Frequently Asked Criminal Law Questions
Top 10 Criminal Law Terms You Should Know
(1) Indictable Offence- An indictable offence (or "felony offence" as it is called in America) is a classification of serious offences with harsh penalties. The accused is afforded a "preliminary hearing" to determine if there is sufficient evidence to warrant the accused being sent to trial. If a trial is necessary, the accused can choose to have a trial by: (a) Judge and jury in the Superior Court, or (b) Judge alone in the Superior Court, or (c) Judge alone in the Ontario Court of Justice. Many serious offences are "straight indictable", such as Robbery, Break & Enter into a dwelling-house, Theft Over $5,000, Fraud Over $5,000, most drug trafficking offences, etc.
(2) Summary Offence- A summary offence (or "misdemeanour offence" as it is called in America) is a classification of less serious offences with less harsh penalties. The accused is not afforded a "preliminary hearing", and the matter proceeds to trial in the Ontario Court of Justice, to be heard by a Judge alone. A common example of a "straight summary" offence is Possession of Marijuana under 30g.
(3) Hybrid Offence- A hybrid offence is one which can be tried either summarily (see (2)) or by indictment (see (1)), depending on what the Crown elects. The Crown will generally proceed summarily if the nature of the offence and the surrounding circumstances are not too serious. Most low-to-moderately serious offences are Hybrid, such as Theft Under $5,000, Assault (including Assault with a weapon and Assault causing bodily harm), Fraud Under $5,000, Mischief Under $5,000, most drug possession charges, Failure to Comply (with recognizance/bail, or probation), drunk driving charges, etc.
(4) Peace Bond- A peace bond is a court order requiring the accused to be of good behaviour and abide by certain conditions for a specified length of time (usually 12 months). A peace bond is considered a very good outcome for the accused, as it does not require them to plead guilty, and it often results in the charges being withdrawn upon signing the peace bond. As such, entry into a peace bond does not amount to a criminal conviction; however, breaching a peace bond is a separate criminal offence and may result in harsher penalties.
(5) Discharge (absolute or conditional)- There are two types of discharges- absolute and conditional. Both involve a finding of guilt by the court, but neither constitutes a criminal record. A conditional discharge has conditions attached to it, which vary based on the nature of the offence. These conditions can include anything from "no contact with the complainant" to "abstain from being in possession of any alcohol". Conversely, an absolute discharge has no conditions attached to it. A discharge (conditional or absolute) can only be imposed if it is deemed to be in the public's interest and if there is no mandatory minimum sentence for the relevant offence.
(6) Crown Pre-Trial (CPT) & Judicial Pre-Trial (JPT)- A Crown Pre-Trial is where the defence counsel and Crown Attorney discuss the case to determine possible resolutions, as well as particulars if the matter will be proceeding to trial (e.g. number of witnesses anticipated, time estimate for the trial, etc.) A Judicial Pre-Trial is similar to a Crown Pre-Trial, except with judicial oversight (i.e. judge can provide input regarding time estimates, possible resolutions, etc.). JPTs are often mandatory when the trial is estimated to last more than one full day.
(7) Bail Hearing- If the accused is not released upon arrest, or shortly thereafter, they will likely be held for a bail hearing. A bail hearing is a court proceeding which determines whether or not the accused should be released from custody pending the resolution of his or her charges. The Crown generally bears the burden of showing why the accused should remain in custody, but for certain offences (known as "reverse onus" offences), the accused must prove that he or she should be released. Bail hearings are arguably the most important step in the criminal process, because if you are not successful, you may be waiting in jail for months until your matter is adjudicated.
(8) Surety- A surety is a person (e.g. family or friend) who takes responsibility of the accused, supervising them and ensuring their good behaviour. Namely, it is the surety's duty to ensure that the accused attends court, abstains from re-offending, and abides by the specified bail conditions. Having an appropriate surety in place is often necessary for an accused person to be released from custody.
(9) Diversion- Diversion is a method by which the accused is "diverted" out of the court system. Instead of continuing through the criminal process, the accused accepts responsibility for their actions, often by making a donation, performing community service or writing an apology letter. Once the required action is complete, the charges against the accused are generally withdrawn.
(10) Suspended Sentence- A suspended sentence is where the accused receives a criminal record but does not go to jail. However, in conjunction with a suspended sentence, terms of probation are often imposed.
