Process - David Hodson, Criminal Defence Lawyer

David Hodson Criminal Defence Law

Right to silence

Canadians enjoy the right to silence, such that they do not have to answer questions or give a statement to the police after being arrested, or during a criminal investigation. More importantly, "a healthy suspicion of the law demands the right to silence".

Most people have watched American movies or television shows in which the arresting police officer handcuffs a suspect and tells him or her that he or she has the right to remain silent, but if they give up the right, anything they say can and will be used against them in a court of law. As well, the suspect is advised of his or her right to speak to an attorney. In the USA, these are called Miranda Rights. We have similar rights in Canada, but we call them Charter Rights - embodied in The Canadian Charter of Rights and Freedoms. Respecting these rights can often mean the difference between an acquittal (not guilty) or a conviction and jail.

With respect and courtesy, "I have nothing to say on the advice of counsel" is the recommended response when the police ask a suspect or accused to answer questions or give a statement. That said, the police may continue to seek information, but it is important to remain firm and keep repeating the recommended response. As an aside, knowing that most interviews with the police are recorded, one client looked up into the camera and said, "Your Honour, how many times do I have to tell this officer that I have nothing to say?" Needless to state, the questioning stopped and all who watched the recording had a chuckle.

The courtroom process

After you've been charged, you will have a first court appearance. You will receive disclosure at the first court appearance. Disclosure is a summary of the facts and evidence that the Crown Attorney, or government, will rely upon. For example, you receive copies of police notes, witness statements and other material. In poker terms, think of disclosure as an opportunity to see the cards of the others players BEFORE you decide to bet or fold. As well, you'll have some idea of the penalty or sentence sought by The Crown Attorney should you plead or be found guilty.

If you haven't hired a lawyer, there will be Duty Counsel to assist you in court. There usually isn't a fee for this service if you meet the financial criteria. In fact, for minor offences, you may be able to resolve without the need to hire a lawyer. Regardless, the court will grant you a 3-4 week adjournment to review disclosure, consider your options and, if necessary, hire a lawyer.

After the first court appearance, your matter will unfold depending upon the circumstances. As you might expect, the more complicated the facts, the longer the court process will take. Although in general there are many scenarios, these can be summarized as follows:

  • Your lawyer will work with the Crown Attorney to have the charge(s) withdrawn or diverted;
  • There will be a plea bargain involving a guilty plea to the actual or reduced charge(s);
  • The matter will proceed to trial.

Should I defend myself?

Some people ask if it is possible to represent themselves. The short answer is, yes, but it is not recommended. There is a saying such that "Anyone who represents themselves has a fool for a client". Never a good idea.

How long will the court process take?

People reasonably wonder how long the court process is expected to take. Again, it depends upon the facts and circumstances, but a fair and reasonable result takes time. There is seldom an advantage to rushing through the process, as mistakes can be made, defences missed and facts not understood. Patience is a virtue in court.