I provide here general information, not advice. Seek advice from your own lawyer, or call about my free criminal defence consultation: 416 410 2266.
Craig Penney, Toronto Criminal Defence Attorney
What happens on the first Court date? You must attend. In criminal Court, the first date is called a "set-date" — a date to set another date. Expect the Court to ask if you have or intend to hire a lawyer. The Crown will usually provide you with a charge screening form (CSF) and, sometimes, the initial disclosure. There is no obligation on you to hire a lawyer before the first appearance, but it helps. If you don't have a lawyer, duty counsel might assist, so arrive early. At the first Court date, you usually get another set-date. To learn more, click here for my video explaining the trial process. To understand who has authority over you, watch my video on the authority timeline.
What is an Information or Indictment? The Information is the official, sworn document outlining the charge(s). It is a public document, so anyone can request a copy. The Information identifies the charge(s) and what the Crown must prove. An Information is not evidence, nor is it proof of any fact. It simply outlines the police officer's belief. Each time you are in Court, the Clerk will record on the Information what happened in Court that day. In superior Court, there is a similar document called an Indictment. An improperly sworn Information could be fatal for the Crown, as happened with S.B. (indecent act) and S.W. (forcible entry).
What is a conditional discharge? It's a finding of guilt, but not a conviction. It always includes probation. Under the Criminal Records Act, a conditional discharge is purged from the RMCP's CPIC 36 months after it's imposed. "Records," however, may survive with the police and in other databases. The U.S. and other countries may treat conditional discharges as convictions. They may also maintain the record permanently. Discharges are not available for all offences. Conditional discharges were granted to R.V. (indecent act), P.S. (criminal harassment), and D.J. (unlawfully causing bodily harm). If you intend to apply for citizenship, Canada's Citizenship Act prohibits you from becoming a citizen while on probation and treats you as not being "physically present" during that time.
What is an absolute discharge? They are similar to conditional discharges, but there is no probation and they are erased from CPIC after 12 months. Absolute discharges were granted to V.K. (voyeurism), Y.G. (importing khat), and A.K. (keep bawdy house).
What is a peace bond? It's a Court Order, but not a criminal record. There are two types. First, there are common-law peace bonds, where the Court compels a person to sign a bond to keep the peace and be of good behaviour. There is no time limit, but one year is typical. The Court order means there's been an apprehended breach of Her Majesty's peace. The bond is meant to maintain that peace. Secondly, there are section-810 Recognizances for up to one year. There are two typically two judicial rulings implicit in every Recognizance: that the complainant had a fear for her person or property, and that there was a reasonable basis for that fear. Your failure to follow the conditions could result in criminal charges. To learn more, visit my blog on 810 and common law peace bonds.
What's a Crown stay? Under section 579(1) of the Criminal Code, the Crown may direct a stay of proceedings be entered on the record. Think of a stay as a freeze of the proceedings. The Crown can re-commence the proceedings within 12 months, but, after that, section 579(2) provides that "the proceedings shall be deemed never to have been commenced." For the first 12 months, a stay will show as "conditional" on your record and most police services will not process a request for the destruction of your prints and photographs. Sometimes, the stay is meant to ensure the accused's good conduct (U.R.).
What's a Judicial stay? It's a remedy imposed by a Judge permanently freezing the proceedings. The Crown cannot re-commence the proceedings, but has its normal rights of appeal. A judicial stay must be applied for, and is not easy to obtain. It is only granted where remedying a wrong done to an accused is more important than the community's interests in continuing the prosecution. I obtained a stay in F.S.'s Case, for example, because of unreasonable delay in his possession-of-child-pornography case.
What is the Crown's election? All Criminal Code offences are summary, indictable, or hybrid. If you are charged with a hybrid offence, the Crown has a choice: to proceed by summary conviction or by indictment. As a rule of thumb, serious offences and offences more than six months old are prosecuted by indictment. Most driving offences, for example, are prosecuted summarily (M.P.), whereas most child-abuse allegations are prosecuted by indictment (A.Z.). Summary conviction trials are held before a Judge alone. A summary election a charge sworn more than six months after the offence can invalidate a guilty plea (M.B.) or be fatal to the Crown's case (S.Q.). Click here for my video explaining the summary-conviction trial process. For indictable offences, the accused person usually has an election re "mode of trial".
