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How long will it be until my OCJ criminal law court case is finished in the Greater Toronto Area, Ontario, Canada?
You have received an appearance notice or a summons telling you that you must go for fingerprinting and attend criminal court somewhere in Canada. You have been arrested and released on a Promise to Appear or after a bail hearing.
What will happen? How many times will I go to Court?
The following is a guide based on the experience of courts in the Greater Toronto Area.
Fingerprints (Incident plus one to three weeks)
You should go to have your fingerprints and photo taken pursuant to the Identification of Criminals Act if your document requires you to do so. If you have any doubts or questions speak to your lawyer. Attend at the police station at the correct time and on the correct date. The police will take your photo and take an impression of your fingerprints. This information will be stored locally and will also be sent to the RCMP offices in Ottawa. This data may remain in the hands of the Canadian police or maybe a foreign police service for the rest of your life even if you are acquitted.
No Statements, No Talking to Anyone Except Your Lawyer
It is not a good idea to talk to anyone about the incident until you have consulted with your lawyer and got approval to do that from your lawyer. Talking to your parents, your brother, your girlfriend, your teacher can all result in your parents, your brother, your girlfriend, or your teacher being forced to give evidence against you in Court. The Crown may subpoena them to give evidence against you.
Be careful if you make notes. Write "Private and Confidential for My Lawyer Only" on top and give them to your lawyer forthwith.
First Appearance (Incident plus two to five weeks)
Do your best to consult a lawyer before first appearance in Court. In Canada we don't usually ask people right away how they intend to plead.
It's only fair that you know what you're up against before you make a decision about whether you are pleading guilty or not guilty. You need to know something about the case against you so don't be afraid to ask for "disclosure". "Disclosure" is a photocopy of the police notes, witness statements, and documents that the Crown Attorney has in his or her file prepared by the case management police bureau. Ask for it. Keep it safe and bring it to your lawyer.
Speak to duty counsel before Court starts. Duty counsel is a defence lawyer who is a member of the local private bar or who works for the provincial legal aid plan. Duty counsel gives free emergency legal advice. Duty counsel will know the local routine.
In the Courts where I practice the Crown Attorney or the Court Clerk decides who should be called first. They usually start with people who have their own lawyers so that's a big advantage of having your lawyer present at first appearance. After that they call the people with letters from their lawyer. If you have a letter from your lawyer please give it to the Crown Attorney or the Court Officer before Court starts. Don't talk to them while Court is in progress. People who don't have lawyers or letters from lawyers get called usually in alphabetical order. You may be there all day so book time accordingly. Only go for a snack or a smoke when the Justice of the Peace calls a break.
Decorum in Court
Turn your cell phone off. Dress properly.
If the Judge or Justice of the Peace is sitting on the bench when you come into the courtroom, enter quietly, and do a simple bow. Obviously don't disturb the Judge by banging the door, tripping over the carpet, or falling on the seat. Take your coat off and put it out of sight. Don't hang it over the seat.
After Your First Appearance
Book an appointment with your lawyer immediately. You need advice fast. Your lawyer needs to get started on analyzing the disclosure and demanding more.
You need to come up with some cash to retain your lawyer. Unlike Perry Mason we real lawyers need $ up front. It is a huge professional responsibility to undertake the defence of someone in Court. There may be a lot of correspondence, court attendances, research, disbursements, and preparation. Once a lawyer goes "on the record" he or she is making a commitment to the court. You may need to borrow money. Bring your cheque book to the appointment.
Crown Pre-Trial (Incident plus two to six weeks)
There may be a meeting between your lawyer and the Crown Attorney before a trial date is set. Sometimes we call these "Resolution Meetings". If there is to be a trial, they are used to estimate length of time for the trial. If there is the possibility of a guilty plea, they are used to discuss pleas to lesser offences (if any), agreements as to facts, and joint submissions as to sentence. Your lawyer may charge you at least half a day's worth of legal fees for a Crown Pre-Trial.
Early Guilty Plea (Incident plus two to six weeks)
Sometimes you and your lawyer may decide that it is a good idea for you to plead guilty before a trial date is set. Don't do this without help from your lawyer. Sometimes there is absolutely no advantage to you to plead guilty at an early stage. Be careful about the judge who is sitting in plea Court. Be careful about the facts read in on the plea. Ask your lawyer about the Judge's reputation on guilty pleas. Judges don't have to follow joint submissions as to sentence. Even if your lawyer and the Crown agree that you should not go to jail, the sentencing Judge may think otherwise.
