Being Charged With a Criminal Offence

Sean Robichaud, Barrister

Robichaud’s Criminal Defence Litigation, Toronto

Very few individuals expect to be charged with a criminal offence at any point in their lives and most of those people are entirely unprepared for the stressful and perplexing process that lies ahead of them.   The two most important details that every individual ought to know is the right to silence, and the right to counsel.

The Right to Silence

Exercising one’s right to silence may seem counterintuitive, especially if that person feels that they are not responsible or involved in the crime alleged.  It is human nature to want to explain what did, or did not, happen.   Many people who are charged feel that if they simply explain to the police the truth of the allegations, all will be quickly withdrawn with an apology for the misunderstanding.  However, that is rarely the case and those few occasions where police may come to terms with their error, are grossly outweighed by the risks one takes on by making statements that may be devastating to their case later on.  

Police are not judges; police are investigators.  Police gather evidence, they do not make final determinations of the worth of that evidence or who is telling the truth.  The role of investigating officers is very simple: once there exists “reasonable and probable grounds” to believe that a criminal offence has taken place, they are obligated to make an arrest or seek a warrant for an individual.  Therefore, to provide a statement typically only does one of two things: 1) provides the evidence the investigators need to establish reasonable and probable grounds they may have otherwise lacked, or 2) provide further evidence that strengthens the grounds they already have and intended to act on.  

The only safe option before speaking to a lawyer and obtaining specific legal advice is to exercise the right to silence.  In criminal law, silence is worth nothing; however, admissions and denials can quickly turn an easily defendable case into a difficult legal challenge.  If words are necessary, then experienced counsel can manage that for you at the right time, which brings us to the next point: the right to counsel.

The Right to Counsel

Under section 10(a) and 10(b) the Charter of Rights and Freedoms, an individual has the right on arrest or detention “to be informed promptly of the reasons” and, “to retain and instruct counsel without delay and to be informed of that right”.  This latter option is one of the cornerstone’ to our legal system in Canada as it ensures that all individuals have the same benefit under the law of knowledgeable legal assistance – provided one exercises it. 

Canadian law also requires that police provide an opportunity for an individual to implement that right to the fullest extent.  This means that a person has a right to call a specific lawyer and the police must assist that person in finding counsel through the use of legal directories or whatever means necessary.  It is unacceptable for police to refuse a specific lawyer unless all reasonable steps have been exhausted.    Researching the name of a trusted lawyer with proven experience ahead of time saves the effort of skimming through legal advertisements or unknown lawyer lists at a police station. 

The lawyer an individual chooses when charged with a criminal offence could be the most significant decision in their life and that is why the law mandates police must allow the person to choose.  That is why most criminal defence lawyers are available 24 hours a day for emergencies like unexpected arrests or calls from police station.   

Being criminally charged is unpleasant; being convicted is devastating – exercising your rights properly may be the only crossroads between those events.  

Your first day in Court and meeting with a criminal defence lawyer

It is important to understand that the first appearance in criminal court is not a trial.  It is not an opportunity to explain to the Court or Crown what happened and present a defence.  Unless you intend to plead guilty or conduct a bail hearing, the first appearance in criminal court is largely administrative in nature.   Perhaps the most significant component of that first administrative appearance is receiving “disclosure”. 

“Disclosure” is a collection of items that the Crown Attorney considers relevant to the case.  These items may include including include: witness statements, police officer notes, audio or video recordings, 911 calls, banking or business records, and anything the Crown Attorney and police consider relevant to the prosecution of the case.  Disclosure is a constitutional right of an accused.  Once disclosure is provided, your lawyer can understand the case against you in a meaningful way and provide you with a professional opinion on possible defences, legal fees, and an overview of where the case ought to proceed from that point. 

Many criminal lawyers, including myself, will meet with potential clients to provide general information about procedures and estimates on fees at no cost or commitment.  In meeting with a lawyer for the first time, you should bring all relevant information with you such as disclosure and witnesses contact information.  You should also be prepared to discuss facts relating to your allegations if the lawyer requests. 

Being charged with a criminal offence does not need to be a terrifying experience and having sound legal advice through the process ensures that.