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Canadian Constitution, which guarantees everyone in Canada specific civil and political rights. As the Charter is intended to protect Canadians against certain invasive government actions, issues surrounding violations of civil rights are prevalent in criminal law cases.
You should be fully aware of your constitutionally-protected civil rights, especially when you are involved in the criminal law process. If you are charged with an offence, there may be constitutional defences available based upon your Charter rights. However, in order to raise these defences, lengthy applications must be brought, thoroughly supported by case law and legislation. As such, it is essential that you retain a lawyer to represent you and raise these issues where appropriate.
Toronto criminal defence lawyer Daniel Freudman has successfully prepared a variety of different Charter applications resulting in exclusion of evidence, return of police-seized property, and even withdrawal of charges against clients.
Some of the most fundamental rights concerning criminal procedure include the following:
Charter Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 7 encompasses what is known as "the right to remain silent". This means that you are under no legal obligation to answer any questions that the police may ask you (subject to a few narrow exceptions, such as questions necessary to ascertain your identity e.g. name / address / date of birth). Because your silence cannot be used as an inference of guilt, police will often ask you questions and try to elicit incriminating answers. Accordingly, it is in your best interests to exercise your right to silence and refrain from answering any questions before speaking to a lawyer.
Section 7 also encompasses what is known as "the right to make full defence and answer". This means that you have the right to know exactly what you are up against with regard to your charges. Namely, you have the right to full disclosure, which entitles you to be provided with any and all the evidence that the Crown possesses and intends to use against you at trial. It also entails the right to cross-examine (i.e. question) those accusing you of committing the offence, in order to establish the truth.
Charter Section 8: Everyone has the right to be secure against unreasonable search or seizure.
Section 8 is prevalent in drug charges, whether it arises when police find a marihuana grow-op in a basement or a small quantity of drugs on a person. The provision protects you from having the police search anything over which you hold a ‘reasonable expectation of privacy’. This can include, among other places, your motor vehicle, your home, and anything on your person (e.g. your clothes and wallet).
If you believe that your constitutional rights were violated by police unlawfully searching you or seizing your belongings, contact Toronto criminal defence lawyer Daniel Freudman for fierce legal representation.
Charter Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.
Section 9 is very prevalent in offences where a person is driving a motor vehicle and is pulled over by the police, and then revealed to have committed an offence (such as drunk driving, or having some illegal item in the vehicle). Violations of this provision are also common in cases of racial profiling, where police stop a person based not on reasonable grounds but rather based solely on that person’s ethnicity.
Charter Section 10(b): Everyone has the right on arrest or detention... to retain and instruct counsel without delay and to be informed of that right.
Section 10(b) allows you to contact your lawyer at the first reasonable opportunity you get. If you do not have a lawyer, then the police are obliged to provide you with a number for Legal Aid Ontario, which has a 24-hour hotline of on-staff lawyers. After you speak with a lawyer, the police will likely continue to ask you questions, as it is assumed that your lawyer informed you of your right to remain silent. Accordingly, it is generally wise for you continue to exercise this right and decline from answering any questions.
Toronto criminal defence lawyer Daniel Freudman can be reached 24/7 by those in police custody wishing to exercise their right to counsel.
Charter Section 11(b): Any person charged with an offence has the right... to be tried within a reasonable time.
Section 11(b) is intended to protect you and your case from being tied up in the legal system for an unduly prolonged length of time. What constitutes a "reasonable time", and correspondingly, what constitutes an "unreasonable delay" will depend on four factors: (i) the length of the delay, (ii) the reasons for the delay, (iii) any waiver of delay by the accused, and (iv) any prejudice suffered by the accused as a result of the delay.
If it can be established (based on these four factors) that the delay was, in fact, unreasonable and thus a violation of your 11(b) rights has occurred, then the charges against you may be stayed (i.e. discontinued).
Charter Section 11(d): Any person charged with an offence has the right... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Section 11(d) guarantees that the Crown bears the burden of proving your guilt beyond a reasonable doubt. This means that it is not your responsibility to establish your innocence, although it is generally beneficial to put forward arguments to contest the Crown’s case.
Charter Section 11(e): Any person charged with an offence has the right... not to be denied reasonable bail without just cause.
Section 11(e) protects you against arbitrary denial of bail, or the imposition of bail conditions so extreme as to make bail unattainable. Denial of bail is generally only reasonable if detention is necessary to avoid flight risk or prevent the commission of further offences if released.
Daniel Freudman can be reached 24/7 by those in urgent need of a GTA or Toronto bail hearings lawyer.