Being Charged: What To Do

Persons who are or will be charged with a criminal offence have many important decisions to make. The consequences of being found guilty of a criminal offence go well beyond the immediate sentence and criminal record that result from a conviction being entered. Collateral consequences include travel and employment restrictions, registration and reporting for sexual offences, licence suspension, disadvantage in family law proceedings, and civil liability. For these reasons, persons charged with a criminal offence are well advised to retain a lawyer whose practice is either exclusively or significantly devoted to criminal law to deal with their situation in this complex area of law.

The Parliament of Canada has authority over criminal law, and therefore all criminal charges and their consequences apply across Canada. The police are responsible for the collection of evidence and the laying of charges where in their opinion the evidence provides reasonable and probable grounds to believe an offence has been committed. Responsibility for the prosecution of the charge is then taken over by the Crown Attorney, who will proceed to prosecute cases where a reasonable prospect of conviction is believed to exist. The sentiments of complainants (the people whose complaint to police resulted in the charge being laid) who do not want to proceed with a case are considered by the prosecutor, but do not determine the issue, as prosecutors are obliged to consider the interests of the public at large, and not only those of complainants. In fact, once a statement is taken from a complainant during the investigation stage, the complainant can be compelled (by subpoena) to attend court and testify, and can be held to the evidence in the statement by a number of techniques. This is especially true in domestic assault cases, where complainants often have a change of heart and prosecutors' policy in most cases is to nevertheless forge ahead toward trial.

Right to retain and instruct counsel

All persons who are detained or arrested have the right to retain and instruct counsel without delay and to be informed of that right.

Due to the legal complexities involved, all those arrested or detained are well advised to act upon the obligatory offer of access to legal advice and insist on contacting a lawyer. The police are obliged to refrain from questioning while an accused person is seeking legal advice, but that rule no longer applies if the person is not diligent in doing so. If a private lawyer is not available, a duty counsel provided by Legal Aid Ontario certainly will be. Legal advice at this critical stage is essential to protecting your rights.

In the course of investigations, police often contact individuals and request they come to the station to answer questions. No obligation to do so exists, and without knowing the specifics of the investigation, there is in many cases considerable risk in speaking to police at this time. Persons wishing to contribute to police investigations may of course do so, but those not wanting to do so are well advised to consult a lawyer and let the lawyer deal with the police requests.

Right to silence

All persons in Canada have the Right to Silence - that is, the right to choose whether to speak or not to speak to agents of the state. The right is engaged upon detention, but it is not absolute. Questioning of persons before or after arrest is still permitted. Statements from accused persons form an important part of any police investigation, and therefore persons being investigated for or charged with an offence are best advised to remain silent. Although statements can be volunteered, it is usually against the interest of an accused person to do so, especially while evidence is still being gathered during the investigation.

Police are allowed to use all sorts of techniques during the investigation to encourage the person charged to talk about the circumstances of the alleged offence. Accused persons must be resolute and steadfast in responding to continued questioning by repeatedly saying they wish to exercise their right to silence. Doing so may prove difficult for a variety of reasons, such as the natural desire to respond to suggestions of wrongdoing. Nevertheless, speaking to police during the investigation of the alleged offence at the least involves the disadvantage of giving the prosecution advance notice of your defence, and, more importantly, can provide evidence that will be used against you at trial.

It is not just formal statements (either written or typed out, or recorded by audio or video means) that can be used against you, but rather anything you say at any time. Police will write down everything you say in their notebooks, whether you are present to see them do so or not. Exercising your right to remain silent is among the most important elements in protecting your position when being investigated, being charged, or during questioning following arrest.

Bail (formally known as "interim release") refers to the release from custody of a person charged with a criminal offence. All persons charged with a criminal offence who are not detained in custody by a judicial officer (a Justice of the Peace or a judge of the Ontario Court of Justice) are released on a form of bail. In all cases, the release order requires the accused person to attend court when required, and in some cases bail conditions are imposed. In some cases arrested persons are released at the scene of the arrest by the arresting officer. In others, the arrestee is taken to the police station and released by the officer in charge of the station, on conditions agreed to by the arrestee. In still other cases, the arrested person is held in custody and brought before a judicial officer for a bail hearing (formally known as a "show cause hearing").

The overwhelming majority of persons arrested are released. Everyone should avoid the temptation to waive the right to silence in the hope of making release more likely. The fact that a person has either talked to police about the alleged offence or chosen to remain silent is not a factor that is considered in determining if bail should be granted.

Although persons charged with an offence naturally want the case completed quickly, patience is a virtue, as there are many steps that must be completed before a trial date can be set. The prosecution must first disclose to the defence all relevant evidence it could use in the case. The evidence brief is called "disclosure". It may take several court appearances to obtain all the disclosure. Courts in Ontario require the prosecutor and defence counsel to meet and discuss the case before a trial date is set. In more complicated cases, prosecution and defence must meet with a judge before setting a trial date to discuss administrative issues, such as the amount of court time needed and legal applications either of the parties may make at trial. Accused persons should therefore expect some delay before being able to set a trial date while the steps necessary to do so are completed.

In view of the specialized knowledge that is required in the complex area of criminal law, and the serious consequences that result from conviction for a crime, the advantages of retaining a lawyer with experience in criminal law are obvious. The lawyer you select should be able to explain the evidence, the trial process, the alternative courses of action available to you, and the likely result of following each alternative, in a manner that you can easily understand. He or she should be readily available to answer your questions. Only then will you be able to make the appropriate decisions to best deal with the charge against you.