Criminal Law Kingston
This page is meant to provide those who are having difficulty understanding the criminal law process with a brief summary of what to expect throughout the process. It certainly can be a long and difficult process.
This information is not legal advice. Nothing on this page should be interpreted as legal advice. It is meant as a general guide only. If you have specific questions about your case, you should contact a lawyer.
It is important to remember that the criminal justice system works very slowly. Although the time for each individual case will vary, the average time from initial charge to the trial in Kingston is about one year.
There are ten (10) potential basic steps in the criminal law process:
- Bail Hearing
- First appearance / Obtaining disclosure
- Crown resolution meeting
- Judicial pre-trial
- Preliminary inquiry
When an officer decides to lay a charge, there are two options: they can either hold you or release you. If they hold you, you will be brought before the Court for a bail hearing. The police are required to bring you to Court within 24 hours of your arrest. If you are released, you will be given one or more of the following documents:
- a promise to appear,
- an undertaking to an officer, or
- a summons to an accused.
Until trial, your bail hearing is likely the most important day you will have in Court. It is therefore extremely important not to proceed with a bail hearing until a full plan for release is prepared. A full release plan includes, among other things, a place to live, one or more sureties, and counseling where appropriate.
You are constitutionally guaranteed reasonable bail. This does not mean that every person will be released.
If possible, you should have one or more sureties in court on the day of your bail hearing. A surety is someone who the court expects will have no criminal record, be over 18 years old, be able to supervise you on a day to day basis, understand the conditions the court might impose on you, and arrive at Court on time.
Normally, if you are going to be released, you will be released into the care of one or more of your sureties. The surety might have to pledge a certain amount of money (and sometimes actually deposit it with the Court), to ensure you will abide by the conditions which are imposed on you. In Kingston, the amount is typically $500.00 to $1,000.00, but can vary greatly.
Following the bail hearing, you will be “remanded” to a first appearance date. If you were not held for a bail hearing, your first appearance date will appear on your Promise to Appear or Summons form.
The first appearance and all appearances until your preliminary inquiry or trial are referred to as either adjournment court appearances or remand court appearances. Depending on your lawyer, you may or may not need to appear for these dates. These Court appearances are essentially “check in” dates with the Court. While disclosure is being obtained, the resolution meeting is happening, etc., you are required to check in with the Court and provide updates. The Court wants to know why there is no trial date set yet and to ensure that the matter is moving forward. These check in dates happen about every four weeks depending on your lawyer’s preferences.
Either at the first appearance, or sooner, you can request disclosure. If you have hired a lawyer they would request it on your behalf. The initial disclosure package is usually available at the first appearance date. It is rarely complete and further disclosure requests are usually necessary. This process can often take weeks if not months to complete.
If you are unrepresented you can attend at the Crown’s office at 5 Court Street on the second floor and fill out a disclosure request form.
Disclosure consists of all the documents in the possession or control of the Crown that are relevant to an issue which may be raised at trial. Items you would typically find in disclosure include:
- officers’ notes,
- statements from officers,
- statements from witnesses,
- pictures , etc.
When sufficient disclosure has been received a date can be set for a resolution meeting.
The Court requires that a resolution meeting be held prior to setting a date for trial. The Crown generally will not meet directly with accused persons but will rather insist on meeting with counsel. There is no duty counsel for this stage. If you do not have a lawyer, a resolution meeting is unlikely to happen.
The main purpose of the resolution meeting is to attempt a settlement. It is meant to be a frank discussion between counsel about the strengths and weaknesses of each others’ cases.
Discussion topics include what the crown will be looking for in terms of sentence if there is an early guilty plea and what they would be looking for if the matter went to trial. Other topics also include the expected length of the trial, which witnesses the crown intends to call at trial, whether there is further disclosure outstanding etc.
In Kingston, if the trial is going to last more than one half day the Court requires a Judicial Pre-Trial (JPT). There are also cases which last under one half day for which a JPT is a good idea. The purpose of the JPT is very similar to the Crown resolution meeting. The main difference is that a JPT involves a judge. It will be a judge which is different than the trial judge. There is a discussion about the case in the judge’s chambers and off the record. Since it is in the judge’s chambers, accused persons are not permitted to attend.
Ideally, the judge is supposed to express an opinion as to how they would rule if the evidence came out as presented. However, how much the judge gets involved changes depending on the judge, some being more involved than others.
Having the judge express an opinion on a sentence can also be helpful. Often this is the point where the Crown will make their best offer for a sentence if there is a guilty plea. A further advantage is gained by the fact that the judge hearing the JPT can receive the guilty plea that same day and there will be no doubt as to sentence.
Historically, the Preliminary Inquiry served a different purpose than it generally does today. The original purpose was to make the Crown demonstrate that it had a case worth taking to trial, at a relatively early stage in the process. It was a good way to save time and money for both the accused and the taxpayers.
Today, however, the Preliminary Inquiry plays a very different role in our justice system. Since the test for whether or not a matter will proceed to trial is so low, it can be met in virtually every case. Therefore, the preliminary inquiry is now mainly a “discovery” exercise for the defence.
Trial is where guilt or innocence is decided. The more serious trials happen in Superior Court and some of those are argued before a jury. The less serious trials take place in the Ontario Court of Justice without a jury.
It is highly recommended that you retain a lawyer for trial. Often it can take as long to prepare for the trial as it does to conduct the trial (i.e. for every hour spent in trial there is an hour spent ahead of trial in preparation).
Trials are very complex with difficult rules of procedure. It is very easy to get confused. It would be impossible to explain all of the complexities of a trial in a site such as this.
The verdict is given at the end of trial. If there is a jury, then the jury will determine guilt or innocence. If there is no jury then the judge will pass judgment.
If there are multiple charges, it is possible that you could have a mixed judgment. You could be acquitted of some of the charges while being found guilty of others.
If you are found guilty then you will be sentenced. Sentence could be passed that same day or it could be adjourned to a later date to allow for assessments to be completed or preparations to be made.
If you are found not guilty, the matter is over; unless the Crown decides to appeal.
There are innumerable facts which a judge will consider when passing sentence. Some examples are the offence, the age of the accused, the criminal record of the accused, the type of offences contained in the criminal record, and the circumstances of the offence.
Sentences can range from discharge (absolute or conditional), fines, probation, all the way up to jail. Determining which sentence is appropriate for which offender or offence is not an easy task.
If you are unsatisfied with the verdict or the sentence you can appeal either or both. If your trial was at the Ontario Court of Justice then the first appeal would be heard by the Superior Court of Justice. On the other hand, if your trial was in the Superior Court of Justice then the appeal would be heard by the Ontario Court of Appeal.
The Crown has the same appeal rights as do accused persons. If the Crown is unhappy with either the verdict or the sentence, it too can appeal either one.
There are very short and strict deadlines for filing appeals. Therefore, do not delay contacting a lawyer about your possible appeal if you believe you may want to appeal.