How do you know when you have been charged with a criminal offence?
What is a bail hearing?
What should you expect of your first court appearance?
What is a Crown Pre-trial?
What is a Judicial Pre-trial?
What is a preliminary inquiry?
When do you have a preliminary inquiry?
What is a guilty plea?
When should you plead guilty?
What are my sentencing options?
What is a Charter Application?
What should you expect in a trial?
When you are charged with a criminal offence, the arresting officer should inform you of the arrest. You have a constitutional right to be informed without unreasonable delay of the specific offence you are charged with. Deviance from this constitutional right is uncommon; however, a lawyer can assess the situation and advise you of how this could affect your case.
Upon arrest, the police may: release you at the scene; ask you to come to the station to take your photographs and fingerprints; or detain you in custody for a bail hearing. If you are released, the police provides you with a Promise to Appear form and an Undertaking to Peace Officer form. These are crucial documents which you should review with a lawyer. Failure to abide with the conditions set out in the forms can lead to more criminal charges and a higher likelihood of the police holding you in custody. Additionally, you have the right to retain and instruct counsel without delay and to be informed of this right, as well as the right to have the validity of the detention determined by way of habeas corpus and to be released if the detention is unlawful.
If you are held in custody after being charged with a criminal offence , you have the right to be brought before a Justice within 24 hours of your arrest or as soon as possible if a Justice is not available within 24 hours.
A bail hearing, or show cause hearing, is the procedure by which an accused is released from custody. Section 515 of the Criminal Code provides that “the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice”. As such, the onus is on the Crown Prosecutor to demonstrate that there is cause for you to b
e held in custody. Despite this provision of s 515, the onus and ability to be granted bail changes in the following situations:
An accused is always entitled to a presumption of innocence and the bail justice should not decide the result of the trial. An accused has the right to a lawyer during the bail hearing. It is important that you contact a lawyer before the bail hearing. It is crucial that you have a plan in place and a lawyer dedicated to your release can advise what grounds exist to detain you, whether you should have a surety, what conditions are likely to be imposed upon release, and/or the outcome of negotiations with the Crown prosecutor.
The bail hearing can be a complex procedure and a crucial component to your case: if you are released, your lawyer can create multiple defence options; if you are not released, the Crown Prosecutor has an advantage and you will likely decide to take the deal that will release you from jail even though it can hinder your situation in the long run. Being held in custody pending a trial is the worst case scenario, as you may have to wait in jail for months, even years to reach a trial.
The first court appearance can be frightening, intimidating or, for the very least, the last thing you want to do. You will arrive at the date, time, and place written in your “Promise to Appear Form”. You may also be scheduled for an Information session earlier in the day of your court appearance. The wait in court is unbearable, with lawyers and legal agents appearing first and the unrepresented accused last. You may arrive for 9AM but not be dealt with until the afternoon. You will most likely be provided with disclosure, which is a documentary depiction of the Crown’s case against you. Contacting a lawyer before your first appearance will save you the frustration, embarrassment, and time spent dealing with the first court appearance. Roxana Soica is well versed with all court appearances and can take over the case so that you do not have to worry about tens of court appearances over the course of months or years before your matter actually resolves.
A Crown Pre-trial is a meeting between your lawyer and the Crown Prosecutor. Your lawyer will be advocating on your behalf, as well as discuss triable issues and estimates for your case. It is vital to your case that you retain a lawyer. Roxana Soica’s approach to preparation for Crown Pre-trials, advocacy and negotiation has proven successful in enhancing her reputation among Crown Prosecutors. In the past, Roxana Soica’s efforts during Crown Pre-trials have resulted in early dismissal of cases, good deals for clients that resulted in withdrawal based on diversion or peace bonds, favourable plea deals, and a variety of consents.
A Judicial Pre-trial is a meeting between the Judge, Crown Prosecutor, and you or your legal representative. This is the first time a Judge looks at your case and the Judge’s input can have great consequences on the outcome of your case. Not having a lawyer during a Judicial Pre-trial means that you may not benefit from the best representation during this first meeting with a Judge. Roxana Soica is experienced with Judicial Pre-trials. In a recent case, the Crown Prosecutor was unwilling to lower his bargaining position but Roxana advocated for the client and the Judge was persuaded to agree with Roxana and to disagree with the Crown Prosecutor. The client avoided jail time and the matter was concluded efficiently.
A preliminary inquiry is another crucial step in your case. During this proceeding, the Judge must decide whether there is any admissible evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. If the answer is ‘yes’, then the accused is ordered to stand trial. If the answer is ‘no’, then the accused must be discharged.
Where prosecution adduces direct evidence of each element of the offence, the accused shall be ordered to stand trial, notwithstanding the defence calling exculpatory evidence. Where the prosecution adduces circumstantial evidence, the Judge will engage in a limited weighing (involving assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence) of the whole of the evidence to determine whether a reasonable jury, properly instructed, could return a verdict of guilty.
