Before You’re Charged
The criminal justice process is complex and has distinctive phases and procedures. These procedures are intended to provide a fair and timely resolution of criminal charges. Fairness requires exploring all ways to resolve the charges, including withdrawal of charges and negotiated plea agreements. Fairness also demands that accurate trial estimates are shared with defence counsel, and that procedural and evidentiary issues are pre-litigated to promote dismissal, if appropriate, or to move the trial along without interruptions.
Hiring skilled and competent Ottawa criminal defence lawyers is the most important step you can take as soon as you become aware that you are the target of a police investigation or that you have been arrested. Call Auger Hollingsworth now to schedule a free consultation so that your rights are secured and your criminal case is resolved in a fair and timely manner.
What is a Crown Pretrial?
A crown pretrial is a meeting between your lawyer and the Crown prosecutor to review the evidentiary case and to begin negotiations on a variety of issues. Although not mandatory, these pretrial meetings are usually scheduled to occur after the prosecution has delivered the evidence in its possession to the defence.
With an understanding of the evidentiary strength or weakness of the prosecution’s case, your lawyer can begin to explore whether there is room for a dismissal of the charges or a negotiated plea arrangement. The terms of bail might be discussed at this Crown pretrial. The defence might ask for additional production of police or forensic documents, such as an amended list of potential witnesses and expert witnesses. If no resolution is feasible, the Crown pretrial is an opportunity for the two sides to discuss the number of witnesses intended to be called and the potential length of any trial.
Clearly any defendant is at a disadvantage if representing themselves. Often, a prosecutor will not even speak with a defendant without the assistance of counsel. By retaining an experienced Ottawa criminal defence lawyer, you have the opportunity to explore various alternative resolutions of a criminal charge—dismissal, plea agreement, alternative sentencing—to avoid the cost and risk of a criminal trial.
What Is a Judicial Pretrial?
A judicial pretrial is a meeting between the prosecutor and the defence lawyer conducted before a judge. The presence of the judge helps to narrow issues and to resolve any disagreements as a case moves forward to trial. The judge can make preliminary rulings on the admissibility of evidence and the scope of examination of witnesses to let both sides understand how a trial might look.
The judge at a judicial pretrial might also intimate what kind of sentence will be imposed in the event of a plea negotiation or jury verdict of guilty.
A judicial pretrial can be closed to the defendant in some jurisdictions in order to facilitate a frank discussion among the prosecutor, defence lawyer, and judge. Nothing said during a closed judicial pretrial can be used by the prosecutor or the defence later at trial. Your lawyer will inform you of all aspects of any closed judicial pretrial and must get your consent to any plea, before it is offered before a judge.
Before Your Criminal Trial Date
There are distinct phases leading up to a trial. These include:
Disclosure: To promote fairness and avoid surprises, the prosecutor must turn over to the criminal defence lawyer all relevant evidence that will be introduced to prove its case at trial. This is called disclosure and includes:
- Police notes and internal reports
- Witness statements
- Photographic or video evidence
- Medical reports
- Ballistics or weapons reports
- DNA tests and their results
Disclosure enables the defence to assess the strength of the prosecutor’s case and to evaluate potential weaknesses. In addition, disclosure might reveal the possibility of additional evidence being withheld by the prosecutor or police. This would provoke a formal motion before the court to compel production of additional evidence or informally, through negotiation with the prosecutor.
Interpreter: If language is an issue, a defence lawyer will arrange for the appointment of an interpreter to assure that the defendant understands all phases of the criminal proceeding.
Subpoena Witnesses: Some witnesses will not give testimony voluntarily and require a subpoena to compel their appearance and testimony. A subpoena is an official judicial document. Failure to comply with a subpoena can result in arrest.
Charter Notice: The Canadian Charter of Rights and Freedoms affords you certain rights when involved in the criminal justice process. If any constitutional rights or freedoms have been alleged to be violated, defence lawyers will file a written Notice of Application with the Attorney General of Canada and the Attorney General for Ontario, along with the prosecutor in the case. These Applications are important and can lead to a dismissal of the charges and/or the exclusion of police evidence so that the crown cannot use it against you.
