Are you charged with a criminal offence or under police investigation? Here are answers to some questions you may have in regards to the Criminal Justice System in Ontario:

Disclaimer: The following answers are for general informational purposes only and are not intended to be considered legal advice in any way, whatsoever. These answers are not legal advice and are not a legal opinion. If you are under investigation, about to be charged or are charged with a criminal offence, contact our office as soon as possible to discuss your situation and how to proceed.

The police want to talk to me, what are my rights?

You have the right to remain silent. It is a fundamental right under our law and the Canadian Charter of Rights. I always advise my clients to exercise their rights to silence in the face of police questioning, including repeated and creative attempts by the police to get you talking.

Should the police be asking you questions, it is likely that you are already a suspect and under investigation. You will not be able to talk your way out of being arrested, and what you say may do you more harm than good. Don’t worry, you will have your opportunity to talk and tell your story in a controlled and prepared environment in court with your lawyer present, should you need to testify. If all else fails, you have the right to consult with duty counsel or your lawyer before answering police questions.  Duty counsel will undoubtedly also advise you to remain silent and not talk to the police. There are situations, in particular, situations of passengers in vehicles who are arbitrarily detained, where one need not even provide their name to the police should the car be pulled over. Should you find yourself in any situation where the police want to talk to you, contact a criminal defence counsel immediately before answering any questions. 

Can the police search my home? How about my smartphone or computer?

The police require a search warrant in order to search your home, office, car, computer, mobile telephone, smartphone or other dwelling or area where you could expect privacy. Your home is your castle where you have an expectation of privacy and the Courts are serious about enforcing that right. 

There are cases however, where the police do not require a warrant to enter your home or search your computer or mobile telephone or smartphone. Those circumstances involve cases where there is an emergency or when the police have reason to believe that a criminal offence was just committed, is about to be committed, or is currently being committed inside your home. In these cases, a warrant is not necessarily required for entry or search. However, every case is different. If the police are standing at your door requesting entry, or already inside your home, demand to see a search warrant and call a criminal defence lawyer as soon as possible. 

When it comes to your smart phone, if the police believe that there is information or other evidence that is tied to an ongoing criminal offence they could potentially search the phone immediately without obtaining a warrant. The issue about smart phone searches is far more complicated and a new area of criminal law as we enter the digital age. It appears that the courts have been more demanding of search warrants in mobile phone searches however, every case is different. If the situation is one of exigent circumstances where a warrant cannot reasonably be obtained and the evidence is required on an urgent basis (i.e., safety is at risk), a cursory, warrantless search may be permitted by the police. On the other hand, if no exigent circumstances exist and there is no immediate safety concerns the courts would likely rule that a warrant is/was required. However, even in cases of police breaches of one’s s.8 Charter rights to be free from warrantless search or seizure, the courts always conduct a test weighing society’s interests to have evidence admitted and the matter tried on its merits as opposed to excluding evidence in favor of the accused. There is always this balancing act when it comes to excluding evidence. If the police have seized your computer or mobile smartphone, contact a criminal lawyer immediate to discuss your case. 

What is a bail hearing (including what do sureties needs to know)?

When someone gets charged with a criminal offence, the matter becomes police and government business. An alleged victim has no power to drop the charges against you.  Once you are arrested, the Police will process you and decide whether they think you are a flight risk or a risk to another individual or the public at large. The police will also consider the weight of the evidence against you. Based mainly on these factors, the police will decide whether to release you with a "Promise to Appear" for future court, or hold you for a bail hearing to let the Crown or Court decide if you should be released on a "Recognizance". The decision to release you is out of the alleged victim's control.   In recent years there have been decisions from the Supreme court of Canada that hold that alleged first time offenders for many types of charges, generally speaking, should be released on a promised to appear, or a consent release at court.  

