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The Court Process

“I have to go to Court and I’ve never had to do that before – what do I need to know?”

Although every case is unique, there are a number of steps that can be required in the criminal justice system. These are the most common.

Frequently Asked Questions

BAIL HEARING

Not every person suspected of a criminal offence will be arrested and held in custody at the beginning, but many will. Before that person can be released, there is often a bail hearing. At the bail hearing, the court decides whether you can be released into the community while you are awaiting your trial date.  Often the Court will agree to release a person but only on certain terms and conditions. Usually, those terms and conditions are designed to ensure two things: that the accused person will come back to Court when he or she is required to defend the case; and that the accused person will behave while waiting for trial. That means that he or she will commit no additional offences, and that he or she will not interfere in the case before it comes to Court.

What police and even sometimes the Prosecutors forget is that, with some exceptions, in Canada every person has a constitutionally guaranteed right not to be denied bail unless the Crown can persuade there is no way to ensure the accused will show up for Court, or that the accused, if released, is likely to commit more offences or to interfere with the case.

The reason that the Courts protect a person’s right to reasonable bail is that everyone charged with an offence in Canada also has a constitutionally guaranteed right to be presumed innocent. This presumption has been called the “golden thread” of the law. It is a right that dates back centuries, and in an any criminal case, a person’s lawyer must be make sure that it remains front and centre in the mind of the Court.

For someone charged with a criminal offence, whether or not bail will be granted can be a crucial event that has a real-life impact on how the case will unfold. It is much more difficult to defend allegations when you are stuck in a jail.

Often because of the nature of the crime, or because the person charged has a history of problems with police, the person may need the help of his or her family or friends to act as sureties. To learn more about what a surety is, click here.

The bail hearing is therefore an extremely important step in your case. A poorly conducted bail hearing can be devastating, resulting not only in time away from your family, children, friends and your job, but also time away from your lawyer’s office – where your defence will be strategized and prepared.

Mr. Duncan has extensive experience with the most difficult bail hearings, both as a Crown prosecutor and as defence counsel. He has conducted successful bail hearings relating to the most serious of offences including domestic assault, drug trafficking offences, firearms offences, robbery, sexual assault, extradition and murder. He has also successfully conducted difficult bail hearings for clients with long or serious criminal records, and in situations where clients have been arrested having committed offences while already out on bail.

FIRST APPEARANCE & DISCLOSURE

Although the process of getting arrested and charged might seem like it went by in a blur, one of the most important things to do when preparing to defend yourself is to slow down and get organized.

The first step in doing so is to know what evidence there is against you.  In Canada, every accused has the right to have all the evidence that the Crown will use, as well as other evidence that your lawyer thinks is relevant.  This information is provided in a package often called “disclosure” or “particulars.” It is usually given to the accused or their lawyer in court, along with other information, including the charges themselves.

Many times, the particulars are not ready at the first court date, or they are incomplete. As a result, there are typically one or more “return appearances”, which are referred to as “remands”, while this process is organized. The first appearance date is not your trial date, because you have the right to get organized before defending yourself.

Once all of the particulars have been provided, your lawyer will need to discuss the case with you. Your lawyer will have many questions regarding the accuracy of the evidence against you, because witnesses, including the police, could be either mistaken, inaccurate or untruthful. Once you and your lawyer have discussed the case fully, your lawyer should give you advice about your prospects of success should you take the matter to trial, and discuss with you other options, including negotiations with the prosecutor to resolve the case without a trial.

Although Emmet J. Duncan is a trial lawyer, he recognizes that most clients want their legal troubles to go away, and to go away quickly. Through his thorough preparation, his knowledge of the law and his reputation, Mr. Duncan has a consistent track record of negotiating excellent results and creative resolutions to files that often result in all charges being dropped.

ARRAIGNMENT

If you and your lawyer decided that taking the charges to trial is the best strategy, then at the arraignment, your lawyer will indicate that to the Court and, with the prosecutor and under the Court’s supervision, will secure dates in the future for witnesses to present their evidence, either at a preliminary inquiry at a trial.

PRELIMINARY INQUIRY (only certain “indictable” offences)

With more serious offences, an accused person has the choice to have a “preliminary inquiry” before the trial.  The purpose of the preliminary hearing is for the Crown to show a provincial court judge that it has enough evidence to require the accused person to stand trial.  This is very different from the trial itself and serves a different purpose.  The threshold that the Crown has to meet at this stage is very low and most individuals are required to stand trial after a preliminary inquiry.

However, having a preliminary inquiry can give some real advantages to an accused person. Indeed, we consider it to be a key strategic opportunity to not only learn in detail what witnesses will say once they are under oath, but also a chance to “pin them down” and sometimes even to have charges dismissed without the need to go to trial. As in anything worth doing, success in the preliminary inquiry depends on three things: preparation, preparation and preparation. We pride ourselves on our relentless commitment to this ethic.

TRIAL

One of our fundamental beliefs is that there are two sides to every story. The trial is where the Court gets to hear both sides. In our system, the Crown carries an enormous burden of proving, to the highest standards of proof (called “proof beyond a reasonable doubt”) that the crime occurred, and that the accused is the person who committed it.

