FAQ:

1. When should I speak to a criminal lawyer?
2. I have been charged with an offence.  Do I need a lawyer?
3. What are the possible consequences of being found guilty of a criminal offence?
4. What are the different types of criminal charges?
5. What does the Criminal Code cover?
6. What does the CDSA cover?
7. What does the Highway Traffic Act cover?
8. What is the Youth Criminal Justice Act?
9. What is the Charter of Rights and Freedoms?
10. What is a criminal record?
11. What are the types of trial courts in Ontario?
12. What is the general process in going through the criminal justice system as a defendant?
13. Where are the courthouses in Windsor?
14. What should I look for in a criminal lawyer?
15. What about retainers?
16. What about Legal Aid?


1. When should I speak to a criminal lawyer?
Most people think the only time to speak to a criminal lawyer is if they are charged with an offence.  In many cases, a criminal lawyer can be of great assistance in advising you of your rights before you are charged or arrested.  If you think you may have committed an offence, or believe you are under investigation, it would be helpful for you to speak to a criminal lawyer as soon as possible.  It may be possible for a charge not to be laid or for the matter to be resolved out of court.  Private discussions you have with a lawyer are privileged, which means that what you tell a lawyer cannot be disclosed by the lawyer to any other person, without your consent.

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2. I have been charged with an offence.  Do I need a lawyer?
It doesn’t hurt to speak to one.  Criminal offences come in a wide variety of shapes and sizes, and convictions on matters that might seem trivial can have long lasting effects.  It is usually not a good idea to represent yourself on anything but the most simple matter, and even then, you should only do that after you have spoken to a lawyer.  Most lawyers, including myself, will provide an initial consultation for free. As a general rule, you should never plead guilty to any offence without consulting with a lawyer, and you should never plead guilty “just to get it over with.”

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3. What are the possible consequences of being found guilty of a criminal offence?

Many of these consequences can be quite dramatic and potentially life-altering.  Some of the consequences of pleading guilty or being found guilty of a criminal offence could include any of the following:  a criminal record; a fine; probation with conditions restricting your liberty for up to 3 years duration; house arrest with strict conditions on your liberty for up to 2 years duration; a jail term; loss of driver’s licence (in some cases, for life); prohibitions from possessing weapons of any kind (in some cases, for life);  a requirement you provide a DNA sample to local police; a requirement, if convicted of a sex offence, that you report to local police regularly; an order of restitution in favour of a victim, which can be enforced against you as a civil judgment;   forfeiture by you of property seized by police.

Other ramifications could include:  the publication of your name and the details of your court matter in the local newspaper (there is no general prohibition against the media doing this);  a civil suit against you for damages; difficulty in obtaining or maintaining your employment or professional affiliation, or even the potential loss of your employment; your possible deportation from Canada, under certain circumstances; and difficulty if not a complete bar of your entry to the United States and other countries.

Any decision that you make should be an informed one.  Often, people that are charged with offences have, at a minimum, made an error in judgment.  Now is the time to work with a professional to make a reasoned, not a rash, decision.

All criminal charges in Canada are found in federal and provincial statutes.  Generally, most criminal charges are charges under the Criminal Code, under the Controlled Drugs and Substances Act (the CDSA), and under the Highway Traffic Act (the HTA).  Normally, when people speak of criminal records, the reference is to convictions under the Criminal Code or the CDSA.

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4. What are the different types of criminal charges?

All criminal charges in Canada are found in federal and provincial statutes.  Generally,  the most serious criminal charges are charges under the Criminal Code and under the Controlled Drugs and Substances Act (the CDSA). Normally, when people speak of criminal records, the reference is to convictions under the Criminal Code or the CDSA. 

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5. What does the Criminal Code cover?

Almost all significant criminal offences: theft, possession of stolen property, mischief to property, arson, fraud, assault, threatening, sexual assault, weapons offences, impaired and dangerous driving, break and enter, robbery, breach probation, breach bail, causing a disturbance, and numerous other offences.  The Criminal Code also outlines matters related to arrest and release from custody, and jurisdiction, such as which court will hear your case, and when you can have a preliminary hearing and a jury trial.

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6. What does the CDSA cover?

All drug offences, including possession, and trafficking of street drugs such as marijuana, cocaine, LSD, ecstasy, and many others.

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7. What does the Highway Traffic Act cover?

All driving offences not covered by the Criminal Code.  The aim of the HTA is to regulate drivers and prescribe the rules of the road. Highway Traffic Act convictions rarely result in jail sentences, but oftentimes driver demerit points or licence supensions, in addition to fines, are given.  Also of importance is the Compulsory Automobile Insurance Act, which imposes significant penalties for driving without insurance. 

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8. What is the Youth Criminal Justice Act?