If you are not released from the police station and have to go to court, the Crown must provide you with a bail hearing within 72 hours of your arrest.  A Surety is someone who is willing to sign on your behalf, post some money for you (no deposit down in many cases), supervise you, ensure that you do not commit any offences when you're out on bail, ensure that you comply with your release (i.e., curfew and/or house arrest) and reside with you in some cases. Ideally, a Surety will have no criminal record, have some assets (positive net worth) and not be implicated in the offence you are charged with. In a contested bail hearing, the test is whether you are a flight risk (whether you will come to court when required to do so), and/or if released, you will pose a threat to any individual or the public at large. There is a third ground that the Crown infrequently refers to in order to seek one's detention – the tertiary ground. This is a rare ground that calls for one's detention based on the severity of the offence and the public's outcry should you be released in the public until your trial. 

Sureties need to be aware they are guaranteeing to do all in their power to supervise the Accused when released until his/her day of trial. Should the Surety ever become aware that the Accused has not followed through with a term of his/her release, the Surety must take steps to notify authorities, turn the Accused back into custody, including appearing before a Justice of the Peace and revoking the bail immediately. Should a Surety not turn in the Accused, despite his/her knowledge of that breach, he/she will be liable for the amount of money he/she posted in the bail, and may jeopardize any future attempts to become a Surety for another person. Keeping all this in mind, everyone charged with a criminal offence has the right to not be denied reasonable bail with reasonable release conditions – it is a guaranteed right. Factors that make release more difficult and complex include the nature of the charges, any prior criminal record of the accused, any breaches or existing criminal charges and the quality of the release plan, to name a few.  

I was just charged with a criminal offence, how long until this is all over?

Once you are charged with a criminal offence, it can take anywhere from a few weeks to a few years for your case to be "over". There are many factors that affect the length of your case, for example, its seriousness and complexity. The Police, Crown Attorney and Courts can sometimes extend the length by not providing disclosure in a timely manner. The unavailability of timely court dates due to Court backlog may also extend the length. In those cases, a motion can be brought for the charges to be stayed due to a Charter violation. S. 11(b) of the Charter states that "Everyone has the right to be tried within a reasonable amount of time". 

What is defined as a reasonable amount of time in each particular case will have to be analyzed based on the procedural facts of the prior court appearances and the complexity of the case itself. The length of your matter will depend also on whether you are resolving or taking the matter to trial. Generally, the process for matters that resolve in guilty pleas is much quicker in duration than matters that proceed to trial. In more serious offences, an Accused is entitled to a Preliminary Hearing.  While very useful to the Defence, a Preliminary Hearing can further delay your matter. Recent rulings from the Supreme Court of Canada have emphasized the importance that an Accused have a speedy trial within a quantifiable period of time. Currently, for criminal matters proceeding by summary conviction, that time period is approximately 18 months. Unreasonable delay which falls on the Crown Attorney is no longer accepted by the Courts and has resulted in serious charges (including murder) being stayed (which is basically equivalent to a withdrawal). However, every case is different and unique. 

I want to drop the charges against the person I called the police on, how do I do this?


As an alleged victim, you can try to talk to the Crown Attorney and/or the police advising them why you want to drop a charge. However, feeling sorry for the alleged Offender, loving them, and/or needing him/her back home is usually not enough to warrant the police or Crown to drop the charge. There has to be something more.

You should retain your own private counsel for Independent Legal Advice (ILA) as soon as possible, so that your lawyer can contact the Accused's lawyer and/or the Crown Attorney. These matters can be tricky as it is likely that the Accused has a no-contact bail condition with you and should you attempt to contact the Accused knowing this condition, then you are technically aiding a breach (or causing one to occur), which is a criminal offence, so get a lawyer as soon as possible to avoid these dangers.  

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I am guilty of the crime I was charged with so why do I need a lawyer?

In Criminal Law one can have physically committed the act they are alleged to have committed but still, technically under the law be found not guilty of committing that offence. It is the Crown Attorney who must prove the case against you, beyond a reasonable doubt. If the Crown cannot meet its high burden of proof, even if you have indeed committed the acts underlying the offence or part of the acts that makes up the offence, you will be found not guilty. 