Judicial Pre-Trial (Incident plus four to eight weeks)
Sometimes it is necessary to have a pre-trial meeting among a Judge, the Crown Attorney, and the defence lawyer. These judicial pre-trials can be helpful (depending on the judge) if the Crown is being unreasonable. They may also be necessary according to local practice if the lawyers estimate that the trial will last longer (depending on the jurisdicrtion) than a specified number of hours (eg. 4 hours or one-half day).
Setting a Trial Date (Incident plus four to eight weeks)
Once the Crown and the defence have settled on an agreed length of time, the Crown will obtain the police officers' leave dates, and defence and Crown will meet with the Trial Co-ordinator to select a trial date. A date will be selected that is good for the lawyers, the witnesses, and the accused. The person charged should always seek and be on record as seeking the earliest possible trial date. If he or she doesn't pursue an early date, waiver of right to trial within a reasonable time may be alleged by the Crown.
If the charge is a serious one and you wish trial by Superior Court judge and jury or Superior Court judge alone, you will be setting a preliminary hearing date instead of a trial date.
Serving the Crown with Charter of Rights Application (30 to 15 days before trial)
If your lawyer is alleging a breach of the Charter of Rights, your lawyer will, in Ontario, provide Notice of Application, an Affidavit in Support sworn by you or on your behalf, perhaps transcripts of earlier proceedings, and perhaps a legal Factum to the Crown before trial in accordance with the Rules. Your lawyer may also need to serve Notices respecting experts or business records.
Confirmation Date (6 to 4 weeks before trial)
Many Courts require that lawyers and accused attend on a confirmation date prior to trial. At that time your lawyer will certify that disclosure is complete and that the matter is ready to proceed to trial.
First Trial Date (Incident plus 3 to 14 months)
It makes no sense whatever that ordinary matters should take a year to come to trial. The Supreme Court of Canada in R. v. Morin has issued a maximum guideline of 8 to 10 months excluding intake, neutral, or accused fault time. Of course you can't always be sure that you will be reached or that the matter will finish on the first trial date. A witness may be ill, the Court dockets may be overbooked, or the courthouse heating may fail. The matter may be postponed to another day.
Second Trial Date (One to 10 weeks later)
The next Court date could be months later. The Judge and the lawyers may need to obtain transcripts of the first trial date to help them remember what was said so long ago. The matter may have to be adjourned again if the matter doesn't finish.
Obviously you are only sentenced if you plead guilty or are found guilty after a trial. Sometimes the Judge will sentence you the same day that you are found guilty. In more serious matters the Judge may order a pre-sentence report to be prepared by a probation officer. The Crown may file Victim Impact Statements. Your lawyer may ask you to obtain character reference letters for use on sentencing.
Taking Courses During Your Probation or Driving Prohibition
Your probation order may require that you attend counseling, do community service, or pay something back. If you are convicted in Ontario of drunk driving you will lose your licence FOR AT LEAST one year. During that year you must take a course that lasts approximately 8 months. Start it immediately on conviction! Some people may be eligible for the early interlock programme. Under the Stream A programme you give up your right to a trial and plead guilty (that may not be such a good idea) in exchange for an absolute driving prohibition of at least 3 months followed by 9 months interlock. Under the Stream B programme you run a trial with your lawyer and if you win there is no further prohibition. If you lose the Stream B absolute prohibition is at least 6 months plus 12 months interlock.
Travel to the United States
Whether acquitted or convicted I recommend that you not travel to the United states until you are sure that your record has been purged from all police databases in Canada, which perhaps will never take place. You don't really want them to run your name on the international system and save whatever they learn into the U.S. database.
Purge of Your Record
If you are acquitted your lawyer may be le to write to the police about one year after the acquittal to request that police purge their records. There is no guarantee that they will comply. You may have a "record" for the rest of your life.
About five to seven years after you have completed all probation, you may be able to apply for a suspension of conviction. We no longer have pardons in Canada.The process takes about two years after application. Pardons and Suspensions of Conviction are not recognized by the United States authorities. The law is always changing to make them much more difficult to get.
Copyright 2018 Stephen Biss
Stephen R. Biss, Barrister & Solicitor
470 Hensall Circle, Suite 303
905-273-3322 or 1-877-273-3322
Advertisement. Any legal opinions expressed at this site relate to the Province of Ontario, Canada only. If you reside or carry on business in any other jurisdiction please consult a lawyer, solicitor, or attorney in your own jurisdiction. WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.