The legislation that governs all offenders who were under 18 at the time the offence was committed.  The YCJA governs the procedure for young persons charged with offences.  Although young persons are, generally, charged with the same offences as adults, they must be tried in separate courts called Youth Courts.

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9. What is the Charter of Rights and Freedoms?

The Charter of Rights and Freedoms is a federal statute passed in 1982 that provides for fundamental rights and freedoms for all Canadians.  The principal rights that the Charter confers are: the right to life, liberty and security of the person; the right to be secure against unreasonable search or seizure; the right not to be arbitrarily detained or imprisoned; the right, upon being arrested or detained, to be informed of the reason for arrest or detention; and the right to retain and instruct counsel without delay; and the right to be tried within a reasonable time.  The Charter is a very important piece of legislation that works to protect the rights of the individual, especially individuals who are subject to the criminal process.  It also gives the court discretionary authority to declare evidence inadmissible at trial when there has been a breach of a Charter right, and where the admission of the evidence would bring the administration of justice into disrepute.  Criminal lawyers frequently look at a case to see if there has been a breach of the individual’s Charter rights as it could afford an additional defence.

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10. What is a criminal record?

The term “criminal record” refers to a variety of records that are kept by law enforcement agencies.  In the traditional sense, a person is said to have a “criminal record” if they have been convicted of an offence under the Criminal Code, CDSA, or other statute of Canada.  A Canada-wide information system is maintained and accessed by all police forces and is known as “CPIC”.  Individuals will have details placed on the CPIC system (name, date of birth, charge, outcome) when they are fingerprinted after being charged.  There are legal provisions that compel the destruction of this information in certain circumstances.  However, local police forces also keep their own records and will reference them when a person requests a “police clearance”, and the police clearance may contain information, such as peace bonds, that are not part of the traditional “criminal record”.  You should make sure you know the ramifications of any records that are kept by police agencies.

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11. What are the types of trial courts in Ontario?

There are two levels of trial courts in Ontario: the Ontario Court of Justice and the Superior Court of Justice.  The Ontario Court of Justice handles the vast majority of criminal cases.  The Superior Court of Justice generally deals with the most serious of criminal offences, and it is the only court in which you can have a jury trial.

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12.  What is the general process in going through the criminal justice system as a defendant?

Criminal proceedings have at their heart jurisdiction over an individual person.  The criminal process typically starts with an allegation or evidence of criminal wrongdoing.  In the simplest sense, a person is investigated for a crime either based on a complaint from another individual, or through a police investigation.  If the police are given information which leads them to believe, on reasonable and probable grounds, that an offence has been committed, they are generally duty-bound to lay a charge.  It is important to remember that our system of law does not typically put the police in the position of being judges and deciding a case at the investigation stage: if they have information, they have to act on it and lay a charge.
 
Where the police believe an offence has been committed, they next need to compel the defendant to go to court, in answer to the allegation.  In many cases, to get the process started, the police will arrest the individual.  From that point, the individual can be given a document by the police that would advise him of a future court date, say 6-8 weeks away.  Or, the individual could be taken to police headquarters and released with conditions, for example, to stay away from a certain person or a certain area, in addition to the future court date.  Those conditions would be in effect until the case is completely over.  In the most extreme case, the person could be brought, in custody, before a Justice of the Peace, to see whether the person could be released on more stringent conditions, or perhaps with a friend or family member agreeing to supervise the person while on release (or “bail”).   In the most serious cases, or those involving repeat offenders, the individual may well be “denied bail” and held in custody throughout the court process.

Many people think that on the date that they are required to go to court (which lawyers called the “First Attendance”), they are either going to have to plead guilty or not guilty, or that on that date they are going to have a trial. 

However, our system of criminal justice recognizes that individuals have the right to know what the case is against them.  As a consequence, they are entitled to review any records or reports that have been made about the allegations that involve them.  This is called “disclosure”. 
Typically, a defendant will retain a lawyer in advance of the first court date and the lawyer will, through the prosecutor’s office attempt to obtain disclosure and review it with the client.  Some times all of the disclosure material is not available by the first attendance.  Other times, the client and the lawyer have not been able to meet to review the disclosure.  Either way, the court will generally allow the lawyer to attend at the first attendance and adjourn the case for a few weeks to meet with the client with all of the disclosure, and as between lawyer and client, to come to some decision as to what direction the case should take.