You do not always have a preliminary inquiry. Certain offences have the absolute jurisdiction of a provincial judge, meaning that there will be no preliminary inquiry. Other offences (indictable and not listed in section 469) require that you elect whether you want to be tried: in a provincial court with a judge but without a jury and without a preliminary inquiry; or in Superior Court with a judge but without a jury; or in Superior Court with a judge and jury. If you elect superior court, then a preliminary inquiry will be held only if elected by the defence or the prosecution. Offences listed in section 469 are under the exclusive jurisdiction of the Superior Court. These include the most serious indictable offences such as murder and crimes against humanity.
In order to plead guilty, you must understand that:
1. You are giving up your right to trial;
2. You admit to all the elements of the offence(s) you are pleading to, i.e. that you are guilty
3. You are pleading guilty voluntarily, i.e. no one forced you to plead guilty
4. You understand that the final sentence decision remains up to the Judge and the Judge is not bound by your lawyer’s position or the Crown Prosecutor’s position.
A guilty plea requires your personal attendance in court to plead guilty. You may or may not choose to dispute the facts presented in court. For example, if you admit to slapping someone but the facts in court require you to admit to punching someone, you may dispute these facts. While slapping and punching can both amount to an Assault under the Criminal Code, admitting to particular facts can affect your sentence.
Roxana Soica believes that a guilty plea should be the last option. The ways in which a plea can affect your future are convoluted and can result in a simple admission of guilt or conviction. This has severe consequences. It is difficult for you to understand when to plead guilty without talking to a lawyer. One thing is certain: you should not decide to plead guilty before the disclosure has been reviewed, your lawyer has advised you of all defences available, including the strength of the Crown’s case, and you obtained a full understanding of the risks associated with a guilty plea.
There are many defences available and technicalities that only a lawyer can properly advise you of. Roxana does not want to see anyone’s future being hindered by a criminal charge, especially one that could have been defended with proper representation. Contact Roxana for a free chat any time.
The following sentencing structures currently exist in Canada:
– Absolute discharge: this is a finding of guilt but not a conviction. It results in having a criminal record for one year after which, if you are not charged with other criminal offences, it will not be disclosed to anyone.
– Conditional discharge: this is a finding of guilt but not a conviction. It comes with probation and specific conditions attached to it. It results in having a criminal record for three years from the date of the sentencing, after which, if you are not charged with other criminal offences, it will not be disclosed to anyone.
– Fine: this is a finding of guilt and a conviction. It requires that you pay an amount imposed by the Judge before a specified time period, which period your lawyer can advocate to lengthen.
– Suspended Sentence: this is a finding of guilt and a conviction. It always comes with probation and specific conditions.
– Conditional Sentence: this is a finding of guilt and a conviction. It is considered to be a jail term but it is served in the community. It can result in house arrest or specific conditions related to the times and reasons the individual can be outside the home. It can solely be imposed for a sentence of less than two years.
– Intermittent Sentence: this is a finding of guilt and a conviction. It is considered to be a jail term but it is served on the weekends. This would allow the accused to continue working. It can solely be imposed for a sentence of less than 90 days.
– Prison: this is evidently a finding of guilt and a conviction. It can be served in a penitentiary (sentences of 2 years or over) or in a provincial institution (sentences of less than 2 years)
– Victim Fine Surcharge: this is a mandatory fine that the Court must impose. It amounts to:
– In addition, orders can be attached to each charge such as ordering the accused to provide a DNA sample, weapons restrictions, lifetime bans, etc as well as any conditions imposed for the period of probation.
Your sentencing options depend on the circumstances of your case. A defence lawyer will know what to ask of you and how to prepare the a successful sentencing position. Roxana has extensive experience in sentencing and believes that, should you be found guilty of a criminal offence, you should still have options. Roxana does not think that there is any finding of guilt that cannot result in successful sentencing bargaining. Contact Roxana for a free chat any time.
The Charter of Rights and Freedoms provides you with a variety of rights that the police and the government in general must respect. A Charter Motion occurs before your trial to determine:
1) Whether there was a breach or breaches of your Charter right(s). The onus is generally on the accused to prove on a balance of probabilities that there was a breach. Upon a warrantless search, the onus shifts to the Crown.
2) If it is determined that there was a breach, the onus is on the accused to establish that the remedy for the Charter breach is exclusion of the evidence.
Roxana Soica has drafted complex Charter Applications and believes that you should not suffer from police misconduct. However, Charter issues are a grey area in your case, depending on legal principles, the facts in your case, good drafting, and advocacy. Contacting a lawyer with experience in this area will result in an in-depth analysis of the rights engaged in your case. It may lead to early dismissal of the case, better negotiations with the Crown, exclusion of evidence, or a finding of not guilty.
A trial determines whether you are guilty of all the elements for the offences you are charged with. By this point, your lawyer has attended tens of court appearances, Motions, multiple Crown Pre-Trials, Judicial Pre-Trials, Preliminary Inquiry or Discovery (if elected); your lawyer also reviewed the law, your case, met with you and/or talked to you extensively. Roxana Soica spends copious amounts of time preparing for trial – she believes that she cannot be the best lawyer for you unless much of her time is dedicated to your trial. She also wants you to have certainty as to the fees you will be charged and is happy to chat for free any time to provide you with an estimate.