Trials

In many cases, an accused person may have no idea that police are investigating them for a criminal offence, and may only discover this when police contact them to turn themselves in, or show up to arrest.

In more complex cases, however, the police may reach out to you and either offer you a chance to make a statement or request that you come in to provide a statement. Police may also execute warrants to search your property or conduct surveillance – both physical and electronic.

If the police contact you, you may face the difficult choice of determining whether to make a statement. Although it is often best to avoid speaking with police, there are cases where there are strategic benefits to speaking with police and getting your side of the story on record.

If you are in such a scenario, Bryan will ensure that you have all the necessary information to respond to the police investigation in a way that will best advance your defence should you be charged with a crime. This will include understanding what steps police might take as the investigation develops, determining whether to speak to police, and making preparations to obtain your timely release from custody if and when you are charged.

Once the question of your release or detention is determined, the work of mounting your defence begins. The first task is to obtain disclosure from the Crown. In Canada, the Crown is obligated to provide all material gathered during the course of the investigation to the defence unless it is clearly irrelevant. Common examples of such material include recordings of interviews with witnesses, police body-worn and in-car camera footage, police notes, photographs and surveillance video that police may have collected and evidence obtained as a result of warrants.

Bryan requests this material as soon as you retain him. But it is typically an ongoing process that may take several months. During this period, you may be required to appear in court on a periodic basis to update the court on the status of the case. You can designate Bryan to appear on your behalf for these administrative appearances by signing a designation of counsel that is then filed with the court.

Once Bryan has sufficient disclosure, he will discuss the case with the Crown. In some less serious cases, the Crown may offer to resolve the case by way of diversion or a peace bond (similar to a restraining order). Or the Crown may offer to let you plead guilty to a lesser offence in exchange for an agreed-upon sentence.

Often, an accused’s first contact with police will be when he or she is arrested.

Once you have spoken to counsel, police have a decision to make about whether to release you to await trial, or whether to require you to appear in court to seek bail. This initial decision is entirely at the discretion of the police. On rare occasions, however, Bryan may be able to advocate for your release from the station directly to police.

More commonly, however, Bryan will focus on ensuring your release from custody if you are held for bail. Release on bail requires planning and organization. It may require you to identify people who may be prepared to act as your surety – effectively a court-appointed supervisor – who agree to pledge a certain amount of money in return for supervising your release. Bryan will negotiate with the Crown Attorney in bail court to try and agree upon a release plan for you. He will contact any potential sureties you identify and prepare them to be questioned at a bail hearing.

Although it is one of the first steps in the criminal process, bail is a critical stage of your defence. If you are detained in custody, it can be much harder to prepare your defence, as your ability to communicate and to review your disclosure is restricted. Bryan will do everything he can to ensure that you are released from custody as soon as possible so that you can focus on your defence.

Once Bryan has reviewed disclosure and spoken with the Crown, he will meet with you to review the disclosure and discuss your options. Bryan will provide you with a realistic assessment of the strength of the charges against you and the advantages and drawbacks of any deal offered by the Crown.

You will then have a decision to make about how to proceed. Whether to accept the Crown’s offer or whether to have a trial at which the Crown is required to prove your guilt beyond a reasonable doubt.

If you choose to go to trial, you may have options as to the type of trial you wish to have.

Criminal offences in Canada are classified as either summary, indictable or hybrid. A summary offence is less serious, and the maximum sentence is typically limited to two years less a day. An indictable offence is more serious, and can maximum penalties of life imprisonment for certain offences. Hybrid offences are those where the Crown may elect to proceed either by summary or by indictable offence.

If you are charged with a summary offence, your trial will take place in the Ontario Court of Justice before a judge alone.

If you are charged with an indictable offence, you will have the choice of one of three different modes of trial:

• Trial in the Ontario Court of Justice before a judge alone
• Trial in the Ontario Superior Court of Justice before a judge alone
• Trial in the Ontario Superior Court of Justice with a jury

Each mode of trial has advantages and drawbacks. Bryan will discuss these with you so that you can make an informed decision about how to proceed.

Before going to trial, Bryan will work with you to develop a strategy for your defence. This may include bringing applications to exclude evidence from trial because of Charter violations or to lead certain evidence, to stay the proceedings based on delay or abuse of process, and determining whether you will testify or call evidence in your defence.

Developing your defence strategy requires a nuanced understanding of the case against you. Bryan reviews the disclosure in detail and in consultation with you determines the strongest defence.

At trial, the Crown must lead evidence against you from witnesses. After each witness, Bryan will cross-examine each witness to bring out information that is advantageous to your defence. For some witnesses, that might involve establishing critical inconsistencies or raising credibility concerns. For others, it might involve highlighting their lack of knowledge, or emphasizing evidence that establishes your innocence.

At the conclusion of the evidence, Bryan will provide well-organized and persuasive closing submissions that set out why you should be acquitted of the charges.

Should you decide to plead guilty to a criminal offence or be found guilty after a trial, the trial court must then determine the appropriate sentence. Your lawyer’s goal at this point is always to obtain the lowest possible sentence.

In deciding upon the appropriate sentence, the Court aims to balance a number of competing considerations. The overarching principle that drives the sentencing process is that the sentence must be proportionate to the severity of the criminal offence and the moral responsibility of the accused.

There are a number of different types of sentence that a court can impose:

• Discharge
• Fine
• Probation
• Conditional Sentence Order (colloquially known as house arrest)
• Jail

Some offences also carry mandatory minimum jail sentences. For these offences, the Court cannot impose a sentence lower than the minimum. However, some mandatory minimums have been successfully challenged as unconstitutional. If you are facing a mandatory minimum sentence, Bryan will discuss the option of challenging the mandatory minimum with you.