FREQUENTLY ASK QUESTION
These FAQs are designed for the criminal claim process.
CRIMINAL COURT PROCESS
STEP 1: BAIL
WHAT IS A BAIL HEARING?
Bail hearing is one of the first critical issues in any criminal process. It is also referred to as a “show cause hearing” or officially as a “judicial interim release” hearing. If you, a family member or friend is arrested on a charge and the police do not release you from the station, getting in contact with the office of Sack (Q.C.) and Bogle Law or with duty counsel is of the utmost importance.
A “bail hearing” is the process whereby you are held in custody by the police and brought before a Judge or Justice of the Peace within 24 hours of arrest. Every individual has a constitutional right to a prompt bail hearing. If an individual in custody is not brought forward within that time span for whatever reason, you can count on the Law Office of Sack (Q.C.) and Bogle Law to bring an application to bring you or your loved one immediately before the court for release. This application is known as a “Habeus Corpus Application”.
At a bail hearing, a Judge or Justice of the Peace will decide whether or not a person charged with an offence should be released or held in custody pending trial. Having proper representation and a program of supervision is very important. Without a proper program and a suitable “surety”, a person could be waiting in custody for 6-8 months awaiting trial. At Sack (Q.C) and Bogle Law, we make sure we prepare you and those closest to you for the uneasy task of testifying and arranging a proper program of supervision.
If you or a loved one is arrested and detained, contact Sack (Q.C.) and Bogle Law at your earliest convenience.
WHAT IF MY BAILING HEARING IS NOT SUCCESSFUL?
There are no guarantees in a bail hearing; even the most detailed program with the most prepared sureties could result in the detention of the accused. However, with that being said, there is no chance of gaining release for a person facing serious charges without a detailed program and prepared sureties. If an accused person is detained following a bail hearing, an application for a review of the detention order can be made 30 days after the previous hearing, provided information required for the application is obtained (i.e. transcripts of the prior bail hearing and the information). This is known as a “Bail Review”. This is a much more costly and involved process, which can result in the accused persons release from custody.
For the Bail Review process to be successful, the evidence will have to demonstrate an error in law regarding the detention at the original bail hearing and/or a material change in circumstances. If the accused person is a Young Person, he/she is entitled to a new bail hearing also known as a “Bail De Novo” without having to wait for the production of transcripts.
Given the higher standard for release at a Bail Review hearing, it is important that you obtain qualified counsel to prepare and advocate for your release at the first bail hearing following your initial arrest. Contact the qualified and experienced legal professionals at Sack (Q.C) and Bogle Law to help guide you through the process.
A surety is someone who agrees to take responsibility for a person accused of a crime. Being a surety is a serious commitment. As a surety, you are responsible for ensuring that the accused attends court as required until the case comes to an end. You can withdraw from being a surety at any time. Essentially, you enforce the will of the court with respect to the accused ensuring that he or she obeys their conditions of release while they are not in custody.
If you suspect or witness the accused person breaching his or her conditions of release you are to contact your local Police Division immediately and report the accused. Failure to do so could result in a forfeiture of any money that you pledge as a surety to the court in a separate proceeding known as an “estreat hearing”, where you will be called upon to explain why you failed as a surety. In more serious cases more than one surety will be required to address the court’s concerns regarding the release of an accused.
As indicated, this is a very critical step in the criminal process. The price you pay will depend on the charge, and the preparation for the hearing will be an involved process requiring you to meet with your lawyer at least once before proceeding. It is incumbent upon your lawyer to ensure that this process is done correctly the first time. Therefore, Sack (Q.C.) and Bogle Law will not accept the following as suitable sureties:
- A person with a criminal record with a recent entry (under 5 years).
- A person that has any crimes of dishonesty, such as fraud or perjury.
- Co-accused on the same charge or a different charge.
- A person under 18 years old.
- A person who is already surety for another person.
- A non-resident of the province.
- The alleged victim of the accused.
- A person who has made a statement to the police regarding the facts relating to which the accused is currently charged.
These restrictions/limits on who can be a surety will help us ensure that the surety that is brought before the court for your bail hearing is one that is suitable, acceptable and favourable for your release. If none of the above applies to you, please complete the following form and make arrangements with our office as soon as possible so that we can be of assistance. SURETY FORM
If you or someone you know has been charged with an offence and has not been released following their arrest, contact Sack (Q.C.) and Bogle Law today for assistance.