After reviewing the disclosure with the client, and giving his legal opinion as to the merit of various options in the case, the client will give the lawyer his instructions on what to do.  If the client wants to plead guilty, the lawyer will want to meet with a prosecutor to see what the prosecutor would ask the court to impose as a penalty should the client plead guilty.  It is important from the client’s perspective that he is not taken by surprise by the prosecutor’s position on sentence.  The defence lawyer and the prosecutor aren’t required to and often don’t agree on what sort of penalty the judge should impose.  When they do agree on the penalty they think the judge should impose, it is called a “joint submission”.
If the client wishes to plead guilty, typically this can be done within a week or two of any court date, and possibly even on that date.  While the lawyer can appear in court on behalf of the client for many routine court attendances, the client must be in attendance for the guilty plea or for the trial, as the case may be. 

It should be noted that if the client pleads guilty, it is the Judge who decides what the appropriate penalty is.  The judge will listen to what both the prosecutor and the defence lawyer have to say about the case, and will give a decision.  Where the prosecutor and defence lawyer have a “joint submission”, the judge typically will agree with it.

If the client wants to plead not guilty, the matter is scheduled for a trial.  In this jurisdiction, trial dates even on simple matters are 6-9 months away from the present date.  At the trial, all of the prosecutor’s witnesses are required to attend, as is the defendant and all of his witnesses.
Preparing for trial from the defence lawyer’s perspective involves interviewing and subpoenaing witnesses, in some cases retaining doctors or other professionals to give expert, opinion evidence, and intensely reviewing the disclosure materials.  Trials are complicated matters that can last for days, weeks and even months and require a great deal of focus and attention.  During a trial, it is the lawyer who generally will make the important strategic decisions, in consultation with the client.

At the end of the trial, the judge hears from the prosecutor and the defence lawyer and makes a decision: guilty or not guilty.  If the client is found not guilty, of course the case is over.  If the client is found guilty, then the matter becomes one of what is the appropriate sentence or penalty for the judge to give, and the case moves into a sentencing phase.

This is just a brief overview of the two “streams” that a case can take in the criminal justice system: guilty plea or trial.
Because our system of justice is one that is run and maintained by humans, there are many variables that can affect the outcome of a particular case.  It is the job, in my view, of the defence lawyer to reduce or eliminate as many of these variables as possible, to do the client the best possible service.

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13. Where are the courthouses in Windsor?

The Ontario Court of Justice is located at 200 Chatham Street East.  The Superior Court of Justice is located at 245 Windsor Avenue.  They are across the street from one another.  Both courthouses can be contacted at (519) 973-6600.  Highway Traffic Act matters are heard in the Westcourt Place, 250 Goyeau, 3rd Floor. 

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14. What should I look for in a criminal lawyer?

Look for someone who practices exclusively or almost exclusively criminal law.  Like most areas of the law, criminal law is highly specialized and over the past decade has become increasingly complex.  Look for someone who has experience in the particular area that you are concerned about—charges such as impaired driving and sexual offences can be fairly detailed in their application.  If yours is a serious charge, make sure the lawyer has experience in handling that type of case.  Not all criminal lawyers, for instance, have experience doing jury trials.  Also, ask the lawyer if he or she has ever been published, has lectured, or is a member of any professional organizations such as the Criminal Lawyers’ Association.  Does the lawyer have a professional office that is appropriately staffed?  Does the lawyer appear to have a genuine interest in you and your case?  Be wary of any lawyer who offers a quick opinion as to the outcome of a complicated case, especially without having an opportunity to be informed of all of the pertinent details of the case.  If a lawyer guarantees a result, ask to get that in writing.
Don’t be afraid to shop around.

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15. What about retainers?

This is something that should be worked out between the client and the lawyer in advance of you hiring a lawyer.  Some clients prefer to know what the total cost of a matter will be, including disbursements and GST.  Others prefer an hourly rate.  From the lawyer’s perspective, when the lawyer agrees to take on a case and is retained, it creates a commitment to the client and to the case.  The amount of a retainer will depend on the seriousness and complexity of the charge, and the experience level of the lawyer handling it.  Ensure there are no hidden costs or disbursements.  Discuss this openly with your lawyer.

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16. What is Legal Aid Ontario?

Legal Aid Ontario (LAO) is a service offered by the government that pays lawyers to represent people who can’t afford a lawyer.  In order to qualify for legal aid, you have to apply and show that your income or assets are below a prescribed level.  Also, the charge you are facing has to be serious or could pose serious consequences to you if you were convicted.  If you are approved for legal aid, you will be given a “certificate” which you can take to a lawyer who has been approved by LAO to take on legal aid cases.  Legal Aid will pay your lawyer when the work is completed.  Depending on your financial situation, you may be asked by LAO to enter into a payment agreement with them, or to put a lien on your property. Lawyers cannot be required to take your case if it is a legal aid case.  If your lawyer does take on your legal aid case, he or she is required to give you the same degree of commitment as to any other client.  In Windsor, Legal Aid Ontario is located at 185 City Hall Square South and the telephone number is (519) 255-7822.

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