A Charter Notice requires an evidentiary hearing to discern whether the police conducted themselves in a lawful manner while investigating, arresting, and/or gathering evidence and questioning witnesses, including the defendant. During the hearing on a Charter Notice, the judge can rule against the admissibility of evidence or witness statements, thus weakening a prosecutor’s case. This can lead to a dismissal of the charges, or promote a negotiated plea agreement.
A criminal trial follows a statutory framework to ensure fairness and timely resolution of the charges.
Arraignment and Election: An arraignment confirms your identity as the defendant, a formal reading of the charges against you, and entering a plea. At this time, you can elect to have a trial before a provincial judge, a superior court judge with or without a jury. Defence counsel takes many factors into consideration when making this trial election, including cost, the nature of the charges, and whether there are emotional aspects to the charge that might bias a jury.
Your Plea: A plea of not guilty or a refusal to enter a plea moves the trial forward. A guilty plea entered at an arraignment can lead to an immediate sentencing hearing or a future date for sentencing.
Any guilty plea must be reviewed by the presiding judge to ensure that the plea was made voluntarily and that you understand the consequences of pleading guilty—waiving your right to trial by jury and all the ramifications of having a criminal record. If the judge does not believe that you are acting voluntarily and with requisite understanding of the consequences, a trial date will be set to move the process forward.
The Prosecution’s Case: The presumption of innocence places the burden on the prosecution to prove, beyond a reasonable doubt, all the elements of the crime charged. A criminal trial is conducted in this order:
- Crown Opening Statement: An overview of the prosecution’s version of what happened, why, and who was involved.
- Examination-in-chief: The prosecution presents its witnesses in order to establish the elements of the crime charged.
- Cross-Examination: The defence lawyer gets the opportunity to cross-examine the Crown’s witnesses in order to expose incapacity, inconsistency, or lying, to raise reasonable doubt.
- Re-examination: The prosecution gets to try to rehabilitate its witnesses if any weaknesses were exposed during cross-examination.
Depending on the complexity of any case, there might be interruptions in the flow of a trial, including hearings on the admissibility of evidence and testimony.
The Defence Case: The role of the defence lawyer is to protect your rights to a fair and speedy trial and to create reasonable doubt as to the veracity of the prosecutor’s case. After the Prosecutor gives the Crown’s opening statement, the defence will give its version of the story, a story that contradicts or deviates from the allegations of the prosecutor.
Sometimes defence lawyers will not present evidence or witnesses at the close of the prosecution’s case, relying solely on cross-examination of the Crown’s witnesses and evidentiary rulings by the judge. Other times, the defence will introduce evidence and present witnesses to create an alternative version of the story, or to create reasonable doubt about any of the elements of the crime. In some instances, the defendant will take the stand and waive claims to the privilege of avoiding self-incrimination. It is important that the accused person never has to testify at trial. This is a very important decision to be made with an experienced criminal lawyer.
Closing Arguments: At the close of the defence case, the judge invites both sides to summarize the evidence presented to remind the jury of what they learned throughout the trial. No new evidence is allowed to be presented during closing arguments.
Judgement and Sentencing: A judgment by a trial judge or by a jury determines whose version of the story is more convincing—the prosecutor’s or the defence. If found not guilty the charges are dismissed, the defendant is released from any conditions of bail, and the money or surety is returned.
If a guilty judgment has been rendered, the court schedules a sentencing hearing, giving both sides time to prepare reasons for imposing or avoiding a sentence. Evidence can be presented during the sentencing hearing, including witness statements.
The judge who heard the trial is the sole determinant of sentencing and can ignore plea agreements made between the prosecutor and the defence lawyer.
Choosing the right Ottawa criminal defence lawyer can help preserve your rights and defences to criminal charges. At Auger Hollingsworth, we offer a free consultation session during which you can assess our lawyers and we can assess the strength of the prosecution’s claims. During this free consultation, we will:
- Review the criminal charges or the request for appearance or subpoena for documents, and any police reports and other documents.
- We will listen to your story and map out the areas for investigation, begin to compile a list of witnesses, and compose the various strategies the facts and law offer.
- We will provide you with an estimate of the cost of legal services.
- If we are unable to provide you with a defence, we will refer you to other counsel.
Call today at (613) 699-8192 to schedule a free consultation with the skilled Ottawa criminal defence lawyers at Auger Hollingsworth.