What is my election re "mode of trial"? If charged with an indictable offence, you may choose (subject to a few exceptions) your mode of trial: (1) trial before a Judge alone at the Ontario Court of Justice; (2) trial before a Judge at the Superior Court with a preliminary hearing at the Ontario Court of Justice; or (3) trial before a Judge and Jury at the Superior Court with a preliminary hearing. There are advantages and disadvantages with each, and this is a decision you must make in consultation with your lawyer. For an example of a jury address, read A.D.'s case.
What is a plea inquiry? Before accepting a guilty plea, the Judge must be satisfied that your plea is informed and voluntary: section 606(1.1) of the Criminal Code. The Judge may ask you if your plea is voluntary and not due to threats or promises, and if you understand that you are giving up your right to a trial and that the sentence is determined by the Judge, not the lawyers. A guilty plea that is not informed, voluntary, and unequivocal is not valid, and be be struck before sentencing or set aside on appeal.
Can I plead guilty if I didn't do it? No. In Canada, you cannot plead "no contest". You can plead guilty only if you are, in fact, guilty. If you are innocent and cannot convince the Crown to withdraw the charge, you must proceed to trial. Click here for my eight-minute video on the criminal trial process.
What do trials depend on? Think not in terms of truth and justice but of an organic process. Trials depend on two things: how the evidence unfolds, and how the Judge (or jury) reacts. Neither process is predictable. I've witnessed strong Crown cases fall apart (S.W.), and the reverse as well. Think of a trial as high school play with a one-night engagement — you can't be sure how everyone will perform, nor how the audience will react. That's why a lawyer can never guarantee a win, and why a peace bond is rarely rejected.
If charged, will I get a "criminal record"? Most lawyers consider a "criminal record" a finding of guilt as entered on CPIC (Canadian Police Information Centre), the national database maintained by the RCMP. Conditional discharges, for example, are criminal records purged after 36 months. Considered that way, you will only receive a criminal record if you are sentenced criminally. If you are acquitted, and consent to the police releasing your "criminal record," it should come back empty. But that's not the only question: there are also non-conviction records.
What other records might exist? If you do not receive a criminal record, "non-conviction" records will remain. The police, the Court, and the Crown's office will all have records. There may also be public records accessible online. I find it helpful to ask four questions: what records exist, who holds them, who has access, and how long will they remain? If you were acquitted of sexual assault, for example, it might be reported as part of your "criminal history" if you consent to a vulnerable persons clearance. This can leave you like Lady MacBeth, hopelessly shouting "out, out damn spots!"
How do I get my fingerprints and photos destroyed? If you were charged, the police likely took your prints/photos under the Identification of Criminals Act. Policies vary on whether they will later destroy your prints/photos (click here for Toronto Police Service policy). The following are general things to consider: (a) if you were convicted, your prints/photos will be kept; (b) the waiting period for absolute/conditional discharges is 12/36 months; (c) if you signed a peace bond, you'll have to wait until it expires; (d) you may have difficulty if you were charged with a sexually-based crime; and (e) if approved, it will usually takes 6 to 24 months.
As a victim, witness, or complainant, can I have a lawyer? Yes. You have rights, risks, and obligations. These vary and may change as the case unfolds. Over the past 23 years, the complainants that have consulted me are no shrinking violets. They seek influence, want to be informed, and are keen to raise their own voice. Only a lawyer, independent from the proceedings, can advise you about your rights, risks, and obligations. Only your lawyer can provide advice that is covered by solicitor-client privilege. Click here to watch my video on who has authority to withdraw the charge. And here to watch my video on the criminal trial process. Knowledge is power. Forewarned is forearmed.