Law Notes PDF

After you're charged with a crime, you have 6 months to decide whether you want to: have a trial, plead guilty, or agree to end your charges in another way, such as diversion or alternative measures like community service. Here are some of the things you need to do in the 6 months that can help you...

After you're charged with a crime, you have 6 months to decide whether you want to: have a trial, plead guilty, or agree to end your charges in another way, such as diversion or alternative measures like community service. Here are some of the things you need to do in the 6 months that can help you decide: Collect and review all the evidence and documents about your case, including your Crown screening form. This information is called disclosure. Meet with the Crown to talk about your options. This meeting is called a Crown pre-trial. Meet with a judge and the Crown to talk about your case. This meeting is called a judicial pre-trial. If you were charged more than 6 months ago, the court will want you to either: resolve your case at the next court date or as soon as possible, or schedule a trial date. If your case is taking too long, you may be asked to explain why at a special court called judge-led intensive case management court. This court helps move delayed cases forward. You can always ask for more time to deal with your case, but you may not get it. It depends on why you need more time. Start I applied for a legal aid certificate and I'm waiting to find out if I qualify If you applied for a legal aid certificate, bring proof to show the judge. For example, you can bring documents or emails that Legal Aid Ontario sent you. What to say in court: I applied for a legal aid certificate on (date) and Legal Aid Ontario told me I'd get a decision by (date). How much time to ask for: Ask the judge for a date one week after the date you expect to hear back from Legal Aid Ontario. If you do not know the date, ask to come back to court in 3 to 4 weeks. Witness at a criminal trial If you're required to be a witness at a criminal trial, you will get a subpoena. A subpoena is a court order that says you must come to court at a specific date and time to testify. To testify means that you tell the court what you know about the alleged crime. When you testify, a lawyer will ask you questions about what you saw or heard. You have to promise to tell the truth, and your answers become evidence in the trial. You might be asked to testify by the Crown, by the person charged with a crime, or their defence The Crown or defence lawyer will ask you to be a witness if they believe that you know something about the alleged crime that will help prove whether the accused is guilty or not guilty. Giving evidence Before you testify, you must promise to tell the truth by swearing an oath or giving a solemn affirmation. The information you give when you testify is used as evidence in the case. It's against the law to lie in your testimony. You can only tell the court about things that you experienced personally. So you can testify about what you saw or felt. And, in some circumstances, you can testify about sounds that you heard, like a gunshot or people yelling. Having a lawver A witness usually doesn't have the right to be represented by a lawyer at a criminal trial. You can speak to a lawyer to get advice before testifying but they won't be able to speak for you in court. There are some situations when a witness can have a lawyer at a trial. For example, if you're the victim of sexual assault, you might be allowed to have a lawyer to protect your privacy rights if the accused asks to see your medical records. Ask the Crown if you have the right to a lawyer. Victim and witness support If you're the victim of a crime or a witness to a violent crime, you will be offered support from the Victim/Witness Assistance Program (VWAP). VWAP can help you get ready to testify. They can also help you get special accommodation if you need it, like testifying behind a screen if you are afraid of the accused. If you haven't been offered VWAP support, you can ask the Crown. You can also contact VWAP on your own. Perjury Whether you're testifying for the Crown or the defence, the lawyer calling you as a witness will usually want to meet with you before the trial to help you prepare. If the lawyer hasn't contacted you, you can call them and ask to meet. It's important to tell the truth when you testify. If you make a false or misleading statement when you testify, you can be charged with perjury. Perjury is a criminal offence. Before you testify, you should review any affidavits or statements you made to the police or in court. If the lawyers didn't give you these documents, you should ask for them. You're not allowed to look at these documents while you're testifying unless the lawyer asking you questions tells you to. The lawyer might ask you to look at the documents if they think it will help refresh your memory. You can also tell the lawyer or the judge that you would like to look at the documents to help your memory, and the judge will decide if you're allowed. Make sure you arrive at the court or in the Zoom hearing at the time you are told on your subpoena. You might not be called to testify right away. You might have to wait a few minutes, a few hours, or even days before you're called to give evidence. If you're testifying over Zoom, make sure that you're alone in a private room. If possible, point the camera so that it shows your face and hands clearly. Keep your camera and microphone on unless you're told to turn them off. Speak loudly so you can be heard clearly. What t I applied decision by How much Ask the judge tario. If you When it's time for you to testify, the lawyer will call you up to the front of the courtroom. This interactive courtroom illustration will show you what a typical courtroom looks like and where you will be asked to sit. Swear an Oath If you're appearing by Zoom, you will be brought into the virtual courtroom and unmuted. You will have to swear an oath or affirmation that you will tell the truth during your testimony. If you swear an oath, you can choose to swear on a religious book like the Bible or Quaran. If you are First Nation, you can choose to swear on a sacred eagle feather. Testifving in person Iyoure testifying in person, there