How a criminal case works in Ontario

The shape of a criminal case

Almost every criminal prosecution in Ontario follows the same sequence, whatever the charge. The timelines stretch or compress, but the stages don’t change.

Two things surprise people most. One is how little happens in court early on, since the first several appearances are purely administrative. The other is how much of the outcome is settled by disclosure, a stack of documents no client ever expects to become the centre of their own case.

Stage by stage

Hour 0 to 24

Arrest, questioning and release

Police may release you at the station on an undertaking, or hold you for a bail hearing. This is the window in which the most damaging evidence in the whole case, your own statement, usually gets taken. Say nothing and call counsel.

Day 1 to 3

Bail hearing

If you’re held, the hearing has to happen promptly. Preparation counts for a great deal here. Sureties, a plan of release, a proposal a justice can accept. Losing bail changes the shape of everything that follows.

Week 2 to 8

First appearance and disclosure

The first appearance is administrative. Nothing is decided and there’s no plea to enter. The Crown produces disclosure: police notes, statements, video, forensic reports. That material is the case, and everything afterwards is built on reading it properly.

Month 2 to 6

Crown pre-trial and judicial pre-trial

Counsel meets the Crown to test the case, explore resolution, and narrow the issues. A judge then convenes a judicial pre-trial to set the trial and identify the applications to be argued.

Month 4 to 12

Charter applications and motions

This is where applications to exclude evidence get filed and argued: unlawful search, defective warrant, arbitrary detention, breach of the right to counsel. A great many cases end here.

Month 8 to 24+

Trial

Crown witnesses are called and cross-examined. The defence may or may not call evidence. In the Superior Court a jury may decide. Homicide matters routinely run 2 years or more from charge to verdict, and that delay can work in your favour.

Summary versus indictable, and why it matters

Offences are prosecuted either summarily or by indictment; many are “hybrid,” meaning the Crown elects which route to take. That election drives almost everything: the maximum penalty, which court hears the matter, whether you can elect a jury, and how long the case will take.

On indictable matters you generally elect your mode of trial: judge alone in the Ontario Court of Justice, or judge alone or judge and jury in the Superior Court. That election is strategic rather than administrative, and it wants counsel who knows the local bench and the particular issues in your case.

Disclosure is the case

The Crown must disclose the relevant material in its possession: police notes, witness statements, video and audio, forensic reports, the Information to Obtain behind any warrant, and much else. Disclosure often arrives in instalments and is often incomplete.

Everything that follows is built on reading it. The Charter applications, the theory of the defence and the cross-examinations are all in that material somewhere. Where it’s missing, chasing it through third-party records applications and further-disclosure requests is itself a significant part of the work.

Resolution is not surrender

Most criminal charges in Canada don’t go to trial. Some are withdrawn. Some resolve to a lesser charge, a peace bond, or a diversion program that leaves no criminal record.

A resolution reached from a position of readiness looks nothing like one reached from exhaustion. When the Crown knows the defence has read the disclosure, has found the Charter issues in it, and is prepared to run the trial, the conversation changes. That’s the whole argument for retaining counsel early.

Our position on it’s simple. We’ll tell you when a resolution is the better result, and tell you just as plainly when it isn’t.

Delay can work for you

Section 11(b) of the Charter guarantees trial within a reasonable time, and the Supreme Court has set presumptive ceilings beyond which delay is presumed unreasonable. Where the ceiling is exceeded and the delay is not attributable to the defence, a stay of proceedings can follow.

It’s why you should be careful about agreeing to adjournments without advice. Delay is a resource in a criminal case, and it can be spent carelessly.