As an accused, it is your right to remain silent throughout the proceeding against you and have the Crown make its case against you. One is always presumed innocent until proven guilty.  This is known as the presumption of innocence. A lawyer will be able to advise you on your rights and the strength of the Crown's case against you, including possible defences that you may not have been aware of. You may have made a statement to the police, confessing to the offence, but a lawyer may be able to have that evidence excluded based upon the legal rules of evidence.  Also, studies have time and time again shown that some confessions have led to wrongful convictions when they were made under duress, or under extreme circumstances (such as where an accused was sleep deprived or not provided food and water). In such cases, years later (and after spending years in prison), in some cases the offenders were exonerated through DNA evidence!  

Also, despite a strong case against you, there can be reasons why your case may not be tried, such as absent witnesses or a heavy court docket. Should you nevertheless decide to plead guilty, a defence lawyer will be able to negotiate a fair and reasonable resolution to your matter that you may not have thought possible. Your lawyer may also be able to negotiate to have some of the charges against you withdrawn in consideration of a guilty plea to other offences. Pleading guilty also does not mean that you will automatically be facing a criminal record.  Our criminal justice system has plenty of room for compassion and opportunity for second chances for first time offenders involved in minor crimes and momentary lapses of proper judgment. For all these reasons and many more, it is your right to have a lawyer help you through this difficult time you are facing, even if you think you are guilty. Like a sick patient seeing a Doctor to get healthier, I highly recommend that you seek professional counsel immediately to help you through this difficult time in your life.  Baratz Law helps good people through difficult times. 

I am finding this whole process of being charged with a crime very stressful, what can I do?

You are likely finding yourself in a most stressful situation. You are charged and likely have conditions placed on you as if you were a child, for example, curfew, no contact orders and restrictions on your mobility. Your family, friends or employer may know about your situation, or maybe not, but either way it's affecting your social relationships and general stress levels. 

All this for something you did not do, or for something that you may have done but has been blown way out of proportion. Let's face it, you're incredibly stressed and it's simply not fair. Do the police care about how this is affecting your life? How about the Crown prosecutors, they must care, right? The reality is that you have been plunged into a massive bureaucratic system that can be anonymous and unforgiving at times – it is the criminal justice system processing thousands of people a day across the Country.

The matter is no longer between you and another person, instead it is you against the almighty state – In Canada otherwise known as Her Majesty The Queen.  Crown and Police are many times perceived as simply, “doing their job” and clocking in their hours until retirement. This perception does have some relevance to real life where some courts are eager to clear their dockets before lunchtime or a long weekend, almost like moving inventory or cattle. In theory, and also many times in practice, the "system" does not care much about how being charged with an offence affects your personal life at the current moment, nor is the system persuaded by others who may want to "drop the charges against you", as Crowns are busy dealing with thousands of cases a week and many times do not have the time to carefully investigate every case. 

However, there are mechanisms in place that you could and should take advantage of that will make the battle more human, personal and effective. For example, your lawyer can provide you valuable legal and personal advice about your situation. As well, there are counselling programs that you can take to help advance or address some issues you are facing. You can provide your lawyer with reference letters, witness lists and other evidence you may have in relation to your case; you can work with your lawyer in preparing the defence. You can hire a private investigator. Your lawyer can push and push for a bail variation, and push some more!

Effective preparation equates to success, either by winning trials or getting the best resolution possible in a guilty plea scenario. What you do during the time you are charged with an offence may also mitigate how your matter will be resolved as Judges do take this into consideration as mitigating factors should a resolution occur – a positive attitude should be reinforced by your lawyer and practiced by you from day one (and always in life). The deck may be stacked against you from the outset, but this much is true: that you and your lawyer, by working hard with a positive attitude at all times, can win with whatever hand you are dealt. So don’t give up just yet, get ready to fight the good fight – the fight of your life!  

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