Criminal Defence and Your Right to Counsel
If you are arrested, you have the right to obtain counsel. In the event that you do not have a lawyer, the police are obliged to provide you with access to a free lawyer. These lawyers, although paid for by the state, do not represent the police, government, or victim(s) of the crime. Their legal advice is not recorded, and their assistance is confidential.
A lawyer will advise you on your legal obligations with the police. Typically, someone in custody will need to provide their name, address, and date of birth. You are not required to assist in the criminal investigation; however, you also cannot willfully obstruct their pursuit.
You have the right to remain silent. If you have been advised of, and obtained, your right to counsel, whatever you say to a person in authority may be admissible in court and could be admitted in evidence in a trial and used against you.
If you are being investigated by the police, you should retain counsel and obtain legal advice; do not speak to the police before receiving advice from a lawyer.
How We Can Assist with Your Criminal Charges
The typical steps and procedures may be as follows:
- To secure your release from custody and speak to bail if necessary;
- Meet with you as a client to assess the facts of your case, including obtaining witness information to mount a defence to the charges;
Obtain disclosure from the Crown which includes video or photographic evidence, witness statements, police notes, police reports, expert reports;
- Review all disclosure with the clients in detail;
- Formulate the defence strategy. This involves substantive defences to the charges including proof of possession, self-defence, consent, as well as determining the admissibility of the Crown’s evidence.
- Assess and review pre-trial motions or outstanding issues including amending conditions of release or bail where appropriate;
- Obtain experts if it is determined they add value to your case, such as experts in toxicology, psychiatry, psychology, forensic science and engineering;
- If you are testifying, outline what is expected of your testimony and formulate how the prosecutor may cross-examine you;
- If the case is not proceeding to trial, negotiate a resolution with the prosecutor that minimizes your sentence.
What You can Do If You’ve Been Arrested
After our initial meeting, or as soon as possible after the charges are laid, you should prepare a detailed written statement of:
- Times, locations and events which took place on the day you were charged;A description of who was at the scene of the crime and what they said;
- The events that led to your arrest;
- Whether you were read your rights;
- Whether you spoke with duty counsel;
- Whether you had to attend the police station for questioning, and if so what happened there; and
- Anything you said at the police station, and when you were released if you were released.
An accurate recollection of the incident and circumstances is critical in mounting a successful defence to criminal charges.
The first step after meeting is to request disclosure from the prosecutor’s office. As indicated, disclosure includes video or photographic evidence, witness statements, police notes, police reports, and expert reports of the case.
We will review all of the disclosure, and also review the disclosure with you, to ensure that the information provided is complete. We will discuss the case with you and determine who we might call as witnesses and whether or not you should be called as a witness.
The burden of proof remains with the prosecutor throughout a trial and the standard of proof is proof beyond a reasonable doubt. We will discuss the benefits and disadvantages to having you testify in a criminal trial. It is common the accused never testifies in a criminal case, but there are circumstances when a testimony is advantageous, such as when the accused acts in self-defence or in a sexual assault trial. It is rare for an adverse inference to be drawn from an accused not testifying but it may be important in a criminal trial for certain charges.
Thereafter, there will be several court dates that we will attend on your behalf. We will be sure to inform you well in advance if there are court dates where your attendance is required. Certain court dates require the appearance of an accused: preliminary inquiry, trial, jury selection, guilty pleas, sentencing.