Being charged with a criminal offence can be a bewildering experience. During the first week, an accused person may go through a series of unfamiliar events. These can include being arrested, having release conditions imposed, appearing in court, consulting a lawyer, and eventually receiving disclosure of the evidence collected by police.
Some people may believe that the most important decisions in a criminal proceeding occur weeks or months later, once a trial begins. In reality, some of the most significant decisions affecting a criminal case are made during the early stages of the prosecution.
These initial stages can have an immediate effect on an accused person’s liberty. They may determine where the person can go, who they can communicate with, how evidence is preserved, and how a defence lawyer begins assessing the case. Ontario criminal proceedings also involve several stages before trial, including bail proceedings, disclosure, case management, and pre-trial procedures.
Important Decisions May Be Made Before Full Disclosure Is Available
An accused person may need to make important decisions before reviewing all of the evidence collected by police.
Police may gather witness statements, video footage, photographs, forensic reports, and other documentation. Much of this material will form part of the disclosure provided by the Crown. However, disclosure is an ongoing process, and additional material may become available after the accused person’s first court appearance.
For this reason, defence lawyers must begin gathering information while avoiding premature conclusions based on an incomplete record.
Gurasish Pal Sandhu is a criminal lawyer practising in the Greater Toronto Area with GPS Criminal Law Firm in Brampton. He frequently represents clients who initially have limited knowledge of what police allege occurred or how much evidence has been collected.
One of the first tasks of a defence lawyer is to distinguish between what an accused person says happened and what the prosecution may ultimately be able to prove through evidence.
This distinction is important because the Crown bears the burden of proving each element of the alleged offence beyond a reasonable doubt.
Release Conditions Can Affect Everyday Life
For many accused people, one of the first significant consequences of a criminal charge is not a trial or eventual conviction. It is the release conditions imposed on them.
A person who has been taken into custody may be released subject to conditions concerning contact with certain individuals, attendance at particular locations, or other conduct. If an accused person is held for a bail hearing, the court will determine whether they should be released pending trial and, if so, what conditions should apply.
These conditions can affect daily life immediately. They may interfere with an accused person’s ability to attend work, meet family obligations, remain in their home, travel, or communicate with certain people.
Understanding the wording of a release order is therefore important from the beginning.
Manbir Nirwal is a criminal defence lawyer and founder of Nirwal Law in Brampton. His practice includes trials and appeals, as well as matters involving bail hearings, assault, motor vehicle offences, drug offences, and weapons-related charges.
A release condition should not be treated as a suggestion. Failing to comply with a condition can result in an additional criminal charge while the original allegation remains unresolved.
Where release conditions create serious practical difficulties, it is generally better to explore lawful options for addressing those conditions than to disregard them.
Communication About the Allegation Can Affect the Case
Another important issue concerns what an accused person says after an alleged incident.
The Canadian Charter of Rights and Freedoms protects the right of a person who has been arrested or detained to retain and instruct counsel without delay and to be informed of that right.
Despite this protection, an accused person may still feel compelled to explain the allegations immediately.
There are several reasons why doing so can create problems:
- The accused may not know what evidence police have collected.
- The accused may not understand how their explanation could be interpreted or used.
- Legal issues may emerge later in the proceeding that were not apparent at the outset.
Similar concerns can arise when communicating with other people. Text messages, social media posts, emails, and communications with potential witnesses may become relevant depending on the nature of the allegations.
For this reason, responding publicly to accusations before understanding the evidence can create unnecessary complications. It may be more prudent to first obtain information about the allegations and the evidence supporting them.
Disclosure Can Change How the Alleged Events Are Understood
Once disclosure is received, defence counsel can begin reviewing the evidence collected by police in relation to the alleged offence.
Disclosure may include police notes, witness statements, video or audio recordings, photographs, forensic reports, and statements attributed to the accused. The Crown generally has a duty to provide relevant information in its possession or control, subject to certain exceptions such as privileged material.
Although disclosure is an ongoing process, it gives defence counsel an opportunity to compare the allegations with the evidence that has actually been gathered.
During this stage, several issues may become apparent, including:
- inconsistencies between witness accounts;
- video or audio recordings that provide additional context;
- timelines that conflict with objective records; or
- evidence that is stronger or more extensive than the accused initially expected.
Ahmad Karzai is a criminal defence lawyer whose firm, Karzai Law, serves clients throughout Brampton and the Greater Toronto Area. Mr. Karzai represents individuals charged with offences ranging from impaired driving and domestic violence-related offences to drug offences, firearm offences, and other serious criminal matters. His practice also includes trials and appeals.
Reviewing disclosure involves far more than simply reading a police summary. Defence counsel must consider each piece of evidence individually and then assess how the evidence fits together as a whole.
Evidence Outside the Police File May Also Be Relevant
Disclosure is fundamental to understanding the evidence collected by police, but it can also raise questions about evidence that was never obtained.
For example:
- A surveillance camera may have captured an incident from a different angle.
- A witness mentioned in a police statement may never have been interviewed.
- Additional messages may provide context to communications already included in disclosure.
These examples do not mean that every criminal case requires an independent investigation. They do, however, illustrate why early review can be valuable.
If potentially relevant evidence is identified quickly, there may be an opportunity to preserve it before it disappears.
Surveillance systems may overwrite existing footage. People replace or dispose of phones. Social media content can be deleted. Human memories can also become less reliable as time passes.
Timely action can therefore be particularly important when defence counsel identifies gaps in the available evidence.
Criminal Cases Usually Involve Several Stages
Many people think of a criminal proceeding primarily in terms of the trial. In practice, numerous important events occur long before an accused person enters a trial courtroom.
An accused person may first need to deal with release conditions. They may then receive disclosure, attend court appearances, participate in discussions with the Crown, take part in pre-trial proceedings, and make decisions about how the case should proceed.
These early stages can shape how the case develops and, in some circumstances, how it is ultimately resolved. For that reason, understanding the allegations, the evidence, and the conditions imposed on the accused from the outset can be an important part of the criminal defence process.