will be a microphone on the stand. The microphone records your voice, but it doesn't make you louder. It's important to speak loudly and creary so the microphone can pick up your voice. The lawyers and the judge usually listen to the recording after you testify to help them make arguments or decide the case. You can only tell the court about things that you experienced personally. So you can testify about what you saw or felt And, in some circumstances, you can testify about sounds that you heard, like a gunshot or people yelling. Examination-in-chief You will probably be questioned by both the Crown and the defence lawyer. The lawyer who called you as a witness will ask you questions first. The lawyer who questions you first will mostly ask you open-ended questions. This is called the examination in-chief. These kinds of questions usually start with who, what, where, when, why, and how. These questions are meant to get you to tell the court what you heard or saw in your own words, without the lawyer hinting at an answer. Cross-examination You will likely be questioned by the other lawyer next. This is called the cross-examination. The second lawyer's questions won't be as open ended. Sometimes the other lawyer will choose not to ask you any questions as part of their strategy. The lawyer may ask you about things you said during your examination in-chief or ask you to explain any differences between what you said in court and any statement you and explain why there is a difference. made to police in the past. Don't worry if you said something different in court. Be honest The lawyer can also make suggestions that you can agree or disagree with. For example, the lawyer might say "I'm going to suggest to you that it was dark out when you saw the agree. Always give your honest opinion. person running from the crime scene". If you don't agree with their suggestion, say you don't Re-examination After the cross-examination, the first lawyer who asked you questions might ask you a few more questions to clarify something you said in the cross-examination. This is called re-examination. Listen to the questions carefully and do your best to answer that question only. If you don't know the answer to a question, don't guess. It's better to say you don't know or you can't remember. If you don't understand the question, tell the lawyer you don't understand. They might be able to ask it in a different way. If you make a mistake when you're testifying, tell the lawyer that you have made a mistake and correct yourself. Be polite when you're testifying. Sometimes it might feel like the lawyer is being aggressive or mean. Try to stay calm. If you get confused, you can ask the lawyer to explain what you don't understand. If you get upset, you can ask the judge for a break. Sometimes lawyers ask questions that make you feel uncomfortable. But you have to answer the questions unless the judge decides that you don't. If you see the other lawyer stand up after you're asked a question, stop talking. The lawyer might be objecting to the question that was asked. This means the lawyer thinks the question isn't appropriate or relevant. If there is an objection, the judge will tell you if you have to answer the question. If the judge says that you must answer a question, but you refuse, you can be charged with contempt of court. Contempt of court is a criminal offence, and you can be fined or sent to jail for a short time. When you're finished testifying, you should leave the courtroom or the Zoom call right away. You're not allowed to talk to other witnesses or listen to their testimony unless you have permission from the judge. If you talk to other witnesses without permission, you can be charged with contempt of court. The decision Usually witnesses aren't told when the judge makes their ruling. But, if you've been working with VWAP, they will give you updates on the case. VWAP can tell you when the decision is released and if the accused is going to appeal. If you would like an update on the case, you can contact the Crown or VWAP on your own. GLADUE The word Gladue is taken from the name of an important court case decided by the Supreme Court of Canada in 1999. In the Gladue case, the Supreme Court of Canada said: The high number of Indigenous people in prisons and institutions across Canada is a serious issue that courts must consider. There are systemic or background factors that courts must think about when sentencing an Indigenous person. Jail should be the court's last choice when sentencing an Indigenous person. The court recognized that because of the history of discrimination by Canada and the criminal justice system, also called systemic discrimination, Indigenous people are more likely to be sentenced to jail. As a result, there are higher numbers of Indigenous people in jails. To address this discrimination, courts must look at an Indigenous accused's background and the impact of discrimination on them when deciding on a sentence. This means, at sentencing hearings, the court must look at all alternatives to jail before deciding to give a jail sentence. Jail is a last resort. And when a jail sentence is given, the court must apply Gladue principles when deciding the length of the sentence. Ontario courts have said that Gladue principles also apply when deciding if an Indigenous person should be released on bail. This means at bail hearings; the court must look at all types of releases. Detention, or holding an accused without bail, is a last resort. If you identify as Indigenous, it's important that you tell your lawyer or duty counsel. With your permission, your lawyer can tell the court about your Indigenous identity. Your background information is sometimes called Gladue factors. Examples of Gladue factors include: Is the accused person or someone in their family a residential school survivor? Is the accused person or someone in their family affected by the "Sixties Scoop", where the government removed Indigenous children from their homes? Was the accused person put in a foster home or involved in the child protection system? Has the accused person experienced poverty?  