Criminal charge process

If you cannot afford a lawyer, call us to find out if you’re eligible for legal help. If you qualify for legal aid, we may either cover the cost of a lawyer to represent you or you can visit one of our lawyers at court (they’re called duty counsel) who can give you some advice or explain some of the information covered on this page.

What are your rights?

You’re presumed innocent

• You do not have to prove your innocence.
• The Crown attorney’s job is to prove you are guilty “beyond a reasonable doubt”—which means that the judge or jury have to be absolutely certain that you did the crime you are charged with.

You have a right to remain silent

• You get to decide if you want to give evidence—this can be witnesses or documents or anything that can support your case as long as the judge allows it.

You have the right to know what information the Crown has against you

• The crown has to let you know what they might be using against you at trial
• It’s your responsibility to ask for any additional items that might not have been included in the disclosure package (the collection of information that the police and the Crown have on your case that you’re given at your first appearance)

Arrest

When you are charged with a crime, the police will handcuff you and take you to the police station. You might either be released to wait for your court date or held for a bail hearing, which has to happen within 24 hours.

When you are arrested, you have the right to:

• be told why you’re being arrested
• be searched in a reasonable manner
• remain silent
• talk to a lawyer

Will the police tell me my rights as they arrest me?

Yes, the police in Canada should let you know of your rights almost immediately as they arrest you.

The police in Canada must tell you why you are being arrested and about your rights to legal counsel.

Section 10 of the Canadian Charter of Rights and Freedoms deals with arrest and detention. It says that anyone who is arrested has the right to:

• be told why they are being arrested,
• be told about their right to speak to a lawyer, including their right to free legal aid, and
• appear in court and have a judge decide if you should be released or remain under arrest.

For more information, visit Community Legal Education Ontario’s webpage: What are my rights if I’m arrested or detained?

Pre-trial detention

Generally, after you are arrested and taken to the police station, the officer-in-charge might release you if you promise to appear in court at a specific time or place.

The police have a duty to release you unless they have reasonable grounds to believe that you will fail to attend at court or that your release is not in the public interest.

If you are not released, you must be brought before a justice (normally within 24 hours) for a bail hearing.

If the Crown can make a case to the justice as to why you should not be released, you will be held in custody until trial unless you apply for a review of the order and can persuade the reviewing judge that the original order should be changed.

Bail

Bail is a court order that lets you stay in the community while your case is in the court system.

A bail hearing is when a judge decides whether you should either be kept in jail or allowed to go back to the community while your case is in criminal court.

For more information, read our section on bail.

First appearance in court

This isn’t your trial date. This is when you:

• get your disclosure, which is the information that the police and the Crown have about your case. You will get this from the Crown Attorney.
• tell the court if you:
  • are hiring a lawyer and need time so that the lawyer can review your disclosure
  • need to hold the matter down so you can talk to the lawyer at court (they’re called duty counsel) about your choices

For more information, read our section on first appearance.

Second (and later) appearances at court

Remand court

The court will want to know if you are hiring a lawyer or representing yourself.

If you are hiring a lawyer, give the court a letter or some other proof of your legal status.

If you have decided not to get a lawyer, you will have to tell the court if you are:

• pleading guilty
• setting a trial date

Judicial Pre-Trial

If you don’t have a lawyer and you’re not sure about pleading guilty or going to trail, it might be a good idea to a pre‑trial in closed court (meaning only you, the judge and the Crown will be there).

This will give you a chance to discuss your concerns and issues with the judge (though, this isn’t the same judge that would be sitting at your trial).

There may be opportunities to resolve this case in other ways. (For example, doing community service or counselling as part of diversion. For more information, read our section on diversion.)

Plea and sentence

If you have decided to plead guilty, you will need to schedule your next appearance before a judge. For more information, read our section on guilty pleas.

If you have decided to plead not guilty, you move onto your trial date.

Trial

This is when a judge decides if you are guilty or innocent.

The Crown will first present evidence to try and prove that you are guilty of the charges.

You have a right to present evidence as well, but you also have a right to remain silent throughout your trial.

After hearing all of the evidence, either the judge or the jury has to decide if the Crown has proven you are guilty beyond a reasonable doubt.

This means that if the judge or the jury has any reasonable doubt that you did not commit the offence, then they have to find you not guilty.

Infographics

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