not verbally consent to a search if the police ask your permission. Do not, however, resist police efforts to conduct these and other types of searches. Search legality is a complex legal issue which can best be dealt with by your lawyer down the road in court. Police also have the right upon arrest to take your fingerprints and photograph so do not resist these steps. It is important to remember that you can always ask to contact legal counsel further if you are uncertain about anything the police are doing. Failure to cooperate with the police, should they be determined to have acted lawfully, could lead to additional charges against you.
Step 1 – Appearing in Court
The police will often release you with a piece of paper that states the date and location of your first court appearance. It is imperative that you are present for this date, and any other subsequent dates, otherwise a warrant will be issued for your arrest and additional charges may result. The court tracks each case and needs an update every few weeks to ensure the matter is proceeding appropriately. The first court appearance will likely only result in scheduling the next appearance. This process can go on for several months and can be frustrating as you will likely miss work on numerous occasions. If you hire a lawyer, however, he or she can appear on your behalf and inform you when a personal appearance may be required.
Step 2 – Disclosure
The next step is obtaining police disclosure. This is where the prosecution provides you with all the evidence that could be used to prove the alleged offence. This will include witness statements or physical evidence, usually as a stack of documents stapled together. At this time, the prosecution may also offer a sentence in exchange for a plea of guilty. It is important not to rush to accept this offer until the disclosure documents have been closely examined. The documents can show how strong the case is against you and can inform whether to enter a guilty plea or proceed to trial. A lawyer can provide a helpful analysis of these documents as well as a proper recommendation regarding the offer from the prosecution. Attempting to defend yourself in court rarely is a good idea as it can very quickly become complex and confusing.
Step 3 – Entering a Plea
Following disclosure, you will be required to enter a plea to the alleged crimes. There are two Basic options: guilty or not guilty. Pleading guilty will lead to a conviction and sentencing. Pleading guilty requires a voluntary admission of all the elements of the alleged crime, a waiver of your right to trial, a recognition that you will likely obtain a criminal record and an acknowledgment that the judge is not bound by the recommendations of either your lawyer or the prosecutor. A judge will reject your plea if you do not agree to all of the above and direct that you proceed to trial.
It is very important to understand the full consequences of a criminal conviction as it may include things not mentioned by the prosecution, such as prohibitions on driving or weapons ownership, and may impact current or future employment. A conviction can also lead to deportation for non-citizens of Canada. Pleading not guilty will trigger a trial which will be scheduled for a future date.
Step 4 – Trial
Following a plea of not guilty a trial will occur to settle the issue. For more serious offences you may have the right to a preliminary inquiry and a trial in the superior court of your province. You might also have the right to trial by jury.
The trial is where you or your lawyer get the opportunity to ask questions and where you may testify on your own behalf (but you are not required to do so). The prosecution has the burden of presenting the evidence to the judge and must prove all the elements of the alleged offence beyond a reasonable doubt. At the conclusion of the trial, the judge (or jury) will decide based on the evidence, whether you are guilty or not guilty. If you are found guilty the court will proceed to a sentencing hearing where they will be interested in hearing about your personal background and factors that are mitigating in your favour.
A trial can be intimidating and very stressful. If you have made it this far on your own, it is highly recommended that you find a lawyer. A lawyer will have experience with the procedures
regarding evidence and questioning witnesses and may be able to present a viable defence to the judge which you did not even know existed.
Need more information? Contact the team at DDSG Criminal Law to speak to an attorney.