The two sides to the story are told through witnesses who answer questions from both lawyers, and through other evidence called exhibits (for example, documents, video and audio evidence and so on) being entered and shown to the judge or the jury. After hearing all of the evidence, and after listening to both lawyers explain their side’s view of the evidence, the judge or jury makes a finding based upon what they have heard and considered.

Although this may sound straightforward, the best possible court work is the product of tremendous preparation, organization and hard work. Our office prides itself on knowing the case better than the prosecution, by becoming familiar with every aspect of the case, including all of the weaknesses in the police investigation and Crown case, any legal or Charter-based issues that can be assembled in your favour and, of course, your perspective on what happened.

While we cannot, and will not, guarantee acquittals in every case, we can, and we do, guarantee that we will bring all of our skill, judgment, experience and hard work to the task of securing the very best results for our clients in what is, for most, an extremely stressful experience which can carry with it possibly devastating consequences.

The most common results after a trial are that the accused person is either found innocent or guilty of the charges.  Sometimes, because of things unrelated to guilt or innocence (for example the breach of the accused’s rights or the fundamental reliability of the evidence), either the prosecutor or the judge can bring an early end to the case, which is very much like being found innocent.

If the case is dropped, or if the accused is found not guilty (which is also known as being “acquitted”), then the accused is vindicated and is able to walk out a free man or woman. The law treats the accused as innocent and as though he or she was never charged.

If the accused if found guilty, however, then the judge will have to decide what the right penalty is.

SENTENCING

Sentencing is, in some respects, just as complex and important as the trial. At the sentencing, the prosecutor will present what feels to the accused like a “two dimensional” picture in which the only thing that matters is what the accused is found to have done which has caused the conviction.

However, the court’s job is to make sure that justice is done. To do that, the court must know not only what it is that the accused person did (the crime that was committed), but the court must also know who the accused person is.

Every person has a history. Every person has reasons for how he or she ended up being in the place and doing the things that he or she did. These things matter. At a sentencing, your lawyer has a fundamentally important job of presenting you in the light of all of your history so that the Court has the complete picture.

ACTING AS A SURETY

A surety is a person who is willing and prepared to “vouch” for the good behaviour of an accused if he or she is released, as well as vouching for the fact that he or she will attend court when required. The surety does more than just vouch, however. The surety makes a promise to the Court that if the accused breaches bail conditions or fails to attend Court when required, the surety will be liable for a monetary amount to the Crown.

Moreover, the Court will not accept a person as a surety unless the proposed surety can show that he or she has “real property” (land) located within British Columbia, so that if the Crown has to pursue the surety in Court to live up to the monetary promise, there is property that can be seized and sold to satisfy the debt. Indeed, in some cases, the Court will require that a surety not only make the promise, but also that the surety accept a “freeze” on his or her property to ensure that it is not sold or diminished in value while the case is ongoing.

Being a surety is a very important responsibility.  It has been referred to by some as becoming an accused person’s “jailer outside of the jail.”

The surety does have some protections, however. The most important one is often referred to as the power to “render” an accused. If for any reason a surety wants to stop acting in that capacity, he or she must simply advise the Court (through the proper process) and a warrant will be issued for the arrest of the accused. As soon as the accused is brought into custody, the surety is relieved of his or her obligations to the Court.

Sometimes, having a surety available is the difference between whether the accused person will be released on bail before trial. Release pending trial is critically important to every accused person, both because defending a case is much more difficult from in-custody than out; and also because the presumption of innocence is always undermined where a person is held in jail before his or her guilt and innocence is determined.

Practically speaking, most people only get “one shot” at bail – usually in provincial court. Although a review of that bail hearing (a “bail review”) can be brought in Supreme Court, bail reviews are expensive and difficult.  Because of this, and even though there is a strong urge to apply for bail as quickly as possible, it is very important to approach the bail hearing with preparation and thoughtfulness, ideally with the help of a lawyer who has experience in the area.

Unfortunately, however, some people do “jump” at an early opportunity to seek bail, and are unsuccessful. Sometimes, this is due to poor planning or the wrong representation. Luckily, the bail review is a place to correct a case gone wrong.

What is required in such a situation is patience, skill, preparation and the execution of a solid plan. Mr. Duncan has a history of successful bail reviews in Supreme Court because he brings that ethic to such files. If your loved one has suffered the enormous setback of being detained in a bail hearing, we urge you to contact us to discuss what we can do to help get things back on the right track.

RETAINING A LAWYER

Although looking for a lawyer and worrying about the costs are common and legitimate concerns and stressors, there is a wide range of what the fees could be. Legal fees depend on a number of factors including the type of charges, the seriousness of the allegations, the challenges in the case, and the level of skill and experience required to defend it. At Emmet J. Duncan law office, there is a wide array of experience and seniority, and a tremendous flexibility in legal fees, as well as arrangements to pay them.

Because every case is unique, we offer an initial free half-hour consultation in which we will meet with you face-to-face and discuss your case directly with you. The “worst case” scenario is that you leave the office, wallet or purse intact, but armed with more information about your rights and your situations. The best-case scenario is that you find a lawyer whom you trust and with whom you have the right “fit.” If so, we are ready on day one to begin taking good care of you.

 

Resources:

Supreme Court of Canada
BC Court of Appeal
BC Supreme Court
BC Provincial Court
CANLII
Laws of Canada
Laws of British Columbia
Law Society of British Columbia