Has the accused person or someone in their family experienced racism, trauma, childhood abuse, violence, or addictions? Your lawyer can also make arguments to show how the Gladue principles apply to you. This is called making "Gladue submissions". Examples of Gladue submissions include: Has the accused person experienced systemic discrimination in their arrest or detention? For example, were they removed from their community so they could be brought to court? Will a jail sentence have an unreasonable or unfair effect on the accused person? applied Gladue Courts Gladue Court, or Indigenous Peoples Court, is a special court for people who self-identify as Indigenous and are charged with a crime. Gladue Courts usually only handle bail hearings and sentencing hearings. Some courthouses have only one day or a few days that Gladue Court is available each week. But every court must apply the Gladue principles. In the 1999 Gladue decision, the Supreme Court of Canada ruled that jail should be a last resort for Indigenous people. The court must consider all alternatives to jail before a jail sentence is given. Alternative options include a fine or a sentence that can be served in the community, like probation. The court must also consider other types of sentences and processes that are culturally-appropriate. This includes having a sentencing circle if available. The court did not say that Indigenous people can't be sentenced to jail or that they automatically get a lesser sentence. Instead, the court said that an Indigenous person's background and the impact of discrimination on them must be considered when deciding on an appropriate sentence. This includes the need to reduce the number of Indigenous people in jail. And when a jail sentence is given, the court must apply Gladue principles when deciding the length of the sentence. It's important to tell your lawyer or duty counsel if you self-identify as Indigenous. With your permission, your lawyer will tell the court about your Indigenous identity. Your background information is sometimes called Gladue factors. Your lawyer must also make arguments, called Gladue submissions, based on how the Gladue principles apply to your case. Sharing information about your personal background might make you feel uncomfortable. But sharing this information can help the court to better understand your circumstances and the challenges you have faced. You can tell your lawyer what you're comfortable sharing. If you're facing less serious charges, ask your lawyer or duty counsel about Indigenous diversion. Indigenous diversion is available in some places as a voluntary way to resolve minor criminal charges, often without going to trial or pleading guilty. Diversion involves taking responsibility for the crime you have been charged with and participating in the community. And ask your lawyer or duty counsel if there is an Indigenous court worker at your courthouse. An Indigenous court worker can help you make a plan of care that your lawyer or duty counsel can use at your sentencing hearing. The plan of care might include suggestions for community resources that can help you to address issues that could bring you back to court. For example, the plan might suggest Indigenous supports for mental health, trauma, addictions, or homelessness. It might also include suggestions for participation in cultural activities. If you're facing more serious charges, speak to your lawyer about having a sentencing circle or ordering a Gladue Report. Ontario courts have said that Gladue principles also apply to bail hearings. This means that courts must look at all types of releases. Detention, or holding an accused without bail, is a last resort. Ask your lawyer or duty counsel if there is an Indigenous court worker at your courthouse. An Indigenous court worker can help you to make a release plan. The purpose of the release plan is to outline the community resources that are available to you while you're on bail waiting for your trial, and to give details about where you will be living. For example, the plan might suggest Indigenous supports for mental health, trauma, addictions, or homelessness. It might also include suggestions for participation in cultural activities. Your lawyer or duty counsel can use your release plan to negotiate with the Crown. With a good release plan, the Crown might agree to release you without a bail hearing. If the Crown won't agree to your release, you will have a bail hearing instead. Your lawyer or duty counsel can present your release plan at your bail hearing to try to convince the court to release you. A bail hearing is not a trial. The court doesn't decide whether you're guilty or innocent. Instead, it decides if you should be released from custody into the community while your case is in criminal court. You might be released on your own, with the supervision of a Bail Program, or with the supervision of a surety. The court must consider the least strict release first. This is sometimes called the "ladder of release". You usually don't have to deposit any money to get bail. It's important to tell your lawyer or duty counsel if you self-identify as Indigenous. With your permission, your lawyer must tell the court about your Indigenous identity. Your background information is sometimes called Gladue factors. Your lawyer must also make arguments, called Gladue submissions, based on how the Gladue principles apply to your case. Sharing information about your personal background might make you feel uncomfortable. But sharing this information can help the court to understand why the release plan you're presenting is the best plan for your situation. You can tell your lawyer what you're comfortable sharing. For example, if you're homeless because you left an abusive situation, that information can help Bail conditions Bail conditions are rules that you must follow while you're out on bail waiting for your trial. For example, you might not be allowed to go within a certain distance of a specific place, person, or persons. Or you might have to stay at home during specific hours, usually overnight. Your bail conditions might ask that you follow the suggested referrals in your release plan, if you have one. If you don't follow your bail conditions, you can be charged with breaching your bail. This is a criminal offence. If you're charged with breaching your bail, you will be held in custody for another bail hearing. It will be more difficult for you to get bail a second time.