STEP 2: FIRST APPEARANCE
When you are charged with a criminal offence in the Ontario Court of Justice you are required to appear in court. This requirement to appear in court is either specified on a Summons which the police gave you upon being charged or you will be remanded to appear in court following a decision at your bail hearing. In very rare cases, the disclosure regarding your matter will be prepared by that date. Disclosure is the evidence the Crown has built its case on. This appearance is very important. Do not be late, and dress appropriately for the occasion. In some courthouses your attire can affect when you get called if you do not have a lawyer.
STEP 3: REMAND
In the criminal process, a request to remand may and usually is made to the Crown’s office to allow time to properly prepare a defense or position for your case. You may have to appear several times to acquire what is needed to proceed on your matter. Be patient. If we do not have full disclosure or if there is a lack of clarity on a critical issue in your matter you will have to return to court another day. In short, your matter will be remanded to another date. It is important to know that the criminal process can be long, but the lawyers at Sack (Q.C.) and Bogle Law will do what they can do resolve your matter in a timely fashion.
STEP 4: CROWN PRE-TRIAL
The Crown’s office or the Public Prosecution’s office for federal matters is given the responsibility of prosecuting you on the alleged allegations. Upon receiving all the necessary disclosure related to your matter, a worthwhile discussion of the facts, strengths and weaknesses of the Crown’s case may occur. This meeting is known as the “Crown Pre-trial”. During this meeting, the Crown will indicate whether they are going to proceed or whether they agree that there is no reasonable prospect of conviction on the allegations put forward by the investigating officers. Also during the Crown Pre-trial, a trial estimate will be canvassed based on the number of witnesses and the number of issues that will be argued during the trial.
If your charges are very serious the next step may be a Judicial Pre-trial.
STEP 5: JUDICIAL PRE-TRIAL
A Judicial Pre-trial is an extremely important meeting with a Judge, counsel for the defence and the Crown attorney, who by this point has taken a position on your matter during the Crown Pre-trial. The Crown and defence counsel, in very serious cases would request a Judge’s input with regards to a resolution or a narrowing of the issues in a case. The Judicial Pre-Trial Judge cannot be your trial Judge. The discussion we have and the opinion the Judge provides is made off the record. ONLY counsel is allowed to meet with the Judge during this point. You will be advised of the result of the discussion by your counsel and it will be placed on the record before the court at the next appearance.
STEP 6: PRELIMINARY INQUIRY
A Preliminary Inquiry is a pre-trial hearing held in the Ontario Court of Justice. An accused can elect for a preliminary inquiry and choose either a Judge or a Judge and Jury to decide his or her case in the Superior Court. The Preliminary Inquiry is meant to determine if there is enough evidence to warrant having an accused person stand trial. Please note it is a very low threshold for the Crown to prove whether the accused should stand trial or not. The “Sheppard Test”, as you will hear it referred to in court, examines whether there is “any evidence upon which a reasonably instructed jury could convict.” At this stage, defense counsel has the opportunity to test the evidence and set up the argument for trial. Usually after the Preliminary Inquiry the Crown’s office will seek higher penalties in the Superior Court of Justice.
STEP 7: TRIAL
A trial is the hearing of the evidence in either the Superior Court of Justice or the Ontario Court of Justice. If the matter is proceeding in the Superior Court of Justice, an accused person has the choice of electing to be tried by a Judge alone or by Judge and Jury in the Superior Court.
At trial, Charter Applications are heard and the testimony of all the witnesses are heard. The proceeding begins with the Crown calling its evidence against the accused. If necessary, defense counsel will call evidence in response. If evidence is called by the defence, they will give closing submissions first. The Crown will be given an opportunity to respond and defence will have the final reply. Otherwise, if no defence evidence is presented, the Crown would proceed first. Similar cases will be referenced throughout the submissions; this is known as Case Law. The Judge will review each counsel’s arguments and determine which cases aptly apply to the facts of your case and render a decision. It is common in very serious cases for the Judge to reserve his decision to another day, where he can review the evidence more thoroughly before rendering his judgment.
If the circumstances surrounding the laying of the charges violate fundamental and inalienable rights, the accused person is entitled to an extraordinary defence under the Charter of Rights and Freedoms. This defence can result in evidence being excluded or charges being stayed. A Charter Application can be heard separately or during trial. Alongside allegations of facts, there will also be an evaluation of the officer’s actions to assess whether there was a crossing of boundaries in the acquisition of evidence or the conduct of the officers.